Supreme Court Rules Against Mandatory Union Dues

The case of Janus v. American Federation of State, County, and Municipal Employees, Council 31 (Janus v. ASCME), No. 16-1466 (June 27, 2018), is a landmark decision is which the U.S. Supreme Court held public sector employees, specifically those in state and local government,  cannot be required to pay membership fees if they do not want to belong to a union.

Previously, the U.S. Supreme Court ruled in Abood v. Detroit Board of Education, 431 U.S. 209 (1977),  that  state and local governments can require public employees who do not join the union be required to pay partial “fair share” fees to offset the costs of collective bargaining – negotiating and administering the contract that the non-union members benefit from, even though there is no requirement they  join the union.  The rationale is these employees receive the same benefits, including salary, vacation, sick-leave, etc. The opponents who influenced the Supreme Court argued, among other reasons, an employee should not be forced to join a Union that advocates changes to and, therefore, influences public policy; the Court concluded mandatory fees violated workers’ free speech rights who are entitled to disagree with the positions taken by a union.

Those that favor the Court’s ruling contend public employees should not be forced to pay union dues (fees) as a condition of working for the government entity. Unions will now have to establish greater value if they want to maintain and/or increase the current levels of membership.

States May Collect Sales Tax from Internet Sellers

On June 21, 2018, in the case of SOUTH DAKOTA vs. WAYFAIR, INC., ET AL, the U.S. Supreme Court held
states have the right to collect sales tax from internet retailers even though they do not have a physical presence in the respective state(s).
The majority of the Court noted the number of people in the United States that have internet are close to 90%, and there are nearly one-half trillion dollars in e-commerce annual (mail order) sales. The Supreme Court then decided to overturn a 1992 decision that held the commerce clause was controlling since it prohibited states from burdening and/or discriminating on interstate commerce. With the current Decision, however, states are no longer barred from collecting sales taxes from companies just because they do not have a physical presence in the particular state. The more than 25 year old Court holding that was overruled required a “substantial nexus” or physical presence to exist with the activity in order for there to be a tax.
The dissent focused on the complex nature of collecting sales tax; the huge number of city, county and state jurisdictions and, therefore, widely varying rates of sales tax; along with the negative impact on commerce as the grounds that weigh heavily against states being permitted to impose sales taxes on internet sellers. The dissent opined this is a matter for the U.S. Congress and not the Courts to decide.
In order to be competitive, some brick and mortar retailers have for quite awhile “matched” the price of online retailers, However, there would remain a savings in not paying sales tax by purchasing on the internet; this savings may soon be history as far more states will be taxing these sales if they have not previously collected that from e-commerce retailers.

US Supreme Court Invalidates Federal Ban on Sports Betting

In the May 14, 2018 case of MURPHY. vs. NATIONAL COLLEGIATE ATHLETIC ASSN., the U.S. Supreme Court held the Federal law that barred sports betting was null and void.

Supreme Court Justice Samuel A. Alito Jr. wrote in the majority opinion: the Federal law was a violation of state sovereignty because it “unequivocally dictates what a state legislature may or may not do.” The Decision is consistent with the Tenth Amendment to the U.S. Constitution because the Federal Government only possesses those powers delegated to it by the U.S. Constitution. As such, all remaining powers are reserved for the states or the people.

Consistent with this Decision, it is anticipated that several states will enact legislation to legalizing sports gambling. There are clearly two sides to legal gambling, but more and more of the focus of proponents now include those States who also seek ways to increase their revenues to offset the escalating budgets from year to year.

Beware of Cyber Attacks

It has been said, and bears repeating:

  1. There are those that know they have been hacked and those that do not.
  2. There are those who have been hacked and those that will be;
  3. There are those who will be hacked again;
  4. Our devices and products, at home, at work and on the go, are connected to the internet (via wireless networks, millions of Hotspots or Wi Fi). These include the web sites and pages we view online; the social media we view &/or utilizing our own accounts; the GPS we use or are integrated into our computers, smart phones, lap tops, tablets, the cloud, and the hugely increasing products constantly and newly introduced into the marketplace; and,
  5. Cyber attacks are growing beyond our imagination, and they are more sophisticated every day.

In addition, we need to remind ourselves and be constantly vigilant to appreciate that it is not enough to have antivirus, spyware, spam filters and malware programs because it is painfully obvious no one is immune from the targets of malicious others who are thrilled in breaching our devices. And, what could be worse than this unlawful interference with our privacy, as well as our sensitive personal data, confidential business and individual information stolen Be diligent in preventing cyber attacks, detecting, and responding to breaches,

Criminal and Licensing Sentences

In seeking to defend a criminal case or a professional or occupational license matter, the initial step is to evaluate the degree to which the allegations can be established. There are vastly different standards of proof for the prosecution in criminal and administrative law cases. In that regard, it is far easier for the prosecution attorney in a licensing case to prevail than his/her counterpart in a criminal case, where there must be evidence beyond a reasonable doubt to prevail.

Nonetheless, the role of the defense lawyer, among other things, is to refute, contradict, disprove, deny or otherwise challenge the charges, allegations, inferences and/or conclusions therein that are obvious or not apparent. Similarly, in marginalizing the accusations, facts and circumstances as well as evidence to be produced by the prosecution, there can be a substantial impact upon the outcome or results of the case. In addition, there can be unintended consequences in which the defense lawyer has an opportunity to not only develop and present a defense, but also craft a compelling offense.

I have worked the last forty (40) years as a defense lawyer, previously having worked thru a portion of 1978 as a Deputy Attorney General for the Department of Justice, State of California. Being hired in 1970, I then began prosecuting a very large number of criminal appeals and writing countless Respondent’s Briefs and opposing criminal Writs in every level of Court in California through to the State Supreme Court, and every level of Federal Court including the U.S. Supreme Court. In addition, I prosecuted an infinite number of professional and occupational license cases on behalf of nearly every California Board, Bureau and Department, including the Board of Registered Nursing, Dental Board, Medical Board, Board of Behavioral Sciences, Respiratory Care Board, Board of Pharmacy, Board of Psychology, Board of Chiropractic Examiners, Physical Therapy Board, Board of Accountancy, Board of Optometry, Board of Veterinary Medicine, Board of Professional Engineers, Contractors’ State License Board, Bureau of Automotive Repair, Department of Motor Vehicles and the Department of Health.

In the capacity as a License Defense Attorney, I utilize my background and experience to provide advice and counsel to a countless number of individuals that seek to obtain or already have a professional or occupational license that is subject to denial or revocation, frequently as a result of a criminal case. I like to believe I am skilled in discerning the elements that are most important to evaluating and determining the appropriate outcome given such factors as rehabilitation, remorse and recognition of wrongdoing, which truly are the sin qua non (or most crucial elements) in the defense of both criminal as well as state licensing cases. I have always thought of this as my opportunity to level the playing field.

Judges have the inherent authority to impose and/or modify a sentence, which is required given the objectives of sentencing; to ensure the effective functioning of the court or administrative tribunal and to fairly administer justice; to right an enormous and/or perpetual wrong; at times and without imposing additional negative consequences beyond what has been rendered in an isolated single misdeed and/or in case after case in one’s criminal or disciplinary history. The Judge can look to any of the facts in a case to increase or decrease the sentence, outcome, penalty or result.   A Judge may consider the prior criminal history and the entire factual background of the case and, at times, any unfiled, dismissed or allegations or cases when granting probation, ordering restitution or imposing sentence.  The Judge may determine the existence or non-existence of any fact in aggravation and mitigation.

Here are a few examples of mitigating circumstances: The extent to which the individual has made progress in his or her life and is on the right track; whether there was any drug or alcohol induced behavior, and whether the individual has acknowledged having this disease; and, post-offense rehabilitation. Here, the prosecutor and Court or a state agency, evaluate whether there is compelling evidence of remorse; recognition of wrongdoing; demonstrated regret, guilty conscience, sorrow for the incident(s); and, by committing misdeeds, unprofessional conduct, and other grounds for disciplinary action or one or more crimes has evinced a lack of sufficient grounds to obtain a second chance [in some instances, the individual lacks an appreciation of the previous cases in which a second chance was already provided].

Having a plan in place “yesterday” is not too early; a plan of action can serve to evince the defendant his admitted his past and/or existing crimes or misdeeds, unprofessional conduct, negligence, etc. have resulted from his or her addiction to drugs or alcohol, and demonstrating by unequivocal evidence his or her commitment to address the underlying  substance abuse problem by having previously enrolled in a drug or alcohol treatment program, thereby showing the Court or Administrative Law Judge (s)he has not only accepted responsibility for his or her actions, but has been pro-active in addressing the issue(s) that led to the commission of the crime or misconduct at hand or the past  criminal and/or disciplinary history.

Another element in leveling the playing field is having a support system. Statistics show the more support a person has the better chance (s)he has of remaining law abiding.

In summary, the consequences of a case are obviously attributed, among other things, to the underlying charges, accusations, culpability, background and history; however, the nature and extent of retribution, deterrence and particularly rehabilitation are critical in presenting a defense and offense.

Compelling and Cogent Legal Arguments

All of us from time to time have read magazines, newspapers and articles. It strains credulity, however, that far too much of what has been written is not sufficiently balanced to provide the reader with a true and accurate narrative. Even worse are long winded and/or rambling legal arguments some lawyers may assert to the Court or declare in their Legal Briefs, Motions, Points and Authorities, and other written documents. In addition to the necessity to provide interesting, insightful and easily understood writing, these presentations simply do not rise to the level of being deemed “good writing.”

Also, the statements and arguments a lawyer makes should be cogent, which means they should be powerful and effective. A lawyer’s role is to not simply state events in a narrative, but should present compelling arguments that are truly persuasive. Here, articulating facts, circumstances, statements and arguments should, but unfortunately may not always, be convincing.

Whether one is successful in these tasks may be in the eye of the beholder. However, those who spend countless and painstaking hours to think about and analyze their roles and responsibilities before framing what they intend to communicate may indeed have a better opportunity to obtain winning results. Moreover, they can provide the reader with impressive thoughts and ideas. Some may choose to utilize metaphors, insert something humorous and/or use other tools and skills to convey the subject matter and their information. While this may in certain ways be different, the goal is to benefit their respective clients who may thereby realize the outcome they desire.

Statistics Show More Women and Minorities in Law Firms

The National Association of Law Placement (NALP) reported an increase in the percentage of women and minorities in law firms. Although the Report on Diversity in Law Firms on showed limited gains in 2017 over the previous reported period of time, the increase demonstrates that more women and minorities (Black African American) are choosing law as their career.

There are approximately 35% of the lawyers in the larger law firms who are women, and 15% who are minorities, In addition, the percentage of women and minorities who became partners in law firms increased as well. On the other hand, the disparity is far greater in some cities (for example, only 3% of the partners are women and minorities in Miami) than other cities (for example, 27% in New York) . When comparing the data to 40 years ago, there is clearly a far greater percentage of women and minorities today who have chosen law as their career and became partners in law firms. Proponents claim diversity is a positive factor in society, and it is likely the trend will continue.

DISCLOSURE OF CONVICTIONS TO EMPLOYERS

Effective January, 1, 2018, employers in California with five or more employees cannot make employment decisions regarding convictions unless first performing an individualized assessment. The Assessment entails consideration of: [1] the underlying facts of the crime as they relate to the nature and seriousness of the conviction; [2] the period of time that has elapsed since the crime was committed and whether the terms and condition of the sentence have been completed, along with [3] the duties and functions of the employment position [nature of the job] in question. Under the existing law through and including December 31, 2017, only governmental entities (City, County and State) were barred from making such personnel decisions.

Additionally, a private employer cannot ask questions, whether during a face to face interview and/or on the Application for Employment form, regarding a criminal history of a prospective employee until after a preliminary decision has been made that the applicant is qualified for the open position. Essentially, an employer cannot consider a person’s criminal history until after a preliminary or conditional job offer has been made to the prospective employee. As such, the employer is prohibited from having a background check performed until after making a conditional employment offer.

Assembly Bill 1008 (AB 1008) was signed into law on October 14, 2017 and, as a result, a new section has been added to the Fair Employment and Housing Act, commonly referred to as FEHA, to wit: Government Code Section 12952.

Shortly before signing into law the above mandate, on October 12, 2017, the Governor took a quite similar position as above when he made it a misdemeanor for violating AB 138, which prevents an employer from asking questions of a prospective employee regarding their previous salary, nor could employers consider the salary history as a factor in making decisions regarding an applicant for employment. The new law does not prohibit an applicant from voluntarily providing salary history information and it can be used by the prospective employer in making its own decisions in connection with the salary to be offered. Labor Section 432.3

None of the above should be interpreted as a prohibition against any Governmental agency (Board, Bureau and/or Department) from inquiring as to a conviction, commonly referred to as a background check, as part of the process of obtaining a professional or occupational license; similarly, this inquiry is an integral part of the renewal process regarding any such license. It should be remembered, there are approximately 50 agencies, including the California Department of Consumer Affairs. All of these state agencies have the power to investigate, deny, suspend or revoke a license, in the interest of the health and safety of the public, and thereby rely upon the underlying facts of the crime, as they relate to the duties and functions of a licensed professional or occupational license. Business and Professions Code Section 475-499.

For additional information, see Administrative Law Attorney.

Rehabilitation of Inmates and Prisoners

When we go back in history, there was a time when those incarcerated would receive vocational training, such as wood shop, electric shop, metal shop, upholstery, plumbing, gardening, and most importantly learn any other skill that would increase their basic knowledge, enhance their self esteem, provide an opportunity for a more positive transition to life outside of prison or jail, and decrease recidivism.

Unfortunately, as the budgets for nearly everything else seem to have increased, the amount allocated to skills building activities within the penal system has substantially decreased and to some extent has become nonexistent.

Recently, with the devastating wildfires, inmates have been allowed to volunteer to assist in fighting these catastrophic disasters throughout California. It has been reported the savings to taxpayers has been in the millions of dollars. Inmates get paid a $1. an hour for fighting the fires, and two days off their sentence while serving in this capacity (in contrast for one day off a sentence for each day of good behavior.

Some commentators object to this policy as they believe the prisoners are being treated as a “captive labor force.”Although there are clearly disadvantages to the utilization of inmates to fight wildfires, there are countless proponents who believe the benefits far outweigh any drawbacks.

Only more time and continued [forensic] studies will produce reliable data evidencing the nature and extent of support and/or activities associated with time spent in prison or jail greatly enhance an inmate’s knowledge, social, physical, vocational, emotional and other positive skills, contributing to unprecedented levels of rehabilitation.

PUBLIC DISCLOSURE OF VIDEO AND AUDIO RECORDINGS BY LAW ENFORCEMENT

In California, an increasing number of law enforcement officers are using body cameras [more commonly referred to as “body cams”], which are attached to their clothing to record the encounters and work they perform while on duty.

Proponents claim the goal is to increase the public’s trust and confidence in all peace officers, including the most obvious such as the police, sheriffs and CHP; as such, there may be 25% or more police agencies currently utilizing these devices. Additionally, it affords officers an opportunity to have actual evidence of their work in the field, and to defend against false accusations such as police brutality. Others accept transparency and police accountability as a valid premise, however, note the fact these devices can be shut-off and/or not turned on as a reason they feel far less confident in the process.

In criminal cases, body cam footage is available to defense lawyers as part of the discovery. On the other hand, such video records are not readily available in civil cases. However, during the earlier 2017 sessions of the California legislature, Assembly Bill 748 would have made the footage of body cams a public record; although proposed and later amended, AB 748 remains unapproved at this point. Hence, the public does not have an absolute right to the disclosure of video and audio recordings by law enforcement officers.

This subject might seem straightforward to most observers however, it is not. One of the arguments against the public’s right to obtain such audio and video recordings involves a person’s individual right to privacy. Whether it is a traffic violation, a misdemeanor &/or a serious felony, all of us believe in the premise “one is innocent until proven guilty.” As such, an individual’s identity, license number, address and other personal information that is part of the cam footage is and should remain protected. Until the Legislature adopts standards that can be incorporated into a bill that is passed and then signed by the governor, or becomes a referendum initiated by a vote of the public,  the matter remains an open issue depending upon the local jurisdictions in California and/or the courts that may deal with it on a case by case basis.

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