The Berks Barrister 2016 Spring

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Two Week Visit

Inspires Passion For Australia and its People

Deprivation of Education Rights:

An Inn’s Take on Vergara v. State of California

Spring 2016 | 01

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SPRING 2016

Content for Spring 2016

BOARD OF DIRECTORS

JILL GEHMAN KOESTEL, President KURT ALTHOUSE, President-Elect LISA A. SICILIANO, Secretary

Cover Story:

JUSTIN D. BODOR, Treasurer GEORGE A. GONZALEZ, Director

Earns High Grades, 7 Australia Except for Its Orifice-Seeking Flies

PETER F. SCHUCHMAN, Director MARY KAY BERNOSKY, Director MICHAEL A. SETLEY, Director DAWN M. L. PALANGE, Director DANIEL C. NEVINS, Director JESSE L. PLEET, Immediate Past President CHRISTIN L. KOCHEL, President YLS

BAR ASSOCIATION STAFF

Features:

DONALD F. SMITH, JR., ESQUIRE, Executive Director ANDREA J. STAMM, Lawyer Referral/Secretary KAREN A. LOEPER, Law Journal Secretary PAULA J. ZIEGLER, Communications Manager RAINY LEONOR-LAKE, Community Outreach Coordinator ROARKE ASTON, Law Journal Editor BRITT KOBULARCIK, Bookkeeper/Events Coordinator MATTHEW M. MAYER, Barrister Editor

Please submit materials or comments to: Berks County Bar Association 544 Court Street, P.O. Box 1058 Reading, PA 19603-1058 Phone: 610.375.4591 Fax: 610.373.0256 Email: berksbar@berskbar.org www.berksbar.org

Thank You

18

Deprivation of Education Rights: An Inn’s Take on Vergara v. State of California Bench-Bar Conference And Spring Meeting

29

Fair Weather

32

A Super Legal Spirits Happy Hour

34

March Madness Was Mad With Upsets!

35

Our thanks are extended to the numerous people who have contributed to The Berks Barrister.

Your time, energy and efforts are sincerely appreciated.

B Y

It is Being Called Expungement But is Really Limited Access, Maybe

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JOHN E. REIGLE, Law Journal Assistant Editor

P U B L I S H E D

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March Madness 1950 Opening Night of Jazz Fest

Departments: 4

President’s Message

14 Technology - Frankly Speaking Reading, PA | 610.685.0914 x201 hoffmannpublishing.com For advertising information contact Tracy Hoffmann at tracy@hoffmannpublishing.com

30 Miscellaneous Docket 31 Restaurant Review

17 Spotlight on New Members 26 Book Review Spring 2016 | 3

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President’s Message

We are Superheroes, After All!

Jill Gehman Koestel, Esquire, 2016 President

The stars of Legal Spirits Happy Hour (L-R): Kelsey Frankowski, Mike Wieder, Sara Clipp, Mike Cammarano, Susanna Fultz, Julie Marburger, Past President Jill Scheidt and Secretary Lisa Siciliano

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If you did not make it to the Legal Spirits after work blow-out, you missed a very fun evening! The event had a super hero theme. After all, as lawyers we truly are society’s superheroes. That fantasy was played out in spades by Rose from Bravo Catering with the awesome decorations and the selection of hors doeuvres offered for our enjoyment; such as, Penguin party dip, Hero sandwiches, Bat wings, Robin’s deviled eggs and Wonderdogs, just to name a few. There was a fabulous bartender dressed as Batman serving Kryptonite jello shots. Beer, wine and other beverages were also available for the enjoyment of our members. A few of our young’uns and a couple of seasoned lawyers really got into the spirit by dressing as cartoon super heroes.

I almost expected Stan Lee to appear and wisk Sara Clipp away to create a new character of Spider-Woman to join Spider-Man. After all, what is to stop Mary Jane from developing similar super powers to Peter’s? Interesting concept, Sara! Then there were seasoned lawyers like Jill Scheidt (a fabulous Wonder Woman) and Lisa Siciliano, in a less elaborate super hero cape but still in the spirit, also adding pizazz to an already super party. Don’t miss these events, my friends!

They are really SUPER even without super heroes attending.

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On March 17, our association hosted a March Madness party at Third and Spruce in West Reading. I was there early for lunch and enjoyed chatting with Susan Denaro and Deborah Sottosanti.

Ironically, Deb’s husband, Carl Sottosanti, chief legal counsel for Penn National Gaming, is a Villanova law school grad. Her daughters are students at Villanova and were in Louisville to watch Villanova in its first game of the tournament. None of us suspected that the Sottosantis’ alma mater would go all the way! In fact, Deb and I were discussing the possibility of my son’s alma mater, Michigan State, taking the title, and Susan was rooting for Indiana University. Little did we know that MSU would be defeated in its first round and IU shortly thereafter while Villanova would go on and on and on. It was a fun couple of hours and gave me a connection to Villanova I would not have had otherwise. Because of that interaction, I was excited for Villanova since I knew my friend Deb and her whole family were rooting them on.

This is the type of experience we are offered by our Bar Association. Our relationships are enhanced by these opportunities to interact and discuss our lives outside of the practice of law. It connects us to colleagues in ways that make the practice of law more pleasurable and less contentious. Forty-six members made their way to the Spruce during the day and my guess is that everyone there had interesting conversations with colleagues and made a connection that they would not have made otherwise. If you don’t take advantage of this event and others like it, you are missing a wonderful opportunity to get excited about a national sporting event (which I wouldn’t have been without my talk with Deb!) and interact with friends, old and new.

In addition to our association offering great experiences to our members, it also sponsors educational events at local colleges. In March, Judge Lash led a panel at Alvernia University discussing education in juvenile detention facilities. Serving as moderator, I was interested to learn the views of an administrator from the

President Koestel moderating the 2016 Batdorf Lecture on education in juvenile detention centers with Judge Lash, a former detainee and a lawyer from the Education Law Center.

At the Conference of County Bar Leaders, President Koestel accepted a County Recognition Award for our workshops in the Latino community. With her (L-R) are PBA President William Pugh, V,CCBL President Joseph Curcillo, III and PBA President-Elect Sara Austin

Continued on page 6

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We are Superheroes, After All! Continued from page 5

Education Law Center in Philadelphia as well as a former juvenile who was placed in a center as a young teen. Judge Lash added the prospective from the juvenile criminal bench and from his knowledge of our local system. The discussion was attended by several bar members and Alvernia staff and students. On April 4, our association collaborated with Albright College to present a lecture by Caroline Fredrickson, President of the American Constitution Society. She provided an interesting outlook about the systematic oppression of female and minority workers in our country. Approximately 100 people were in attendance as this event was offered to Albright students as one of their required experience events.

Members of the Bar Association were invited to a dinner and reception prior to the lecture and we enjoyed an excellent dinner filled with academic conversation that was stimulating and thought provoking. Our illustrious leader, Don Smith, accompanied Ms. Fredrickson to WEEU the next morning for a session on Feedback with Mike Faust to provide all of Berks County the opportunity to interact with her. These are experiences that our Bar provides not only to our members but to Berks County as a whole in an attempt to enhance our community’s ability to obtain meaningful information and engage in important conversations.

On April 6, our first naturalization ceremony of 2016 occurred. This year the Bar Association with the cooperation of the Bench, the Prothonotary and other Government officials has added an extra naturalization service to increase the availability for new citizens to ceremonially obtain citizenship in front of relatives and friends. Twenty-eight members of our community became brand new American citizens with Judge Fudeman presiding. The ceremony was very impactful. Dr. Khalid Mumin, the Superintendent of the Reading School District, provided insightful and very uplifting remarks to the new citizens. One could not help but be moved by this wonderful event. Marge Collins and Andy Fick organize this program and do a fabulous job of obtaining speakers,

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The Executive Director with the BCBA Lecture Series speaker Caroline Fredrickson

clergy and other participants. Our own David Richie and his wife Dail provided vocal entertainment that was superb.

The Bar Association sponsored a reception after the ceremony to welcome our new Americans into our community. Our association proudly provides this program to our community and believes strongly that this opportunity provided to new citizens makes the culmination of their naturalization process even more meaningful.

April provides other events for our association that have not yet occurred as I am writing this column. Alan Miller’s memorial service will be held on April 8 providing all of us the opportunity to say goodbye to a prominent member of our legal community who left us much too soon. Ned Ehrlich will be traveling from his home in Virginia to join us and pay tribute to his childhood friend. These services, though very somber, provide members the chance to honor our departed brethren and obtain closure for our loss. Attendance at these services has declined drastically over the years, and I would love to see younger members who may not even have known the deceased attend these services as a sign of respect for those who have come before them. April wraps up with the Bench Bar Conference, the highlight of our year. I expect that the conference at the Doubletree will be well attended and beautifully presented by the committee and the staff at the Doubletree where every event is made special by their exemplary service. We certainly have an array of interesting seminars where each of you can obtain the dreaded CLEs required to maintain your licenses.

My consistent message to all of you this year is to participate, participate, participate! Our association provides many different events and opportunities for our membership to interact, learn and contribute. Take advantage of each and every one of these experiences and I guarantee you will not only evolve into better lawyers, you will become better human beings. And to top it all off, you will have FUN!

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Australia Earns High Grades, Except for Its Orifice-Seeking Flies

By John J. Speicher, Esquire

Uluru, the sacred plateau of the Aboriginal people

In November of 2015 my wife, Patricia Giles, and I were lucky enough to spend a month in Australia and New Zealand through an organization called Overseas Adventure Travel, “OAT” for short. We went with a group that included fellow Berks Countians David and Joanie Naugle and Law Foundation Trustee Franki Aiken. All in, we had thirteen people in the Australian portion of the trip, all of whom had traveled with us for three weeks in Patagonia two years earlier.

What is so unique about OAT is that we have a guide travel with us throughout the trip who arranges virtually every aspect of each day. While that is not unusual, OAT combines travel with education of the culture and history of the country and its people. We have lectures from locals on controversial subjects and spend time with citizens of the country learning their own take on issues that are important to them. Americans, in general, are lacking in any real understanding of so much of the rest of the world. While we have an image of Australia from television and movies, few have even a basic knowledge of what life is like in this country which is about the same size as the continental United States.

In Australia, our guide was

a delightful upper middle class, middle aged woman, who had many years of experience as a guide in Europe and then back in her native Australia. She has a passion for current events and loved getting into discussions about both Australian and American politics. From the beginning, she made it clear that we were going to learn the good, the bad and the ugly history of Australia’s white population’s racism directed toward the Aboriginal people. Similar to our country’s racist past and present, Australia struggles with the prejudice of its white population toward the Aboriginal people who have lived in Australia for thousands of years.

Throughout most of the twentieth century Australia had a policy of removing children from Aboriginal families and placing them with white families. Often this was done with no notice or standing to contest the government’s actions. The Aboriginal people had virtually no rights and were not even considered humans to many, both in and out of the Australian government and society as a whole. The DNA of the Aboriginal people is such that their black traits are recessive and will be wiped out when bred with whites. The goal of the Continued on page 8

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Australia Earns High Grades, Except for Its Orifice-Seeking Files Continued from page 7

Sydney and its harbor front Opera House

government, in part, was to save the children from their own culture and ultimately integrate them into the white world where, within a generation, their offspring would be white.

It has really only been in the last thirty to forty years that the white culture has begun to deal with its racist policies and begun to accept the Aboriginal culture as a legitimate part of Australia.

Almost all of Australia’s white population lives along its coasts in cities such as Perth, Melbourne and Sydney. The vast middle of the country is the harsh desert we all know as the Outback.

It is in the Outback where the vast majority of Aboriginal people live but few whites live. Our trip started in Melbourne (pronounced “Melbin”) on November 4, 2015.

Melbourne and Adelaide Each Earn an “A” Melbourne has a charm that you normally don’t feel in a city its size. In the heart of the city, woven between the large bustling streets, are narrow alleys filled with restaurants, bars and boutique shops. The food culture reflects Australia’s proximity to Asia with scores of Japanese, Chinese and other Asian restaurants.

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Italian restaurants also thrive there. But at the heart of its food culture is the Australian’s love of meat, especially beef and lamb.

Melbourne’s architecture successfully blends the old with the new as fast growing neighborhoods expand the city’s footprint seemingly in all directions.

While in Melbourne, we ventured into the countryside and “stalked” wild kangaroos. It probably was not until I saw kangaroos hopping around in the wild that I really knew I was in Australia. You just don’t see that in America. At a wildlife preserve, we saw more of the indigenous animals including a few koalas, a Tasmanian devil and, of course, a dingo. Later that evening, I ate kangaroo for the first time. It was not the last time I would do so. Like buffalo, the meat is lean and tastes similar to beef.

As is the case with the other cities in the country, Melbourne’s real charms are enhanced by its harbors, bays and inlets.

Australians love to be outside enjoying sports, food, music, and of course alcohol. The beautiful waterfronts provide great opportunities to engage in these activities. I think Melbourne would be a great place to live. If I were grading, Melbourne would get an “A”.

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Our next stop on the trip was to fly along the southern coast to Adelaide, a much smaller city with much less to offer in the way of a cosmopolitan feel. While there, we had the opportunity to split up and have dinner with locals. Pat and I were lucky to have a great hostess who has travelled the world, including coming to the U.S., and was anxious to engage us in political discussion including her shock that some Americans could be insane enough to support Donald Trump for President. By the way, no one we met in either Australia or New Zealand could believe that Trump was a serious candidate and virtually everyone was wondering if Americans had lost their minds. While they tried to laugh about it, you could sense a real concern about the direction our country is going.

Adelaide is close to the large wine producing region of Australia for Shiraz wine. So on a free day, while most of our friends went hiking and some toured one winery, Pat and I went on a wine tasting marathon, going to four small local wineries that sadly don’t export to the United States. Although the wines were, by and large, very good, by the end of the third tasting, I was done in.

I didn’t want to look at another glass of wine. Being the courageous tourist that I am, however, I struggled through the last tasting and managed to get back to the bus for a well-earned nap. I determined that visiting four wineries is probably just too much for one day. In the future, I will try to be more restrained and maybe limit the tastings to two or three wineries in one day. By the way, if you have the opportunity to try sparkling Shiraz, I highly recommend that you do so. It apparently is unique to Australia and just fantastic. I grade Adelaide a “B”, but Australian Shiraz an “A”.

The Outback and Orifice-Seeking Flies Our next stop was to fly to Alice Springs in the Outback. This vast desert is both beautiful and harsh. It is inhabited by lizards, the most poisonous snakes in the world, and flies so thick in areas that you have to wear a net over your face to avoid having those buggers crawl into your mouth, nose and eyes. It is also home to over a million feral camels. Yes, Australia has feral camels, the offspring of the camels that were used to explore the Outback in the late 19th and early 20th centuries. I had the misfortune to ride a camel and can only warn all men to do so with extreme caution. The ride is not fun and can be quite painful. Watch a video of a camel’s motion and you’ll figure it out.

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While in the Outback we got to meet members of the Indigenous people of Australia (the Aboriginal people). We learned more than I could write in this article. Their history is sad and tragic as it relates to the treatment they’ve been subjected to since White settlers moved into Australian a few hundred years ago. The cruelty of the White race toward these people has a long history which is slowly improving. Race relations, however, have a long way to go in Australia. Many of the Continued on page 10

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Australia Earns High Grades, Except for Its Orifice-Seeking Files Continued from page 9 Aboriginal people just seemed to wander around in the small towns. Some were selling their artwork to tourists, but many just seemed to be hanging around. Those that were working in the towns were predominantly working as guides at wildlife centers where their knowledge and love of the land is a natural fit. We saw (and bought) the beautiful artwork that they make, especially their incredible paintings. But you can’t help but see their continuing struggles to co-exist with the rest of society which has so little in common with their way of life.

During one of our stops we went to a ranch and spent time with the family who owns hundreds of acres of this harsh landscape. I thought that living in Kansas would be hard with its seemingly mile after mile of farm land. You don’t know vast emptiness until you see an Outback ranch. You can go days/weeks and see no one other than your family. Add to that desolation, an average daytime temperature over

100 degrees, red dust everywhere and the orifice-seeking flies, and life could seem pretty awful. It is certainly not a life I would ever voluntarily choose. Medical care is provided by doctors and physician assistants traveling by small plane to remote regions of the country. Without this service many people would never receive medical treatment.

We ended our Outback experience hiking at the Aboriginal people’s sacred plateau, Uluru, the gigantic red rock rising hundreds of feet out of the desert. It is hot and harsh and aweinspiring, especially at sunrise and sunset. But even at those times the flies are waiting for those ill-equipped non-net wearing tourists to pay a visit into their noses and mouths.

Leaving Uluru meant also leaving any signs of Aboriginal people. I give the Outback an “A”, but I give those damned flies a fucking “F”, excuse the profanity.

Delicious sparkling Shiraz

The North Coast

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Great Barrier Reef and then to Sydney Going north, we went to Cairns; pronounce Cannes, and the Great Barrier Reef. What a transition, from desert to lush tropical forests and the most beautiful reef I’ve ever snorkeled at. But as beautiful as the setting was, we were warned not to spend time on the beaches, and certainly not to fall asleep there. Twenty foot long salt water crocodiles await those who fail to pay attention especially near river and stream outlets at the ocean. Brave beach goers on the north coast have to avoid sharks, deadly jellyfish that thrive along the northern beaches and giant crocodiles swimming in the ocean. So while the reef is beautiful beyond belief and the beaches are equally stunning, in the northern part of Australia, the shoreline is often sparsely inhabited because of these dangers. The Great Barrier Reef region gets a solid “A”.

All too soon, we were off to Sydney for the last leg of our two weeks in Australia, before heading to New Zealand.

Prior to going to Sydney, I didn’t think that any city could top Melbourne. I’m not sure I liked Sydney better, but I was certainly blown away by its beautiful waterfront. No city I’ve ever visited could top Sydney with its bays and inlets providing a quality of life that is beyond compare.

Hiking trails in the hills above the bays offer day trips with breaks provided by paths down to lovely beaches. Sailboats continuously taunt you with a life you could only dream of.

Ferry boats provide easy access to the towns and harbors in close proximity to Sydney. And then there’s the iconic Opera House; the most amazing man-made structure along this famed harbor. The only negative was the high cost of living. But that is caused in large part by so many people wanting to live there. The demand simply drives up prices. Sydney gets a resounding “A”.

Passion for Australia and its People This article fails to capture my passion for Australia and its people. With a tragic outcome in

the upcoming Presidential election in this country, I could easily move there. Americans seem to have a need to think that we are the best and other cultures pale in comparison. Such views reflect our ignorance of other cultures; an ignorance that normally isn’t reciprocal. Australia isn’t perfect by a long shot. Its racist past still haunts its present. Its strict immigration policy keeps its door closed to all but a select few.

Yet the country has a spirit and vitality that I seldom feel here. Their minimum wage is $17.00 per hour and because of that, tipping is virtually unknown and all workers seem to have a decent income. Melbourne has a free inner-city transit system.

Universal healthcare is provided to its citizens. Parks and open spaces are everywhere. Their infrastructure is well maintained.

Their cities just seem to shine. Overall, their quality of life seems to be so much higher than here.

If you are reluctant to travel there because of the long flight time, please put that reluctance aside and do it.

You won’t be sorry.

John J. Speicher, Esquire, Past President of the Berks County Bar Association, is a shareholder with Leisawitz Heller, where he considers himself “an ol’ country lawyer trying to help the common folk survive another day.”

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It is Being Called Expungement But is Really Limited Access, Maybe

By Jill M. Scheidt, Esquire On February 16, 2016, Governor Tom Wolf signed Senate Bill 166 into law which allows individuals convicted of a variety of misdemeanor offenses to have their records sealed.

Although this new Act is being characterized as an expansion of the expungement laws and procedure currently in place, it is not an expungement and it will be handled differently from an administrative perspective than the current expungement laws.

A court can grant an Order for Limited Access which seals the conviction from public view. How it is handled and the effects remain to be seen as the effective date is November 2016.

Senate Bill 166 was sponsored by Montgomery County Republican and attorney, Senator Stewart Greenleaf. In effect, the law will allow those defendants convicted of second and third degree misdemeanors to have their records sealed from public view provided they have not been convicted of any other offense within a ten-year period thereafter. The passing of this law is a significant step, since the most recent amendment to the expungement laws was passed in 2008 which only allowed for the expungement of summary convictions provided the Defendant was free of arrest or prosecution for five years thereafter.

One of the reasons that this law and other expungement laws have been touted and passed is that the Pennsylvania Board of Pardons and Parole is inundated and cannot process the vast number of requests for pardons it receives.

Approximately one in three American adults has a criminal record, and in Pennsylvania at least, a conviction stays on a defendant’s criminal record for life unless the defendant is able to have it expunged or obtains a pardon from the Governor. Senator Greenleaf has been advocating for changes 12 | Berks Barrister

to these laws for many years. He has described the issue as “a political wedge issue.” He has said, “It’s not in our statute to pay a price like this for the rest of their lives” when referring to the many collateral consequences that flow from a criminal conviction as they relate to ex-offenders having difficulty obtaining employment and housing. District Attorney John Adams also had a very positive response to this new law, saying, “It’s great. Myself along with district attorneys across the state are extremely supportive of this bill.” District Attorney Adams believes this is another step in helping people who have turned their lives around and he would like to see the list of offenses which can be sealed expanded to include misdemeanors of the first degree and maybe some felonies of the third degree. He believes society will be protected as “people will have had to change their behaviors” before obtaining an Order for Limited Access.

In fact, a bipartisan group of state legislatures announced on April 13, 2016 identical, competing bills in the State House and Senate known as SB 1197 and HB 1984. The proposed bills would require the automatic sealing of criminal records for those who are convicted of minor, non-violent misdemeanor offenses, if they stay out of trouble. SB 1197 and HB 1984 would still allow criminal records to be accessible by law enforcement but seal them from the public.

This would also include juvenile adjudications for misdemeanors which are the equivalent of convictions in adult court. There are two dozen co-sponsors. Many legislators are optimistic about the passage of one of these bills and Governor Wolf has indicated his support as it is a “common sense, positive and unprecedented step to help Pennsylvanians with minor or dated criminal records an

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opportunity to have them sealed.�

A review of Senate Bill 166 begs several questions. The onus will be on the defendant to petition the court in the county in which the conviction occurred ten years following conviction or final release from confinement or supervision, whichever is later. There shall be a $132 filing fee for the petition for order for limited access and expungements. The convictions which can be sealed are misdemeanors of the second degree, misdemeanors of the third degree, and ungraded misdemeanors. After a hearing is held, and provided the Court of Common Pleas judge enters the order, the conviction information can only be disseminated to a criminal justice agency or a government agency. There are nine exceptions to the statute: a defendant with four or more offenses, a simple assault conviction (unless it is an M3), conviction for sexual intercourse with an animal, conviction for impersonating a public servant, a conviction for intimidation of a witness or victim, conviction for retaliation against witness, victim or party, conviction for intimidation, retaliation or obstruction in child abuse cases, and any conviction carrying a registration as a sex offender are charges that cannot be sealed.

If an Order for Limited Access is granted by the court, the notice of that order shall be submitted to a central repository which shall notify criminal justice agencies which are holding criminal history record information relating to that defendant that access to that criminal history record has been limited by the Order for Limited Access. The logistics of how this will be managed need to be determined.

Of significance is the $132 filing fee. Prior to Senate Bill 166, there was no statewide filing fee. Rather, the counties set their own and Berks’ fee is much smaller. It is unclear whether this fee is per person or per petition. The bill is also silent as to whether or not a defendant can file an IFP petition to have the costs waived. I anticipate litigation over this issue.

The effects of the sealing of the records is intended to make them available for law enforcement purposes only and to disallow public view. The records can also be used for state licensing purposes. Of continued debate is whether or not a defendant who has obtained an Order for Limited Access still has to disclose the conviction when asked on a job application. As there has not been an expungement, I believe that this remains a thorny issue. One must be truthful on a job application. I also wonder how effective the sealing will actually be given how many moving parts exist once a conviction is entered and Defendants have no way of knowing that the Orders will be honored. In other words, how does a Defendant monitor who is looking at the records? And, of course, these orders, just like expungement orders, do not act to seal newspaper articles or information on the internet. As we know, the internet never forgets. Time will tell if this law, like so many, produces the desired outcome.

Jill M. Scheidt, Esquire, is a shareholder at Masano u Bradley where her practice includes family law as well as criminal defense.

She is a Past President of the Berks County Bar Association and currently serves on the Board of Governors of the Pennsylvania Bar Association.

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TECHNOLOGY FRANKLY SPEAKING

Apps for Lawyers – the Apple List

By Jeffrey A. Franklin, Esquire

Most lawyers today carry iPhones and/or iPads. I am part of that majority as my day-to-day phone and tablet are Apple devices, but I also keep an Android phone and tablet around for special purposes and experimentation.

Often lawyers ask me about an app for this or an app for that. Below is a list of some of the apps I use on a frequent basis and some that other attorneys have recommended as well.

In the electronic version of this article I have included links for many apps available in the Apple App Store and also for select App reviews on one of my favorite sites, iPhone J.D. by Jeff Richardson.

Do you have a favorite app not on the list? Can you help with my upcoming Android Apps for Lawyers list? Drop me an e-mail at JFranklin@BrightLineTechSolutions.com.

Security • • • • • • •

Foremost, don’t jail break your iPhone or iPad that you use for work. Just don’t do it.

Keep your iOS software up to date.

Add a PIN code and/or fingerprint (that will enable device encryption)

1Password (password manager, free, but $9.99 for all features): Cloak (Super Simple VPN, free, but service starts at $2.99/month):

Lookout (better on Android, free, but $29.99/year for premium features): Authy (two factor authentication, free):

14 | Berks Barrister

•

Google and many other providers also offer two factor authentication free

Legal • • • • • • • • •

PAeDocket (legal search, free): Nolo Law Dictionary (free): Fastcase (legal search, free):

LawStack (Federal rules, free): iJuror ($19.99):

Picture it Settled (free): DkT (free):

FedCtRecords ($9.99):

Rulebook (free, but purchase rules inside of app):

•

Wolfram Lawyer’s Professional Assistant ($4.99):

•

CaseManager ($19.99):

• • • • •

Clio (law practice management, free trial http://goo.gl/7fnc9l): TranscriptPad ($89.99):

Lexis Advance (free with service) ABA Journal (free):

Pennsylvania Bar Association Events (free):

Yourkavitch Berks Barrister_Layout 1 4/18/16 11:39 AM Page 1

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• •

Berks County Bar Association (free, save link to www.BerksBar.org – arrow > Add to Home Screen) Berks County Sheriff (free):

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Pictures and Video • • • • • •

Google Photos (free):

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Carousel by Dropbox (free): Horizon (free):

Timeline 3D ($9.99): iStopMotion ($9.99):

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Apple’s Notes (free and recently improved in iOS 9) Drafts 4 ($9.99):

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Microsoft Word (free, but $99.99/year for Office 365): Vesper ($9.99):

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Continued on page 16

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Apps for Lawyers

TECHNOLOGY FRANKLY SPEAKING Continued from page 15 • •

•

Weather Line ($2.99):

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WunderStation (free):

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News Readers • •

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BaconReader for Reddit (free):

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Overcast (free, but $4.99 for all features):

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Exit Strategy NYC Subway Map ($3.99):

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Fantastical ($3.99):

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CalcBot (free, but $1.99 for pro features):

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• • • • •

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Reminders

Workflow ($2.99):

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IF by IFTTT (free):

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Launch Center Pro ($4.99):

Services

Travel •

iExit Interstate Exit Guide (free):

Calendars

Podcasts •

511PA (travel advisories, free):

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Apple Maps (directions, better than it used to be, free):

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Google Voice (free phone service in U.S.):

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•

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Amazon Music with Prime Music (free):

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Pandora (music, free):

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Apple Music (music, $10 to $15 per month, free trial)

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Sirius/XM (music, free app requires service subscription):

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Reading Eagle Rewards (discounts with newspaper subscription):

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Skype (phone and video service, free and paid options):

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Apple News (enhanced in iOS 9, free)

Texting •

Apple Messages (free)

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Stick Texting ($1.99):

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Bitmoji Keyboard (free):

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3D Animated Emoji PRO + Emoticons ($0.99):

Dictation •

Apple Voice Memos (free)

•

BigHand (paid versions):

•

Phillips Dictation Recorder (paid versions):

•

Dragon Dictation (dictation for free): I hope you find some of these leads useful in your practice.

Remember to share some of your favorite iOS and Android apps with me!

Jeffrey A. Franklin, Esquire, is chair of the BCBA’s Technology Committee, practices law with Prince Law Offices, P.C. and is a principal of Brightline Tech Solutions, LLC.

Spotlight on New Members

By Donald F. Smith, Jr., Esquire

Michael Chabitnoy is a staff attorney with MidPenn Legal Services. Before college he spent four years in the United States Marine Corps infantry, being honorably discharged in 2006 at the rank of Sergeant and having been deployed to Afghanistan and Iraq. Michael then graduated from Lebanon Valley College and the Dickinson School of Law (Historic campus). He and his wife Shannon have a daughter, Zoe Elizabeth, born on September 29, 2015. Michael enjoys spending time with his family as well as working out, shooting and reading.

A new corporate associate at Stevens & Lee, P.C. is Stephanie R. Hager, who is a graduate of Allegheny College, Washington & Lee University ( J.D.) and University College London (LL.M.). Her work experience includes having been a clerk for a Member of the United Kingdom’s Parliament and a law clerk for the William Crockett Chambers of Melbourne, Australia. At Stevens & Lee her area of practice is financial institutions, bank regulatory and securities compliance.

Stephanie’s hobbies are traveling, reading and spending time with her dachshund, Woodford.

After Karissa Rodriguez graduated from Kutztown University, she worked during the summer of 2008 at Enersys, Inc. as a paralegal and then for over two years as a Pretrial Officer for Berks County Pretrial Services. Thereafter, she entered Temple University Beasley School of Law, graduating in 2015 with a J.D. and a certificate in trial advocacy. Karissa is now a Berks County Assistant District Attorney and spends her free time baking with her nine-year-old daughter, Jasilyn, or event planning and volunteering.

Spring 2016 | 17

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Deprivation of Education Rights:

An Inn’s Take on Vergara v.________ State of California

By Pamela A. DeMartino, Esquire

Scene One: In a classroom minutes after the dismissal bell.

Miranda Marvelous, a young, newly-hired teacher, is sitting at her desk with a mound of students’ papers in front of her. She has books stacked on her desk, charts laid out on the floor. She’s busy reading when another teacher, Alfred Caphoney, pops his head into her room.

CAPHONEY: Hey Miranda are ya coming with us to the gym?

MIRANDA MARVELOUS: Nah, I can’t. I have to get these essays graded and back to my students. I’ve been working on them for two weeks now.

CAPHONEY: Oh my God, you assigned an essay? What, did a principal observe you or something?

MIRANDA MARVELOUS: No not at all. We just finished our unit on Poe and I asked my students to choose one of his stories and analyze his use of mood.

CAPHONEY: His mood was wacked out – choice C on the multiple choice test I give my kids at the end of my unit. You should have asked me for it. It could have saved you all this time.

MIRANDA MARVELOUS: Oh thanks for the offer, but I don’t think a multiple choice test would have given me the same type of feedback. I mean, it’s one thing to choose a mood from a list, but it’s another thing to actually explain its meaning. Plus, don’t we need to see how students incorporate textual examples into their written responses?

CAPHONEY: You are way over thinking this thing. We don’t have to see anything. We just have to cover some of the 18 | Berks Barrister

stories in the textbook and give the kids some tests now and then. You are making too much work for yourself here. Take it from me, keep it simple and easy. Simple for the kids to do and easy for you to grade. I stopped giving these kind of in-depth assignments years ago. You want them to understand Poe, show them the movie The Shining. None of them have ever seen it and it takes four days to show the whole thing. Talk about it on Friday and your week of planning is over!

MIRANDA MARVELOUS: But what about the standards we have to meet under the Common Core?

CAPHONEY: Common Crap if you ask me. Some bean-counter out to make a name for himself comes up with a cockamamie list of things he thinks kids should be able to do and I’m supposed to change my whole way of teaching?

I’ve been teaching for twenty-five years. I’ve finally got all my lessons printed out and organized in color coded binders. I don’t even have to think about what I’m doing every day. I just open my binders, look at what I need to get copied for the next day.

Done. And you should see my video library. It’s taken me years of Christmas presents to get enough movies to keep my kids entertained for most of the year!

MIRANDA MARVELOUS: Al, I hear what you’re saying, but I just don’t think we can ignore the data. Student achievement has flat lined in recent years. We’re just not seeing the growth that should be occurring in students’ reading and writing skills. We have to create rigor in our curriculum and establish higher expectations in our assessments.

CAPHONEY: Wow, have you drank the kool aid or what?

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Like we’re going to be able to fix everything that’s wrong with today’s kids? My philosophy is that these kids need to figure out how I do things, not the other way around. Once they know what I expect of them, we all get along just fine, especially since I don’t expect very much.

MIRANDA MARVELOUS: Well Al, since I don’t have tenure yet, I probably should pass on the gym and finish grading these essays. But thanks for the invite.

MIRANDA MARVELOUS: But what about the parents?

Aren’t you worried about a parent complaining about you?

And so another year goes for many students in our public school systems. Some reap the benefits of the most efficacious teachers, while others succumb to the ineptness of teachers that may amount to the deprivation of their constitutional rights.

It is indisputable that the detrimental impact of an ineffective teacher has far reaching implications. Yet, these teachers remain on school rosters because of an entitlement referred to as tenure. Tenure refers to a policy that ensures teachers’ automatic renewal of their contracts and severely limits a school district’s ability to fire them. This protective employment measure emerged in the early 1800s in response to the widespread firings of teachers that often resulted from the arbitrary whims of school boards and school personnel. Tenure eventually became codified by states in their school codes, guaranteeing teachers permanent status after as little as two years of employment with a school district.

CAPHONEY: Are you kidding, I never get a parent complaint. Why would I? Would you call to complain that your child is doing too well in the class? That you think a 96% is just too high of a grade? All my students pass for the year and nobody drops below a C. Hell, the kids getting C’s think they’re in heaven. They love me!

MIRANDA MARVELOUS: I don’t know Al. I just feel that we have to at least try to support new initiatives. I mean, I didn’t go to school to become a teacher just so I could have it easy.

CAPHONEY: Yeh, well neither did I, but wait till you’ve been at this for ten more years. You’re still a newbie. You think all this work matters. Well let me tell you, all this time you’re putting in isn’t going to get you a raise any faster or bigger than anyone else on the same contract level as you. When parents complain about you, and they will, administration will say it’s your fault. And every three years a new initiative will come down the pike guaranteeing student success, but its only real guarantee will be to cause you more work and aggravation.

MIRANDA MARVELOUS: But if you’re not following the Common Core, how do you get around Administration?

CAPHONEY: It’s called tenure. That’s the golden ticket you need to get as soon as you can. Once you have tenure, you’re pretty much untouchable. I mean, you can’t come into class and teach satanic worship and drop the F bomb whenever you want. But if you keep your head down and your mouth shut at faculty meetings, and have your kids reading and writing something throughout the year, you can pretty much rest assured that retirement is the only way this school district is ever going to get rid of you. Well, that and maybe tax evasion.

CAPHONEY: No problem Miranda, we’ll look for you in another year or so!

In 2012, the teacher tenure and dismissal laws of California were challenged by nine students in the case of Vergara v.

California, No. BC484642, slip op. at 11, 12 (Cal. Sup. Ct. Aug. 27, 2014). The students claimed that such laws protect ineffective teachers and thereby violate their “fundamental rights to equality of education by adversely affecting the quality of the education they are afforded by the state” (Vergara). The court ruled in favor of the student-plaintiffs, setting off a series of similar complaints in other states. The case is currently on appeal to the Court of Appeals of the State of California; the defense is being led by the nation’s two largest teacher unions.

Interest in the case’s outcome has increased across the country because many states, including Pennsylvania, have enacted similar tenure and dismissal laws.

Miranda and Al’s exchange is actually an excerpt of a script I wrote for the Justice William Strong American Inns of Court titled “The Untouchables: Tenured Teachers.” Founded in 1986, this particular Inn Continued on page 20

Spring 2016 | 19

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Deprivation of Education Rights...

Continued from page 19

is one of a network across the country and organized under the auspices of the American Inns of Court. Membership is open to lawyers, judges, and other legal professionals from all levels and backgrounds. In the course of six meetings per year, “members are able to build and strengthen professional relationships; discuss fundamental concerns about professionalism and pressing legal issues of the day; share experiences and advice; exhort the utmost passion and dedication for the law; provide mentoring opportunities; and advance the highest levels of integrity, ethics, and civility”.1 Meetings occur at local restaurants and begin with a one hour program presented by members assigned to teams.

Following an exchange of questions, answers, and, on occasion, heated debates, members enjoy comradery over what is always a delicious meal.

• Research indicates that students of underperforming teachers fall behind their peers. Is such a result a deprivation of their constitutional rights?

• Can the state eliminate the contractual rights of parties bound by a collective bargaining agreement? Does the Contract Clause trump educational rights?

• If policy making can be delegated to local school districts with regard to student discipline and behavior, why then can’t these districts also be vested with the autonomy to enact their own education work force policies? (This is the remedy sought by the plaintiffs in the Vergara case.)

Don’t dabble.

Refer.

Lawyer-to-Lawyer Networking Participating BCBA members are listed by area of practice.

Create your own listing!

Members Only section of www.berksbar.org

My presentation was set against the backdrop of the movie The Untouchables and consisted of three vignettes, each involving one or more of the legal issues raised in the Vergara case. At its core, the program questioned the viability of a state’s teacher tenure and LIFO furlough laws when balanced against a student’s fundamental right to an education. Drawing on the arguments presented in the Vergara case, the panel’s discussion addressed such questions as:

Networking Directory sign up form:

www.berksbar.org

• With the enactment of legislation subsequent to the early tenure laws, such as the ADA and government agencies like the EEOC, why must teacher tenure continue to be legislated?

• Assuming tenure and dismissal laws such as these were eliminated, what concerns are there with allowing school “What is an American Inns of Court?” American Inns of Court.

American Inns of Court Foundation. 2016 Web. 26 Jan 2016.

1

20 | Berks Barrister

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districts to function as employers do in the private sector by granting local control of educational policies to individual school districts?

Too many of us can recall teachers who, for a variety of reasons, should have been removed from the classroom, but were left unscathed until they retired on their own volition. Today’s high stake testing, together with the selectivity of admissions to many post-secondary institutions, make it imperative that schools provide research-based instruction designed to ensure success for all students, teacher seniority notwithstanding. Brown v.

Board of the Education exposed the fallacy of the separate but equal doctrine. Similarly, Vergara may cast much needed light on the inequities caused by state tenure statutes. I share with you the ending of my program where Mrs. Speak-Easy, an alleged ineffective teacher, defends her methodology to a distrusting parent.

HELICOPTER PARENT: I don’t know, Mrs. Speak-Easy, I am still not convinced that Temperance is getting the same level of instruction as some of her friends and I believe it’s going to put her at a disadvantage down the road. I think perhaps we should all meet with Principal Nester to discuss what I see as a prohibition of effective education. Thank you for your time. Let’s go Temperance.

TEMPERANCE: Hey Mrs. Speak-Easy, just want you to know I like that poster you have up on the wall over there. Not sure who Will Rogers is, but he may have something here.

(Temperance, Helicopter Parent, and Mrs. Speak-Easy look up to the poster which reads:) “Why don’t they pass a constitutional amendment prohibiting anybody from learning anything? If it works as well as prohibition did, in five years Americans would be the smartest race of people on Earth!”

THE END. Pamela A. DeMartino, Esquire, is a public school teacher and has been a member of the Justice Strong Inns of Court since 1998. Inspired by the vaporization of citizens in Orwell’s 1984, she again wrote a program for the April 2016 meeting addressing the “right to be forgotten” as decided by the European court in Google Spain SL, Google Inc. v.

Agencia Española de Protección de Datos, Mario Costeja González.

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BENCH-BAR CONFERENCE AND SPRING MEETING More than 280 people attended the Conference, which included seventeen seminar programs and 44 presenters. It was a full day but the new DoubleTree was up to the task! The concluding Spring Dinner Meeting took only a record 50 minutes, and that included serving three courses of food. Craig Poole and his staff are terrific!

A large crowd but the DoubleTree provided a comfortable venue

The amphitheater was a big hit

Real Time Reporting seminar was provided by (L-R) Judge Fudeman, Assistant District Attorney Colin Boyer, Bobbie Shanfelder and Rachelle Hirneisen

Support Calculations Seminar presented by Master Karen Longenecker, Greg Henry and Law Foundation Trustee Mark Caltagirone, CPA

Amber Moll, Christopher Price, Julieanne Danchak and Meaghan Mahon

Family Law Roundtable (L-R): Masters Mark Merolla, Molly Kleinfelter, Lou Rizzuto, John Stott and Karen Longenecker with Judges Bucci and Lash and Moderators Jill Scheidt and Fred Mogel

Former Berks County law clerk and assistant district attorney, Stuart Suss, now retired from the Attorney General’s Office, provided a criminal case law update 22 | Berks Barrister

Tony Rearden, Tonya Butler and Mike Hollinger

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MAKE GREATER Robin Levengood, Past President Gene Orlando, Past PBA President Matt Crème and Chris Garrell

CONNECTIONS FOR YOUR CLIENTS. Estate Asset Evaluation seminar presented by Brian Ott, Randy Raifsnider, CPA, and Bill Widing

State of the Bench is good Is George checking his email or playing Words with Friends?

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Continued on page 24

Spring 2016 | 23

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Bench Bar...

Continued from page 23

Criminal Law Roundtable (L-R): Judge Geishauser, District Attorney Adams, Judge Parisi, Judge Barrett, Chief Public Defender Welsh, Judge Johnson and President Judge Yatron

Dan Degler, MDJ Frederick, Rebecca Bell and Jeff Boyd

Ed Houseman and Sharon Gray Retired Judge Antanavage, Judge Lash and Clem Page Zack Morey and Paul Marrella

A Rapt Row (L-R): Jim Smith, Andy George, Ben Leisawitz, Max Nice and Jesse Kammerdeiner District Attorney Adams and Anna Ferguson

Past President Jim Snyder, Senior Judge Keller and President Jill Gehman Koestel

24 | Berks Barrister

Ron Cirba, Barrie Gehrlein and Pete Schuchman Gary Fronheiser, Carl Mantz, Al Readinger, Herb Karasin, David Eshelman and Senior Judge Lieberman

Eastern District Federal Judges of the Northern Tier (L-R): Perkin, Gardner, Leeson, Stengel, Smith and Schmehl

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Ben Nevius and President-Elect Kurt Althouse

Joe Speece, Edriana Symia, Treasurer Justin Bodor, Alisa Hobart, Jason Glessner, Adam Levin and Judy Kline

Shawn Lau, Carl Engleman, Amy B. Good and Law Foundation Trustee Val West

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Spring 2016 | 25

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Book Review Dissent and the Supreme Court

By MELVIN I. UROFSKY Reviewed by Donald F. Smith, Jr., Esquire

While studying in law school, I normally ignored dissenting opinions. Too much assigned reading; too little time.

After all, they were written by losers.

Thankfully, Melvin I. Urofsky has filled my void forty years later by writing Dissent and the Supreme Court, making the point that great dissenting opinions may ultimately become winners.

His quote from Justice Benjamin N. Cardozo says it best: “The dissenter is one who speaks to the future with a voice pitched to a key that will carry through the years.”

What is a great dissent? Urofsky, professor emeritus of history at Virginia Commonwealth University, quotes Justice William Brennan: “These are the dissents that soar with passion and ring with rhetoric. These are the dissents that, at their best, straddle the worlds of literature and law.” Straddling literature and law. . . what an intriguing concept!

Urofsky has written an interesting history of the United States Supreme Court by focusing on the role of the dissenting opinion in the constitutional dialogue. He begins by noting that AngloAmerican law dates back to the Norman Conquest of England in the eleventh century and the evolution of common law thereafter.

Decisions of multi-judge courts were announced by each judge delivering an opinion. This practice of seriatim opinions often led to confusion in discerning the correct ruling.

When the United States Supreme Court began to decide cases, it adopted the seriatim tradition. After John Marshall became Chief Justice in 1801, he prodded the Court to speak with 26 | Berks Barrister

one voice and eventually seriatim opinions were abandoned.

The first dissenter on the High Court was William Johnson, President Thomas Jefferson’s first appointment to the bench.

Jefferson hated Marshall, a Federalist, and dreaded a centralized government, while Marshall favored a strong, federal government.

In particular, Jefferson did not like the idea of a single “opinion of the court” and hoped Johnson would change the practice. He did.

A little. During Marshall’s tenure 1,187 opinions were delivered, and only 87 were either dissenting or concurring opinions (around 7%, the lowest rate of any period in the Court’s history). Johnson wrote half of the dissenting opinions but, for the most part, he agreed with Marshall’s “philosophy of unanimity.”

So, who have been the great dissenters? The first was John Marshall Harlan whose dissents would influence future Courts on interstate commerce, labor law and civil rights. Urofsky does a nice job of encapsulating Harlan’s 34-year career on the bench.

The former slave owner became the strongest advocate that the Thirteenth and Fourteenth Amendments were intended to grant and assure that the freed slaves would have equal rights, but his was a lone voice.

One example stands out. The case of Plessy v. Ferguson (1896) involved Louisiana’s Separate Car Law that mandated segregation of passenger trains. Plessy, a “colored man,” had been arrested and jailed for sitting in a white car and refusing to move to the colored one. The 7-1 majority found no violation of the Thirteenth and Fourteenth Amendments so long as the facilities for blacks were

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not “inferior” to those of whites. The dissent was that of Justice Harlan: “[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens.

There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.

It is, therefore, to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.”

Fifty-eight years later the Court struck down the “separate but equal” doctrine in Brown v. Board of Education (1954).

Justice Harlan’s voice was indeed “pitched to a key” that carried “through the years.” In fact, even more recently, his phrase “Our Constitution is color-blind” has been cited in opinions questioning affirmative action, and his phrase that the

Constitution “neither knows nor tolerates classes among citizens” was cited by Justice Anthony Kennedy in the Romer v. Evans (1996) decision recognizing gay rights.

Justice Harlan’s work is an example of former Stanford Law School Dean Kathleen M. Sullivan’s description of great dissents being “like buried ammunition for future generations to unearth when the time comes.” Two other examples are Justice Louis Brandeis in Olmstead v. United States (1928) and Justice Hugo Black in Betts v.

Brady (1942).

During Prohibition Roy Olmstead was the “King of the Bootleggers” in Seattle, Washington. Federal agents tapped the phone lines at his home, his office and at the residences of some of his partners.

To do so, no private premises were entered; thus, the agents believed no search warrants were warranted. Olmstead and seventy other people were arrested based on the information obtained from the taps.

Olmstead’s attorneys argued that use of the wiretap evidence obtained without a search warrant was a violation of the Fourth Amendment. The Supreme Court found no such violation, Continued on page 28

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Book Review, Dissent and the Supreme Court Continued from page 27 with Chief Justice Taft writing for the majority: “There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants.”

Among the dissenting opinions, it was the one written

by Justice Brandeis that has had the lasting impact on Fourth Amendment jurisprudence. Here is a passage that soars with passion and rings with rhetoric: “The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.

They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.”

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In 1967 Olmstead was overturned. The Brandeis dissent became the basis for the Court’s new Fourth Amendment philosophy.

Smith Betts, an unemployed farmworker, was charged in 1939 with armed robbery in Carroll County, Maryland.

When arraigned before the judge, he asked that an attorney be appointed to represent him. The court refused; such appointments were only required in cases of rape and murder.

He was found guilty and sentenced to eight years in prison. An attorney was directed to help Betts with the appeal.

When the case came before the Supreme Court, argument took place over two days in April 1942. By a vote of 6-3 the Court refused to apply the Sixth Amendment to the states by way of the Fourteenth Amendment. The three dissenters included Justice Black, the only member of the Court at that time with actual trial experience in criminal cases.

Looking at the record, as expressed in Black’s dissenting opinion, it was clear to him that Betts had been denied the procedural protection guaranteed by the Fourteenth Amendment. Defendants in criminal trials needed a lawyer.

“Any other practice seems to me to defeat the promise of our democratic society to provide equal justice under the law.”

Twenty-two years later, with Justice Black now writing for the majority, the Court overruled Betts in Gideon v. Wainwright.

Many other dissents are analyzed in Urofsky’s book. While at times the narrative may drag, overall, the book is an important contribution to a study of the High Court’s entire body of work.

If you enjoy legal history, you will enjoy this book.

Bringing the constitutional dialogue up-to-date, what about dissents in the Roberts Court? With so many 5-4 decisions being rendered before the death of Justice Antonin Scalia, it is as though the seriatim tradition had returned. Urofsky describes the late Justice Scalia as “one of the best stylists on the current Court” and has written “marvelous dissents in terms of literary felicity.” However, his dissents “have not won over many adherents” and at times are more “rant” than legal reasoning.

In fact, Professor Jeffrey Rosen, in his book The Supreme Court, noted, “Scalia has confessed he writes with ‘verve and panache’ to ensure that his opinions are quoted by the editors of legal textbooks, so they can influence future generations of lawyers and scholars.” Or is Michael O’Donnell, in reviewing the Urofsky book for The Nation, correct to claim that “corrosive rhetoric like Scalia’s does more than fray relationships; it convinces the public that the justices are political stooges”?

As Urofsky, the historian, points out, “the fate of a dissent lies in the hands of history.” Only with time can we tell the winners from the true losers.

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The Governmental Affairs Committee hosted Congressman

RYAN COSTELLO

at a Roundtable in early March.

Fair Weather Even a day gentle, with light breezes, has its little changes, its rise and fall, its shift of mood, clouds and clear, dark and light, a music slight with wind chimes and otherwise nearly still, so the deeper tones must come from thoughts of the day, who was where, when; the trees and buildings; songbirds and tasks; the air from the south, then a calm silence in the park, and a shift to the southwest, and even that fading around dark. If life is not a mad rush, the calm and shift may yet come home, a flag soft in the wind, but not still, wordless appreciation of the day coming home, too, perhaps a melody unheard, or a prayer not yet ripe for words, or a rising gratitude, all come from a day offering sweet silence gone kindly by.

William W. Runyeon Spring 2016 | 29

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M i s c e l l a n e o u s

Daniel B. Huyett has been appointed

to the Board of Trustees for Albright College. A past president of the Berks County Bar Association, Dan is co-chair of Stevens & Lee’s litigation department.

Judge James Bucci’s daughter, Marissa, married Dr. Michael Larochelle on August 8, 2015.

What a proud father! But look who photo bombed!

A daughter, Graceanne, was born to Brian and Sarah Rubright McCahon on November 4, 2015. She joins her two-year-old sister, Margaret. Sarah is with the Reading office of Barley Snyder, LLP.

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30 | Berks Barrister

Bradford Kissam

Bkissam@GoBerksCounty.com

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Candidates’ Choice in Pizza Will Tell Much

By Susan N. Denaro, Esquire

With the presidential candidates about to turn their attention to Pennsylvania as this issue of the Barrister is being put to bed (I know, shame on me for mentioning politicians and bed in the same sentence), this review is meant for them, regardless of their respective party affiliations. If they miss this advice during the Spring swing through the Commonwealth, perhaps it will serve them well come the Fall election season.

We have all seen the controversial footage of you eating pizza at various establishments on the campaign trail. If you tour through Berks County, you would be wise not to just grab a slice but rather a 12-inch personal size pizza at Nonna Alby’s, part of the dining scene in West Reading.

If you want to show savvy voters that you have discriminatingly good taste, you will find something on its pizza menu to fit the bill. To date, I have sampled five of its 17 varieties of pizzas. But beware, because each pizza comes with the potential to say something about your respective personality traits that may turn off the voters.

If you want to play it safe, then order the classic Margherita pizza. There is nothing controversial about a pizza topped with San Marzano plum tomatoes, fresh buffalo mozzarella and basil. Of course, when looking at the other selections, it could be said that you just play it a little too safe and are a little unimaginative.

Perhaps you might opt instead for the classic Nonno Alby’s name sake pizza.

It features the same ingredients as the Margherita pizza but also has fresh Italian sausage and rapini sautéed with garlic and red pepper flakes. Rapini is an Italian vegetable that is a cross between broccoli and a dark green leafy vegetable such as spinach. It is a bit of an acquired taste

Nonna Alby’s 701 Penn Avenue West Reading, PA 610-376-1011 Tuesday-Sunday 11 AM to 9 PM

because of its bitterness. Perhaps the inclusion of the rapini may cause voters 7 to wonder if you are a bitter person and if so, about what.

Another fine selection is the Quattro Stagioni which features San Marzano tomatoes, fresh mozzarella, fresh mushrooms, black olives, artichoke hearts, roasted bell peppers, prosciutto di Parma and basil. It is a tasty offering but is a bit difficult to eat with your hands as there are so many toppings to balance on it. The black olives are stellar but the prosciutto is sliced a little thick and can be hard to bite through. As a presidential candidate, consider asking yourself if you should be seen eating something made of pork. Hmmm.

Think about it.

A simple to eat offering is the Quattro Formaggi which translates to a four cheese white pizza. The cheeses are Taleggio, Parmigiano reggiano, fresh mozzarella and gorgonzola. The cheeses are perfectly balanced and the buttery richness of it all makes this pizza one of my favorites at Nonno Alby’s. But before you take your first bite, you should ask yourself if you are ready to have a cheesy headline appear about you in the press or see yourself compared to a moldy old cheese such as the gorgonzola.

If you really want to have people think that you are extravagant and like to live like the upper 1%, then the Tartufata

pizza is for you. It’s another white pizza but is topped with fresh buffalo mozzarella, Parmigiano Reggiano and mascarpone cheese. It is sparingly dotted with black truffle and fresh basil. It is subtle and earthy but I thought it could use just a bit more black truffle. I suspect that preserved black truffle is used rather than fresh, which I guess helps keep the price a little lower than if it were fresh truffles.

I think the safest pizza selection, however, is the Primavera. It is topped with San Marzano tomatoes, fresh mozzarella, fresh mushrooms, grilled eggplant, grilled zucchini, roasted red bell peppers, carmelized onions and sautéed rapini. The uniform paper-thin slices of eggplant and zucchini appear to be done on a mandolin. It is colorful, says you are into healthy foods and like your vegetables.

There is no meat so vegetarians will not be offended and it says you care about global warming.

There are several other pizzas to choose from that include various seafood and vegetable selections. If you want to live dangerously and create your own, you can select from 12 toppings ranging from tuna to capers, but remember the press will be watching and ready to comment on how picky or discerning you are.

If you make a whistle stop at Nonno Alby’s, I think you will agree that it offers the best thin crust wood oven pizza in Berks County. It also boasts tasty salads, sandwiches and appetizers. In addition to bottled beer, it has a selection of beer and wine on tap. And yes, forks and knives will be available if you dare to eat pizza any other way than with your hands while the cameras are rolling.

Now, do any of you need hairdresser recommendations? We have lots of great stylists at all price ranges who may be willing to meet you on the tarmac.

Susan N. Denaro, Esquire, is a principal in the Wyomissing law firm of Rabenold, Koestel, Goodman & Denaro.

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A Super Legal Spirits Happy Hour With a Superhero theme, the annual affair was a bigger hoot than usual with some members dressing as their favorite Superhero. What a great gathering of superheroes, whether in costume or not!

Mogel Speidel attorneys Jesse Kammerdeiner and Maxwell Nice and Mogel Speidel alumna Jennifer Grimes

Batman, a/k/a Joe the Bartender, was busy dispensing legal spirits Andy Howe 32 | Berks Barrister

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Board Director George Gonzalez, Greg Ghen, Judge Bucci and Robert Moore Dan Degler and Lisa Siciliano

Eric Taylor, Rachel Keung, Jessica Brown and Carla Arias

Superman and his mirror image, Kevin Feeney The fun evening included a spirited Herb Karasin and an intense Greg Ghen enjoying a Gotham City cheesesteak

Treasurer Justin Bodor and Abe Cepeda

Robert Kirwan Spring 2016 | 33

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march madness was mad with upsets!

This year the March Madness Party was on St. Patrick’s Day. A fun combination!

Christie Billman, Stephanie Nocera and Matt Mayer

Jay Tract and Federal Judge Jeffrey Schmehl

Peter Schuchman with a fashionable match!

34 | Berks Barrister

YES! Yale does it (L-R): BCBA Secretary Lisa Siciliano, Dave Miller, Bankruptcy Judge Fehling and Marcia Binder

Immediate Past President Jesse Pleet, Nicole Manley, Past President Heidi Masano and Kelsey Frankowski

Is Yale actually winning?!

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MARCH MADNESS

1950

By Francis M. Mulligan, Esquire

The St. Joseph’s Hawks winning the A-10 tournament brought it all back. I’m speculating how far my college will go in the NCAA tournament. I went to Charlotte in 1959. That’s where I learned about Jerry West. He carried the West Virginia team in the second half. A twenty point St. Joe’s lead at halftime didn’t stop Mr. Basketball. I liked our chances at the Meadowlands in 2004.

Oklahoma State knocked the Hawks out on the final shot.

Now, I’m sticking to the TV. That’s how my fascination started.

Not with the Hawks. City College of New York (CCNY) began my NCAA compulsion in March 1950.

On Ludlow Street in West Philadelphia our next door neighbors had a TV. In March 1950 Andy Fogarty invited the Mulligan boys to watch the N.I.T. The TV audience didn’t see the pre-game avoidance of the pre-game handshake. It wasn’t about bad blood between the teams. The Kentucky team had been forbidden by its coach, Adolph Rupp, to shake hands with the racially and religiously diverse CCNY team. The New Yorkers tore basketball powerhouse Kentucky apart with three Jewish and two black starters. Speed, accurate shooting, and team work beat the boring Kentucky offense featuring 7'1" Bill Spivey.

Fascinated with CCNY, we continued accepting invitations.

San Francisco, Duquesne and Bradley bit the dust. Speed wasn’t a major factor in the set-piece game of the era. CCNY changed that. After Warner and company took the National Invitational Tournament title, the team accepted an invitation to the NCAA. We continued watching, expecting the hot streak to end. It happened again. In the same month of March 1950, CCNY beat Ohio State by one point, North Carolina State by five points and Bradley University for a second time in the championship game. In the course of the amazing display of talent, speed and teamwork, I memorized starters

names — Warner, Dambrot, Roman and Roth. Naturally, all of them would have long careers playing in the NBA, and perhaps coaching when their pro careers ended. In 1950 the best four starters were only sophomores with two more years of eligibility in front of them. No team before the 1949-50 CCNY team had ever won both tournaments in the same year.

Warner would be playing in the NBA for the Knicks. Under intense pressure, the color barrier had been broken during the 1950-51 season. Why the New York Knicks? Under the NBA rules at the time, the franchise closest to the college had first pick on local college players.

The Knicks never retired a former CCNY player’s jersey.

None of the fabulous four played NBA ball. Talent wasn’t the problem. During the following season after last year’s super-team beat Temple in Philadelphia, detectives from the Manhattan D. A.’s office waited for them in New York City.

They arrested Warner, Dambrot, Roman and Roth. I read about it in the Bulletin — made the sports page. The stars didn’t throw games for cash. They worked the point spread. Invention of the point spread put games between no-name-teams and the best teams in play. The CCNY stars trimmed the margin of victory Continued on page 36

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March Madness 1950 Continued from page 35

by letting opponents end up with a closer losing score. Shaving points may well have been the reason CCNY lost several games near the end of the 19491950 season. In the N.I.T. and the NCAA tournaments of the previous season, the fixers refused to shave points.

The players deceived everyone — especially themselves. What tripped them up? During the 1950-51 season a player from Manhattan College reported an attempted bribe to the police.

Initial arrests led to more arrests, and eventually Frank Hogan’s detectives waited in New York City for the bus from Philadelphia.

Warner, the N.I.T. MVP, who had a juvenile record, served time at Riker’s Island. With the Korean War raging, none of the other CCNY players arrested went to prison. Several traded jail time for military service.

Fast forward to 1962. In 1953 my basketball skills had been

36 | Berks Barrister

critically evaluated by the Big Dipper himself, Wilt Chamberlain.

His critique didn’t stop me from playing. In 1962 playing on the Maryknoll seminary team, I took advantage of a unique opportunity. We had a two game schedule. We lost to a Christian Brothers team that stacked their line-up with two former Iona College players. We expected to do better in our final game at the Sing Sing Correctional Facility at Ossening on the Hudson.

We had a 6'6" center from Chicago, and a 6’4” Ohio farm boy, Joe Deering, who had played in high school against several future NBA players. I liked our chances that Sunday afternoon in March.

It took a while to gain admittance to the Sing Sing gym. Our van had been stopped for ten minutes under a grate. A guard with a machine gun in a pit below the grate viewed the van’s underside.

Once inside, we proceeded to the gym for a few practice shots.

The basketball court and stands looked like the nicest place in the prison. Definitely better than half the high school gyms in Philadelphia. I later found out that Hollywood provided the gym

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in exchange for using the prison as a movie set.

In the pre-game warm-up, I still liked our chances. None of the players on the prison team looked threating. I didn’t think what had once been the New York prison system’s execution site would have the skilled players we faced at Iona. Everyone at the seminary knew the stories about the lights dimming in Ossening and the surrounding countryside when the executioner pulled the switch.

No words had been spoken between the teams before the game started. Like the Kentucky game, we didn’t have a pregame handshake. Maryknoll’s problem began before the game started. Prisoners refereed the game. They didn’t call fouls. They favored jump balls after a collision. I learned years later from a white collar inmate that calling fouls against fellow prisoners in a basketball game could have harmful consequences.

Our center, Dave Rezik, stood a few inches taller than Sing Sing’s tallest. Their tallest player, a well-built black man, looked 6'3". With the exception of the smallest man playing for Sing Sing, a balding Italian, who couldn’t be described as thin, their starting five looked fit.

I took my seat on the bench. I hoped we played better than we did at Iona. The game started and the gym began filling up.

At first, the prisoners rooted for the visiting team. It didn’t last.

The prison team didn’t talk with each other. Their division of shots had to be pre-arranged. Whenever Sing Sing had the ball, the balding Italian guard dribbled the ball down one side of the court until he came within ten feet of the foul circle, and without passing the ball, he took a one handed set-shot. Swish. It didn’t even touch the rim. It happened time after time.

The next time Sing Sing had the ball, the tall black man dribbled down the other side of the court, and took a jump shot from well beyond the foul line. Another swish. The balding Italian and the tall black man took turns bringing the ball up the court, and shooting it. Neither one of them passed the ball to another player. They dribbled, stopped, took their shot, saw the swish, turned around and went back down the court to defend.

They didn’t miss more than five shots between them.

Eventually, our defenders went out to challenge them. The tall black man dribbled around Joe Deering, and slipped into the lane for a lay-up. The Italian didn’t have the speed to dribble around our defenders. He stuck to making set-shots.

Our team, with this author on the bench observing, got a bit nasty when the refs didn’t call fouls against the prisoners. Rezik, in a fit of anger, bounced the ball close to the ceiling. That caused the audience to turn on us. The prisoners, too judgmental for my taste, didn’t think the ball bouncing conduct appropriate for future priests.

Sitting on the bench during the second half, I wanted the game over sooner rather than later. I wondered what put the two bulls-eye shooters in a maximum security prison. They were too old for a scholarship to St. Joes. Dr. Ramsey had taken chances with older players in the past, but not with someone close to thirty. We didn’t talk or shake hands after the game. The inmates went out one door, and Maryknoll took the door back to the van.

At a St. Patrick’s party in Brooklyn, three years ago, Dr. Deering and I discussed the Sing Sing game.

He told me, “The tall one with the jump shot and the move to the basket played on the CCNY team that won the N.I.T. and the NCAA. His name…Ed Warner.”

Ed Warner had more problems with the law over the years. Banned from the NBA, Warner played in the Eastern League before he found his way onto the Sing Sing court following a drug conviction.

We still don’t know the name of the Italian shot-maker. He may have been one of the other players in the New York area implicated in the point shaving scandal. I assume, unlike everything else at Sing Sing, the basketball court and the stands haven’t been altered.

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Opening Night of Jazz Fest Before the Manhattan Transfer and Take Six Concert forty members and their guests enjoyed dinner at the Bar Building.

Evelyn and Stanley Kuter with Past President Gene Orlando

Virginia Orlando, Karen Loeper and Lisa Siciliano

Board Director George Gonzalez, Past President Dan Huyett, Judge Barrett and Robert Koestel

Enjoying pre-dinner cocktails in the Batdorf Room Dinner in the Kittrell Suite (L-R): Denise Mogel, Linda Faye Epes, Dr. Bill Epes and Past President Fred Mogel 38 | Berks Barrister

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Bob and Florita Hobaugh

Valeen Hykes, Dave Miller and Paula Barrett

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Helping you achieve your goals has always been ours Congratulations to Mark A. Maggs for being recognized on the Barron’s Top 1,200 Financial Advisors list.

Maggs & Associates Mark A. Maggs, CIMA®, CRPC® Senior Vice President – Wealth Management Wealth Management Advisor 610.320.5462 mark_maggs@ml.com

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Life’s better when we’re connected® Source: Barron’s magazine, March 7, 2016, America’s Top 1,200 Financial Advisors list. Advisors considered for the “America’s Top 1,200 Financial Advisors” ranking have a minimum of seven years financial services experience and have been employed at their current firm for at least one year. Quantitative and qualitative measures used to determine the advisor rankings include: client assets, return on assets, client satisfaction/retention, compliance records and community involvement, among others. Barron’s does not receive compensation from advisors, participating firms and their affiliates, or the media in exchange for rankings. Barron’s is a trademark of Dow Jones & Company, Inc. All rights reserved.

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