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There are days that I wonder why it is that I choose to do what I do. There are days and then there are weeks. This was one of those weeks. It perfectly culminated in two things, a phone call where I actually couldn’t remember who I was calling or my own name since I had been on so many calls back-to-back this morning and then a short while later, when my phone rang, I couldn’t find it under all the papers on my desk. So, folks, I thought I’d share this little gem which just about sums it all up. 05c6e4b6c14213366d93d1c2a97c8264

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There are perks to being an attorney in Vermont. Like when you have to do two closings the same day with a couple hours in between and they are both not in your office. I got to spend the afternoon up in Addison County with my favorite guy who came along as my chauffeur. We stopped at Falls Park in Vergennes, had a great Thai lunch in Middlebury and a beautiful ride through the countryside. Followed it all up with a trip to the new pub at the Victorian Inn and a relaxing evening on the porch with a lovely breeze. Life is good. 

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

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

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

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

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

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

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

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

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

 

While Oregon got a great deal of media attention when a young woman, Brittany Maynard, decided to use its law to end her life when she was dying of cancer last year; Vermont was actually the first state to have its legislature pass an aid in dying law. Vermont’s law permits a capable terminally ill adult to request and obtain lethal drugs which the person can self administer in an effort to hasten the patient’s imminent death.  Vermont’s law is a stepped version which has a series of patient protections in place that must be complied with that will cease to exist in 2016. Those protections put in place in the bill in an effort to garner the legislative support necessary to pass the measure provides:

— A requirement for a psychiatric evaluation if there is any indication that a patient requesting lethal medication has impaired judgment

— A 15-day waiting period between a patient’s first and second request for the medication

— A waiting period after the last request before the doctor actually writes a prescription for the lethal drug.

Upon the expiration of these so-called patient protections, the discussion regarding the end-of-life decision of a terminally ill patient becomes a private conversation between a patient and his or her doctor. There are those who are concerned that government should still be involved in the discussion, not really trusting that the patient-physician relationship would sufficiently address concerns.

According to articles written on the issue following the passage of Vermont’s law, “after July 1, 2016, the law will protect physicians from civil or criminal liability, and from professional misconduct charges.” Despite the changes that are set to occur in 2016, there still needs to be informed consent on the part of the patient so doctors are required to inform a terminally ill patient of all the options including hospice and palliative care. Ultimately, though, the issue is still a decision to be made by the patient in conjunction with his or her doctor.

The issue of whether or not the patient “protections” that are presently in place should be continued past 2016 is a discussion that is currently taking place in Vermont. If this issue touches you or someone in your family, perhaps now is the time to voice your opinion.

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As many of you know, I am an attorney. Today in the mail I received a letter from a business known as the National Academy of Family Law Attorneys. Inc. advising me that I am a spectacular attorney and I have been chosen from their “rigorous selection process” to receive their “prestigious” Top 10 Attorney Award. The letter goes to tell me that this association has been in existence since 2013 (really?) with the primary goal of recognizing the top 10 family law lawyers in each state for their “hard work”. I am urged to return my acceptance by a specific date or my spot will be given to the first alternate. The second page entitled “Award Acceptance Form” contains spots for all the necessary information for me to receive my “prestigious” award including the spot where I can indicate how I want to pay the $250 Award Administration Fee to them for this honor. When I fork over $250, they will provide me with a plaque telling me how wonderful I am as a Top 10 Attorney.

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There are days when my self confidence may slip a little low, but  honestly, I don’t think I need to fork over $250 for a plaque to remind myself of how special I really am. Plus, it would help if they got my name correct. I haven’t been “Smith” since 1992 and I am not licensed in Vermont under that name at all. That, and the fact that a Google search doesn’t come up with any such organization on the first page of hits, is more than enough to make me say, thanks, but no thanks.

I think I’ll file this one where it belongs…..in the trash.

English: International Criminal Court (ICC) logo

English: International Criminal Court (ICC) logo (Photo credit: Wikipedia)

A long time ago, someone that I hold very dear to my heart, who was like a second father to me, told me that dressing up together with a respectful attitude can definitely put you in a place where you might not get otherwise. Those two things he would often say, would take you far in life.  We are, for better or worse, humans who judge on first impressions. Dressing up doesn’t mean donning a $1,500 designer suit, but rather dressing appropriately and more importantly, respectfully for the situation that you find yourself in and acting accordingly.

Today, my oldest son got a glimpse into the legal world that forms the basis of his mother’s world. We drove down to Massachusetts together to appear for a traffic ticket that he got driving home from a concert during the summer. Entering the courthouse, what I had been trying to explain to him quickly became apparent. Looking around it was easy to understand why it was so important for him to don a suit and dress appropriately for this appearance. There were folks there in sleeveless t shirts, sweatpants, some looking like they had just rolled out of bed, most very clearly not showing any respect for the court or those in it that would decide their fate, for better or worse. When addressed by court personnel, some were out and out rude, others swore and attacked the police officer who had given them their ticket, who incidentally was seated a dozen feet or so and well within earshot of their conversation. My son got to see another side of life, which I think opened his eyes to how important some of the little things are that the adults in his life have been telling him all these years. Personally, while I wouldn’t advocate running out and committing a traffic offense or criminal act, just spending a few hours in municipal or traffic court and seeing what other people go through and how good you’ve got it in a lot of respects, can give a person a great deal of perspective. It is definitely most often a long line of examples of how not to act.

Besides the attorneys and the court personnel, he was clearly the most respectfully dressed. Since I am not licensed in Massachusetts, I was only there as moral support with some legal advice thrown in for good measure. I am very proud to say that when called, he appeared alone before the magistrate and presented his side of the story. He walked out of the courtroom, with a very, very good result– a big part of which I am certain was directly attributed to his appearance, his respectful and apologetic tone and his manners. TJ referred to it as “the power of the suit”. So, bringing the story full circle, my dear mentor had he been there today, would have been very proud of my son, his demeanor and the “power of the suit”.

I don’t often (or hardly ever) put on my lawyer hat when I post to this blog. That is not the purpose of this blog and honestly I don’t want to bore those of you who do real my posts with the usually dry aspects of the legal world. I was however reading the Supreme Court’s opinion in the case entitled Federal Communications Commission, et al. v. AT&T and well, I just had to share. You really have to read this in order to understand exactly how bad AT&T got slapped in the face by the biggest court in our country. Judges, and especially United States Supreme Court Justices, usually don’t come across this way.

AT&T attempted to claim “personal privacy” in order to not have to release Freedom of Information Act records released which might be “embarrassing”. The Court (not very nicely) ruled that even though a recent case deemed corporations “persons” with rights under the law, they are not entitled to claim “personal privacy”. The humorous and rather sarcastic comments are excerpted here, but if you truly want the entire opinion can be read here.

Like the Court of Appeals below, AT&T relies on the argument that the word “personal” in Exemption 7(C) incorporates the statutory definition of the word “person.”… The Administrative Procedure Act defines “person” to include “an individual, partnership, corporation, association, or public or private organization other than an agency.” 5 U. S. C. §551(2). Because that definition applies here, the argument goes, “personal” must mean relating to those “person[s]”: namely, corporations and other entities as well as individuals. This reading, we are told, is dictated by a “basic principle of grammar and usage.” …According to AT&T, “[b]y expressly defining the noun ‘person’ to include corpora- tions, Congress necessarily defined the adjective form of that noun—‘personal’—also to include corporations.” AT&T Brief 14 (emphasis added).
We disagree. Adjectives typically reflect the meaning of corresponding nouns, but not always. Sometimes they acquire distinct meanings of their own. The noun “crab” refers variously to a crustacean and a type of apple, while the related adjective “crabbed” can refer to handwriting that is “difficult to read,” Webster’s Third New Interna- tional Dictionary 527 (2002); “corny” can mean “using familiar and stereotyped formulas believed to appeal to the unsophisticated,” id., at 509, which has little to do with “corn,” id., at 507 (“the seeds of any of the cereal grasses used for food”); and while “crank” is “a part of an axis bent at right angles,” “cranky” can mean “given to fretful fussiness,” id., at 530.
Even in cases such as these there may well be a link between the noun and the adjective. “Cranky” describes a person with a “wayward” or “capricious” temper, see 3 Oxford English Dictionary 1117 (2d ed. 1989) (OED), which might bear some relation to the distorted or crooked angular shape from which a “crank” takes its name. That is not the point. What is significant is that, in ordinary usage, a noun and its adjective form may have meanings as disparate as any two unrelated words. The FCC’s argument that “personal” does not, in fact, derive from the English word “person,” but instead developed along its own etymological path, Reply Brief for Petitioners 6, sim- ply highlights the shortcomings of AT&T’s proposed rule.
“Person” is a defined term in the statute; “personal” is not. When a statute does not define a term, we typically “give the phrase its ordinary meaning.” Johnson v. United States, 559 U. S. ___, ___ (2010) (slip op., at 4). “Personal” ordinarily refers to individuals. We do not usually speak of personal characteristics, personal effects, personal correspondence, personal influence, or personal tragedy as referring to corporations or other artificial entities. This is not to say that corporations do not have correspondence, influence, or tragedies of their own, only that we do not use the word “personal” to describe them.
Certainly, if the chief executive officer of a corporation approached the chief financial officer and said, “I have something personal to tell you,” we would not assume the CEO was about to discuss company business. Responding to a request for information, an individual might say, “that’s personal.” A company spokesman, when asked for information about the company, would not. In fact, we often use the word “personal” to mean precisely the oppo- site of business-related: We speak of personal expenses and business expenses, personal life and work life, personal opinion and a company’s view.
AT&T’s argument treats the term “personal privacy” as simply the sum of its two words: the privacy of a person. Under that view, the defined meaning of the noun “per- son,” or the asserted specialized legal meaning, takes on8 FCC v. AT&T INC. Opinion of the Court
greater significance. But two words together may assume a more particular meaning than those words in isolation. We understand a golden cup to be a cup made of or resembling gold. A golden boy, on the other hand, is one who is charming, lucky, and talented. A golden opportunity is one not to be missed. “Personal” in the phrase “personal privacy” conveys more than just “of a person.” It suggests a type of privacy evocative of human concerns—not the sort usually associated with an entity like, say, AT&T.

And to add insult to injury… the Supreme Court wraps its up with the following conclusion.

We reject the argument that because “person” is defined for purposes of FOIA to include a corporation, the phrase “personal privacy” in Exemption 7(C) reaches corporations as well. The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally.

Slam dunk there with the last line. Gotta love those justices.

Note in order to not cause you to become disinterested before you could get to the interesting stuff, I omitted the Court’s lengthly citation references — the stuff us lawyers live for….. just kidding, folks.

In the world of litigation, anyone can sue anyone for anything. This proposition is of course tempered by the rules for frivolous litigation which penalizes litigants that bring lawsuits which they know have no merit resulting in a waste of court resources. I came across an interesting lawsuit referred to in the Wall Street Journal Law Blog filed by a woman in federal court in Utah against Google for faulty walking directions. The complaint can be found here.

It seems that the woman, looking for walking directions across town, used Google Maps walking directions which placed her on a highway without sidewalks. The woman, who evidently chose to follow the directions verbatim, was struck by a car and injured. She is now suing Google for providing her with dangerous directions.

Frivolous? Ingenious? Her allegations is that by providing directions Google undertook a legal duty to provide safe directions for pedestrians. She alleged that by providing directions which instructed her to walk on a highway with no sidewalk, Google was negligent. It will be interesting to see how this holds up in court compared to the “reasonable person” standard. The plaintiff always has an obligation to act as a reasonable person would act under the circumstances.

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S.280 passed by the Vermont House and Senate was signed into law by the Governor today. The law prohibits texting while driving on highways in Vermont and imposes a penalty of $100 and two points for the first offense and $250 and five points for a second or subsequent offense within a two year period.

Drivers under 18 who hold a junior operator’s license are specifically prohibited from using cell phones and other portable electronic devices while operating a motor vehicle in Vermont.

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