Costello & Mains Files Groundbreaking Suit for a Transgendered Woman

New Jersey employment law firm Costello & Mains, P.C. has filed a lawsuit on behalf of April Murdoch, a male to female transsexual who was viciously tormented by her employer when her landlord, who entered her apartment without her permission and discovered paperwork pertaining to her transition, informed her employer of his find.


"This is one of the more egregious and profound examples of hostility to transgendered persons," says partner Kevin Costello. "We hope not only that justice will be done," Kevin says, "but also that by continuing to expose the sort of hate transgendered people endure for having the courage to be who they are, we can start to reverse the societal bias and ignorance that so often infects the lives of transgendered people."

No Compelled Defense Medical Exams in New Jersey Discrimination Cases

Finally, a win for Plaintiffs.

Judge Kane in Atlantic County recently ruled that a worker who brings claims for emotional distress damages as part of a job discrimination suit under the Law Against Discrimination can't be made to undergo a Defense Psychological examination.

Usually, in any tort based physical injury or even psychological injury case, a Defendant can often compel exams of Plaintiffs. These exams are most often conducted by doctors who are loyal to defense, insurance and corporate interests, and who rarely, if ever, give fair reports.

More specifically, in emotional distress environments in discrimination cases, Defense psychological exams are most often used to harass, intimidate and bully the Plaintiff into feeling that the process of litigation is so daunting that he or she might as well give up now and go home, rather than submit to an abusive, one sided examination.

Just as commonly, the results of these examinations are questionable at best but often used to deceive and trick juries. Defense lawyers may urge their experts to castigate the Plaintiff for possessing personality disorders or other psychological ailments that made the Plaintiff difficult to work with or which otherwise undermine the Plaintiff's credibility and/or undermine their Civil Rights.

I applaud Judge Kane's decision because it's the right decision. I don't begrudge my Defense colleagues the opportunity to conduct a true and fair defense medical examination.

But in Law Against Discrimination cases - in other words, cases brought under our Civil Rights statutes - Judge Kane has drawn the line against an often abused discovery tool.

I support his decision and I think it was the right one.

Everyone vs. Everyone: Why South Park’s Treatment of Sexual Harassment in Schools is no Joke

First of all, let me just say this: I’m not a stick in the mud. I get what the creators of South Park are all about. They’re making fun of ‘normal’ points of view taken to silly extremes. Their brand of satire requires several pieces to work. First, the issue has to be one that involves two sides or more. Second, both sides of the issue have to have something valid to say, when expressed rationally. Finally, and most importantly, for their brand of humor to hit the target, both sides have to have gotten out of hand – silly.

When they make fun of both sides – with the kids usually being the voice of question and moderation (I’ve learned something today…’) – that’s funy. But what about when SP’s writers make fun of only one side – in this case, the victims of a pernicious and dangerous course of conduct – when that side hasn’t expressed any extreme or silly points of view? Still funny? Still fair game?

Not so much.

I watched a recent episode addressing sexual harassment in schools. I don’t know how old the episode is, because in it, Mr. Garrison is still “Mr.” Garrison. But now is when I saw it, so now is when I’m having this reaction.

I get making fun of political figures and celebrities and their causes – they have resources, they have thick skin (or they should) and they’re no strangers to criticism and lampooning. I get extending this concept to movements and causes even without political or celebrity backing when the movements get silly or extreme.

But helpless kids? Kids being abused in schools by their peers using wolfpack tactics, physical violence and damaging psychological attacks? Kids falsely depicted as performing sex acts using technology available at the public school level? Kids who all too often think violence or suicide is the only way out?

Really? That’s funny? I guess I’m getting old. I don’t think it’s so funny. I suggest that the writers of South Park have crossed out of acceptable bad taste into unacceptable stupidity.

Kids commit suicide over this. I doubt very much whether the South Park writers know any of these kids personally or their families, or they wouldn’ t have written this episode.

Really what this was, was yet another attack on the use of litigation to address wrongs, as if the founding fathers, were they brought back to answer for how they drafted our Constitution, would have to apologize for creating Courts at all.

The episode suggested that any attempt to hold school officials responsible for failing to prevent or stop this conduct is somehow stealing from schools and students.

I shouldn’t have to keep saying this: As long as people have no fear of being held accountable in Court, they will not work harder, spend more, or otherwise go the extra mile to do the right thing. Sorry, but I don’t trust the inherent goodness of school administrators and board of education officials to do the right thing in the face of sexual harassment without the threat of being called to account in Court.

In fact, there are not nearly enough law suits holding school administrators, school boards and school professionals responsible for sexual harassment of which they are aware and which they fail to stop. Teachers and administrators take the view that it’s just “kids stuff.” Because kids are doing it to other kids, it’s not to be taken seriously.

Every study to which we have access suggest that the vast majority of kids who suffer damaging sexual and same sex sexual harassment at school don’t report it. Of the small minority of students who do report it, most suffer retaliation from other students such as being labeled as “rats.” They often find that the harassment is increased in intensity or even that administrators and teachers simply side with harassers who might be better students or have more social pull at the school.

I sincerely hope that the South Park guys don’t know kids whose lives are altered or damaged as a result of what happens to them at this vulnerable period in their lives.

I won’t suggest that they need to apologize, because they never admit they’ve gone too far, but I will suggest that they’ve made fools of themselves. As long as Courts are there to hold people accountable, our society will endure without resorting to violence to settle disputes. If access to Courts to sue for damages is taken away, any way that happens, you’re left to trust bureaucrats, corporate types and others to do the right thing without fear they’ll be held accountable if they don’t.

Do you think they will?

We’ve had Courts of one kind or another since civilization began. We cannot go on without them. Don’t let politicos – or irony – sell you on the idea that going to Court is anti-American. Oppression is anti-American.

'Full Marriage Equality' Editorial

Here is what was recently published in the New Jersey Law Journal, authored by me, in response to a conservative attorney who continues to argue against civil equality by using reference to 'natural law' when she really means 'religious' law. But she knows better than to argue a position in direct contravention to the Constitution.

I remind you all, regardless of how you may personally or religiously see this issue to remember that when we decide to live by 'natural' law, it's whatever the strongest person says it is.

Here's the Voice of the Bar piece, with acknowledgment to the New Jersey Law Journal:

"Subjective Religious Concepts Have No Place in Civil Law

New Jersey Law Journal

July 2, 2010

Dear Editor:

Please accept this letter in response to Grace Meyer's latest offering in her continuing, one-person rant against civil equality ["Bar's Same Sex Marriage Stance Is Retreat From Natural Law," Voice of the Bar, June 28].

As long as Ms. Meyer continues to feel it appropriate to laud "natural law" — an entirely subjective, amorphous and unknowable concept — as a policy grounding for civil law in New Jersey, and as long as she continues to ignore her oath to uphold and defend the constitution in so doing by ignoring the establishment clause, I feel she must be responded to.

New Jersey law is not founded on religious concepts, thus it cannot be driven by religious principals. Private definitions of marriage have nothing to do with civil definitions of marriage, which are entirely economic in nature. As long as this is so, all citizens must have the right to access the same benefits, liabilities and obligations of marriage.

Ms. Meyer and those like her can call marriage whatever they like in their churches, mosques, synagogues, druid circles and temples. For the rest of us, who derive our civil rights from civil law, "natural law" is a nonsensical concept that can be used to justify every manner of cruelty, horror, slavery, oppression, theft and abuse. Natural law means the strong prey on the weak, and that no one has any rights except from the barrel of a gun or from the point of a sword. Unless we are prepared to return to "natural law" in all ways in which we live in this state, then we cannot pick and choose subjective pieces of natural law to suit religious objection to full civil rights.

I continue to respectfully suggest that anyone with a law degree ought to feel great reluctance to suggest nonlegal and subjective religious concepts ought to inform civil law in this state, regardless of their personal religious agendas."

Costello & Mains Supports Marriage Equality in NJ

Partner Kevin Costello voiced the sentiment of the firm and of the majority of fair minded attorneys in New jersey in a recent "Voice of the Bar" piece for the New Jersey Law Journal, the latest entry in an on-going discussion of the marriage rights question in New Jersey. "It's really not a question at all," Kevin feels. "Marriage cannot be guided by someone's subjective idea of 'natural law,' because natural law means the strong abuse - or oppress - the weak. Sadly, when people use 'natural law' in the context of arguing against civil rights, they usually mean 'religious law,' but they're of course aware that religious law cannot guide civil policy, so they disguise their argument by using 'natural law' to frame the issue. I believe in my oath to uphold and defend the Constitutions of New Jersey and of the United States, and that means marriage equality."

Governor Christie Makes History By Politicizing the New Jersey Supreme Court

We have three branches of government for a reason. They're supposed to stay separate and equal. The judiciary should not be weakened and subordinated to the political will of either of the other two branches.

Governor Christie has recently made history in a couple of ways, none of them particularly distinguishing. For example, he is the first Governor in New Jersey history to refer to school children as “drug mules” for the New Jersey Education Association and the first to suggest to voters to not pass school budgets.

Yet as obnoxious and incredible as those acts are, he's gone even farther.

Now, he is going to be the first governor to politically posture in the process of appointing and reappointing Justices to the New Jersey State Supreme Court.

The New Jersey State Supreme Court was recreated in its modern form when the New Jersey State Constitution was updated in 1947. It is the envy of many States which don't have a political appointment process for their judiciary and which instead depend upon the mud slinging “populist” agendas of political candidates in order to fill judicial vacancies.

In New Jersey, as much as the process was never perfect - - no process ever is - - there was a respect and a decency about the judicial appointment process that every governor, of both parties, always observed. Never before, to my knowledge, has a governor of either political party refuse to appoint a sitting Justice simply because that Justice was appointed by his opponent.

In refusing to reappoint Supreme Court Justice John Wallace, Governor Christie makes history as the first governor to lower himself to political thuggery in administrating the judicial process in the State.

It was not the intention of the 1947 Constitutional framers that incoming Governors should start playing “political games” with judicial appointments to our Supreme Court and try to satisfy the whim and whimsy of voters who pay attention to serious political issues only a few times every few years.

One quick look at the Washington, D.C. process utilized in appointing Justices to the United States Supreme Court is all we really need to see to determine how badly this process goes when political litmus tests and political whim and whimsy come into the picture. The modern era of judicial appointments has been an era marked by political attacks, political posturing and nonsense.

As the outgoing president of the State Bar Association recently said, candidates for the bench should reflect “the rich tapestry of people who make New Jersey the most diverse State in the country, and they should be absolutely free to make decisions on a reasoned basis, untethered from the influence of partisan politics.”

This has never been more true than now, at a time when special interests, many of them corporately powered, attempt to politically influence not only the passage of laws for the public good, but now, through pet legislatures, the process of the administration of those very same laws.

Justice Wallace, whom Governor Christie has decided not to reappoint, has been an outstanding judge. His decisions have been thoughtful and well rooted in the law, even though there is no lawyer in the State who has agreed with all of them. He has been fair-minded and he has protected the integrity of the bench, of the New Jersey State Constitution, of the law, and of New Jersey’s people, even though 99% of them were never aware that their rights as New Jersey citizens were being protected in this fashion.

In addition, he happens to be the only African-American member of the Supreme Court, in a State with a sizable African-American population. Governor Christie’s decision to deny tenure is an affront not only to Justice Wallace, but to the Supreme Court as a body and to the judiciary of the State of New Jersey, as well as to the people of this State whether they know it or not. It is an insult to New Jersey’s image before the country as a State whose judiciary is of the highest caliber. It is an insult to everything that makes the judiciary an independent part of our three tiered system of
government.

This action by Governor Christie is unprecedented in its temerity and it is not an act of which any of his supporters should be proud. If you voted for Governor Christie, you need to ask yourself whether or not you are comfortable with the idea that he is now embarking on a course that no New Jersey governor has ever embarked upon. If you validate this action and you support him in taking it, then you must be prepared for the next Democratic governor who takes office to do the same thing. No doubt that Democratic governor’s politicking will displease you, and no doubt that any Republican replacement to that Democratic governor will please you in his subsequent politicking.

Very soon, I fear as an attorney that we will have a State Supreme Court that resembles the United States Supreme Court, which has become a political animal more than it has become a place of high justice and fair justice. Justice Wallace deserved better than this, and as did his brothers and sisters on the Supreme Court and in the judiciary at large, and as did the people of this State.

Many things have frightened me as a lawyer over the last 5 to 10 years.

Many of them appear in other blogs of mine.

This act of Governor Christie’s frightens me as much as the most
frightening things I’ve seen.

I challenge law makers of both political parties to call Governor Christie to task for this, and I call upon the citizens of the State of New Jersey of all political stripes to tell Governor Christie not to politicize the administration of justice in our State. Our integrity as a model of judicial fairness and ideals depends on it.

Costello & Mains Has a New Home

The firm moved into its new, larger home at 18000 Horizon Way, Suite 800, in Mount Laurel, NJ, making room for expansions of staff and for new attorneys to join the firm. "We're thrilled," Kevin Costello relates, "We've needed a much bigger space for some time now, but we needed to find the right blend of location, expanded space, comfort and appointments we wanted." The firm plans a welcoming reception for the Fall.