RUTH BADER GINSBURG, A NAME TO REMEMBER

Ruth Bader Ginsburg was certainly no stranger to adversity. Prior to dying before Ruth graduated from high school, her mother inspired a love of learning in her. Graduating at the top of her class at Cornell University, she entered law school at Harvard. There she experienced the kind of adversity that either makes or brakes people. At that time, she was a mother, her husband, also a law school student, was treating for cancer and she was one of 9 female students in a male dominated 500 person class. Facing gender-discrimination, Ms. Ginsburg was chastised for taking a man’s spot in law school. She was the first female on the Harvard Law Review. In her final year of law school, Ms. Ginsburg transferred to Columbia Law because her husband had taken a legal position at a New York City law firm.

Upon graduation, Ruth Bader Ginsburg had trouble finding a job. However, her favorite Columbia Law professor recommended her and her alone to U.S. District Judge Edmund J. Palmieri, where she was hired as a clerk for two year. Thereafter, offers of employment from law firms were at substantially less pay than her male counterparts. Following a year abroad where she worked on the Columbia Project on International Civil Procedure, Ruth began teaching at Rutgers Law School and, later, at Columbia Law School, becoming the first female to earn tenure.

Her civil rights activism included directing the Women’s Rights Project of the American Civil Liberties Union. While at the ACLU, she argued 6 landmark cases against gender discrimination before the U.S. Supreme Court. An equal opportunity advocate, Attorney Ginsburg addressed situations where men were experiencing discrimination as well.

President Jimmy Carter appointed Judge Ginsburg to the U.S. Court of Appeals for the D.C. Circuit in 1980. In 1990, President Bill Clinton appointed her to the U.S. Supreme Court. Justice Ginsburg wrote the majority opinion in States v. Virginia, holding that a qualified woman must be permitted admission into the Virginia Military Institute. Later, she wrote the dissent in Ledbetter v. Goodyear Tire & Rubber Co., a Title VII case denying relief to the plaintiff due to a statute of limitations issue.

Justice Ruth Bader Ginsburg believed that Congress and other legislatures should be the catalyst of social change rather than the courts.

For more about this inspirational woman, log onto https://www.oyez.org/justices/ruth_bader_ginsburg the article from which this blog is distilled.

From Householder to Cupp

When Larry Householder was removed as Speaker of the House after felony racketeering charges involving a nuclar bailout law he championed, who knew Robert Cupp would replace him?

You may remember Mr. Cupp from when he was Justice Cupp. He served one 6-year term, during which he voted with the majority that FirstEnergy would not be permitted to pass along increases in coal prices to its customers as “distribution costs.” He also voted to permit Ohio citizens to both register and vote on the same day. And he voted to uphold the newly redrawn Congressional district map. He was defeated in 2012 by Justice William O’Neill.

After serving as a state senator for 16 years and as Justice for 6 years, Cupp was elected as state representative for Lima. Although he received no votes from the Democrats for the Speaker position (Cupp is a Republican), Democratic Minority Leader Emilia Sykes has acknowledged that he has worked closely with Democrats in the past.

According to Cupp, his first legislative priority will be the nuclear bailout law. Interestingly, he voted for the law. There is currently a proposed bill to repeal it.

As reported in Statehouse News Bureau on August 4, 2020.

U.S. Supreme Court Justice John Paul Stevens Dies At Age 99

After living a good long life, U.S. Supreme Court Justice John Paul Stevens passed away on July 16, 2019, at age 99.  Formerly a Republican antitrust lawyer, Stevens’s 35 years on the U.S. Supreme Court transformed him into an outspoken leader of the court’s liberal wing. Stevens joins U.S. Supreme Court Justices Oliver Wendell Holmes, Jr. and William O. Douglas as one of the longest sitting U.S. Supreme Court Justices on the U.S. Supreme Court bench. Justice Stevens was appointed to the bench in 1980 by President Gerald R. Ford to replace Justice William O. Douglas.

Among his more well-known opinions was Rasul v. Bush, 542 U.S. 466 (2004). Writing for the majority, Stevens brought within the jurisdiction of the federal courts the fate of hundreds of prisoners captured during the war in Afghanistan and Pakistan and held at Guantanamo Bay.

Justice Stevens wrote the majority opinion in Hamdan v. Rumsfeld, 548 U.S. 557 (2006) disallowing the Bush administration to put some of those detainees on trial by military commission.

In 2010, Justice Stevens retired after the decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). There the U.S. Supreme Court held that the federal government could not limit corporations from spending money to influence the outcome of elections.  The majority held that the First Amendment prohibits Congress from passing any law that would fine or jail citizens or associations for engaging in political speech.  This includes, according to the opinion, a speaker speaking on behalf of an association existing in a corporate form. The opinion expanded the rights of corporations to spend money and speak on politics.  This ruling led to the creation of super PACs.

Dissenting, Justice Stevens wrote that the opinion rejected the common-sense notion of the American public that recognized a need to prevent corporations from undermining self government.  Justice Stevens wrote that, in the context of elections to public office, the distinction between an individual and corporate speaker is significant.  While corporations make enormous contributions to American society, they are not actually members of it.  Where the corporation is managed or controlled by nonresidents, its interests may conflict in fundamental ways with the interests of eligible voters.  The opinion was decided on January 21, 2010.  Justice Stevens announced his retirement from the bench on April 9, 2010.

After retiring, Justice Stevens had an active career as an author and public speaker.

 

Prosecutor’s Duty is Substantial Justice

On May 9, 2019, the ABA released Formal Opinion 486 clarifying a prosecutor’s duties under Model Rules 1.1, 1.3, 3.8(a), (b), and (c), 4.1, 4.3, 5.1, 5.3, and 8.4(a), (c) and (d) when entering into plea bargains with persons accused of misdemeanors.  According to the Opinion, prosecutors are duty bound to each charge incident to a plea has an adequate foundation.  They must make sure the accused is informed of his/her right to counsel and the procedure for obtaining counsel.  Prosecutors are not permitted in plea negotiations to jeopardize the accused’s ability to obtain counsel.  Nor can they offer pleas on terms that knowingly misrepresent the consequences of acceptance of a plea. And they are not permitted to pressure or improperly induce an accused to accept a plea.

The Opinion notes that a prosecutor’s integrity is essential to the administration of criminal justice.  A prosecutor has the responsibility of a minister of justice and not just as an advocate.  The primary duty is to see that justice is done and not merely to convict.  This is because the prosecutor represents the sovereign. Therefore, he/she should use restraint in the discretionary exercise of governmental power.  During trial, a prosecutor makes decisions normally made by an individual client.  Accordingly, those affecting the public interest should be fair to all.  Moreover, in the system of criminal justice, the accused is to be given the benefit of all reasonable doubts.

Misdemeanors make up about 80% of all criminal prosecutions. Estimates are that prosecutions have doubled since 1972.  “A misdemeanor conviction can lead to denial of employment, expulsion from school, deportation, denial of a professional license, and loss of eligibility for a wide range of public services including food assistance, public housing, health care, and federal student loans.” Plea bargaining has become an essential component of the administration of justice.  It is, therefore, imperative that there “be fairness in the securing of an agreement between the accused and the prosecutor.” Because of the vast increase in misdemeanor prosecutions, there is a tendency toward speedy dispositions at the expense of fairness of the result.

Conduct that would violate the Rules includes:

1. Entering into plea negotiation before explaining the right to counsel;
2. Using delay or threatening a harsher sentence to dissuade the accused from invoking the right to counsel;
3. A requirement that accused persons, gathering en masse into the courtroom, must tell the clerk how they intend to plead;
4. Using forms to obtain waivers of the right to counsel and other rights as a condition of negotiating a plea or entering into plea negotiations without ensuring that the accused understands his/her rights being waived;
5. Permitting investigators to act as prosecutors and negotiate pleas;
6. Advising the accused of the right to counsel but failing to provide a process for the accused to exercise the right to retain counsel or waive counsel prior to plea negotiation;
7. Failing to inform indigent clients of their right to request a waiver of court fees associated with court-appointed counsel.

Rule 3.8(a) prohibits a prosecutor from filing a charge that is not supported by probable cause. A prosecutor’s workload that is too heavy to permit independent assessment of each charge and supervise other state actors responsible for the case may not be providing competent representation as Rule 1.1 requires or diligent representation as Rule 1.3 requires. A supervising prosecutor is duty bound to establishing policies, procedures and practices and methods of monitoring prosecutors and other state actors such that there is reasonable assurance of compliance with the prosecutor’s ethical obligations.

Ohio Is Getting A New Disciplinary Counsel

Last week, the Board of Commissioners on Professional Conduct announced that it is conducting a nationwide search for the position of Disciplinary Counsel.  On March 5, 2019, The Supreme Court of Ohio, acting on a Board recommendation, approved an amendment to Gov. Bar R. V to reinstate a 4-year term for that position.  The new term begins October 27, 2019.  Previously the term was for 6 years.  For the past 6 years, the position has been held by Scott Drexel, a former Bar Counsel from California.  The position will be posted or distributed through state and national publications.  It will likewise be posted to national organizations specializing in ethics such as the National Association of Bar Counsel, the Association of Professional Responsibility Lawyers and the National Counsel of Lawyer Disciplinary Boards.  Information about the position can be found on the Supreme Court’s career opportunities webpage.  Chairing the 7-member Panel of the Board conducting the search is Vice Chair Patricia Wise of Toledo.  Interviews will be conducted during the spring and summer and a recommendation will be made to the Board at its August 2, 2019 meeting.  The recommendation will be subject to the approval of the Supreme Court of Ohio.