Juris Magazine- December, 1971

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Juris DUQUESNE UNIVERSITY, PITTSBURGH, f'A.

Duquesne Law

School Newsmagazine

DECKIIBER, 1911 Vol. 5, No.:.I

.. . good will toward men.

page Two

Editorial: .:-:."<,"

THE RIGHT to be let alone •.. the right to privacy . . . is precious.

This right is not exactly written in black and white in the constitution, but after recent decisions such as GRlSWOLD and B...QWA.N, it might be said to be found there. National security is a heavy interest to be balanced against this right. Without some way of guarding it, we could not survive. Curiously. these important considerations are often examined by only one organization - with no appellate review the F .B.I. This government agency has been under fire lately since it, apparently. has no retirement policy for its leader. More important is 'its policy of deciding who is to be watched. It has no such policy. Whoever decides seems to base his decision on discretion. Whether Mr. Hoover makes all the decisions (he MIGHT be ubiquitous) or they are made by someone further down, can we be sure that due process even being considered?

Juris DUQuesne University law School Newsmagazine J URIS is a publication 01 tile Duquesne Unit'ersit'll scltool of Lau' DECEMBER, 1911 I'DITION EDITOR-IN-CHIEF

PATRICIA A. PARRELLA MANAGING EDITOR

LAWRENCE ROSS WEIDER ASSOCIA TE EDITOR

Perhaps the F.B.I. is only a reflection of the man running it. He is being criticized. as he has been so many times before, for being paranoid. too old. too concerned with domestic radicals rather than foreign But even if he retires, mystery will still shroud the organization.

A n agency dealing with secrets cannot send out monthly newsletters.

Still, there is an uneasy feeling that too many people, for no reason, are being watched too closely.

JOHN J, McGARRY NEWS EDITOR

ALAN C. KLEIN ARTICLE EDITOR

THEODORE TRBOVICH FEATURE EIJ:lTOR

DONALD MORGAlIo(

It is well known that in the '20's and' 30·s the organization was in its prime. It was supposed to have done a lot of good for the nation . • • Hoover was behind it. Now we are in a different era. Electronic surveillance is a dangerous tool. If we don't find some way of watching the watchers, security • . . personal and national •.. will become history, too.

ALUMNI EDITOR

SANFORD P. GROSS ADVRRTiSING MANAGER

DA VIn A. BRAKONIECKI LAYOUT EDITOR

'-:;;;p

JEFFREY L. WRIGHT STAFF MEMBERS

John P. Dohanich, Duane L. Ervin, Claude V.

DEAN'S CORNER ON BAR EXAMINATIONS

Jr.,

Warren D. Ferry,

Robert M. Friedman, Joseph V. nuber, Robert D. Jaehnig, Stephen Levin, Edward J. Linkey. Eugene J. Martucci, M. Richard Mellon, Janet Moschetta, Lawrence E. PoW, C. Timothy Shaffer, Richard R. Tomsho, and Ira Weiss.

I T IS a great temptation to crow about a successful Bar result. Many persons not involved in teaching will use Bar examinations (passing and failing) as indications of the quality of education offered by the law school. This is obviously a mistake. Bar examination results are in direct correlation not only to the quality of the students and the quality of the institution, butto student motivation.

Clearly every graduate of an approved law school is, in the judgment of that la w school, competent to practice la w.

Therefore, it would seem that all other things being equal. everyone should pass the Bar the first time around. However, we hear many horror stories of individuals who not only fail the first time, but succeeding times. Those individuals who crow about their law schools accomplishments on the Bar examination must

prepare themselves to eat crow when the Bar results are not so favorable.

Of the 78 Duquesne graduates taking the Bar in July. 1971, 77 passed. This gave us a passing rate of 98.7 percent. Needless to say. we of the faculty and administration are very happy with this result. We regret, however, that it was not 100 percent, not only for the gradua tes of Duquesne, but for the graduates of all law schools. The enormous pressure of law school studies raises a serious question about the additional burden of a Bar examination. I am happy that our recent graduates, as in the past, were competitive and I am confident that this will continue to be the case. Our traditions grow slowly, but they grow.

- Dean Ronald R. Davenport

JURIS - December, 1971

Advisor>,

JOHNJ.SCIULLOand NICHOLASJ,OFMAS

JURIS is published quarterly during the school year. The views expressed herein are those of the individual writers and do not necessarily reflect those of the Faculty or Student Body unless otherwise stated.

An correspondence should be addressed to: Editor, JURIS, 600 Forbes Ave., Pittsburgh, Pa.15219.

Telephone (412

434-6305

Printed by NEWS CaMP, P.O. BoX 471. Monroeville. Pa. 15146

Page Three

By JANET MOSCHETTA uUnderlying many discussions of students' rights, teachers' rights and freedom of expression is the question of power."

Faculty Profile

- SHELDON H. NAHMOD

I

BECA ME more and more interested in the issue of freedom of speech in the public schools while I was working as an OEO (Office of Economic Opportunity) lawyer in Chicago in 1967.

I was representing both black and white public school students who had been suspended or expelled from school for some form of student activism without even a hearing. When I tried to research the problems involved, I found very little materiaL A s I handled more and more cases involving public school student suspensions and expulsions. I became interested in the substantive issues of students' freedom of speech." Thus, Professor Sheldon H. Nahmod explains his interest in freedom of speech and educational theory, As a Teaching Fellow at Harvard Law School from 1969-1971, Professor Nahmod developed two courses involving the law and education: "The Hole of Law on the Campus: Procedural Due Process,J; cademic Freedom and Tenure," a one semester elective at the Harvard Law School; and' Educational Theory and Freedom of Speech," an interdisciplinary course for Harvard undergraduates. "I have hopes of teaching such courses for both law and education students here at Duquesne University one day."

Professor Nahmod sees three areas of dispute regarding underground newspapers. High school authorities may not constitutionally prohibit these papers unless distribution materially and substantially interferes with school discipline. The first dispute, concerns the distribution of student literature. \Vhere and when can it be distributed? The second, is the control of allegedly obscene material. The third is the problem of abusive stories and comments attacking. often by name, administrators and teachers.

Speaking of obscenity in school publications and underground newspapers, Professor Nahmod explains that the problem which faces the schools reflects that facing society as a whole . â&#x20AC;˘ . how to handle obscenity. "Obscenity,!1 he says "is a messy area because the Supreme Courtjs guidelines in ROTH and other cases are so vague," In a school context, the best procedural guideline Professor Nahmod could give is that school authorities probably have the right to receive an advance copy of any publication, such as an underground newspaper, that will be distributed on school grounds for a "quick look" to see if any of the material is obscene.

Professor Nahmod sees the question of power as an important aspect of student and teacher rights. Who should ha ve the final word in determining what

students should wear, what kind of literature they shall distribute outside the classroom, and to what extent may students criticize and fashion the actual operation of their education? Many school administrators realize that students are seeking this power and therefore resist their requests. Thus, with the moral and financia I support of their pa rents. students have turned to the courts to realize their rights. "In this sense, judicial review is a power allocating or redistributing mechanism. " In addition to the power question. there is another basic problem regarding teachers rights and academic freedoms.

When courts intervene, either on the side of the student or the teacher, they are not as aware of the educational assumptions and impact of their decisions as they should be. "Once students have the power, in effect, to educate themselves on school premises outside of the classroom, it becomes difficult. as a practical matter, to disregard their calls for a relevant curriculum in the classroom," 'A s courts intervene,!! continues Professor Nahmod, "v,'hat is evolving is a First A mendment theory of education where the school is no longer to be considered as a closed secluded area where students are treated merely as receptacles for information. Rather, a school is a market place of ideas. Of course, because of different student levels of maturity and experience, a college classroom should be more of a market place of ideas than a high school classroom and a high school classroom more than an elementary classroom. Recent opinions have indicated that high schools should be more a market place of ideas than they have been considered by educators, parents and courts in the past.

There are interesting analogies between this approach and the recently prominent 'open' or 'informal classroom i approach. W Talking about his weekly lunches with his stUdents, Professor Nahmod said "night students often feel out of it and may not have a chance to talk with a professor. A Iso, the first couple of months of law school are confusing for reasons I need not elaborate. Talking with a professor might allay a stUdent's apprehensions and answer his questions.

Besides, I want to know what is going on with my students. So far, the lunches have served their major purposes and the exchanges have been beneficial to both students and myself."

This semester Professor Nahmod teaches Torts and Administrative Law. He invites those students who are interested in the area of Civil Rights to consider his seminar in Political and Civil Rights offered next semester.

J LJRIS - December. 1971

Sheldon H. Nahmod

B.B.A.

By JAMES E. DUNN, JR. S.B.A. President

B ECA

OF the crisis situation currently facing the law the Student Bar A ssocia Hon met on Thurs.

November 11, to determine the student position with regard to future planning and growth. From this a list of nine priorities emerged, and it was voted tha t the SBA President them to the Administrative Council.

On November 17, this was made and the recommendations were received the administrative officers the University. It is the the SEA that the will act in the near future to bring these recommendations to fruition.

In substance the position of the is that too much of law school tuition 1s going outside the law school. We recognize that we are a part of a university, but at the same time that if we are to compete with the other law schools in the state and the a greater percentage of what is brought in must be spent within the School.

With this in mind the SBA recommended that: a) the law school tuition be reduced to a level competiti ve with the other law schools within the state. b) the University make a present commitment to planning a new law school physical plant. c) the student-faculty ratio be measura ble reduced. d) sufficient funds be allocated to increase the library by 15,000 volumes. e) sufficient funds be allocated to establish an effective clinical education program. g) sufficient funds be allocated to permit the hiring of a full-time Placement Director. h) full control of the law school budget be given to the Dean of the Law School. i) two members of the law school community (a student and a faculty member) be placed on the University Priorities Committee.

Page Four

CONSTITUTIONAL RIGHT T

By JAMES E. DUNN, JR. ENVIRONMENTAL CONCERN is a much talked about subject today.

Ecology, phosphates, D.D.T. and Paul Ehrlich rank high on the list of words and na mes which can be dropped during any given lull in the conversation. A rather small group of individuals, however, have ceased impressing people with their rhetoric and have taken action; they have gone into the government processes in an attempt to rectify the conditions of this planet. One segment of this vanguard is using the courts as a lever to break the stranglehold of pollution.

As more and more environmental suits are filed, it is becoming increasingly more prevalent to find the allegation that the action of the defendent violated the constitution or the constitutional rights of the plaintiff. 1 Normally this is in the nature of a "common count." however. there have been a number of instances where the constitution has been used as the basis for jurisdiction or as the principle means of showing the impropriety of the defendent's action.

Since no clear- cut decision has yet been rendered on the validity of this constitutional right. 2 we are left with numerous questions. Before getting to the ultimate question of whether there is a constitutional basis for an environmental lawsuit, we should determine why we have turned to the courts in the first place.

I e.g. Kates v. the Director of Mines and Minerals of the state of Ill., No. 69-2313 (N.D. Ill., filed Nov. 7, 1969): E.D.F. v. Corps. of Engineers of the U.S. Army, Civil No. 1722-70 (D.D.C. filed June 5, 1970); Izaak Walton League v. St. Clair. Civil No. 51-Civ.-70 (D. Minn., filed Dec. 23, 1969); Asso. of Northwest Steelheaders v. Corps. of Engineers of the U.S. Army, Civil No. 3302 (E.D. Wash., filed Mar. 11, 1970): E.D.F. v. HoernerWaldorf, No. 1694 (D. of Montana, filed Aug. 27, 1970); Fairfax County Federation of Citizens v.

Huntington Towers, Civil No. 4963-A Va., filed Oct. 1, 196B).

2 Many people feel that the HOENER-WALDORF decision (see fn. 1) is an affirmation by a federal district court that the constitution does provide a right to a df'cent environment. This is found in the language of J. Murry, ·What would appear to be a common law nuisance case is alleged by the plaintiff to be a constitutional right to life and liberty. I have no trouble in finding that right to life and liberty and property are constitutionally protected.

Indeed the Fifth and Fourteenth Amendments provide that these rights may not be denied without due process of law, and surely a person's health is what in most Significant degree sustains life. So it seems to me that each of us is constitutionally protected in our natural and personal state of life and health.'

The problem with this case is that the injunctive relief was denied on the basis of lack of state action.

This seems to make the above language little more than favorable dictum.

Under a government of separated powers innovation is patterned to come from the legislative branch where the decision makers can operate with a much broader scope than can a court. The legislature is not restricted to a particular "case and controversy" but can deal with problems on a massive scale. It is this branch of government which would seem most capable of changing the value system of a country. Why then do we turn to the courts?

Victor Yannacone, a noted environmental lawyer, puts it most succinctly.

Every piece of enlightened socia 1 legislation that has come down in the past 50 or 60 years has been preceded by a history of litigation. It Is the use of the courtroom - even when we lose - to focus public attention and disseminate information about intolerable conditions. 3 John Esposito looks at the courts as a method of buying time.

The enactment of any useful legislative changes will require time, a commodity Which becomes more scarce with each sulphur emission into the air and with every radionuclide exposure into the water. In the meantime however. . . . the courts provide an arena in which industry lobbyists and indifferent bureaucrats are least able to exercise their powers of deadcenter inertia. and consequently the judicial approach may be a viable route to relatively immediate and surprisingly large scale pollution abatement. 4 In his book, DEFENDING THE ENVIRONMENT, Joseph Sax spends a great deal of time on this subject. 5 His question is. "Wha t ha ve courts to offer in the resolution of environmental disputes that other institutions lack?" Sax's answer is that judges are "outsiders" who are not bound up in the politics of the argument, nor in the lobbying pressures placed on those who deal in the area on a day- to- day basis. A s a second point he says that courts provide an opportunity for "private citizen initIatives." By using the courts, the private individual need not rely upon the whim of the executive as to whether there

will be an answer to his questions. Through the lawsuit he can FORCE the bureaucrat and the company executive to respond and justify their actions. Sax also points out that the lawsuit isolates specific issues requiring this answer to be in concrete terms.

Having seen that there are definite reasons for going to the courts, our next question Is why enter the courts on a constitutional basis . . . why not seek some other remedy?

When talking of other remedies. we are normally speaking of nuisance, trespass or negligence because these are the three fltradttional fi causes of action. Each one, however. presents problems for environmental litigant attempting to seek redress from the pollutor.

To properly analyze nuisance it must be broken down into its sub- parts . . • public nuisance and private nuisance. A public nuisance is a "species of catch-all criminal offense, consisting of an interference with the rights of the community at large . . /' 6 Because of its criminal nature and because the general public is affected, the remedy is in the hands of the state. A s a practical matter then, a public agency is the only party can prosecute a public nuisance.

A private nuisance, on the other hand, can be brought by a private party since it is a right incident to the ownership of land. 7 However, to bring a suit for private nuisance the plaintiff must allege special injury. which presents a large problem when dealing with the regional polluter. If this obstacle is not overcome, the action is in the nature of a public nuisance and the private party is precluded from bringing the suit. If the private party can allege special injury, another hurdle must be jumped since the decision is usually arrived at by a process of balanCing the rights of the parties. 8 When this is the case, courts will normally give greater weight to the right to industrial use. 9

6 Prosser, HANDBOOK OF THE LAW OF TORTS. Sec. B7, p. 594.

7 Prosser. p. 611.

3 TIME, Oct. 24, 1969. p. 54.

8 Prosser. p. 616

4 Esposito, • Air and Water Pollution: What To Do While Waiting For Washington,' 5 HARVARD CIVIL RIGHTS AND CIVIL LIBERTIES LAW REVIEW 33 (1970)

9 The particular problems of bringing a private nuisance suit in Pa. are set forth in footnotes 13 and 14 in 41 PA. BAR ASSO. QUARTERLY 429. This is an article by Robert Broughton on the recently passed amendment to the Pa. Constitution giving the citizens of that state the right to a decent environment.

5 Joseph L. Sax, DEFENDING THE ENVIRONMENT York, 1971) Pp. 108-112.

J{JRIS - December, 1971

'<ive

A DECENT ENVIRONMENT 'With all of the problems incident to bringing suit for nuisance. one would think that a cause of action in trespass would be MUCH more promising. In actuality, there are JUST as many problems with an action in trespass as with nuisance. The plaintiff in trespass must prove that "the alleged invasion of his property was immediately occasioned by an affirmative act of the defendent." 10 Another drawback is the tendency of the courts to use a rationale similar to that used in nuisance of balancing the rights. 11 An example of an attempt to solve the pollution problems of an entire city through one lawsuit based on trespass and nuisance was DIA MONO v. GENERA L MOTORS. 12 This was a class action brought for all the inhabitants of the county of Los A ngeles against local automobile dealers. airlines, airports, public utilities. private manufacturers, and the government for polluting the air. The plaintiff was seeking an injunction and $35 billion in damages. The case was dismissed with the court noting that: 1. "A private person may not maintain an action for abatement of a nuisance unless it is specifically injurious to him; 2. abating all air pollution in the Los A ngeles basin wa s beyond the competence of the particular court of equity; 3. no duty was shown to exist from the defendant f s to this particular plaintiff; and 4. it was not a proper class action. 0' 13 To bring a negligence action against a pollutor. a private individual must not only show a duty and a breach thereof on the part of the defendent. but he must also prove cause- in- fact, proximate cause and assert damages. Proving the standard of care for an industrial pollutor and the fact that he breached that standard is extremely difficult. It requires experts with extensive knowledge of very technical fields, . . . for the private individual such experts are hard to find. 14 10 Lohrman "The Environmental Lawsuit: TradtionaI Doctrines and Evolving Theories to Control Pollution.路 16 WAYNE LAW REVIEW 1085, 117 (1970).

11 See for example: Arvidson v. Reynolds Metals Co., 125 F. Supp. 481 (W.D. Wash., 1954), aff'd per curiam 236 F. 2d 224 (9th circuit, 1956), Cert. denies, 352 U.S. 968 (1957); Cheskov v. Port of Seattle, 55 Wash. 2d 416, 348 p. 2d. 673 (1970).

- photo by Anti-Pollution Group Point Parle College

Every person who under color of any statute, ordinance, regulation, or usage, of any state or territory. subjects or causes to be any citizen of the United States or other person within the jurisdiction thereof to the deprivation any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at la w. suit in equity. or other proper proceeding for redress.

A long with these three traditional remedies, various others have been put forth as possibilities. 15 However, they all suffer from similar drawbacks. A constitutional right and a corresponding constitutional cause of action may well provide a better ground on which to sue and at the same time, remove some of the impediments from these other ca uses of action.

The obvious question now is why would a constitutional cause of action give the plaintiff any better chances in an environmental lawsuit? A t the outset we have to realize that the type of right we are looking for is an individual right. as opposed to a governmental power, and as such, will be found in the A mendments. The underlying concept will be protection of the individual from governmental interference. The effect is that the individual will have a consequent cause of action against direct governmental pollution.

Other results also flow from this, but they require the use of supplemental analysis. A ny assertion of liability against a pollutor first has to be permitted into the courts. In this instance the key to the door is 42 U.S.C. 1983.

14 This problem is explored by David Sive in

12 No. 947429, Superior Court of Los Angeles (1969).

"Securing, Examining and Cross-examining Expert Witnesses in Environmental Cass," in LAW AND THE ENVIRONMENT. ed. by Malcolm Baldwin and James Page, Jr., (New York, 1970) pp. 48-66.

13 Conley and Paynter, "Basic Aspects of Defending Pollution Suits: 12 FOR THE DEFENSE No.5., May 1971, p. 53.

15 An example is shown in the Esposito article, fn. 4. Therein the author suggest the possibility of products liability suits and stockholder suits.

JURIS - December, 1971

This statute allows the environmental litigant a cause of action against the state government regardless of where the constitutional right is found. The "color of state law" concept also increases the degree of state participation necessary to make it liable. Direct state pollution is covered, but of even greater importance, through the use of this statute, the state would be liable for non-enforcement of its pollution statutes. 16 There might also be a right of action against a state agency which regulates a particular industry. 17 An interesting theory on this subject is put forth in the Esposito A rUc1e. 18 It is Esposito's hypothesis that the state procedural rules which prevent a plaintiff from indentifying the defendent (this would be the case in a large industrial area with many pollutors) and thereby preclude coottnu.ea

16

011 Page 6

Monroe v. Pope. 365 U.S, 167 (1961).

17 Public utilities Commission v. Pollak. 343 U,S. 451 (1952).

18

See footnote 4.

Page Six

Constitutional Right To A Decent Environment - continued from Page 5

the suit might well come under the "color of law" provision. His precedent for this is SHELLEY v. KRA EMER. 19 It is also possible that zoning laws which permit, and in some instances require, an accumulation of hea vy industry in a particular area might themselves be a violation of 42 U.S.C. 1983 if the state tort procedure does not permit an action unless the particular defendent can be ascertained.

In this area it should be noted that a California case, YBARRA v. SPA NGARD, 20 permits joint and several liability of class defendents. Such a concept removes an impediment from the more traditional causes of action. Through the use of 42 U.S.C. 1983 and a constitutional right to a decent environment. such a remedy might become a constitutional imperative.

Having seen what a constitutional right might do, the important question is where do we find this right? Various theories ha ve been put forth, the most prevalent of which is that the Fourteenth and the Fifth amendments' "due process" clauses give us such a right. Under these A mendments, life, liberty and property are protected to the extent that they cannot be interfered with without the exercise of due process of law.

embraces not only the right of a person to be free from physical restraint. but the right to be free in the enjoyment of all his faculties as well." If a person cannot run up a hill beacuse air pollution has so affected his respiratory system so as to make running impossible, that person's "liberty" to do that act is being restrained. If radioactivity from a nuclear power plant has so affected one's prenatal development that he is born deformed, that individual's liberty to do any act is restricted to the extent of his deformity.

As is pointed out in footnote 2, a U.S. District Court in Montana agreed that such effects of pollution come within the ambit of the process" clause.

It does not matter whether the action is brought against the state or the federal government, for due process means the same thing in the Fifth and the Fourteenth Amendments. 23 The history of the Ninth Amendment shows that it was proposed by mes Madison because of fears voiced by many state legislatures (specifically Virginia,

North Ca and New York) that the Bill of Rights would be interpreted as including only those rights speeifica 11y enumerated. 25 When determining what these unenumerated rights are, Goldberg tells us that they are mental which are found at the '(traditions and collective of our people to determine whether a principle is so rooted there as to be ranked as funda " 26 If this is test, can we not th:'lt preservation of the species a funda 1 right, and that the use of this its resources to sustain that life is funda menta I? In addition, a number of lawyers recently ba their arguments for a to a decent environment on the Ninth A mendment which states that HThe enumeration in the Constitution of certain rights. shall not be construed to deny or disparage others retained people.1< The use of the Ninth Amendment as a basis of judicial action is a new concept because it was virtually a "forgotten" A mendment until GRISWOLD continued

22

297 U.S. 233 (1930),

23

U.S. v.

24

381 U.S. 479

01'1 PU~1e

25 Wilford J. "The Original Present of the Ninth Amendment.¡ INGTON AND LEE LAW REVIEW 1, I)

265 F. 683

26

381 U.S.

at 493.

Whether environmental pollution is a deprivation of life is answered by John Esposito.

There is an ever-increasing body of evidence that air and water pollution are responsible for any number of short and long term hazards to human life, including but not limited to, heart disease, c h ron i c bronchitis. emphysema, the reduction of the body's resistance to other diseases, eye irritations, skin problems, poisoning of the blood and gastronomic system, cancer, hepatitis and other viral diseases. radiation damages, genetic mutation, poisoning of crops, meat, and fish for human consumption, and general changes in the ecological balance which may threaten human existence. 21 In GROSJEA N v. A MERICA N PRESS CO., 22 it was pointed out the "liberty," as used in the Fourteenth Amendment,

19

21

162 A.L.R. 1258

*

"ACKIE If Your Hair Is Unbecoming To You You Should Be Coming To Me!

RAZOR and COMB

334 U.S. 1 (1948).

20 25 Cal. 2d 486, 154 P. (1944).

ITTAKES , AWOMANS TOUCH.

2nd Floor 545 Penn Ave.

Esposito. p. 42.

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v. CONNECTICUT. 24 In GRISWOLD, five justices used this A mendment as a basis for holding a Connecticut law prohibiting the use of contraceptives by married couples as unconstitutional.

E.F. Roberts develops a constitutional basis for a decent environment from the GRISWOLD "right to privacy" argument, but his process of doing so is quite invol ved. 31 It is Robert's contention that what really happened in GRISWOLD was that the Supreme Court gave voice to a realization that modern man was being more and more oppressed by big government. The result of this decision is that we can find a constitutional basis for the "right to privacy" although none is specifically mentioned. Our environmental crisis presents a similar problem to the courts. Unless the right to a decent environment is recognized, "man's right to privacy is really a sop thrown him in order to better let him enjoy his coming imprisonment in the castle soon to be beseiged all around by an uninhabitable environment." 32 Extending this, if the Supreme Court recognized the right to privacy. they must also recognize the right to a decent environment, because both are of the highest priority in the modern world.

There is little doubt that to the fra mers of the Constitution, conservation was of little or no importance, for theirs was a country overflowing with bounty. The sight of smoke in the sky meant prosperity and growth. The A mendments were added to the Constitution because the pioneers feared political oppression, not ecological oppression. However. there is a parallelism of purpose when we consider the important rights of the individual now and the rights of the individual in the 1700's. Protection is needed for any value where, if left to stand on its own, it would be smothered by a superior force.

2"1 The Colorado Anti-Discrimination Commission v. Case. 151 Colo. 235, 380 P 2d. 34 (1962).

28 381 U.S. 479 at 492.

29 See Ritz. P. 8.

30. 381 U.S. 479 at 484.

31. E.F. Roberts, -The Right to a Decent Environment: Progress Along a Constitutional Avenue," Law.

As a viable plan for government. the Constitution must be interpreted in light of the needs of each succeeding generation.

It must grow with the country and be adapted to the changing life styles. When seen as such, there is within the instrument a guarantee to the people of this country that their right to live and grow in a decent environment will not be abridged.

Such an interpretation would seem agreeable even to a legal scholar of the caliber of Mr. Justice Holmes as is evidenced by his words in MISSOURI v. HOLLAND. 33 . . . When we are dealing with words that are also an constituent act. like the Constitution of the United States, we must realize that they have called into life a being the development of which could not be fotseen completely by the most brilliant of its begetters.

It was enough for them to realize or to hope that they had created an organism; it has taken a century and cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the 11ght of our whole experience, and not merely in that of what was said a hundred years ago.

In a society in which a human life is of highest value, the right to live that life free from physical assault by contaminants should be recognized as fundamental. and the protection of the right must necessarily follow. This is a natural right and "natural rights •.• inherent rights and liberties, are not the creature of constitutional provisions either at the national or the state level." 27 It is these rights which the Ninth Amendment wa s designed to protect.

right to a decent environment also flows from Justice Goldberg's opinion. He states that the Ninth A mendment does not constitute "an independent source of rights protected from infringement by either the States or the Federal Government. ff 28 The emphasis here must be placed on the word "independent." Using this interpretation, the Ninth A mendment becomes a rule of construction to be used when applying the other Amendments. 29 As such. it broadens the words "life" and "libertylf in the Fifth and Fourteenth Amendments and strengthens the argument on that basis. The Ninth Amendment, therefore, if not independently setting forth a right to a decent environment, demands that such a right be included within the Fifth and Fourteenth A mendments.

GRISWOLD also provided another interesting theory as to the constitutional basis for this environmental right. In the first opinion of the case, Justice Douglas sets forth what has come to be called the "penumbra theory." Basrally, this means that the Amendments have certain "peripheral rightsl1 without which the specific rights would be "less secure," and these penumbra rights give 'llife and substance'" to the enumerated guarantees.

30 In GRISWOLD this theory is applied to the "right to privacy," but can it not be said that the right to a decent environment is likewise contained within the "penumbras" of various Amendments?

Using this as a basis, even if we say that the Fifth, Ninth. and Fourteenth Amendments do not specifica lly guarantee a decent environment. such a guarantee is certainly within theit: periphery.

A nother argument for a constitutional

32 Roberts. p. 14'1.

33 252 U.S. 416. 433 (1920).

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261·58.1

Page Eight

OLD REFLECT/OiVI

By WENDEl Land.

I soon learned . • • when I was an Assistant District Attorney (1952-57) • , • that my "escape" was an illusion.

With defense counsel I sat in the cha mbers of a visiting judge after a jury had returned a verdict of guilty in an aggravated assault and battery case in which the t<hitter" and the "hittee'" were black. The male defendant had severely beaten the female victim two days after he had been paroled from the Workhouse for the same offense. The woman had cried to me that she feared for her life and that further incarceration was necessary. From all that I could gather, she was right.

WENDELL G. FREELAND received his A.B. from Howard University in 1947, where he graduated eum laude and was named to WHO'S WHO IN AMERICAN COLLEGES AND UNIVERSITIES. He received his LL.B. from the University of Maryland. There he graduated cum laude and was elected to Order of the Coif. After graduating he was admitted to the Maryland and Pennsylvania bars.

Mr. Freeland has served as Assistant District Attorney of Allegheny County, Original Chairman of the Board of Directors of the Neighborhood Legal Services Association, Trustee and Senior Vice-President of the National Urban League, Director and President of the Urban League of Pittsburgh and various other civic organizations. He is presently Chairman of the President's Federal Medical Malpractice Commission, an associate of the Pittsburgh firm of Lichtenstein & Bartiromo.

A word or two of preamble is necessary. As I thought about subject matter, for this article I was reminded of a speech by the present Mr. Justice Thurgood Marshall when he was counsel for the NAA C P: he had just returned from Korea and though he had the forensic skill to excite, he suggested that his duty was to inform from the unique perspective of a black ('Negro" was then in vogue) who had seen black and white men fighting together for the first time, in a war, in a far- off place.

The old judge heard my recommendation and with a white paternalism, which bespeaks racism, said: "The poor bugger probably never had a chance."

Sentence suspended.

My insensitivity was .such that I cannot recall whether the defendant assaulted, maimed or killed the woman the next day, week or year.

But I had learned the lesson which the Kerner Commission later cited: our system of justice fosters violence in the black ghettos because crimes against blacks by blacks are treated corollarially.

What does this mean to a lawyer in our criminal courts?

Recently, Tony Wettick. the competent and concerned Director of the Neighborhood Legal Services Association. wrote an article for your Law Review. He cited . . . with accuracy ••. the patterns of verdicts and sentences for those defendants represented by the Public Defender and those represented by private counsel.

I

(Thus it is that I choose to write from the unique perspective of a black lawyer with fair skin and blue eyes.

The anecdotal system (case- book method) will be used), Twenty years ago, I left Baltimore to travel north of the Mason- Dixon Line to practice law. Given my wife's antipathy for Baltimore and my aversion to daily desk-top lunches of tuna fish salad sandwiches and cokes (in 1950, there were only all-white eating facilities in downtown Baltimore), I felt that my coming to Pittsburgh was a trip to the Promised

The data suggests that will do far better if he counsel. Wha t the da ta does is the duty of private counsel to his client.

a defendant has private not suggest (all counsel)

Shall II knowing the lessons ot my early prosecuting experience and the confirmation of such by the Kerner Commission Report, go before a jury and/or a judge and plead the cause of society?

Or shall I plead the cause of my client?

For a lawyer, given the system, 1 suggest that the paramount duty is to the client. Thus it is that the foibles. idiosyncrasies, indeed the racism of the

JURIS - December. 1971

fact-finder ~nd sentencer must be with. Thus it is that obliga a black man charged homicide involving a black victim is to seek even when a black defendant cha assault and resisting arrest (for all practical financial purposes) bond.

A s we try to nge the system. we mllst live within it and make it work as well as we can in order to discharge that high duty \\'e have to the guy who walks into the office with a personal problem a universe of onefrankly, doesn't give a damn about his lawyer's philosophy or what would happen in1the of all possible worlds."

He wants a lawyer with roller skates skill. He wants to win.

And, you must do your best for him . even though your may mean that a favorable result appears as a statistic to prove that roller skates and skill are still a the facts of life.

A part of the system of justice is jury selection system. (I to Casenote writers the la w. the trends in the law and the likely judicial results).

Again, the anecdote replaces research.

Some months ago, a colleague In my office scoffed at my assertion that all the years of my practice, 1 had never had a black juror on a jury. It availed me nothing to recite that one the myths of racism is that all know one another. (How many times is the New Yorker asked at a cocktail party if he knows . . . from a group of eight million . . . John Smith who lived on the East Side)? This kind of "ice- breaker" has special meaning to blacks; it is the polite version of ; some of my best friends are . . . . '" When it is carried into the courtroom, it constitutes a burden which our system Is hard-pressed to carry.

I called upon my former partner, now a judge, to confirm my experience. He did so.

For several cases in which we were involved, counsel for the defendant (in civil actions) had chosen to challenge peremptorily the single black on the panel of twenty. This was always ••. if there were a black on the panel , •• his first challenge. In one case he challenged A, B & C and Mrs. Smith was

Page N

OR A NEW TIME REELAND alderman gathered with his Of a Christmas basket giving at a private all white club in 1935.

Of a political rally with searching out the ca mera for immortality

in 1939.

The system?

The system dictated rdless of the merits of my cHent's cause in the criminal case th<."l.t Was fina a bondsman be there. He was, and client and I left. My client was on and both of us were in Given this dismal you and I do?

do

In days when "'revolution" is heard in the streets, what our place?

When in the black ghettos of America. middle class blacks and whites are sometimes made to feel unwelcome. do we have a role? still there. A s we had completed our challenges, my partner and I made a great display of closing our files and preparing to retire. Wehadautomatically. without consultation, assumed that the fourth challenge of the defense counsel would be the black Mrs. Smith.

We were correct!

Counsel was annoyed because of our skill at predicting what he would do.

As lecturers and writers discussed the theory of jury selection, we knew the facts. We even knew the reasons.

A nd, all of the protestations of an honorable man could not change the facts or the reasons.

The irony of this is that often we would not ha ve chosen to burden a single black with the responsibility of convincing eleven whites of the justice of the cause of a black plaintiff represented by black lawyers. The inherent dangers of the desire of a lonely and lonesome black to be a part of the mainstrea m of twel ve were too great for us to risk gladly.

But we never had the risk.

One other anecdote may add to this collection of bitterness and desperation (not quite despair).

Several years ago a community almost totally black finally elected a non-white alderman. Challenges to his white prede-

cessors by concerned and long-enslaved blacks had failed in primary and general elections. When it seemed inevitable that a black would win, no white competed.

Change occurred.

It must have been on a Friday afternoon when the body is weak from battle and spirits beckon (at the Friday afternoon drinking club). The air in the Alderman's office was heavy. The white constable (or deputy) recited the grievance of the white landlord to the black tenant. I listened.

The woman cried. Angered, she screamed that there was no justice.

Coldly, the law gave her a choice: get out or be put out.

And I looked around.

Some faces had changed. The litigants were, as they had been for years, mostly black and mostly poor. But the boss (the alderman) was black. That was all that had changed.

On the walls . . • gray with dirt and cracked with frustration ••• were old photos. Of Franklin Delano Roosevelt.

Of Harry S. Truman. Of John Fitzgerald Kennedy.

Of the predecessors system of justice.

Of a picnic in 1933

in title to the when a former

JURIS - December, 1971

I suggest we do.

IT IS AS TECHNIClA,NS TOTHEREVOLUTIONS. From the platforms and the street corners the rhetoricians of the revolution assert that self-determination means the construction of a wall with "keep out" - cOlitilUl.ed Oli Paye 10

Page Ten

OLD REFLECTIONS FOR A NEW TIME continued from Page 9

What they need are lawyers who artfully dodge the bludgeon of police insensitivity and snip at the errors and evidentiary inconsistencies which buttress ill-advised prosecutions.

forHH/HH//Q

What they need are lawyers who can waltz through the halls of the SBA and the FHA and catch the money bag at the end, which in the past was caught by others and used to wea ve the white noose around the center cities.

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And what they need are men and women with analytical sk1lls to recite the alternatives, aid in the choice of the most desirable when community problems and pride are at issue. signs posted to be read and obeyed by the middle class blacks and all whites.

In the small rooms and offices, however, there is a different message. It is simplel We are smart enough to know what we don't know; we don't need enthysiastic unskilled people to tell us what we know; we need skilled people (enthusiasm, preferred) to tell us what we don't know.

This message is not freely verbalized nor easily heard.

There can, however, be communication if there can be rapport, a rapport born of common anguish or similar goals.

.J an

" a summer clerk

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Sometimes. all they need is for someone to get them in the right forum: the legislature rather than the council when they talk about police trial boards, as an example.

This is the stuff of THE TECHNICl<\N.

associate

J

a part time clerk

"a research assistant

contact:

Throughout, I submit, there must be a basic recognition that unless your skills are used to effect change, your skills will be lost as will be the best parts of the system.

Duquesne Placement Service Dean John J. Sciullo

For, surely, you must heed Holmes' admonition to be a part of the passion of your time.

My personal and desperate view is that the system will be changed • • • by revolution or repression. In either case there will be substantial and effective change.

A s the possibilities of repression boggle the mind the rational alternative is revolution, changing the system.

This is where you come in.

Your mini-skills as students should be honed. Your concerns of today may be substantial as may be your desires to advoca te change. What I suggest, however, is that you can be far more effective with that upiece of paper" and that right to learn about how the system works and in what ways it can be changed.

People who are powerless do not need others to rail at the powerful.

What they need are lawyers who skillfully cut away the verbiage in contracts written by and for the powerful. Leases, Insurance policies. commercial paper with the Ilwherases ii and the "hereuntos" have to be translated by the courts with the aid of lawyers into documents of justice.

• _ _ London Dock _ _ • • __

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B"fwe"n us, dotne any modern mole 01 any oge.

5824 FORBES AVENUE 1723 MURRAY AVENUE 3918 FORBES AVENUE

JURIS - December, 1971

IT'S NOT MY FAULT

By HARRY R RUPRECHT

EDITOR'S NOTE:

This is a reply to Pennsylvania Insurance Commissioner Denenberg's article ~Who Needs NoFault?," which appeared in our last issue.

C AN

YOU enVISIon the scene a reckless driver is speeding in the wrong direction on a one~ way street and collides with a vehicle tra velling in the other direction. The reckless driver jumps out of his car and indignantly proclaims to a dazed accident victim, "Pal, you better have insurance 'cause you're going to pay for this."

The logic of these words is tota lly contrary to the philosophy of our heritage which has resulted in an altruistic tort system . . . affected by a sense of moral responsibility. Inherent in our tort system is a sense of balance and justice.

An individual is held responsible for his wrongdoings, while a victim, who is injured as the proximate result of such actions is entitled to be fully compensated for his injuries. It is an idealistic system which recognizes that victims' injuries, including intangible losses such as pain and suffering huumiliation, and loss of life's pleasure, are as much a loss or injury as is the physical damage to his a utomobile. Such a system requires a wrongdoer to fully compensate the injured party to the extent that the wrongdoer can carry the risk.

Such a logical and idealistic system should not be discarded lightly, expecially when the a lterna ti ve is a burea ucra tic scheme which is concerned with the collective mass and disregards invididual rights. No-fault insurance is one more example of the abdication of individual responsibility. The result is the assumption of that responsibility, to a lesser degree, by the community. It is ironic that the liberal community which prides itself as the 'vanguard of individual rights" can propose and advocate social and economic legislation which sacrifices individual rights and a system based upon the dignity of man. For the precious sacrifice of basic rights, we are to

receive as consideration the collectiviza tion of responsibility by the community.

Fa mous trial attorney, Melvin Belli, has stated that "as soon as we get no-fault we'll get socialism pervading the whole law." One observer declared that NoFault is a system of macro-law.

PRESENT INSURANCE SYSTEM It must be emphasized that as a

prac~

tical matter the wise investor of auto~ mobile insurance already receives the protections of No- Fault. This is because responsible people commonly carry two types of motor vehicle insurance; one type the operator or owner carries for his own use, while the other type, lia~ bility insurance, is carried by the owner for damage or injury which he may cause to another person or his property.

Only lia bility ins ura nce requires the determination of fault because it is used to redress injury caused to others. How~ ever, prudent owners protect their Own risks by carrying collision. comprehensive, medical payments, uninsured mo~ torist, and disability insurance as well as collateral insurance like Blue Cross, Blue Shield or Health and Accident In~ surance. For example, an owner of an automobile may carry medical payment insurance for each person who sustains bodily injury caused by an accident while in the owner's vehicle. Medical payment insurance entitles the occupants of the insured vehicle to receive compensation for medical bills regardless of fault.

However, if another party is later deter~ mined to be at fault for the accident, the insurance company is entitled to be subrogated to the rights of the insured so that the ultimate burden is on the responsible party who hopefully has liability insurance. Under the current system it is the wrongdoer who pays for the increase in premium rates and not the accident victim.

Under No~ Fault, it is the accident victim who will pay for the increased premiums. Suppose in a hypothetical state there are two people A and B, insured

JURIS - December, 1971

by X and Y insurance companies tively. Further assume that A was at fault in causing five rear~end collisions in which B was injured thereby. It would be the premiums of B that "','Quld under no~fault and not those wrongdoer in present system.

It is reported in a conducted the Depa rtment Tra nsporta Hon in July.

1970, that of bodily injury claims ha ve economic loss (medical and disability) of $500 or less, and that of automobile accident victims economic loss in excess of $10,000. The real problem of automobile insurance physical damage. Only 1 of the dollar paid per bodily injury while 2/3 such premiums go to physical da mage. A s a result one can substantia reduce his premium costs by using deductibles on physical damage such as collision and comprehensive nr"'u",~.., and increase his for injury. It can be determined that a person who carries liability insurance of for bodily injury $20,000 per occurance and $5000 property damage (1 and \\'ho does not use deductibles comprehensive and collision, could with the use of such deductibles at approximately the same costs coverage of 100/300/$25,000 PLUS $5000 of medical payments. So, with modifications of the above coverages to fit individual needs a responsible OWner can insure himself and those he wrongfully injures. A s shown the insured can and should be required to provide himself with medical and disability insurance in the event of accident. but the existing tort system should COntinue to allow the insurance company to be subrogated to the rights of the claimant so that the resultant premium increases are ultimately charged to the party determined to be responsible. One insurance company, United Services A utomobileA ssociation, emphasizes the need for subrogation for insurance companies that insured better drivers. United Services continued. on Page 12

Pal!

It's Not My Fault - continued from page 11

is expanding its first party coverage especially for medical payments but cautions, 'if USAA pays all of those on a no-fault basis, and if it cannot recover any of that money, income for such payment can come from only one primary source . . . the premium dollar."

DENENBERG BILL On July 29, 1971, House Bill No. 1369 was referred to the Committee on Consumer Protection and a similar bill, Senate Bill No, 999 was presented to the Senate of Pennsylvania, outlining the proposals of Dr. Denenberg for No-Fault insurance.

The main provisions the bill are outlined as follows: (1) Unlimited medical and property loss payments on a first party (no-fault) basis.

(2) On a first party basis. lost earnings or loss of earning power up to $36.000; further limited by a maximum of $1000 per month or 85% of monthly earnings or lost earning power, which ever is lower.

(3) A 11 reasonable funeral expenses with a limitation of $1000.

However, the right to recover for intangible injuries such as pain and suffering is eliminated except for limited circumstances in which the injury caused is death; (iL) loss of an eye or member of the body; (iii.) permanent and total disability or permanent and partial disability of 70% or more or; (iiii) disfigurement that is permanent, severe and irreparable.

A mong other sections is provlded for a crime as a misdemeanor penalty for driving without insurance; and establishing that one who is convicted of driving an uninsured vehicle shall be conclusively presumed to have received all economic loss benefits (medical and disability) even if another person is at fault. The act requires mandatory liability insurance of 10/20/$5000.

Of course, the most serious provision of the Denenberg Bill is the loss of the right to sue for intangible losses (in-

cluding pain and suffering) except under limited circumstances. The circumstances which a How for the recovery of intangible losses are unreasonable arbitrary. It is ludicrous to say that one who dies after an unfortunate accident can recover for pain and suffering, but the injured party who lingers near death and recovers after an extended convalescent period cannot recover for pain and suffering. To say that one who is 70% disabled after sustaining permanent injuries can recover general damages but a person who has undergone several opera tions and found to be 5 or 60% disabled cannot so recover is arbitrary and unjust.

It is noted that disfigurement that is permanent, severe and irreparable allows for recovery for intangible loss under the Denenberg Bill. Suppose that a college homecoming queen suffers a scar across her face after being involved in an accident.

Certainly her psychological reactions to such an injury are likely to cause severe emotional distress which far exceeds her monetary loss for medical expenses; but for her to recover under the Denenberg Bill her loss must be a disfigurement which is permanent, SEVERE and irreparable. It is doubtful if she could recover for pain and suffering because of the requirement that the disfigurement be severe.

It has been contended that the elimination of the right to sue for intangible losses violates the Pennsylvania Constitution of Article 3 Section 18, which provides for a limitation for Workmens' Compensation Law and further provides, in no other cases shall the General A ssembly limit the amount recovered for injuries resulting in dea th or for injuries to persons or property . . . " It must also be noted that even under the No- Fault System, the insured must carry liability insurance. This is so because of the possibility that one might tra vel out of state, or injure an out~ of- state resident in Pennsylvania, hit a pedestrian or injure a resident in such a way as to fall within one of the exceptions that allows recovery for pain and suffering.

JURIS - December, 1971

C OF NO-Ft\ ULT Statistics that are used to show the comparative cost of nobeen so distorted as to rival those circulated during the Scare of '59. Duquesne Law A lfred Pelaez described such cla as the "newest shell game in town" says tha t he is 1 a bout promises of "more for less."

Many of the statistics used are not adjusted for what is called the source rule. In Ma for example, the No- Fault legislation that if one can recover from sources, he must 00 so. rUes who are covered by Blue Cross, Blue Shield, \Vage Continuation Plans. etc. are to use their collateral sources to compensate injury. As a result automobile personal injury rates ve decrea the cost of collateral insurance ve increased statistics used not been adjusted to reflect provisions.

It is foreseeable that insurance ministrative costs will increase under No- Fault as will applications fa claims. The Denenberg Bill requires economic loss benefits be as accrues" and payments must be made within thirty days after receipt is demanded or be subject to a penalty of 12% per annum. Under these provisions lump- sum payments are generally eliminated and payments are required as damage accr 1.les. To complicate this even further, there is no statute of limitations in the Denenberg Bill. \~Vhat does an insurance company do to substantiate the propriety of payment when a bill is presented fifteen years after the accident?

It would appear the administrative costs under such a system will accelerate and become enormous. When reliable statistics are shown that are adjusted for collateral sources and for accrued payments then such statistics must be compared to the loss of rights to recover for pain and suffering to determine if the benefits exceed the cost of such a change.

(On a personal note â&#x20AC;˘ I find it comtumelious that the ardent proponents of No- Fault call this the age of the consumer and then use distorted statistics to drum up support for their cause).

Pale ThirteeD

POLLUTERS AND HOW TO PROSECUTE THEM

By JOHN DOHANICH

"P OLLUTORS AND

HOW TO PROSECUTE THEM" was the topic of discussion as Delta Theta Phi Law Fraternity presented its second in a series of speakers on October 22, 1971, in the Moot Court Room, featuring Richard S. Ehmann, SpeCial A ttorney General for the Pennsylvania Environmental Strike Force.

The Environmental Strike Force was created under the auspices of the A ttorney GeneraPs office in August, 1970, for the purpose of providing rapid and effective enforcement of the State's anti-pollution laws. A t the present time the Strike Force is composed of eleven attorneys working throughout the State and in the near future is planning to increase the number of attorneys to twenty-four.

Several statutes under which the Strike Force is proceeding include: THE C LEA N STREAMS LAW, Act of June 22, 1937, P. L. 1987. as a mended, 35 P.S. 691.1, et seq.; THE AIR POLLUTION CONTROL ACT, Act of January 8,1960. P.L. 2119, as amended, 35 P.S. 4001, et seq.; THE PENNSYLVANIA SEWAGE FACILITIES ACT, Act of January 24, 1966, P.L. 1535, as amended, 35 P.S. 750, et seq.; and THE SOLID WASTE MA NAGEMENT ACT, Act of July 31, 1968, P.L._, 35 P.S. 6001, et seq.

Mr. Ehmann's presentation was divided into two segments: (1) The manner in which pollutors are brought to court, and (2) The preparation, strategy and course of conduct before and during prosecution of pollutors at trial. He first described the means utilized to prosecute pollutors for violations of the antipollution laws. A 11 the procedures to be described will be in reference to the Clean Strea ms Law cited above unless otherwise stated. Similar provlSIOns appear in all of the above named statutes.

of the first violation. The pollutor. upon conviction, is subject to a fine of not less than $100 and not more than $5,000, or imprisonment of one year, or both.

(3) Injunctive relief: Injunctions may be issued by a court of equity in cases where the circumstances require it or the public health is endangered.

(4) Civil penalties: In addition to any other remedy afforded for violation of any provisions of the A ct or orders of the department (Department of Environmental Resources) the board (created by each of the respective acts) may assess a civil penalty for any violation not exceeding $10,000, plus $500 for each day of continued viola tion.

(5) Stipulation without suit: Under this procedure a pollutor who is in violation of the A ct must agree to do exactly what the Commonwealth demands and often must make payment of a civil penalty for past violations. A n agreement is entered into between the Commonwealth and the pollutor and is reduced to writing.

This method obviously avoids litigation and possibly adverse publicity.

(6) Nuisance: The Penal Code (18 P.S. 4612) provides thatanyonewhoestabUshes or maintains a public nuisance is guUty of a misdemeanor I and on conviction is subject to a $500 fine, or imprisonment of one year. or both. If the nuisance

is in existence at the time of conviction, the court may direct the defendant. at his own expense, to abate the nuisance.

There is no standard or definition of the term nuisance, and therefore, way is open for a broad interpretation. This statute has been used successfully to eliminate noise pollution.

These are the main avenues of approach open to the Strike Force in bringing violators to court. Which procedure is the most appropriate, of course, on the facts and circumstances of each case.

However. whichever method is chosen, there is a wide latitude, because the language within the various statutes so broad.

The second portion of the Special A ttorney Genera l' s discussion centered on groups actively fighting pollution and the various types of tactics preparing for and conducting a trial a pollutor. Mr. Ehmann citizens often come to the Force complaining of pollution in their particular area and inquire as to what can be done to abate it. He stressed the fact such a citizens' group should immediately be organized, perhaps with a name, in order to become a more effective force, and as a prime exa of a successful citizens' operation he the case of United Steel Saxonburg area. The problem there volved a rust-colored dust - conlinuea em Page 14

(1) Summary offense: This is a criminal action which may be brought before any magistrate, alderman or justice of the peace of the county where the offense occurred for violation of any of the provisions of the A ct. Upon conviction the defendant-pollutor is subject to a fine of not less than $100 nor more than ,000 for each separate offense, and, in defa ult of payment, six t y days imprisonment.

(2) Criminal misdemeanor: This provision is only applicable if after conviction in a su mma ry proceeding described in (1) the pollutor is found to be in violation of the Act within two years

by Anti-Pollution G.roup Park Colleg"

JURIS - December, 1971

Page Fourteen

Polluters And Holt, To Prosecute Them continued from Page 13

from the United States Steel plant which blanketing the entire area and thus preventing housewives from hanging their wash outdoors, causing paint to peel from homes and generally just creating an unhealthy situation. The citizens of Saxonburg organized themselves into a group known as the Citizens Resisting 'l'nwanted Dust (CRUD). CR UD began collecting samples of the dust as evidence.

Later, the group's activities were publicized, and finally a report of CRUD's efforts was made on the CBS evening news. Shortly thereafter United States took action to lessen the amount of dust released by its plant. This episode led 1\lr. Ehmann to quip, "In terms of pollution United States Steel is involved." \\'3.S

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Ehmann pointed to other groups \\ho have been involved in fighting pollutors. "People inside the plant should not be overlooked," he said. Unions and laborers within the plant are invaluable in the collection of samples and in proinformation as to the time periods which the pollutors are discharging their wastes. Competitors of the pollutor may even be counted on in certain situations, especially in the water pollution a rea, beca use if one pollutor is compelled to cease discharging harmful waste into ':\ river or stream, then this will help cut costs of another industrial concern downstrea m. Other organizations that may lie relied upon are the different environgroups, such as the Group Against and Pollution (GA SP) and also the numerous sportsmen's associations.

These organizations are helpful in collecting samples, taking photographs and 3ttracting publicity.

The explanation by Mr. Ehmann of the assortment of trial tactics began with the role of the expert witness. He stressed that expert witnesses are often the key factors in a pollution case. Physicians '.He used to describe the hazards to health.

The Special A ttorney General mentioned one instance in which a physician had conducted an experiment with a high school track team whose school was located in an industrial area. The results of the test showed the team ran slower when competing at their home track near an industrial plant and faster when competing away from home on opponents' tracks.

The effects pollutants on plant and I life can be related by biologists, r)otanists and zoologists. Meteorologists are able to trace the source of air pollution by observing wind currents.

Realtors can testify as to the value of homes near industrial areas as compared

to the value of the same types of homes elsewhere. The chemical makeup of industrial discharges may be examined by soil conservationists and chemists to determine the toxic nature of the pollutants. Consulting engineers can describe different types of correctional equipment, the length of time that it has been a vaila ble and the cost the equipment. Government personnel who have worked in the area of pollution may be helpful in analyzing samples and suggesting the proper methods of treatment.

Mr. Ehmann suggested we subpoena government persons as hostile witnesses, and ask them leading questions.

The expert witnesses should be prepa red for trial by the attorney as to what his direct testimony will be and as to what to expect on cross examination. In cross examining the defendant's experts Mr. Ehmann recommended some questions that should be posed, such as: the length of time the plant has been discharging pollutants, the efficiency of present treatment facilities, the age of present facilities whether modern or obsolete ••. and the reaction of the pollutor upon receipt of complaints from neighbors and employees.

Several techniques that Mr. Ehmann has used during a trial, especially with respect to demonstrative evidence, are the production of photographs, maps, statistics, charts and samples; release of an offensive gas in the courtroom; and taking a judge to smell a land fill.

He also urged that an attorney should do all the research for the judge, since it cannot be assumed that the judge knows the law in a in which he has not had much opportunity to work.

In answer to a question concerning air pollution in A llegheny County, the Special A ttorney General stated that the Strike Force could not prosecute air pollutors in Allegheny County. because once a county has established a program certain standards the State is precluded from entering the county. Allegheny County does have such a program.

Mr. Ehmann summed up the pollution problem by saying: II Pollution is a business in which many companies engage. The number of people who are fighting against pollution, however, is very small." "Vith people the caliber of Mr. Ehmann working for the Strike Force, however. the pollution problem should gradually decrease. This writer has seldom seen a person so enthusiastic in his work as this speaker.

Hopefully, his spirit is contagious and will spread to others, thus increasing the number of persons joining the war against pollution of our environment.

JURIS - December, 1971

~

Lions 77, Christians 3

By EUGENE M. FIGNAR

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s THE

Moot Court Follies" just a two engagement at Duquesne Law School. This years edition promised to bring back the era of plaintiff s rights. Un fortuna the characters were new in predictable display of judicia 1 process.

"NE\V

This new performance of a headed by an aU star cast from the 3·D Players. n casting some weeks As usua 1 the most popular was that of "Defendant's Counsel." nine "attorneys" were and after reading the script decided tha.t a few well placed objections motions be enough to win the a\vards. By far the most Challenging role was that of it Plaintiff's Counsel."

This part required 3 combination of and cunning, the power of overstatement, the ability to touch the disinterested a power ora tory, rivaling that Moses in his speech to the Red Sea. llnfortunately, these moments of excellence fell on ears.

Author T. R. Mann witnes for two weeks the audience reaction to the impassioned pleas of;1 Plaintiff s Counsel" left for the island of Tobago and s not been seen since.

The scene for each night's dra rna was reminiscent of the Roman C i r c us Maximus. Each night the spectators poured into the a mpithea ter wa iting for the signa I to give their verdict. Sitting in the midst of perplexing conflicts and issues, found time to sleep, giggle and even count the blocks on the theater floor.

The air was filled with confusing and incomprehensible language punctuated with the words; negligence, proximate cause and reasonable man. The crowd was dazzled by renditions of the Great Coffee Cup Caper, The Moving Chair Mystery and others. Before them sat the plaintiff, torn by the ravages of the defendant's act; penniless, outcast, pleading for a few crumbs with which to pull his ruined life together. Each ni~ht Caesar looked to the crowd for their decision and night the crowd responded with one voice: To the Lions.

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INTRODUCTION TO THE LAW OF REAL PROPERTY by Cornelius J. Moynihan.

236 Pages. West. 1962 ~~~~W8~

One Seat On The Aisle

By LAWRENCE ROSS WIEDER

IT RA INED yesterday. Thursday . . . a work day. At 4:30 the revolving doors spun people out of their offices. They popped their umbrellas and started towards the bus stop. Some stood drenched under hotel marquees. Others made the run to their cars. From our sixth floor gallery we watch them come out of Oakland. down the boulevard and onto the ra mp . • . to that curve below us that crimps their fenders. pocketbooks and sometimes their lives.

Three years now I ha ve watched things change . . . progress is ever present.

But, some things don't change. That ra is one. Outside our classroom it lurks. waiting for another skid. a collision of the moveable and the immoveable. On rainy days cars bounce off its wall like pins off a bowling balL Someone downtown is responsible for it. For three years now it's been the sa me. Someday things might be different.

Like Torts and Contracts we could take notes on "The Ra mp." It's fixed in our minds. When it rains. room 604 is a theatre. Professors compete with that curve. Sometimes. as they lecture, they seem to be watching too, It wasn't funny on Thursday. It wasn't "Show Time." A motorcyclist came down the ramp. Not too quickly. he started into the curve. skidded and flipped the cycle. His body hit the wall. He lay there a moment, then pulled himself onto the walkway and sat down . • • out of the way of passing cars. The cars slowed and passed him and the wrecked cycle. My mind saw each driver look and turn away, reach to lower the radio and mutter. IIThose da mned kids."

I wanted to change the channel. You know how it is • • • you don't want to watch but somehow you can't stop. Every show needs advertising and this one is brought to you by someone downtown.

I wonder what the Nielsen rating is for the Department of Highways and Sewers.

I wish someone would take them off the air.

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His domain is a proUfera of remainders, defeasibles. fee and seisin.

Reversions fly ominously overhead as resulting uses dart across the path. a Dorothy from has been in the quagmire of perpetuities found there.

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This uncanny literary adapta tion to the scholarly environment has given Moynihan'S treatise an etchedstone authenticity as wen as a monumental lack of ease polish.

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SOMEWHERE DEEP within the luxuriantly mystical world of Property lurks Cornelius J. Moynihan. the supreme magical mystical

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Dorothy brightens to the parables A. B. C, D, their children, issue widows, but soon l\Ioynihan is to his wizardry as he applies the drying effect of after page sentence after sentence. Dorothy baffled by the "to B and his children" and "death without issue" riddles and the \Vizard still has a full of tricks . • • Oh. where is the Tin Woodsman when we need him?

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JURIS - December, 1911

1033 Forbes Avenue. Pittsburgh. Pa. 15219

Alumni Record

by Sanford P. Gross L '68 - TERRENCE F. McVERRY .... Originally from Washington County, Terry graduated Duquesne University in 1965. He continued there and earned his J.D. in 1968. Judy. his wife, worked as a school teacher while he completed his education. Terry himself worked also - as a law clerk for Eddy and Osterman.

In late October of 1968 Terry learned he had passed the Pennsylvania Bar Examination. Sadly, he also learned his reserve unit had been activated.

He spent the next six months in the U.S. Army Reserve at Fort Jackson, South Carolina.

Following his return in November of 1968 Mr. McVerry was appointed ass't. District Attorney in Allegheny County. In May of 1970 he joined Peter J. Mansmann (L '61), Daniel J. Beggy (L '61) and Fred E. Baxter to form their own firm, now located in the Lawyer's Building. Terry's main interest is in trial work, most recently in the area of murder and the more serious felonies, In reference to his trial work he said, aIt is a tremendous challenge to function as an effective advocate in the area of trial work. It is rewarding when a just result is achieved whether or not it is on the Criminal or Civil side of the Court."

Terry feels more than just a devotion to his job.

He is presently an instructor of Criminal Law for the City of Pittsburgh, Police Training Program.

L '61 - ANTHONY VINCENT DeCELLO ...

After graduating Washington and Jefferson in 1957 Mr. DeCelio was a member of Duquesne's first day division, graduating in 1961. During that time he worked in the library assisting someone of whom he has fond memories ••• OUi' present librarian Professor Elizabeth -Betty" Scheib.

After graduation Mr. Def' Cello'S first association was with Margiotti and Casey. He remained there for three and one-half years. Later, he spent two years as a partner in the firm of Witt & DeCello, before forming DeCello, Bua & Manifesto. They are located In the Lawyers Building.

L '61 - DAVID RAINERO ••• A member of tbe evening division, Mr. Rainero financed his undergraduate education at the University of Pittsburgh and later at Duquesne Law by operating his own business in his home town Turtle Creek.

L '46 - CHARLES N. CAPUTO .. ,Mr. Caputo, a native of Pittsburgh is deeply involved in the field of emigration. He has done a great deal to forward naturalization processes for the foreign born who have entered this country and is an expert on naturalization legislation.

Mr. Caputo received his LL.B in 1946. He had worked throughout his high school years to earn enough money for his pre-legal and legal education. After receiving his degree he worked for two years as a "legal trouble shooter" of sorts for one of the banking firms in the area. In 1948 he entered private practice and in 1952 became Assistant City Solicitor and represented the city's legal department at the state legislature. In 1953 he was appointed to a state wide committee on investigations and naturalization legislation.

Now serving his third term in the House of Representatives in Harrisburg, Representative Caputo has been elected by the 26th Legislative District.

He is also Vice Chairman of the Committee on Urban Affairs besides being a member of the Transsportation Committee, Liquor Control Committee and the Commission Dealing with Decedent's Estates as well as other Commonwealth Committees.

He presently resides in Beecbview with his wife Anna and their two sons Charles and Louis.

Juris

Duquesne University School of Law 600 Forbes Avenue Pittsburgh, Pennsylvania 15219

Following graduation he Was associated with the firm of Gatz, Cohen & O'Brien for almost four years. There, he was engaged in general practice.

Additionally, he served as law clerk to the Honorable Samuel strauss of the Court of Common Pleas in Allegheny County for three years.

In 1965 Mr. Raineroformed the David J. Greenberg. Their attitudes and progress is indicated by th€' firms el\.pl1l1~!'-"'.

In 1970 William F. Cercone ioined and James A. Berneburg (L to four. Their offices are In the Mr. Rainero married in 1969. and their two year old the Point Breeze section of the While Mr. Rainero characterizes his as Ggeneral," he devotes most of his time to Labor Law and come from Turtle Creek labor area it is not When asked, "Why the Law?," Mr. Rainero replied, "The law, to me at least, is a means of fulfilling a number of desires. I want.ed to be a people and to the mundane need of a living. But it gave me an satisfy a childhood love - my labor movement."

Non P'oflt O,ganization

U. S. POSTAGE

PAID Pittsburgh, Pa. Permit No. 390

Mr. DeCello's favorite area of the law is trial work, both criminal and civil. He is an active member of the Bar Association and serves on the insurance committee. Additionally he serves on the Board of Directors for Systic Fibrosis and Assistant Solicitor for the City of Pittsburgh.

Regarding his practice Mr. DeCello says, ·We know we will never be the largest law firm in town, but we would like to be the most respected law firm in town, respected by our colleagues.·

POSTAGE REQUIRED FOR THIS WAILING MATTER

JURIS - December, 1971