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."