Costello & Mains Supports S-676: The "Hand and Foot Bill

Kevin Costello and Deborah Mains are thrilled to announce that Krista A. Schmid, a talented lawyer in her 7th year of practice, has joined the firm as an employment and civil rights litigator and trial lawyer. “I’ve always harbored a desire to do plaintiffs side employment and civil rights”, says Krista, “and I'm thrilled to join what I think is one of the most advocative and active employment trial practices in the State.” Kevin and Deborah are equally thrilled to be able to continue to service and expand the firm’s growing client group in all areas of employment and civil rights litigation.

New Jersey Civil Rights Attorney Opposes Christie's Remarks About Judge Feinberg

If You Can't Say Something Nice...

I'm a big boy now. I understand that politics is a dirty business no matter whom you happen to support. I get that our governor has his fans, fans who will excuse anything he does because, having drank the kool-aid, there's nothing he could do that isn't "necessary." This is an extreme view. I'm hoping that even those extremists might have a place in their view for reason. Take a deep breath and consider: Governor Christie has made some mistakes, since he's been in office.

One of those was removing Judge John Wallace from the Supreme Court, in a move unprecedented in our state and which now opens the door to "tampering" with our judiciary. Removing Judge Wallace was one way of tampering. Recently, Governor Christie revealed yet another arrow in his quiver of "judicial modification through intimidation:" outright disrespect and conduct unbecoming an attorney in bashing a judge who applies the law.

Governor Christie was a licensed attorney when he practiced. That means that, whether he took it seriously or not, he swore an oath to abide our rules of professional conduct. This is an oath not lightly set aside, and certainly one that should never be set aside for the sake of political grandstanding. Some prices are simply too steep to pay to sacrifice one's personal honor as an attorney. Governor Christie did not violate his obligation to the rules of professional conduct when he removed Judge Wallace from the bench - though it was a dirty, disrespectful move that weakens our government for everyone - but I believe that he has in personally castigating and belittling a sitting judge of the State of New Jersey, Judge Linda Feinberg, for her decision in the matter of DePascale v. State.

Judge Feinberg ruled last Monday that the Pension and Healthcare Benefit Act, enacted in June, is unconstitutional as applied to judges.

Governor Christie didn't like the decision. Why he didn't like the decision is not germane to my point. That he didn't like the decision could have been made evident in a hundred ways, any of which, while "on the boarder" of good taste, would not have violated the code of conduct that governs licensed attorneys. That code of conduct speaks to many aspects of an attorney's conduct. Because we are the servants of the law, we must protect it and encourage respect for it by not acting in a way which denigrates it or the people who serve in it. Judges are certainly included in that latter group. Specifically, Rule of Professional Conduct (RPC) 8.4 says that it is professional misconduct for a lawyer to "...engage in conduct that is prejudicial to the administration of justice."

This RPC is a "catchall" portion of the RPCs which has been used to discipline attorneys who, for example, have publicly embarrassed themselves and their profession by publicly castigating a judge. By the way, judges have their own code of judicial conduct in addition to being governed by the RPCs; judges may not publicly castigate lawyers either. Even when judges are unhappy with what a lawyer does, they must be respectful and even-tempered just as lawyers must be respectful when addressing the court, whether they agree or disagree with what the court has said.

Governor Christie used words like "elitist" and "self-interested" to describe a decision which correctly applies the law the way a judge should; regardless of whether or not their decision would please those who hold purse strings or who make judicial appointments. The president of the State Bar Association said it best; "Governor Chris Christie's comments today are yet another attempt to intimidate the courts and unduly influence the judicial process." She also said that the Governor's continued attack on the judiciary "denigrates the separation of powers and the independence of the judiciary as a separate branch of government."

I get that Governor Christie has larger aspirations when his term as governor ends than returning to the private practice of law. I'm also just as certain that if he chooses to do so, the bar will almost certainly elect not to attempt discipline for this conduct. Yet I do believe that Governor Christie has misconducted himself, not as Governor who became a Governor after a career in some other profession, but as a former attorney. Despite the underserved and unfairly negative impression that the public now has about attorneys, some of which has no doubt been created by attorneys themselves, attorneys are a profession that polices itself rather aggressively, certainly more than physicians or other professionals with whom I'm acquainted.

I believe that Governor Christie will certainly shrug aside anyone criticizing him for his remark and I'm certain that privately, he has no remorse whatsoever for it. I'm sure he considers it an appropriate political gambit and appropriate lip service to the right wing and conservative elements that support him and his attempts to cast any judicial activity that he doesn't like as "activist." What's far darker and even more concerning about these comments, however, is the fact that they're clearly being used to intimidate a branch of government that is supposed to be independent and not "worried" about what the other two branches of government might do to them if they don't please those other two branches of government.

I hope that some of you who are reading this who are huge fans of the Governor will be able to put aside your temporary relationship with him - he won't be in office forever - and think about the long haul for the State of New Jersey and for government in America generally. Are you comfortable with the idea that a chief executive officer of a state or of a nation from either party should have the right to essentially castrate the third branch of government? Don't you feel better knowing that the several centuries-old plan laid down for this country is being followed by an independent judiciary?

Remember, the worm turns. I'm a progressive. I don't like a number of judges on the United States Supreme Court, but I would be even more uncomfortable if, because of the nature of their decisions, which are clearly pro-corporate and against individual and civil rights, were a democratic president to simply remove them for cause. I'm sure you can appreciate why. My happiness would be temporary. In due time, a republican president would come along and then effectively castrate the next democratically appointed Supreme Court for the same reason. After a while, the judiciary would simply cease to have relevance; we'd be left with two branches of government and sham for the third, the third which is supposed to balance the first two. The system of checks and balances are served well. Governor Christie is a reasonably intelligent man and should have known better. Anyone taking a deep breath and looking at the situation should, I hope, know better, as well.

Allowing this Governor to set the precedence with regard to an independent judiciary that he has will create huge potholes on the road to the journey to justice.

The Occupation of New York City - What it Means to You

I had an opportunity to watch the news regarding the protest movement called "The Occupation of New York City." I also had an opportunity to review the "declaration" document of the group that sponsored the protest, the "Direct Democracy Occupation Group."

As I watched the coverage, and as I read the declaration, I recalled my younger years first as a high school student, then as a college student, as a law student, as a young lawyer, and finally, as an "aging" lawyer (though I am not quite ready to call myself an "old" lawyer yet).

At each of those stages, I "evolved" my thinking about what "freedom" meant to me and, by extension, my ideas on "fundamental human rights" and "civil rights." I don't know that everyone engages in this thought process, regardless of their educational background or level of cultural or professional sophistication. I'm reasonably certain that, along with the great majority of doctors, architects, and other formally educated people doing "other things," even lawyers who don't do civil rights work don't spend a great deal of time thinking about these notions.

Being a civil rights attorney, however, and writing as I do about the issues near and dear to my practice and, therefore, near and dear to me, I think a great deal about issues raised in this protest.

My personal philosophy is not strange to you if you've read even a minority of my blog entries. I'm very much comfortable with being an extreme progressive. I don't consider myself a "liberal" because frankly, that has become a pejorative term (and I never really knew what it meant in the first place). To me "liberality" simply means freedom, but only in the abstract. The idea, on the other hand, of being a "progressive," means that I embrace change and that I believe that change is not only the fundamental nature of the universe but also the best way to make things better. If things aren't the best that they can be, then we always ought to strive to make them better. Only a fool, however, thinks we can ever reach a state of perfection. Likewise, only a fool believes that by "standing pat," and by never changing except to retract or rescind, that we can make things better.

So I am a shameless progressive and I believe in equal rights for all. I believe in severe restriction on the right of religious organizations to politically lobby or to have a say in how a secular democracy runs. I believe in restrictions on the free market (because unrestricted freedom to build enormous wealth for an elite means suffering for the majority) and that corporations must be restrained from doing harm or they will do harm without restraint and without accountability. I believe that corporate leaders must be held personally responsible for what they have the corporation do. I believe that money corrupts and that money, neither in its possession nor in the quest for it, should be used as a justification to do wrong on any level and for any reason.

Yet, I also don't consider myself an anarchist. I'm not one to take to the streets and "march" because I just don't believe that that gets much attention unless it's negative. Protests and marches don't directly confront someone to change their mind in a peaceful way. As Phil Jackson says in his recent television campaign, "anger" is the enemy of instruction.

That having been said, protests do accomplish a lot now-a-days. They get people thinking and talking. I think that's really why protests happen now. I don't think the protestors are expecting that anyone is actually going to be physically present and emotionally moved by what the protestors have to say. I think the protestors hope that, through the press coverage, people will have dialogues and that through dialogues, perhaps hearts and minds can be changed and things can improve.

So I wouldn't have taken part in the Occupation of New York City. It's too hot, there's not enough access to bathrooms, and I get grumpy when I'm not fed. As well, there are things I can do which, I hope, better serve the aims of the protest. One of those things is to talk about why I empathize with the protest.

In the declaration document, I expected to find, as a 45 year old man, that most of the declarations made therein were too progressive, philosophical or unrealistic for my taste. I expected what I suppose would have amounted to a pseudo-socialist (or outright socialist) rant that I, obtained a degree in political science and having lived quite a while in the world of the law and civil rights, would have known instinctively was unattainable and, therefore, to be readily discarded.

Yet, nearly everything I found in the declaration resonated with me, not just as a civil rights lawyer but as an American and as a human being. More than that; it resonated with me as a husband to a wife, a son to two dead parents who had a vision of what they hoped the future might bring for their descendants, and as a father of an eight year old child. I found myself wanting very much to have the sort of world that the "occupiers" want.

And here's the thing; I bet that when I share their declarations through the filter of this blog (and hopefully you trust my perspective more than you might have trusted kids with shaggy hair and hacky sacks and signs), you'll come to see the simple wisdom in their position.

They start by saying that "the future of the human race requires the cooperation of its members." Well that's obvious enough, isn't it? Either we all pull in the same direction or we're going to lose the fight for our planetary and species survival and prosperity to war, religious ignorance (and the wars, hatred, overpopulation and starvation factuous religion inspires), to pollution, ecological ruin and disease. They also say that the "system must protect our rights, and upon corruption of that system, it is up to the individuals to protect their own rights and those of their neighbors." Also easy, and obvious, and frankly, this should resonate with any American; it's what the American revolution was all about. The right to "alter or abolish" tyranny is enshrined in our Declaration of Independence.

They go on to say that no true democracy is attainable when the process is determined by economic power. This, I'm not so sure I agree with, not because I don't want the world to work that way (I do) but because I can't see that it ever will as long as humans run things. Human nature being what is, greed is fundamental to the human condition. Those who "don't have" may speak loftily of their "ideals" in wishing to redistribute what they don't have, but give enough people that don't have something that something, and they'll grow possessive over it. The way to maintain a rational but better society than the one we have now is by allowing everyone freedom to acquire, but with practical limits that don't allow misery for the many as the price of privilege for the few.

Here are some of their other "planks" in their platform. Remember that the "they" of whom they speak are the same "they" of whom I speak in my other blogs and of whom we all speak when we complain about the greed, corruption and vanity of the elite corporate creatures who manipulate our politics, our laws, and our rights. The "they" is the tiny minority of the population that holds the reigns to controlling the vast majority of wealth (and thus power) in this country. Here are the planks which resonated with me:

"They" have taken bailouts from taxpayers with impunity, and continue to give Executives exorbitant bonuses;

"They" have perpetuated inequality and discrimination in the workplace...;

"They" have poisoned the food supply through negligence, and undermined the farming system through monopolization;

"They" have continuously sought to strip employees of the right to negotiate for better pay and safer working conditions;

"They" have held students hostage with tens of thousands of dollars of debt on education, which is itself [education] a "human right;"

"They" have consistently outsourced labor and used that outsourcing as leverage to cut workers' healthcare and pay;

"They" have influenced the courts to achieve the same rights as people, with none of the culpability or responsibility;

"They" have deliberately declined to recall faulty products endangering lives in pursuit of profit;

"They" determine economic policy, despite the catastrophic failures their policies have produce and continue to produce;

"They" have donated large sums of money to politicians supposed to be regulating them;

"They" continue to block alternate forms of energy to keep us dependent on oil;

"They" continue to block generic forms of medicine that could save lives in order to protect investments that have already turned a substantial profit.

There are other more general allegations that are not generally supported by fact although they certainly feel intuitively true. The ones in which I am interested, however, appear above. Now, if you're a rational, reasonable, hardworking, loyal and patriotic American whose loyalty and patriotism is to the ideal of what America should be rather than to a political party or a political pundit, then I'm guessing that you agree with most, if not all, of the above statements.

Which raises an interesting question: why aren't we all acting in accord with these beliefs? Why are we letting the relatively few and admittedly "protest" inclined "occupiers" of New York City do all the heavy lifting for us? Why am I?

My easy escape answer is, of course, that I don't. I try to redress some of these issues in the courts through my civil rights practice, but at the end of the day, I can really only redress a few, and only in my own way and as the present law allows. The law is administrated by judges who must follow what the legislature passes, and when the corporations effectively own most of the legislative process, the judges are hamstrung in delivering justice; discretion can only go so far.

Do any of us think that this country has not been largely subordinated to corporate power? Do any of us really think that there's anything approaching a fair chance for people who aren't part of the economic elite to achieve what the economic elite has already achieved and covetously guards? Plainly, many of you reading this blog may be, as most of us are, somewhere in that vast "middle class" from the lower to the middle to the upper. I'm guessing that no one reading this blog is part of the economic elite that throws seven figure sums around like they mean nothing. So it's to those putative readers I speak when I ask the above questions and when I ask these: does anyone think that the bailout doesn't make them sick to their stomach and that the money hasn't been misused? Does anybody really think that some of that bailout money wasn't used to increase already ridiculously bloated bonuses and perks for executives of the companies whose malfeasance necessitated the bailout in the first place? Does anybody think our food supply is safe despite the level of toxins still poured into that food supply? Does anybody really think that educational opportunities are fairly administered or that the pharmaceutical companies aren't being ridiculously greedy in hoarding cures or overcharging for remedies? Does anybody really think that educational debt is fair or that students have meaningful choices to do good work for less pay?

That last question, by the by, is pretty near and dear to me as a lawyer. In another blog, I've railed against the idea that law school is becoming more and more expensive and that only people with silver spoons in their mouths, or people willing to live hand-to-mouth, can afford to do work for "people" as opposed to "corporations" when they get out of school. Law students are faced with a ridiculous choice of either serving the corporate power structure for the kinds of salaries that allow them to support the increasing law school debt - work of which I am sure they don't feel particularly proud - or being poor (or ruining their credit score) and literally living on macaroni and cheese by accumulating that debt and yet trying to serve the interests of regular families (which isn't as nearly financially rewarding at the start of one's career).

My favorite line of all, however, is the fact that the corporations have influenced the law to the point where the corporations are treated as "people" with none of the accountability. I've railed against that in many of blogs before and I rail against it every day and I've said it to juries. It's insidious and disgusting and yet that idea is as enshrined in our law as many other principles as old as the law itself.

If I as a person do something wrong, then I as a person am responsible for it. But if a corporation, treated as a person when it comes to asserting its rights against others, does wrong, the corporation is held accountable but not the people that directed the corporation to do the bad thing.

That's nice. We hold a piece of paper creating the corporation responsible for injury, corruption, death. But not the people who hide behind the paper. We call that "the corporate veil" and it is one of the most shameful and unacceptable Faustian bargains our economy has made in order to be "successful."

We fight against that particular legal fiction every day with varied success. We fight against that fiction for you. We do that for individuals and people who don't realize how "evil" corporations really are until they're personally wronged by corporate arrogance and greed.

I found myself empathizing a great deal with the Occupation of New York City. I'm going to start supporting that group and I'm going to remember that when one person cries out for justice for himself, it is a good idea for other people to listen. Martin Luther King once said that "injustice anywhere is a threat to justice everywhere" and truer words were never spoken.

The Occupation of New York City and more importantly, the ideas that it was meant to represent and foster, are necessary way-stops on the journey to justice.

Costello & Mains Supports the Repeal of "Don't Ask, Don't Tell"

Costello & Mains proudly supports the repeal of "Don't Ask, Don't Tell," the policy which provided dubious protection to gay servicemen and women by suggesting that as long as they didn't declare who they were, they wouldn't be asked. The policy was a compromise of an otherwise responsible and successful Clinton presidency which has resulted in dismissals from service of otherwise honorable and courageous service people, dismissals not for failure to serve with honor or courage, but dismissals for being gay.

"We're proud of America and we're proud of our Constitutional tradition of fairness, liberty and justice," says partner Deborah Mains. "This policy is one of many that still make it 'okay' to bash and denigrate homosexual men and women simply for being who they are. As civil rights lawyers, we fight against that sort of prejudice every day, but we're hoping that the repeal of this policy will enable us to shine a light on a now national example of eliminating bigotry and hatred even in institutions where resistance to eliminating such bigotry is strong."

Partner Kevin Costello expresses gratitude on an even more personal level: "I have a wife and a son. Anyone who wants to risk their lives to protect their safety and their freedom is a hero to me," Kevin says, "and they should be treated as such. People who are born gay are simply gay people and as capable as straight people of courage, valor, honor and sacrifice. I'm glad that we as a people have finally recognized that."

Costello & Mains Partner Kevin Costello Serves on "Coming Out in the Workplace" Panel for State Bar

On September 27, 2011, Costello & Mains partner Kevin Costello served as a panelist on worker right for the State Bar Association's Legal Seminar called "Coming Out in the Workplace," a seminar for attorneys advising GLBT (gay, lesbian, transgender and bisexual) clients in workplace rights. Kevin has been serving as a panelist on many dozens of seminars for many years and always enjoys talking to other lawyers about his passion, civil and employment rights.

"It's so important for attorneys in other areas of the law, such as estate planning, family law and benefits law, to know how to spot and advise issues special to GLBT people when it concerns the workplace," Kevin says. "I'm honored to be asked to serve and it's always a pleasure to talk this area of law with colleagues." Kevin has been a chair or speaker for civil and employment rights panels and seminars for the majority of his career as an employment and civil rights lawyer.

Justice is About More Than Money

The attacks on the jury system in this country continue in their vociferousness, their ignorance, their dishonesty and their hatred. The corporate, banking, insurance and financial worlds have all combined, since the early 1980's, in a very clever campaign to besmirch our justice system and undermine the intellectual neutrality of juries.

As a trial lawyer, I know this instinctively every time I pick a jury. Every jury selection for the past ten or even fifteen years has involved having to try to get around the poison that's been spewed into the ears and hearts of New Jersey citizens and citizens across the fifty states. Yet, armed with the ability to at least ask questions to potential jurors, we do sometimes find out which jurors are most unsuitable and most unable to be neutral. We have, at least, that ability. Yet, nearly every juror, I suppose fortunately in terms of truthfully, answers, "Yes," when they are asked whether or not they think there are too many lawsuits.

In fact, there aren't too many lawsuits. In further fact, the rate at which lawsuits have been filed in our country has actually gone down per capita over the last twenty years, but of course, the people that are trying to poison the jury system don't admit that and don't spread that information. Corporations are filing more lawsuits than ever, of course, but as far as they're concerned, they own the court system, just like they own everything else. They can seek justice as often as the like. Just not you.

They've been largely successful, but I recently had an experience which continues to restore my faith in the community of jurors called upon to deliver justice.

I took to trial a sexual harassment case in which my client was inappropriately spoken to on several occasions and inappropriately touched on another. On no occasion was there a witness to any of these acts and her employer, a solo practitioner doctor, seemed very satisfied that he would be able to convince a jury that the conduct had never taken place or that, even if it had, it wouldn't matter.

In addition, the doctor trotted several witnesses in to represent that, although my client had told those witnesses what the doctor had done, that my my client had not done so.

Yet the jury saw through those defenses and delivered substantial justice. Here's why the case was such a pleasure, however, to try.

During the direct examination, my client, very honestly and earnestly, and certainly without having rehearsed it, turned to the jury and told them that she wasn't even concerned about money, she was only concerned about making sure that the doctor was found responsible for what he did. It's not something that I was particularly concerned about one way or the other, because it was sincere and truthful. She did only care that the doctor be found responsible. In fact, she'd been waiting for her trial date for a number of years specifically and essentially only for that reason.

Happily, our Law Against Discrimination rewards people for such perseverance and for such courage, and also for such selflessness. In the end, even though the jury did award a moderate amount in damages, which certainly satisfied my client, it truly wasn't why we were there.

What feels so good is that this jury of people from the community listened attentively, listened carefully, paid attention, and then patiently sorted through the evidence to reach a substantial and just verdict. It validated the process, it validated the Law Against Discrimination, and such verdicts as this always renew my faith, not only in my practice, but also in the jury system.

It works. Never forget it and never let anyone tell you differently.

Partner Deborah L. Mains named to Co-Chairmanship of Women Litigators Committee for the Board of Governors of The New Jersey Association for Justice

Costello & Mains is pleased and proud to announce that Partner Deborah L. Mains has been asked to serve as Co-Chair for the Women Litigators' Committee for the Board of Governors of the New Jersey Association for Justice. NJAJ is a Trial Lawyers' organization exclusively dedicated to advancing and protecting the rights of working men and women in New Jersey and of their families. "Women are forming an increasingly larger percentage of the total population of lawyers and of trial attorneys, specifically," Deborah says. "I am of course proud to be a woman in this field and I am especially proud to be able to advance the interests of the growing number of women lending their voices and their courage to protecting the rights of working men and women. I will give everything I have to the Board of Governors and everything I have to the Women Litigators' Committee for my term of service."

Employment and Civil Rights Law Firm Costello & Mains, P.C. Files Suit For Returning Solider Who's Job Was Not Protected According to the Law

The Employment Rights Lawyers at Costello & Mains, P.C., recently filed a Law Suit currently pending in Federal Court for Mark Harris, a 15 year veteran of the Army National Guard and a Sergeant who was most recently deployed to Afghanistan as a combat engineer.

"This guy is in actual combat and actually defuses anti-personal mines and other ordinance directed at our troops," says partner Kevin Costello. "Yet the federal law meant to protect the jobs of these brave men and women so that the jobs are there for them when they return from combat wasn't obeyed by the employer in this case. Although the employer was required by law to hold the job open for Sgt. Harris, when he returned, the employer had not obeyed the law. That's why we have filed a Law Suit under USERRA, the Federal Law that protects jobs for service people so that the jobs are there for them when they return from serving our country."

Sgt. Harris is a diving instructor and was employed at a local diving school which corresponded with him and intimated that they would hold the job open only to let Sgt Harris down when he returned; the job was not opened to him. Married with four children and having proudly served his country repeatedly, Harris was genuinely disappointed and has asked the Law Firm of Costello & Mains, P.C., Employment and Civil Rights Attorneys, to seek redress under USERRA, the statute which protects service people in situations like this.

Partner Kevin Costello Named a "Top New Jersey Attorney" for 2011 by New Jersey Monthly Magazine

As Kevin says each time he earns one of these awards, "I still don't know how the process works, I don't vote, certainly not for myself, and I assume someone must think well enough of me to do so," Kevin says, tongue in cheek. "I appreciate that support and hope I continue to live up to the expectations of those who nominate me, and who do the voting."

The Steady Slide Toward Theocracy in the United States

Although nothing coming out of this Supreme Court should really surprise me anymore, the shear chutzpah of the reactionary justices on the Court is sometimes shocking.

On April 4, 2011, the United States Supreme Court, in a five to four decision typical of the divide between Justices who respect the Constitution and Justices who don't, refused to hear a petition by Arizona taxpayers who claimed that the state had unconstitutionally subsidized religion through its tax system. Since the inception of the plan in question, the cost to Arizona's citizens has been nearly $350,000,000.00 in diverted tax revenue. The majority opinion by Justice Kennedy said that taxpayers lacked standing because the funding of religion they challenge comes from a tax credit, rather than from a tax appropriation.

In the case of Arizona Christian School Tuition Organization v. Winn, the taxpayers complained in the District Court of Arizona that Section 43-1089 of the Arizona Code violated the establishment clause of the First Amendment to the Bill of Rights of the Constitution as made referable to the states by the Fourteenth Amendment to the Constitution. As readers may or may not be aware, the First Amendment to the Constitution is the first of the original "Bill of Rights" which softened the Constitution enough to allow for a balancing between the interests of states versus the federal government, and the balancing of interests between any government, whether it be state or federal, on the one hand, and the rights of individuals on the other. These fundamental liberties guaranteed by the Bill of Rights are so entirely fundamental that it's hard to imagine how the Constitution could even have been contemplated without their inclusion, yet the debate over whether or not to include them at all was bitter and created quite the divide.
The Arizona act allowed Arizona taxpayers to obtain a dollar for dollar credit of up to $500.00 per person for contributions to school tuition organizations that use what would otherwise be state income tax revenues to pay tuition for students at private schools. Of course, some of these schools discriminated on the basis of religion in selecting students. To put it bluntly, some of these schools are religiously governed, teach religiously, and teach, often, a biased view of others possessed by the religion governing the institution in question.

The fact that these schools discriminated inspired the suit. The District Court dismissed the suit as jurisdictionally barred by the Tax Injunction Act, a federal statute. The Court of Appeals reversed the District Court's decision and the United States Supreme Court agreed and affirmed in the case of Hibes v. Winn, in 2004.

On remand, the Arizona Christian School Tuition Organization and other interested parties intervened. The District Court once more dismissed the suit, this time for failure to state a claim. Once again, the Court of Appeals reversed. It held that respondents had standing to sue under a case called Flast v. Cohen, from 1968, and that the respondents had stated a claim that the Arizona statute violated the establishment clause of the United States Constitution.

The Court granted "certiorari," which essentially means the right to put the dispute before it, and found that the respondents had no standing under Flast because Arizona had made no "appropriation" of funds.

In essence, what the Court was arguing was that since the Arizona government had not affirmatively undertaken itself to set aside the finds, it had not, in essence, "acted." The fact that it was allowing citizens to act nonetheless with the government's imprimatur, however, should have meant the same logical thing. How the tax money is diverted shouldn't matter; that it's being diverted for the benefit of religion is what matters. It's obvious, and, no doubt, was obvious to the reactionary judges who pretended not to see it.

Justice Scalia, joined by Justice Thomas, said that taxpayers ordinarily do not have standing to challenge federal or state expenditures that allegedly violate the Constitution. They acknowledged that the Flast case created an exception for taxpayers raising establishment clause challenges - religious challenges - to government expenditures. They also said the majority would "repudiate," or invalidate if it could, the "misguided decision," referring to Flast, which, of course, allows taxpayers to challenge religious spending.

Yes, you read that right. They don't want citizens to question tax actions by the government which suggest the government is violating the anti-establishment clause of our Constitution. If that frightens you, it should. It's nothing less than an attempt to establish religion in government after all. It's theocratic fascism, and it's coming.

Justice Kagan in his dissent said that cash grants and targeted tax breaks are means of accomplishing the same governmental objective: to provide financial support to select individuals or organizations. Taxpayers who oppose state aid of religion have equal reason to protest whether that aid flows from one form of subsidy or from another. Either way, "The government has financed the religious activity" and so either way, Justice Kagan said, "taxpayers should be able to challenge the subsidy."

If I am in care of a toddler and I push the toddler in front of a moving train, I've committed murder. No less have I committed murder, however, if all I do is allow the toddler to enter the train tracks of his own accord, fully aware that the train is coming. That is how clear the meaningless distinction between an affirmative "appropriation," on the one hand, and a passive "voluntary" diversion, on the other, is.

When the day comes that America ceases to be what it is and becomes just another thuggish theocracy where one dominant religion imposes it's power on everyone else, where individual freedom is a memory, when oppression and suppression of political religious and minority opinion is no longer the exception but the rule, when searches and seizures without constitutional protection predominate, and when law enforcement and military authorities are forgiven any sin in the cause of "security," we'll have no one to blame but ourselves.

This is why judicial appointments by presidents are so important. Once a Supreme Court Justice is appointed, they can either do tremendous damage for their entire career, or do tremendous justice. The Court is presently doing tremendous damage in support of corporations, banking interests, insurance interest, overzealous law enforcement and now, establishment of religion.

At this civil rights law firm, we decry this decision and hope that something of this blog has sunk in when it comes time to cast your next presidential vote. You are not just voting for a president you are voting for your posterity's legal future. You're voting to protect what it means to be an American.

Partner Kevin M. Costello Appointed by Chief Justice Rabner to the Supreme Court Committee on the Unauthorized Practice of Law

Kevin will serve a two year term subject to re-appointment. "I appreciate the Chief Justice's order appointing me," Kevin says. "The chance to give back to the people of New Jersey by protecting them from sometimes fraudulent offers of spurious legal services is important to me. The law is the bulwark of our democracy, and the integrity of the profession, and the right of New Jersey's citizens to honorable and qualified representation, is something I consider it an honor to protect."

Costello & Mains Adds Associate Toni Telles to the Firm

The partners of the firm are pleased to announce that, effective February 28, 2011, associate attorney Toni Telles, Esq., will be joining the firm, concentrating her practice exclusively in the area of employment and civil rights law. "We're very happy to welcome Toni," says partner Deborah Mains. "Her commitment to civil rights and to protecting against government and corporate abuse is clear from her experience, which includes past affiliation with other firms doing that work, but which also includes her community activism and professional activities. She's the founding chair of the Rutgers Law School Chapter of the National Lawyers' Guild, a progressive civil rights attorney organization, and we're proud of her clear commitment to the mission of this firm."

Honorable Republican Against Tort Reform

Some of you may know the name Fred Thompson, the actor turned Republican senator from the state of Tennessee. I've never known too much about his personal politics, because I've never made it my business to know much about Tennessee and, admittedly, as a Progressive, I tend to make assumptions about Republicans which, I suppose (infrequently), I place upon them the burden to disprove. Fred Thompson, at least in the area of 'tort reform,' which thinking lawyers call 'tort de-form,' seems to have said the right things and has actually taken what I consider to be a principled stance against the misinformation and scare tactics to which the right and its allies are so frequently prone to resort.

In the online periodical The Tennessean, which I admit I don't know much about (so I don't know whether or not it's the online version of the print periodical or purely online), Senator Thompson said some interesting things about Tennessee's civil jury system, which, like those of so many states, is under attack by right wing interests seeking to limit access to courts for people and to limit and 'cap' recoveries in an effort to protect the corporate and other wrong-doers of this nation.

I've often mentioned in my other blogs that I consider the corporate and right wing 'conservative' assault on civil justice - which, in truth, basically means an assault on the scale and nature of remedies that individuals can obtain against vested interests like corporations - to be nothing more than a cynical and dishonest attempt to brainwash the American people into gladly giving up their civil rights when corporations not only don't give up rights, but also obtain more and more of them every day.

The concept of the jury is centuries older than America and is at the core of a functioning, capable democracy with a judiciary capable as standing independently as one of the three branches of government. Only through the power of a jury of regular citizens can the vested interests of government, corporations, banks, insurance companies and powerful lobbies be kept somewhat in check. Are juries tampered with? Yes. Are juries sometimes plain wrong one way or the other? Absolutely, but juries mostly get things mostly right most of the time, and given that we're not yet at a point where we can have computerized juries and we haven't quite found the planet Vulcan, our fellow American citizens are all we have.

The fact that most juries get it right most of the time irks the right more than anything. Corporations don't like having to surrender their power to juries. That's why arbitration, which is neither 'fair' nor 'inexpensive,' but which is billed to be both by the right wing, is so popular these days. Unfortunately, most American citizens are so personally consumed with distractions, economic worry, war worries, health concerns and the like, and some of them are so philosophically and ideologically wed to the right wing and its pundits, that they simply can't conceive that the right wing may not have their best interests at heart after all.

I have to admit that, even though I liked his performance in The Hunt for Red October and in a few other movies, I never assumed Fred Thompson was a principled man when it came to most issues that Progressives feel are important because he was a Republican. I'm prepared to admit that I was wrong. Fred Thompson did what appears to be an op-ed piece in The Tennessean and said some things about the jury system that, coming from a Republican, I think will even more sway, and ought to induce more thoughtful consideration in, everyone who reads this than would usually be the case.

I thought about putting only the 'pertinent' parts of his comments into this blog for length's sake, but, honestly, I liked everything he had to say, so here it is in full:

I have been asked why I want to take part in the discussions when the state legislature considers changes to our civil justice system in Tennessee. I am certainly aware of the ideological boxes that advocates like to put folks in when it comes to "tort reform."

Republicans and conservatives are supposed to be for anything called tort reform. However, I've never subscribed to these boxes. Not when I was in the U.S. Senate faced with these issues, and not now.

Some argue that the legislature should tell Tennessee juries that they can award only so much compensation in certain types of cases against certain types of defendants - regardless of the facts and circumstances of the case. I don't agree with this approach, and I don't think it's "conservative."

To me, conservatism shows due respect for a civil justice system that is rooted in the U.S. Constitution and is the greatest form of private regulation ever created by society. Conservatism is individual responsibility and accountability for damages caused, even unintentionally. It's about government closest to the people and equal justice with no special rules for anybody. It's also about respect for the common-law principle of right to trial by jury in civil cases that was incorporated into the Seventh Amendment to the Constitution.

As someone who practiced in the courts of Tennessee for almost 30 years, I believe that a Tennessee jury of average citizens, after hearing all the facts, under the guidance of an impartial judge and limited by the constraints of our appellate courts, is more likely to render justice in a particular case than would one-size-fits-all rules imposed by government, either state or federal.

Our system "ain't broke." It is based upon tradition and common law and has provided justice to individuals and businesses alike.

The legislature has made adjustments to our tort law from time to time. For example, in 2008 a law was passed requiring plaintiffs to get a written statement from a medical professional saying that the lawsuit had merit, thereby reducing medical-malpractice suits. This was reasonable and appropriate. However, never has the legislature imposed a dollar limit in cases where damages and negligence have already been proven.

I recognize that several other states have imposed such rules. It's understandable. The pressure to do so is very strong. That does not make it right or sound policy. Tennessee does not make a habit of simply following a path that has been cut by others. Forty-one states have a broad-based income tax, and I am proud to say that Tennessee does not, and I believe it is much the better for it.

No system ever devised by man is or can ever be perfect. But our civil justice system has served us well, and any substantial changes to it should be made only if the change is needed, fair and beneficial to all Tennesseans. I hope that I can be helpful in discussions that we will soon be having on these important issues.

Were Senator Thompson still in office, I doubt that he would have written this. That having been said, he's a considered 'conservative' in the true mold of that word. It's an interesting debate and one that I won't strain the length of this blog to discuss, what it means to be 'conservative.' Mostly, the people that call themselves 'conservatives' are, in fact, the worst kind of anti-progressive reactionaries, willing to change anything if it means changing it for the benefit of the religious/banking/insurance/medical/corporate lobby. They are simply foolish, misguided and ignorant people who have come to believe that anything that is said about law, society, culture or politics is not to be trusted unless it comes from Sarah Palin, Ann Coulter, Rush Limbaugh, Bill O'Reilly, Sean Hannity, etc. They don't think for themselves anymore, because they've surrendered their judgment to those who think for them. They are not conservatives any more than I'm a communist because I believe in socialized medicine.

Anything which takes away a trial by jury or limits the power of a jury is bad for society. I'm not saying this because I'm a lawyer and I practice in front of juries and depend upon them to make awards to my clients so that I may make a living. Doctors ask for money before they heal, because they need to make a living, too. So do nurses. Even clergy need to make a living, so let's stop suggesting that anyone who needs to make a living isn't to be trusted when they have a valid opinion about the law or our society.

I believe in justice for all. I believe in the American ideal. I believe that average citizens, especially in a group, can do the right thing so often (though not all the time) that there's no better option out there. In fact, any other option is a step toward the sort of fascist state that we've gone to war against more than once and that we ought to strive never to become.

I am glad that there are principled Republicans who speak these words because I'm hoping that someone will listen to them. I just hope that enough people, perhaps even enough conservatives, one day realize that they're being led down the primrose path of war, corporate fascism and 'anti-progressiveness.' America works best when it's an even playing field and when everyone has the same rights.

Thank you, Senator Thompson. I was wrong about you, and I'm glad to admit it.