Juris Magazine- Fall 1989

VOLUME 23

NUMBER 1

FALL, 1989

The worst sin towards our fellow creatures is not to hate them, but to be indifferent to them: that's the essence of inhumanity.

- George Bernard Shaw The Devil's Discipline

Over 2,000 Pennsylvania examinees took BAR/BRI for the July 1989 exam •••

They know they made

the right choice!

" I could never pass the bar

without the course."

DUQUESNE UNIVERSITY 7/89

" Immensely helpful. I felt well

prepared as a result of your course."

DICKINSON 7/89

" The course gives . you everyt hing you need to pass. I have no one to blame but myself if I don't do well."

UNIVERSITY OF PITTSBURGH 7/89

" Thorough coverage of all areas on

the essay and MBE. I got more than I expected."

TEMPLE UNIVERSITY 7/89

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JURIS The Duquesne Law School News Magazine

Inside This Issue of JURIS PAGE

Pamela J. Castrucci Editor-In-Chief Raymond Sekula Faculty Adviser

Jan Daschbach Administrative Assistant

Rosalie Pugliese Executive Managing Editor

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Faculty Notes

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Uncle Sam Wants You For Drug Testing

Colleen Ramage

David Hvizdos Executive Manager's Assistant

Bernard Lafleur Articles Editor (Day)

Marilyn Gilman Articles Editor (Evening)

Cathy Waggle Production Editor

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Susanne Kimberland Articles Assistant

Cheryl Cindrich Production Assistant Ralph Karsh News & Recent Decisions Editor Aileen Hickey Front Line Editor

Kelly Scanlon Photographer James Heneghan News & Recent Decisions Editor Michael Ivory Front Line Editor

Diana Stavroulakis Front Line Editor

Lisa Sciullo 8

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Molly Murphy Lauralee Snyder Production Crew

The Court And The Flag Prof Robert S. Barker Supreme Court Or Bust: The Making of a Landmark Case

Tom Shope

Steve Zoffer Front Line Editor

Nwenenda Adele Ed Santillan Production Crew

Owners Get To Keep A Piece Of The Pie

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Merit Selection: Judicial Reform in the Commonwealth

Starla Williams

Writing Staff Sherri Cupplo Alan Fuehrer Jim Kocur Carmen Martucci Kim Oliver Ed Santillan Thomas Shope Lauralee Snyder Allison Turley Starla Williams

Chris Ferry Deanna Heasley Ella Kwisnek Molly Murphy Colleen Ramage Lisa Sciullo Mike Silver Daniel Taylor Bob Walter Peter Wright

JURIS is a student publication of the Duquesne University School of Law. Views and opinioris expressed are not necessarily those of JURI~ or Duquesne University.

All manuscripts and comments may be addressed to JURIS Duquesne University School of Law 900 Locust Street Pittsburgh, Pennsylvania 15282 Telephone (412) 434-6305 Copyright Š 1989 Duquesne University

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Getting To Know You: Winning Without Intimidation

Marilyn Gilman 16

Graduation 1989

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Recent Decisions Ralph Karsh & Jim Heneghan

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Special Acknowledgments

JURIS Staff

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Up Front The JURIS staff for the academic year 1989-1990 is very excited to be back at school and revealing all of the articles and projects we so enthusiastically worked on this summer. JURIS has undergone many changes recently.

JURIS has also taken on a new goal.

JURIS wants to shake you up, to make raise your eyebrows, to inform you, and to spur you on in your practice of law. In essence, JURIS would like to dispel disinterestedness. We truly believe that we are living in dynamic times, times in which changes of monumental importance are occurring. Law plays a very large role in most, if not all, of these changes. We hope that our magazine will cause you to question your view and practice of the law. Rather, we would like to act as a catalyst in your search for a better system and method of justice. By means of illustrating this idea, we offer a few thoughts on some recent events.

Charles Dickens' opening for A Tale of Two Cities could easily be applied to our world today. "It was the best of times. It was the worst of times:' Justice plays a part in this notion of today's climate in that people are now beginning to clamor for it, no longer willing to harden themselves to the "realities" of life. These "realities" are not absolute - law has the ability to dislodge them by seeking more harmonious means of existence.

In terms of the environment, the law has been slow to address the ravaging the earth is experiencing. The socalled "gap'' in theozonelayerisreally nothing short of a CHASM. While not an exclusively American problem, we are slow to fashion a remedy to this problem. Can we possibly comprehend that, without this protective layer, we will become exposed to the full force of the sun?

Closer to home is the problem of medical waste. Its existence on our shorelines, used needles and syringes awash on our lucrative shorelines, caused panic over the potential health hazards to drown out economic losses. The empty beaches stood as a stark reminder of the fragile balance of Nature.

Disposable diapers. Who would have thought these convenience 4

devices could become such an environmental faux pas? Great big diaper dumps sit in the earth for more years than the average life expectancy.

While we may chuckle over the notion of disposable diapers cluttering up our earth, no one is laughing over the Exxon oil spill. While oil does not usually mix with water, man has, once again, found an exception to the rule.

The questionable actions of one man, or perhaps even more, have left an indelible ink spot on our oceans.

Corpses of the creatures of the sea, the sky and the earth washed ashore while Exxon showed the extent of its remorse by raising its gasoline prices.

Perhaps the most unsettling environmental problem, one which has the capability of bringing about catastrophic results, is the burning down of the tropical rain forests in South America. It not only affects South America's natural balance, it affects the world as a whole. Many well-known rock stars have succeeded Chico Mendez in the fight to save the tropical rain forests (most notably Sting and Madonna, the latter even staging a show entitled ''Don't Bungle the Jungle"). Perhaps many dismiss the urgency of the message because of its messengers. Whatever the case, there is a very low cognizance of the danger in our midst.

Drugs have obviously gone beyond the "just say nd' stage. This scourge is not just in our ghettos - it is in the board room, the class room, the police station, the hospital, and on the playground . It is walking, certain death .

Twenty-two tons of cocaine seized in California, which fetches approximately $7 billion dollars on the streets, shocks us only because of the outrageous "worth" of this powder. It is killing our children and our country.

Witness the hellish effects of drugs: a woman traded her daughter for drugs, the dealer, a convicted rapist, trading cocaine in exchange for the "use" of the woman's 13 year-old daughter for one hour; a woman "sold" her baby for $20 worth of crack.

Was there adequate consideration?

Public figures have never been immune to exacting scrutiny. And rightly so. Perhaps, public figures seem to deceive on a much grander than the

average person because they are given a much grander scale of trust and duty. And yet, we seem to take in stride their breaches of our trust and their duty. Such behavior no longer appears to shock us. The Iran-Contra scandal left us with an absurd "hero" and a president beyond the reaches of inquiry. The HUD scandal is just as readily accepted. Political leaders of other countries are not immune. Ferdinand and Imelda Marcos, while endearing themselves to the comedians of this world, found a haven in a country which despised their actions. Dante had a special place for people who did violence to their own country and people: the last circle in the Inferno.

Another type of violence is arising in the political sphere. Such violence horrified us this summer when we saw the slaughter in Tiannenmen Square . The physical brutality shocked us, but it was the ''brainwashing" the Chinese government forced upon its people which numbed us. The arbitrary, strong-arm executions that followed could only leave us in disbelief, inevitably reminding us of past terroristic regimes. The violence appeared in our own back yard when the riot in Virginia Beach erupted. On our own soil, the shock was present, but seemingly short-lived. Politics, however, do not have a monopoly on such outrageous behavior.

Corporate America, has experienced its own upheaval of late. Greed, and the outrageous actions to achieve its ends, has been under the glare of the spotlight of late. Michael Milken, Ivan Boesky and Leona Helmsley are just a few of the more notable subscribers to such ambition. They are notable not only because of their enormous wealth, but also because they were caught. No one weeps for them, but the indignation over their actions is absent.

Perhaps one of the most stomachtuming of deceptions is the conduct of Jim and Tammy Faye Bakker. Their greed transcended all boundaries of human decency. Their deceit infested the most sacred of our institutions religion. The opening of the proverbial Pandora's box by Jessica Hahn revealed a seemingly never-ending

procession of outrageous conduct.

The air-conditioned dog house was only an incredulous precursor to the more offensive, appalling revelations of the Bakkers' secret lives. The comics make jokes, but to the thousands who had sent the Bakkers money few could really afford to give, it was no joke. Not only did they covet their money, they coveted their belief in a higher power. Incidentally, Dante placed "their kind" in the last division of the last circle in his Inferno. For assuredly, this is the ultimate deception.

In a world where Apartheid is still a reality, there is obvious room for improvement. When the newly-elected political leaders can be shot down in cold blood in South America, there is still a need for more peaceable means of living together on the same planet.

Prejudice and suppression are still all too present.

Obviously, these are just a few of the concerns of society. Law has a unique quality in that it has the ability to pervade every aspect of our lives. Continual questioning of the premises upon which a system operates brings

about greater efficiency and, in this case, greater justice. It is with that in mind that JURIS seeks to encouraging the desire to make the system work as efficiently and fairly as possible. Our goal is to dislodge indifference. It is to this end that we will aim to bring you issues that are current, informative and of great concern to our country as a whole.

Pamela Castrucci Editor-in-Chief

* * * FACULTY NOTES * * * Herbert L. Sherman, Jr. is once again serving as a Visiting Professor of Law for the fall semester, 1989. He is teaching the day and evening division of Tort Law as well as conducting a seminar on Labor Arbitration. Professor Sherman recently published a law review article in the William Mitchell Law Review entitled, "The Role and Rights of the Individual in Labor Arbitration;' 15 Wm. Mitchell Law Rev. 379 (1989).

Professors Maureen Lally-Green and Kenneth L. Hirsch have received a grant from the Westinghouse Foundation to develop a computerized legal instruction program in Criminal Law and Real Property. The program would allow the user to move back and forth in the material for review, unlike programs currently available which require the user to view the program from start to finish. Professor Lally-Green will also be the moderator

for a program she developed for the Allegheny County Bar Association entitled, "Update On Professional Conduct Development For the 90s: A Look At The New Rules of Professional Conduct a Year Later;' which will be presented Wednesday, October 11, 1989, 8:30 a.m. -12:30 p.m . Professor Lally-Green will also moderate a program entitled "Drug Testing and Aids Testing in the Work Place" on November 17, 1989.

A new member of the Duquesne School of Law is Professor Kellen McClendon. While working as an Assistant City Solicitor with the City of Pittsburgh's Department of Law, one of Professor McClendon's areas of concentration was real estate tax assessment.

Although Professor McClendon left employment with the City of Pittsburgh's Department of Law, the Solicitor for the City of Pittsburgh has

asked him to argue the City's Appeal from the Allegheny County Board of Property Assessment, in the case of the Allegheny County Industrial Development Authority and Hospital Linen Service Facility. The issue will be whether the authority and the linen service facility are public charities that are entitled to exemption from real estate taxation. The argument is set in Commonwealth Court for October 5, 1989.

As well, Professor McClendon plans to continue research and write on the subject of real estate tax assessment, during his tenure at the Duquesne School of Law. Professor Bruce Ledewitz continues to direct the Allegheny County Death Penalty Project, a voluntary program to assist attorneys in defending death p en alty cases. Professor Ledewitz welcomes any student interested in volunteering for the project.

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Uncle Sam Wants You For Drug Testing The fears and issues concerning the testing of public workers for drugs Sure, everybody wants to work in an environment where there are no safety hazards and where there are pleasant conditions. But, how far will we go to ensure these wishes? A periodic evaluation of the workers by their supervisor to detect productivity and efficiency? Could such an evaluation delve into the employees' personal life and extend into something as private as drug use? After all, what rational person would want a prison guard, for example, dabbling in the drug business and have it affect his performance? On the other hand, what about an individual's right to privacy? This is the tension of the legal struggle, between the need for compulsory drug testing and the invasion caused by the search in a person's body for drug use, in the public employee drug testing issue.

The first question concerning public employee drug testing involves the Fourth Amendment's guarantee of a reasonable search and seizure. Several district and circuit courts have held that drug testing is a search and seizure.1 Given that, the intrusion must then be a reasonable one. In order to be reasonable, the Fourth Amendment's requirements of probable cause and a warrant must be satisfied. In certain cases, "the Supreme Court has allowed warrantless searches when the burden of obtaining a warrant would frustrate the governmental purpose behind the search, or when a compelling government interest justifies the intrusion into privacy." 2 The courts have permitted a change from a probable cause standard requiring a search warrant to one of reasonable suspicion.3 If an employer wants to test his employees for illegal drug use, he must show that, "the impairment of the employee would create a clear and present danger to himself, another employee, or the public ... must present specific objective facts and reasonable inferences drawn from these facts indicating that a particular employee is impaired by drug use:' 4 The two-prong test of Terry v. Ohio, 392 U.S. 1, has been followed 6

to ensure that employers fulfill the requirement of reasonableness.

Important cases involving drug testing of public employees include such diverse groups as Jockeys,5 state prison guards,6 nuclear power plant workers,7 and federal Customs Service employees; 8 the latter being perhaps the most significant one. The case involved the uniform testing of Custom Service Employees. Under President Reagan's drug-free work place program, any employees seeking to work in certain "sensitive" positions were required to submit to urine testing despite a lack of probable cause. The program included job applicants and employees seeking to transfer into the areas of criminal investigation of drug trafficking. Such positions included

Are their constitutional guarantees being preserved or are they being violated? contact with drugs, firearms, or classified information.9 The circuit court in McDonnell v. Hunter, supra., "asserted that a properly administered urinalysis was not as intrusive as a blood test or strip search, and thus the infringement upon the privacy interest of prison employees, already diminished by necessity, lessened."lO The general rule seems to follow the Fourth Amendment's reasonable standard when testing civilian employees for drug use. The exceptions that do not require the reasonable standard are applicants for pre-employment and regular employee physicial exams.11 The next concern regarding the testing of public employees for illegal drug use involves the Fifth Amendment's right against self-incrimination. The district court in Rushton, supra., followed a trend of establishing strict procedures to ensure proper authorization for drug testing and keeping the results confidential. A

program was implemented for fitne.ss of duty, under the order of the United States Nuclear Regulatory Commission. In the "protected area" of the nuclear power plant, all unescorted persons were tested for drug and alcohol use by urinalysis and a breathalyzer. To enter the area, a person would be required to pass a metal and explosive detector and random patdown searches to gain entry through the fenced section of the plant. Testing was performed annually and at random. Persons being tested were to sign a consent form that included any medications taken . If the test results were positive, the employee was not given unescorted access to the plant, was suspended, and was placed on leave with the options of either being discharged or joining an employee assistance program. The court said that "the results of the plaintiffs' urine analysis were not evidence of a testimonial or communicative nature, and that although the consent form requesting itemization of medications taken was a written communication, the use of over-the-counter or prescription drugs was not a criminal offense. Therefore, evidence of such use did not compel the plaintiffs to incriminate themselves." 12 Workers also challenged the drug testing by using the Ninth Amendment's right of privacy. The Rushton court dismissed the argument, "asserting that the right to urinate in private had not been violated and that the plaintiffs had not shown past, or the likelihood of future, disclosure of the consent form information or test results to persons other than authorized plant officials:'13 Presented here are some of the concerns that public employees face when their employers require them to submit to drug testing. Are their constitutional guarantees being preserved or are they being violated? As demonstrated here, the courts agree that the constitutional provisions permit such testing. If they are wrong, we can only await changes in the future.

Colleen Ramage is a Second Year Day Student in the Law School. She is an intern at the office of the Attorney General.

Owners Get To Keep A Piece of The Pie Ordering a pizza has become so commonplace in American society that many consumers are likely to adopt a somewhat cavalier attitude toward this specialty pie. While this seemingly ordinary entree appears to be humble by its nature, the courts have recently had difficulty in pinpointing particulars in regards to certain issues surrounding its production and sale. ' Pizza has attained an incredible reputation in the past hundred years .

It is claimed that in 1889, Raffaele Esposito, a pizzeria owner for Naples, Italy, created the first "modem pizza" consisting of tomatoes, basil and mozzarella cheese from Queen Margherita . While the Italian dish was often found in Italian neighborhoods in the United States, pizza began its rise to prominence after World War II . The growth in popularity of pizza has resulted in the development of extremely popular pizzeria chains.

Domino's Pizza has become one of the largest chains, second only in number to Pizza Hut. In addition to the quality of the pie and price, more recently one of the most important areas of the pizza business is the delivery aspect. Domino's has focused its business on this area and attempted to provide fast and free delivery.

A case which was affirmed by the Supreme Court of Pennsylvania, 1 Comment, The Constitutionality of federal employee drug testing: National Treasury Employees v. Von Raab, 38 American Univer-

sitX L. Rev. 130-131 (1988) .

Id . at 119.

3 ld . at 120.

4 ld . at 120.

5 Shoemaker v. Handel, 795 F. 2d 1136 (3d Cir.). cert. denied, 107 S.ct. 577 (1986).

6 McDonnellv. Hunter, 809F.2d1302 (8th Cir. 1987) .

7 Rushton v. Nebraska Pub. Power Dist. , 844 F. 2d 562 (8th Cir. 1988).

8 Nationa1Treasury Employees Unionv. Von Raab, 816 F. 2d 170 (5th Cir. 1987), cert. granted, 108 S.ct. 1072 (1988) .

9

38 American University L. Rev. at 129.

Weeks, Public employee drug testing under

10

the Fourth and Fifth Amendments: wFzere are we ~'!U' and where are we going under federal dec1st0ns? 20the Urban Lawyer446 (1988) .

11Id .

12 ld .

at 457. at 458.

13 Id . at 459.

Fleet Pizza, Inc., t/a Domino's Pizza and S&M Pizza, LTD, t/ a Domino's Pizza v. Commonwealth of Pennsylvania deal with the assessment of sales and use tax on Fleet Pizza Inc. and S&M Pizza, LTD, which are traded as Domino's Pizza. The assessments were by an Order of the Board of Finance and Revenue. The order concentrated on taxes imposed on equipment used in producing the pizza, utility services and sales taxes on pizzas which were to be consumed off the premises. The taxes assessed in the latter category mentioned, though, only included those pizzas which were actually delivered to the customers. Excluded were those pizzas which were picked up by the customers at the restaurant.

These assessments are dealt with in the Pennsylvania Tax Reform Code of 1971. (72 P.S. §§7101-10004). Section 7204-(29) relates to the items and activities which are excluded from the tax. In the Fleet case, the Commonwealth of Pennsylvania alleged that Domino's Pizza qualified under the Code as caterers each time a pizza was delivered. These allegations, made originally by the auditors of the Revenue Department, claimed that the delivery pizza shops held themselves out as caterers. On the other hand, the pizzas which were picked up or taken out by the customers were considered to be within the exemption and, thus, not subject to the tax.

This argument may seem to be a minor disagreement, insignificant in nature, but for a business such as Domino's, this distinction seriously affects the entire business, especially its profits. Domino's bases all of its business on take-out and delivery orders. Domino's argument in opposition to the Commonwealth's contentions was based on the fact that the shops make pizza - and only pizza.

The pizzas are sold without any of the usual catering accessories, such as table settings, table service and cleanup service after the meal. When a customer purchases a pizza from a Domino's pizza shop, all he or she receives is the product - the pizza.

There are no accompanying napkins, forks, knives or other condiments. In this aspect, Domino's does not fit the catering mold. Domino's also argued

that the pizza business was more like that of a bakery. The manufacturing process and the resulting products of a bakery are excluded from the Pennsylvania state tax .

In the opinion by Judge Jacob Kalish , the term "caterer" was analyzed . Judge Kalish looked to the intent behind the use of the term "caterer" and stated that it "is to be used in its ordinary meaning, namely, for consumption of a specific meal,

A decision such as this Pennsylvania case could open the door to a flood of litigation. affair or social function and is not intended to apply to a situation where the sale of the product is akin to a bakery sale." Judge Kalish also mentions that a caterer offers what is considered to be a "portable eating place." (i.e. appropriate utensils, condiments, and other supplies which may be provided). As a result, the sale of pizzas which are delivered are not subject to the Pennsylvania sales tax .

This 1989 Pennsylvania decision follows other ¡ decisions from states such as California and Kentucky which refused to accord the companies involved similar exemptions. A decision such as this Pennsylvania case could open the door to a flood of litigation. Present day society has the fast-break attitude toward meals that contributes to the development of more take-out and delivery food. Subsequently, the world of take-out and delivery foods has grown dramatically. Almost every kind of food available in a conventional restaurant is also available in a take-out or delivery form.

As a result of this kind of opinion in the Pennsylvania courts, pizza restaurants, not only Domino's but its competitors also, are quickly becoming America's favorite alternative to the traditional home-cooked dinner.

Lisa J. Sciullo is a second-year day student who spent the past summer working as a clerk for the Allegheny County Law Department.

7

THE COURT AND THE FLAG

by Robert S. Barker Professor of Law (The following remarks were delivered by Professor Barker at a discussion ofTexas v.

Johnson held at the Jewish Community Center of Pittsburgh, September 7, 1989.)

Rabbi Miller Judge Kaplan, Distinguished Colleagues, Ladies and Gentlemen : It is a pleasure to be with you this evening to discuss the decision of the United States Supreme Court in Texas v. Johnson, in which the Court held that the intentional desecration of the United States flag, when done as part of a political protest, is protected by the First Amendment guarantee of freedom of speech.

The problem with that decision is not so much its result, which, considered in isolation, is not bad. The problem is not even the Court's rationale, which, in the light of the precedents of recent years, was predictable.

The problem with the decision - and with a number of other constitutional decisions in recent years - is what they say about our attitude toward human rights and, ultimately, about our attitude toward the Constitution itself.

In this regard, it is appropriate to recall the words of Justice Felix Frankfurter, spoken in 1941 : It misconceives the inner significance of the Bill of Rights to think of it as constituting merely technical provisions of a legalcode . . . Litigation is, as it were, the pathological aspect of society. Health comes from the thoughts and feelings permeating its atmosphere and guiding its everyday actions. The real import of the Bill of Rights is the conception of man's dignity and destiny which underlies it.

During the past twenty years or so, we have had a tendency to disregard the important distinction drawn by

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the Justice. We have concentrated on the pathological, and in doing so we have come increasingly to see certain constitutional guarantees - such as freedom of speech - not as constructive parts of an operating system - but as autonomous, isolated ideas which must be reinterpreted to their most extreme limits; and, after that extremity has been reached, we create new extremes to which to force constitutional litigation. Flag desecration is a good example of this.

In 1968 Justice Abe Fortas - a man who could never be accused of indifference to human rights - said, in his

... We are alone among the nations of the civilized world in concluding that we are constitutionally prohibited from having a national symbol worthy of protection. famous work, Concerning Dissent and Civil Disobedience: The burning of American flags involves direct violations of the Jaw. Laws forbidding the burning or desecration of the national flag have existed for many years, and it is hardly likely that anyone would seriously contest their constitutional validity.

The following year, 1969, someone did contest the constitutionality of a statute which prohibited flagburning. A majority of the Supreme Court disposed of the case without addressing the constitutionality of the prohibition against flag-burning, but several justices, including Justice Fortas, Chief Justice Warren, and Justice Black, in separate opinions, each took the position that the states

may protect the flag from desecration.

Justice Black said: It passes my belief that anything in the Federal Constitutio n bars a state from making the deliberate burning of the American flag an offense.

But in recent years our attitude has changed; it has taken on an extremism; and our human rights debate now turns on how often one can publicly use the famous four-letter word, how outrageously one can treat the flag, and how one can promote child seduction and other perversion .

Recall that, in this year's flag case, the defendant was not prosecuted for anything he said, and it cannot seriously be suggested that his right to express an opinion, or engage in debate, or oppose a policy, or try to persuade others, was in any real sense denied because the State of Texas would not permit him to burn the flag. "Freedom of speech" is in danger of losing its core meaning and becoming part of a game to see how much absurdity can be accomplished in its name. This is not because there is anything wrong with "freedom of speech" as a principle of law, but because we treat it not as a principle of law, but as an ultimate and isolated value.

The same thing has happened with other, selected parts of the Constitution, such as the Establishment Gause of the First Amendment, which has been read to prohibit state-sponsored field trips to historic and cultural sites by children in religious schools, because of the danger that the teacher might insert a religious message into the occasion. It seems to me that, with or without a religious message, the field trip should not, to any reasonable person, threaten to create an establishment of religion . Similarly, the Court has said that remedial instruction given after hours by public school teachers within all schools - public

and private - is unconstitutional because it creates a implied endorsement by the state of the religious groups whose schools (along with non-religious schools) are being utilized in the program. I would suggest that such a rationale shows more imagination than reasonableness.

Only by viewing the Establishment Clause in isolation, cutting it off from its roots, and giving it an extreme interpretation, can such results even appear plausible.

To return to the flag decision: It is now clear that we as a nation are not permitted a national symbol worthy of protection, because to do so might abridge freedom of speech. Incidentally, as best I can determine, we are alone among the nations of the civilized world in concluding that we are constitutionally prohibited from having a national symbol worthy of protection. The problem is not with freedom of speech, nor with freedom from religious establishment. The

problem is lack of balance, lack of proportion. We have lost so many values that we overwork the few that remain.

The English writer Chesterton, in his celebrated essay, "The Suicide of Thought;' said that: When a . . . scheme is shattered ... , it is not merely the vices that are let loose. The vices are indeed let loose, and they wander and do damage. But the virtures are let loose also; and the virtues wander more wildly, and the virtues do more terrible damage ... The virtues have gone mad because they have been isolated from each other and are wandering alone.

The constitutional history of the United States proves the accuracy of these words. Whenever our approach to the Constitution has been extremist, as it was in the Dred Scott case, when the Court said that blacks were not persons; and as it was in the 1920s and early '30s, when the Court said that property rights prohibited social welfare legislation, the results have been, at best, unsatisfactory.

On the other hand, when we have approached matters with a sense of balance - as Franklin Roosevelt did with the New Deal (which did not seek to eradicate free enterprise); as the Supreme Court did in Brawn v.

Board af Education (which applied the Equal Protection Clause with commonsense fairness); and as the Warren Court did in enforcing the rights of the accused - we have achieved genuine progress.

All of this brings us back to Justice Frankfurter's observations, which I quoted at the beginning of my remarks. We sometimes allow our vision of the Bill of Rights to be controlled by what the Justice called "the pathological aspect of society." We need to balance - in a true sense integrate - our principles. I believe that we can have ample freedom of speech without condoning desecration of the flag.

Thank you.

9

SUPREME COURT OR BUST: The Making of a Landmark Case The Supreme Court is coming off what may be the most highly publicized and controversial term of modern time. Aside from affirmative action, abortion, and desecration of the flag, the High Court decided a case concerning a Constitutional issue of national importance, and of significant local interest.

In Allegheny County v. American Civil Liberties Union, the Court ruled that a Christmas Nativity Scene located in the Allegheny County Courthouse was in violation of the establishment clause of the First Amendment made applicable to the states by 'the Fourteenth Amendment to the United States Constitution. Yet, the Court also held that a large Menorah placed outside the City-County building, also located in downtown Pittsburgh, did not have the prohibitive effect of endorsing religion given its "particular physical setting." This unexpected holding has left the public and the legal community considerably confused.

Juris now takes a behind-the-scenes look at the history and the effect of this landmark case through the eyes of one of its key players.

The particular scene that gave rise to the action was displayed annually in conjunction with a choral program from late November to early December since 1968. The creche was located on the grand staircase on the first floor of the Allegheny County Courthouse in downtown Pittsburgh, Pa. Traditional figures ranging in height from three to fifteen inches, reenacting the birth of Jesus Christ, and an angel holding a banner reading "Gloria in Excelsis Ded' ("Glory to God in the Highest'') were the principle elements of the display.

The creche was erected, arranged, disassembled, and the exclusive pro10

perty of a local Catholic men's organization called the Holy Name Society of the Diocese of Pittsburgh.

Allegheny County assisted the organization by providing storage for the display, and minimal aide in transportation to and from storage. Although the County provided no funds for the display, the Allegheny County Bureau of Cultural Programs decorated the creche with red and white poinsettia plants, evergreen trees, and wreaths purchased at public expense.

Well into the Christmas season of 1986, the American Civil Liberties Union, representing religious individuals who believed that the displays were disrespectful and others who objected to the displays as being offensive, filed in Federal Court seeking a temporary restraining order to force Allegheny County to remove the nativity scene.

After receiving notice of the action, attorneys from the Allegheny County Law Department met with the County Commissioners to plan their course of action. Attorney George Janocsko, a 1977 graduate of Duquesne University School of Law, as Second Assistant County Solicitor, emerged as the counsel of record for the County. As might be expected, settlement was sought out as the first course of action.

The Commissioners expressed their motives of merely "sharing in the joy of the holiday season," rather than any intent to offend or endorse any one religion, to the A.C.L.U. However, the A.C. L.U. maintained their position that the display must be totally removed after the current Christmas season. The County was willing to change the arrangement or possibly move it from its present location, but was not willing to remove the entire display. The Commissoners made that decision because they felt

that they should not be 'bullied into ending a practice that they thought to be not only legally well-founded but well-founded in the tradition of the County:' After a hearing, Judge Barron McCune denied the motion for preliminary injunction because it was shortly before the Christmas holiday and the scene could not be taken down on such short notice, and more importantly, because no individual was suffering any irreparable harm as a result of the display.

In the spring of 1987, the Jewish organization Chabad, the owner of the Menorah, filed a formal request to intervene in the case. After various motions back and forth they were admitted to the case and were given an opportunity to introduce evidence involving questions of the Menorah .

The issue was then closed, and in May of 1987 the District Court issued an opinion in favor of the City and County relying on the United States Supreme Court decision in Lynch v.

Donnelly, 465 U.S. 668 (1984). Lynch held that a city's inclusion of a creche in its annual Christmas display in a private park did not violate the Establishment Clause.

In an attempt to appease the A.C.L.U., the County did make a change in the arrangement. Janocsko states that the display was "signifidmtly changed to make the display look like one that would be found in the home" including presents and a lit tree. The Law Department provided their own additional decoration in the form of a new sign disclaiming any intent to endorse any religion or any specific religious belief. However, this new arrangement failed to pacify the plan tiffs.

The case was then appealed to the United States 3rd Circuit Court of

Appeals. After presenting oral argument before the court in January 1988, Janocsko was somewhat pessimistic about their chances because of the particular members of the panel and their prior decisions. His fears proved to be well-founded when, in March of 1988, the court held that the creche and the Menorah must be understood as an impermissible governmental endorsement of Christianity and Judaism under the effects prong of Lemonv. Kurtzman, 403 U.S. 602(1971).

Their decision subsequently reversed the District Court and enjoined the County and City from displaying the scenes.

After a denial of a request for an enbanc hearing before the 3rd Circuit, the County applied to the United States Supreme Court seeking certiorari, as did the City of Pittsburgh and Chabad. Janocsko had a feeling that the Supreme Court would take the case even though the sheer mathematics of the relatively few petitions adopted made it seem doubtful. However, because there was a divergence among the Circuits of how Lynch was to be interpreted, and the scope and public importance of the issue, Janocsko thought they had a good chance.

Janocsko was pleased to receive word early in October of 1988 that the County would have its first Supreme Court case in nearly twenty years.

Although the case attracted some media attention and a lot of local interest when it was first litigated, publicity mounted as the case rose through the judicial process. By the time the Supreme Court granted certiorari, the case fell into the spotlight of the nation. Janocsko started to receive phone calls from local and national television and radio stations, newspapers and magazines all seeking interviews and comment. This brought on a significant change for Mr. Janocsko, considering the majority of his cases are usually low profile.

Attorney Janocsko learned that trouble may come from virtually every area of the preparation process. The printing process proved to be an even bigger headache than writing the brief itself. Because the case dealt with a limited area of the Establishment Clause, there were not many cases on the issue that could be cited in the brief. Subsequently, the research and the basis of the argument already existed and needed only slight modification and additional argument. On

the other hand, the parties could not reach agreement on omitting portions of the record, yielding a reproduced record the size of a phone book. The most hair raising aspect is gathering all these materials, getting them to the printer, then checking and rechecking the typographical and other errors, and finally making sure that the materials are filed on time and in the right place.

In November of 1988, the County received a number of requests to be let into the action from parties claiming an interest in the case. Subsequently, they had intermediaries such as the U.S. Justice Department, the U.S. Solicitor General's Office, a group called the Concerned Women of America and the Christian Legal Society filing briefs in support of the County and City. Favoring the A.C.L.U., the American Jewish Congress, and several other Jewish organizations also filed briefs.

The Justices asked both sides probing questions, making it difficult to get a feel for where the Justices were leaning.

After filing the brief, the question came up as to how much argument time would be allotted to the parties.

Under court rules, the Court will only hear from two attorneys per side. The City and County wanted to split the argument time between themselves, seeing this really as two different cases that had been consolidated into one.

That is when the County and the City got into a bitter dispute with Chabad, because' they also wanted an opportunity for Mr. Nathan Lewan, a Washington, D.C. Attorney (noted for representing Ed Meese in his ethical problems) to argue. All three parties ended up filing respective motions for divided argument in order to let the Court make the decision . Janocsko was discouraged when he got word that the Court had decided to divide up the time 10 minutes for Chabad, and 20 minutes for the City and the County combined.

This put the City and the County into a difficult decision. Rather than split up the time between the two governing bodies, it was decided that the best, most fair thing to do would be to seek outside counsel. Janocsko recalls the immense disappointment

of suddenly not being able to argue before the Nation's highest court: "Doing all the work and not getting to argue is akin to getting to the Superbowl and pulling your hamstring before the opening kickoff and not being able to play the game. It was very disppointing:' After consultation with the National Legal Center, a national municipal law think-tank, Janocsko and Dan Pelegrini, of the Pittsburgh Solicitor's office, set about the task of calling around the country interviewing potential advocates who would be interested in taking on the case without any compensation from the local governments.

After considering advocates from all over the country, including Judge Robert Bork, it was decided to use Peter Buscemi, an attorney from Morgan, Lewis, and Bockius in Washington, D.C., who had prior Supreme Court experience from his prior service in the U.S. Solicitor General's Office.

After it was decided that Buscemi would do the argument, all the tension and pressure were off Janocsko.

Basically, the work was done and all that was left to do was get Buscemi prepared for the hearing. Buscemi flew up from D.C. to observe where the scene was, how it was set up and to discuss potential questions and trouble spots.

At the argument in February of 1989, all of the advocates did an outstanding job. The Justices asked both sides probing questions, making it difficult to get a feel for where the Justices were leaning. Janocsko and his staff expected a close vote, but they also expected to win. They attempted to theorize how the Justices would vote but, due to a change in the make up of the court, it was tough to calculate. In this case, the County believed that the Reagan appointees, replacing Burger and Powell, would simply replace the majority from the Lynch court, yielding the same result. It was believed that it would come down to O'Connor's view as the deciding, swing vote and that she would support the County's position.

Needless to say, they guessed wrong. In the part of the opinion regarding the creche, Justice Blackmun delivered the opinion of the majority while Justices Kennedy, Rehnquist, White, and Scalia dissented. Subsequently, the County's lawyers realized that you can't 11

speculate with any real certainty as to how Supreme Court Justices, or any judge, will come down.

To add to the stress and tension of waiting for the decision, the case was held over for several days after the last day of the term. Further confusing matters was the fact that the decision was handed down in conjunction with the Webster decision on abortion, so the County case took second fiddle.

When it finally did come down, it was hard to discover exactly what had occurred. The opinion was 105 pages long so it took a while to digest and count the votes and figure out what Justice went with what section of the opinion and who went with what statement. There are not very many parts of the opinion where a clear majority exists going one way or the other. Unfortunately for the County, the only part that has a majority is in the section that explains why the Court felt that the County's display was unconstitutional.

Writing for the majority, Justice Blackmun states: In sum, Lynch teaches that government may celebrate Christmas in some manner and for, but not in a way that endorses Christian doctrine. Here, Allegheny County has transgressed this line. It has chosen to celebrate Christmas in a way that has the effect of endorsing a patently Christian message: Glory to God for the birth of Jesus Christ. Under Lynch, and the rest of our cases, nothing more is required to demonstrate a violation of the Establishment Clause. TI;te display of the creche in this context, therefore, must be permanently enjoined.

Janocsko reflected on the opinion: It is extremely disappointing to lose a case after it gets all the way up to the Supreme Court, but what is even more frustrating is that the Court did not lay down any clear guidelines as to what is permissible or impermissible. As a result, public officials are left in a very difficult situation because they have no clear guidelines. Anytime they make a move they will be subject to criticism, potential law suit and attorney's fees if they make a wrong decision as to the contents of the display or where you put it.

According to Janocsko, the Court essentially kept only the result of Lynch, by not officially overruling it, but effectively gutting and twisting the rationale.

The opinion was unseen, the City and County discussed the possible

12

results but no one ever forsaw the resulting holding that one display was "ok," but one was not. "We didn't think that that was in the cards. We assumed that particularly, the way the Court joined the oral argument, that they saw the City and the County's display as being essentially equivalent; therefore, we just didn't anticipate that we would get that type of result, that type of split decision:' Janocsko believes the Court has stated, in effect, that tacky is constitutional, that is, the more tacky the display is the more likely it is to be considered constitutional. If you include reindeer and talking wishing wells, then you are probably "okay." If you try and have a tasteful display, then you may be treading on thin constitutional ice.

There was clearly a legitimate legal issue that was brought, the question was whether it was worth making a 'federal case' out of it.

From the opinion itself there is no real, singular rationale which carries the day for the Menorah. The Menorah display appears to have attained an acceptable secular status because of its outdoor location with a Christmas tree and a sign saluting liberty. That makes it even that much more difficult. Now it comes down to a notion of endorsement and being personally offended. Janocsko believes the applicable test in this area is couched in terms of a reasonable man standard, an objective standard.

Here, however, the Justices have twisted it to become a subjective standard. It has the effect of communicating to a reasonable observer that their views don't count. Now you are going to see a multiplicity of results among the courts with these kind of displays. Clearly, this case brings no end to the issue. Because the particular factual setting is so heavily relied upon, we can expect to see a lot more cases.

Janocsko likes to point out that the actual out-of-pocket expenses to the County were relatively modest. The major expense comes with writing the brief, and the reproduced record that is required for the Supreme Court.

Although the case took many hours of

actual work, all of the services were performed in-house or pro-bona.

There has been no official decision as to the future of either display. The only thing for certain is that the nativity display that appeared in 1986 is determined to be unconstitutional and will not appear. There has been some talk about moving it to a private building, but no definite plans have been made. The City has taken a public policy position that for reasons of social harmony or comity, they will not permit Chabad to erect the menorah. Chabad is now considering suing to enforce their free exercise rights. In addition, court battles are not necessarily over because attorney fees have yet to be determined .

In retrospect, Janocsko believes that the motives of all the plantiffs that he knew were sincere, and that they legitimately took offense at the display.

However, Janocsko feels that you have to weigh in constitutional terms whether or not everything that gives offense on the part of government is, or should be, unconstitutional and whether or not this was the type of case that, in effect, established a religion or in any real sense threatened anyone's religious freedom or religious convictions. There was clearly a legitimate legal issue that was brought, the question was whether it was worth making a "federal case" out of it.

All in all Janocsko thought the experience to be a lot of fun, a lot of work, but a big disappointment . And one case that he will not soon forget .

Tom Shope is a third year, day division student. Tom has closely followed this case over the past few years, including observing oral arguments before the Supreme Court. Thanks need to be given to George M. Janocsko, Esquire for his helpful and patient assistance in the creation of this article and in many other matters.

MERIT SELECTION: A Method of Judicial Reform in the Commonwealth On July 16, 1987 Governor Robert P. Casey issued Executive Order 1987-14.

Pronouncing that "an impartial, independent, and honorable judiciary is indispensable to justice in a democratic society;' the Governor created the Judicial Reform Commission. This advisory board, commonly referred to as the Beck Commission, was directed to study a number of topics affecting the judicial branch in Pennsylvania.

The Governor's Judicial Reform Commission conducted public hearings across the state, evaluated various court systems, and examined the current literature on judicial reform. The Commission addresses the topics of judicial administration, discipline, finance, and selection. At the conclusion of its in-depth investigation, the Commission submitted its findings in a 269 page report to the Governor.

Among the changes recommended by the Commission is a plan to abolish the election of appellate judges in Pennsylvania. The Commission cited numerous deficiencies in the present bi-partisan electoral system. To improve the caliber of appellate judges across the state the report urged adoption of merit selection as a method of judicial reform in the Commonwealth.

Merit selection would replace Pennsylvania judicial elections with a process modeled after the current system of appointment for members of the federal bench. The Governor would appoint justices of the Supreme Court and judges of the Superior and Commonwealth Courts with the advice and consent of the majority of the Senate. Appointments would be made from a list of names submitted to the Governor by a Judicial Nominating Commission.

The Judicial Nominating Cornrnis-

sion would evaluate the qualifications of each person seeking appointment to the appellate courts. Designed to reflect the cultural, political, and geographic diversity of our state, the Judicial Nominating Commission would consist of sixteen citizens to ensure fair and equal representation throughout Pennsylvania. As proposed by the Beck Commission, members of the Judicial Nominating Commission would be appointed by the Governor and leaders of the General Assembly.

Judicial merit selection has gained widespread support across the state.

According to its proponents, merit selection of judges would eradicate the evils of excessive campaign financing, eliminate the influence of special interest groups, and erase partisan loyalty which compromise judicial integrity. Those who favor merit selection argue the system will produce a higher quality of judicial decisionmaking in Pennsylvania.

Lawmakers have introduced a legislation in Pennsylvania to bring judicial merit selection to fruition.

Senate Bill 594 (P.N. 632) and its House version, House Bill 941 (P.N. 1059), seek to amend the state constitution in order to implement merit selection. Both bills are currently pending in the 1989-90 session of the General Assembly.

Many barristers across the state favor judicial merit selection. The Pennsylvania Bar Association Young Lawyers' Division (PBA/YLD) has endorsed the Beck Commission Report, as well as the proposed legislation. The Young Lawyers Division has issued a call to leadership asking for support in its efforts to make merit selection the law in Pennsylvania. A statewide task force has been formed

to urge the Governor's approval of the Beck Commission Report and passage of legislation proposing the appointive system.

Judicial merit selection will not, however, be adopted in Pennsylvania without extensive debate. The measure has grown increasingly controversial as young lawyers in the Philadelphia and Allegheny County Bar Associations have joined the movement toward judicial reform in Pennsylvania. Despite the endorsement of merit selection in recent PBA/YLD newsletters, the Young Lawyer's Division has failed to win the support of prominent Black attorneys and women lawyers in both Philadelphia and Allegheny Counties.

Opponents of merit selection raise a number of issues which may prevent its adoption. First, many ethnic minorities and women believe that a merit system for judges will foster an elitist approach to the already exclusionary methods of selecting public officials. According to one prominent Black Philadelphia attorney judicial reform is "conceptually a good idea. In practice, the question is implementation with respect to criteria" used to select judges. Supporters of merit selection refute this argument by citing evidence that minorities and women have historically enjoyed greater access to the bench through a system of appointment. Supporters note that the traditional alienation from political party machines and the difficulty in financing a statewide campaign without the party bid render it virtually impossible for an unendorsed candidate to rise to the bench. (See "Minority Judges;' 72 ABA Journal, 1March1986).

Another seemingly insurmountable obstacle in the adoption of merit 13

selection is a belief that under the proposed reform, voters will no longer have a voice in determining who wears a black robe in Pennsylvania.

Proponents of merit selection counter these fears of disenfranchisement by stating that under the current system, public opinion and voting behavior play a small role in electing judges.

They contend that it is virtually impossible to develop an informed electorate because the state code of judicial ethics bars candidates from voicing their views on issues which may appear before the court. Some who favor merit selection simply believe that the average voter lacks the capacity to choose a candidate who

... voters will no longer have a voice in determining who wears a black robe in Pennsylvania. possesses the legal skills necessary for competent decision making. As one Pennsylvania Bar Association leader stated, "the general electorate is illequipped to properly elect appellate judges." He continued by remarking that "some of the current appellate judges are the best evidence of that theory:' Debate on the topic of election versus appointment of judges in Pennsylvania will continue this fall. Members of the state bar will convene in Harrisburg to lobby lawmakers for passage of the merit selection bills. Ironically, those who are devoted to improving the caliber of appellate judges across the state by abolishing the election of judges, must ultimately rely upon the Pennsylvania voters to approve a constitutional amendment which would make merit selection the method of judicial reform in the Commonwealth.

Starla J. Williams is a fourth year student enrolled in the Evening Division.

She currently serves as the Duquesne Law School Liaison to the Allegheny County Bar Association Young Lawyer's Section.

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GETTING TO KNOW YOU: Winning Without Intimidation "Summer time, summer time, sum sum, summer time". . . summer school - and oh! what a difference it made in the academic setting, especially for those students who elected a course in Legislation. Putting aside his usual Professor's dress code of jacket and tie, Kenneth Hirsch, clad in blue jeans and a sport shirt, announced to his class, "My name is Ken. And I'd like to get to know all of you on a first name basis:' Are we really attending a Duquesne Law School class?

"This laid-back approach came much easier to the students who were not already acquainted with the Professor from first year property or criminal law classes," confided one Duquesne student. "Students from other law schools called the Professor "Ken" without any reservations. But for me it was hard .. . kind of like having a chicken bone stuck in my throat.

I know him as Professor Hirsch ."

Can this be law school?

"Impossible to believe;' another student chuckled. "Professor .. . Ken, that is, had a picnic dinner for us before the July Fourth break. It was wonderful. We all sat out on the patio at the upper level of the law school munching on fried chicken with all the trimmings."

When word of Professor Hirsch's strategy leaked out Juris requested an interview.

"The underlying thought," the Professor said, "was that there was something very remarkable about American education generally, and American legal education in particular. We seem to go to great lengths to bring to the law school the brightest of students. Having gotten to know many of them - either before they were corrupted by our process or after they'd

graduated and don't care any more I realized that we do attract very intelligent people ." Then he paused, grinned, and chose his words carefully. "But there is something about the way we conduct traditional American law classes that leads these bright folks to run and hide or just play dumb:' Those of us who have survived the rites of passage through that first terrifying year will nod our heads and offer a moment of silent meditation regardless of the Constitutionality of classroom prayer - for the entering classes. We know that the vast majority of legal educators cling tenaciously to the antiquated methods of student torture popularized by Professor Kingsfield in The Paper Chase. Experience has taught us that law professors are generally arrogant, pompous. It is no secret that many of them come from top universities where they were star performers. And nothing seems to give them more pleasure than to stand at the podium before an amphitheater of puzzled faces quizzing the unlucky student - the baited fish until he or she is hooked and pleading to be let go. Their constant stream of questions boil down to just this: "Tell me what I'm thinking:' But the Professors know we don't know what they're thinking!

Professor Hirsch's more caring and dignified approach to teaching law is clearly not the precedent . However, over the past number of years there has been a movement by small groups of enlightened law professors who are rethinking their objectives. If some level of mastery is to be achieved by the student, these scholars are recognizing that the goal is more readily achieved by eliminating the intimidation factor which in turn reduces

anxiety - the disease that seems to run rampant throughout the first year of law school.

The time worn Socratic method may be eroding at last. Says Professor Hirsch, "I expect everyone to be prepared and to participate in discus~ions. But there are two inhibiting issues. Some students are afraid of saying something that will seem dumb, foolish, or ill-advised in front of their classmates. More folks tend to feel intimidated for fear of being ridiculed or criticized by the Professor:' As a Professor, Hirsch feels that there isn't much he can do to remedy the first problem, but as to the second issue - intimidating students - he feels he bears a heavy responsibility for students' expectations about what they will receive from him. His responses to their remarks can be either critical and intimidating, or he can attempt to make the best of a situation when a student comes up with an incorrect reply. By choosing the latter approach, Professor Hirsch believes he can create a nonthreatening atmosphere in which students feel more capable and competent about participating. 'Tm going to step beyond what I've tried to do in class on other occasions," he admits. "By toning down the pressure coming from me as the Professor, and making things relaxed and casual, there's a wearing away of the tendency for students to resist participating in class discussion." From our observations, this approach seems to be working. Rather than the usual "no show" of hands (never volunteer!) - or "I pass" (if you're at least a second year student), these men and women in Legislation are competing voraciously for the Master's attention!

Something good must be going on!

I act like a catalyst to the discussions which gives everyone an opportunity to expand on ideas. prepare students. It's very unfortunate that the method of instruction is such that a student is overwhelmed by cases and trying to pull the rule of law from the cases as well . That's something we must learn to do well. But it's more important to understand the dynamics of the rule rather than simply learning it rote. It's a more interesting way of teaching law, and I know that students would learn more:' Relationships become important.

"It's nice to be dealt with as a colleague rather than in a master-servant relationship which is traditional in law school;' adds another student. ''.Artificial barriers have been broken with the first name approach. I'm pleased.

Well, even Professors can learn.

"Fostering dialogue among the students was another important objective in this new teaching approach," declares Hirsch . "I rather enjoy hearing the exchanges that take place in response to questions I ask or issues that are raised by particular problems.

I act like a catalyst to the discussions which gives everyone an opportunity to expand on ideas."

Attendance in Legislation is high. "I think this kind of approach is one that Professors should consider implementing in most law school classes;' commented one male student. "While I realize that the traditional Socratic method is geared to preparation for courtroom procedure, I don't think that it's particularly successful. Certainly it's more important to grasp concepts, and in a more relaxed atmosphere there's no doubt that you learn more:' Students have been very enthusiastic about Professor Hirsch's approach because they have come to realize the value of their contributions.

"Everyone is depending upon everyone else to be prepared and to keep ideas flowing;' suggests yet another student. "I've done a lot of thinking about the way in which law schools

Marilyn Gilman is the Articles Editor of Juris and a Third Year Evening Student in the Law School. She is also working for a B.S. degree in the undergraduate division of the University. Marilyn is an artist and author of five novels.

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''GRADUATION 1989''

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In a spring of continuous cool and rainy weather, Sunday, June 11, 1989, was a welcome reprieve. It was a rare beautiful day in Pittsburgh with blue skies and temperatures well up in the seventies as one hundred and fiftyseven Duquesne Law School graduates, their families, friends assembled in Palumbo Center for the occasion.

Michael Cognetti, President of the Student Bar Association expressed concern about a recently published poll in Time Magazine, giving attorneys the lowest rating on ethical standards of any occupation. Lawyers should be good for people, Cognetti reiterated.

"We should hold on for what is good and never sell out or compromise our values:' Thanks to families - It was especially difficult for our families and friends who put up with us during that first terrible year of law school when we would walk around talking about people like poor Mrs. Helen Palsgraf or the fertile octogenarian.

Thanks - To our faculty for their dedicated ways, for imparting the truth, for their tireless zeal. "Professors forgo monetary rewards in order to teach women and men to fashion a society where the laws are just, the just are free and the free can hope for justice:' The Honorable Joseph F. Weis, Jr., Circuit Judge, United States Court of Appeals For The Third Circuit. "The 8th Amendment challenge of cruel and unusual punishment has been turned down on a number of occasions, so you're stuck with a guest speaker at graduation. This is the faculty's last effort to push one more ounce of learning into your weary brains:' On the future - For some of you in this class, the future holds a highly visible role in either your profession or community life. You will be newsmakers, leaders of wide recognition, selected or appointed or promoted to serve our country. But our profession needs, and cannot exist without, those diligent, conscientious practitioners, who will never receive national recognition writing significant Law Reviews or arguing cases in the United States Supreme Court.

Strive for excellence - In his 16 years on the bench Judge Weis remarked, he'd read briefs written by most of the major law firms in the country. But the best one he'd come across was prepared by a two-attorney firm in a small town. It concerned

highly technical subject matter, but it was laced with a bit of humor and made interesting and informative.

Exams are not over after law school and the bar exam. Your work and your competence will be reviewed for the rest of your professional life, by judges, by lawyers and by your clients.

And don't forget, once your name is at the bottom of an inadequately prepared brief or memo, it will remain there and it will come back to haunt you. No matter how small or trivial a case may appear to be, don't let your name appear on anything but the best.

Integrity. You can sell it, but you can never buy it back. Keep your integrity.

Guard it carefully. Integrity takes many forms.

Develop an impatience with things in the law that have no business being there for no better reason then they've always been done that way. Learn to ask, 'Why?" The mere fact that a rule has existed for hundreds of years, and the reason for the rule has long since vanished, is no reason for you to perpetuate that error. Federal courts were begun in 1789 with the first Judiciary Act. Congress probably thought that every human institution was entitled to be looked at at least once every two hundred years. It was this theory that led Congress, in the last session, to create the federal courts Study Committee. The Committee is to find all the problems in the federal courts, develop solutions and recommend them to the Congress, the President and the Chief Justice in less than one year. It's a slightly daunting task.

What will cases be like in federal courts in 25 years from now? Will they be as good as they are now, or will they have become so large that they are no longer recognizable. This is a subject that should be of peak interest to each and every one of you. Foundations of the Judiciary, as they existed 200 years ago, were founded on concepts which are totally obsolete today. Think of transportation and communication 200 years ago, and how vastly they have changed today, and yet our court structure is based on those two concepts. Fears of jealousy by the states over the new national power they saw emerging framed the role of the federal courts. It was channeled into disputes of highly specialized areas as admiralty, customs, and things of that nature while the state courts became the work horses of the judicial system.

Over the time, however, the spirit of

nationalism, the continued growth of the federal government's day-to-day activities, has made an increase in the federal courts and the number of federal judges. But we have to look at what is happening. The number of cases coming to federal courts has increased astonishingly over the last forty years, and will, in all probability, continue to grow at the same pace.

The federal courts can't be everything to everybody. They will have to keep slim in order to carry out their mission: that of safeguarding Constitutional liberties for citizens - those against state governments as well as the federal government.

Primary problem - Appellate Courts. The enforcement of a uniform federal law by some 20 regional, autonomous courts of appeals which feel

no compulsion to follow precedent established by other courts of appeal.

This has resulted in a balkanization of federal law which could formerly be supervised by the Supreme Court but can no longer be so today. One of the possibilities being considered is uniting all 12 Courts of Appeals into one unified court through workable and practicable divisions. This is revolutionary. It will engender strong opposition both from bench and bar, but looking ahead, something must be done. We cannot go along with our antiquated structure with the figures we are facing 25 years from now. The jurisdictional barriers between state and federal courts, which had their origins in jealousy, have long outlived their usefulness and their reason for being. We must think in terms of

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today's need for efficiency, and one possibility that should be seriously considered is razing the jurisdictional walls - cutting them down - between the state and federal courts so that cases can be freely interchanged as efficiency and justice demands.

We must also consider unorthodox ways of resolving disputes. Alternative Dispute Resolution offers possibilities that cannot be overlooked by the federal courts in the future.

Young lawyers must continue to wage this battle, continue to ask why, and never be afraid to implement something new, so that by the time you leave the profession, it's better than when you began.

Law - A noble profession, but its honor is maintained so long as each succeeding generation challenges mediocrity and demonstrates its willingness to question the accepted with the practiced. Law must be more than just a means of earning a living.

In the end, whether it's a perfect blue book, a perfect appellate brief, or a perfect society we search after, the likelihood of success is nowhere near as important than the commitment to the journey.

Valuable lesson - Judicial humor is

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always to be laughed at, or, at least, given a slight chuckle. The more you look for success in the trial rooms, the louder will become your laugh . See you in court!

President John E. Murray, Jr. Conferring degrees - "Perform your first act of justice by applauding all those who supported you so much through law school:' Closing remarks - Dean John J. Sciullo - We wish you all to be great lawyers, and that's a tradition you carry from Duquesne. Chief Justice from New Jersey, Arthur Vanderbilt, set forth the functions of a great lawyer.

1 Counseling - Wise Counselor to all manner of men in the very crisis of their lives when they most need disinterested advice.

2. Advocacy - The great lawyer is a skilled advocate, trained in the art in prosecuting and defending the legal rights of men in the trial courts and on appeals. That is the heart of the profession.

3. Leadership - The third task of a great lawyer is to do his part individually, as a member of the organized bar, to improve his profession, the courts and the law. We have to give

back to the profession, regulate ourselves, we have to do all that we can to benefit the profession and the legal system. That is a responsibility that all of us carry.

4. Molding public opinion - In a free society, every lawyer has a fourth responsibility; that of acting as an intelligent, unselfish leader of public opinion within his own particular sphere of influence.

Whatever it is that makes up lawyers, it's important to express opinion, to try to identify the problems of the time. When you mix all of the different people together, lawyers seem to come to the top of the barrel, and, therefore, it is a responsibility that we have to be a leader of public opinion.

5. Unselfish holding of public office - And finally, every great lawyer, must be prepared to answer the call for public service when it comes. An attorney, whose professional thoughts begin and end on making money, really is not suited to practice law. It is an obligation that we have, when the time comes, to give of our time for public service.

I invite you to be a great lawyer!

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R E Personal Freedom at the expense of its symbol.

The United States Supreme Court has decided various freedom of speech cases without much question; however, the Court's decision on June 21, 1989 has caused unrest throughout the country. In June, in a 5-4 decision, the court held the conviction of a political protester for burning an American flag is inconsistent with the First Amendment. (Texas v. fohnson, 57 LW 4770, June 21, 1989.)

Johnson was found guilty of flag desecration for burning a flag in protest of some government policies. He was convicted under Texas Penal Code Ann 42.09 (a) (3) (1989), which reads: (a) A person commits an offense if he intentionally or knowingly desecrates: .. .

(3) A state or national flag ... (b) for purpose of this section, "desecrate" means deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action.

The Texas Court of Criminal Appeals reversed the conviction. The Court held the state could not penalize Johnson for burning the flag, without compromising the First Amendment.

Justice Brennan, writing the opinion for the majority, in the Supreme Court of the United States, expressed the need to address two points. First, did the burning of the flag constitute expressive conduct? Brennan cited Spence v. Washington, 418, U.S. 405 (1974) which indicated that if an act was expressive conduct, the actor could use the First Amendment to protect his action. Second, if the conduct in question was expressive, it must be established whether the Texas Penal Code Ann 42.09 (1989) is associated with free expression . Brennan stated : "If the State's regulation is not related to expression, then the less stringent stand we announced in United States v. O'Brien (391 U.S. 367 [1968]) for regulations of non communicative conduct controls:' fohnson supra at 4771.

Brennan expressed that the Court had long recognized First Amendment protection did not include only the spoken or written word. He noted 20

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several United States Supreme Court decisions, which recognized the communicative elements related to flags, allowing First Amendment protection. For example, in Spence, supra at 409-410, a peace sign was attached to the flag. As well, in Stromberg v. California 283 U.S. 359 the displaying of a red flag was held expressive. In both cases the actions were protected by the First Amendment.

The above cases and the State's own expression that the flag burning was expressive conduct, made it easy for Brennan to find the burning was expressive.

In response, the State specified two reasons for support of the conviction .

The Court stated the justifications were unconnected to restriction on free expression. Preventing the flag as a symbol of nationhood and national unity.

... the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable

Brennan first addressed the possible breach of peace caused by the incident in question. He explained that the state's position, that several witnesses were seriously disturbed by the burning of the flag, did not exhibit a breach of peace. Brennan further expressed the State's stand that it only needs to show the "potential for a breach of peace, '... and that every flag-burning necessarily possess that potential, would be to eviscerate our holding in Brandenburg." (Brandenburg v. Ohio 395 U.S. 444 (1969) supra at 4733.) In the Brandenburg case, the

Court held there must be a careful review of the circumstances surrounding an expression; specifically, whether the expression "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action:' Brandenburg supra at 477. The Supreme Court did not feel the Brandenburg standard had been met by Johnson's flag burning.

Brennan continued the opinion by questioning the State's assertion that the conviction of Johnson was justified by the State's interest in preserving the flag as a symbol of nationhood and national unity. Brennan indicated that the above second State interest was directly related to expression.

Justice Brennan concluded that the statute, under which the conviction was upheld in the Texas Court, was related to the restriction of free expression, and, thus, the case was outside of the O'Brien test. Brennan correlated the case at hand with Spence. Brennan stated: "As in Spence 'we are confronted with a case of prosecution for the expression of an idea through activity . . . accordingly, we must examine with particular care the interests advanced by (petitioner) to support its prosecution'... Johnson was not, we add, prosecuted for the expression of just any idea; he was prosecuted for his expression of dissatisfaction with the policies of this country, expression situated at the core of our First Amendment values." fohnson supra at 4773.

Brennan pointed out that under Boos v. Barry 485 U.S. 312 (1988), Johnson's political expression was restricted because of the content of his message. Therefore, the Court must apply exacting scrutiny to the State's interest in preserving the special symbolic character of the flag.

The majority indicated that the State's interest in upholding the special symbolic character of the flag would not allow Johnson to be convicted for burning the flag. The Court stated: "if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable ... We have not recognized an exception to this principle even where our flag has been involved:' supra at 4774.

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The majority did reveal an appreciation of the State's goal, stating: "It is not the State's ends, but its means, to which we object. It cannot be gainsaid that there is a special place reserved for the flag in this Nation, and thus we do not doubt that the government has a legitimate interest in making efforts to 'preserve the national flag as an unalloyed symbol ofour country'. .. we reject the suggestion that the Government lacks 'any state interest whatsoever' in regulating the manner in which the flag may be displayed:' supra 4775. However, Brennan extinguished any thoughts that the majority questioned its decision stating: "To say that of the flag, however, is not to say that it may criminally punish a person for burning a flag as a mean of political protest." supra at 4775.

In the end of the majority's opinion, Brennan proficiently endorsed the Court's decision, stating: "We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag-burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned by - as one witness here did - according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents." supra at 4776.

In less than a resounding vote of support, Justice Kennedy concurred, with an opinion of his own . Kennedy stated : ''The hard fact is that sometimes we must make decisions we do not like." supra at 4776.

Chief Justice Rehnquist, joined by the Justice White and O'Connor, wrote a dissenting opinion in which parts of the "Star Spangled Banner" and John Greenleaf Whitter's poem "Barbara Fritchie" were quoted. Rehnquist indicated that Johnson's actions were not an expressive conduct, but a breach of peace. He strongly questioned the majority's decision.

Justice Stevens wrote a separate dissenting opinion, indicating that the rules that apply to a number of other symbols protected by the First Amendment are not controlling. He stated that this case had an intangible dimension, the country's flag, that

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makes the rules inapplicable, although they are applied to other symbols as state flags.

Naf WITH A BANG BUT A WHIMPER In Webster v. Reproductive Health Services, 109 S.Ct. 3040 (1989), the Supreme Court, in a plurality opinion announced by Chief Justice Rehnquist, reversed a decision of the United States Court of Appeals for the Eighth Circuit which struck down several provisions of a Missouri statute that regulated the performance of abortions on the grounds that they violated the Supreme Court's decision in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed. 2d 147 (1973), and cases following it.

... the plurality discards a landmark case . . . and casts into darkness the hopes and visions of every woman in this country. ..

The statute's preamble contains findings that the life of each human being begins at conception and that unborn children have protectable interests in life, health and well-being and that all Missouri laws be interpreted to provide unborTn children with the same rights enjoyed by other persons. Mo. Rev. Stat. §§ 1.205.-1(1), (2), 1.205.2 (1986) . Other provisions of the act require a physician to perform tests to determine the gestational age, weight, and lung capacity of an "unborn · child" on any woman whom the doctor has reason to believe is 20 or more weeks pregnant. §188.029. The act also prohibits public employees or the use

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of public facilities to perform or assist in abortions not necessary to save the mother's life, and it prohibits the use of public funds, employees, or facilities for the purpose of encouraging or counseling a woman to have an abortion not necessary to save her life. §§188.205, 188.210, 188.215.

Chief Justice Rehnquist determined that the Preamble to the Act merely expressed the state's value judgment favoring childbirth over abortion, despite the fact that every other section of the Act, save one, regulates the performance of abortions. The provisions of the Act which refuses to allow public employees to perform abortions in public hospitals unless the mother's life is in danger was upheld on the rationale that the Due Process Clause generally confers no affirmative right to governmental aid even when such aid may be necessary to secure life, liberty or property interests of which the government itself may not deprive the individual. Deshaneyv.

Winnebago County Dept. of Social Services, 109 S.Ct . 998, 1003. The opinion concluded that the Act left pregnant women with the same choice as if the state had chosen not to operate any public hospitals at all .

The Court accepted the State's claim that the provisions of the Act which make it illegal to utilize public funds or facilities, or for public employees to encourage or counsel a woman to have an abortion not necessary to save her life were not to be directed at the conduct of any physician or health care provider, public or private, but were directed solely at those persons responsible for allocating public funds . As Appellees agreed that they were not adversely affected by this interpretation, this portion of the controversy was declared moot.

It is this writer's opinion that the most glaring disregard for the rights of pregnant women are to be found in the portion of the decision upholding the mandatory testing of women believed to be more than twenty weeks pregnant. Chief Justice Rehnquist dismisses the Roe trimester framework without a backward glance. He admits the viability-testing provision is concerned with promoting the State's interest in potential human life, rather than in maternal health. He ignores evidence that the 21

Recent Decisions tests required may endanger both the mother and fetus and finds unpersuasive the fact that these tests will increase the cost of abortion and that the tests will show, in many cases, that the fetus is not viable. Most amazingly, he ignores the evidence that the twenty week requirement calls for the examination of a fetus that is uncontradictably not viable.

It is imperative when viewing this case to be aware of the diversity of opinion presented by the Court in this decision. For example, only Justices White and Kennedy concurred in the portion of the Chief Justice's opinion concerning mandatory testing. The scope of this article prohibits a more thorough review of the opinions presented, however, this writer believes it

imperative to discuss the dissenting opinion of Justice Blackmun, with whom Justices Brennan and Marshall join . This opinion points out the plurality's failure to discuss whether the Constitution includes an unenumerated right to privacy that extends to matters of child rearing and family life. Furthermore, he notes that if the plurality's holding, that the testing provision permissibly furthers the State's interest in protecting human life, were adopted by the Court, the heart of Roe v. Wade, the Court's recognition that a woman has a limited fundamental constitutional right to decide whether to terminate a pregnancy, would be overruled.

To quote Justice Blackmun, "Thus not with a bang but a whimper, the

plurality discards a landmark case of the last generation, and casts into darkness the hopes and visions of every woman in this country who had come to believe that the Constitution guaranteed her the right to exercise some control over her unique ability to bear children:' If the Court continues to tear away at the foundation of Roe many women, particularly poor and minority women, will be forced to desperate measures with the disastrous results inherent in selfperformed or "back alley" abortions.

As Justice Blackmun noted, despite this decision, the women of this Nation still retain the liberty to control their destinies. But the signs are evident and ominous and a chill wind blows.

Special Acknowledgments In addition to thanking the writing staff, Juris would like to thank many people who helped us to get off to a good start. These people made our jobs easier, and for that we are grateful.

Juris welcomes Professor Raymond Sekula as our new faculty advisor. This being his first year with the Magazine, Professor Sekula has the unique opportunity of understanding what many of us on the staff are experiencing, namely, the conducting of events by trial-and-error .. . no pun intended, Professor. We thank him for his enthusiasm and his constant and active interest in the progress of the Magazine. We look forward to a wonderful year together.

New positions were created this year and the people who have filled them have handled their new roles with the adroitness of experts. We would like to thank Aileen Hickey, Michael Ivory, Diana Stavroulakis and Steven Zoffer for being front-line editors this summer. Because they did their jobs so well, the editior-inchief found her job considerably easier. The position of recent deci22

sions editor was also created and taken on by two third year (day) students. Their willingness to add a new feature to Juris has helped to give the Magazine a new perspective.

Thanks also go out to Dave Hvizdos, Bernie Lafleur, Marilyn Gilman and Suzanne Kimberland for their endless energy in getting things done! Their organization and perserverance are extremely appreciated. The production crew who put this issue together have also shown their dedication to Juris. Their job may not be constant, but it is certainly crucial.

Thanks to Cheryl Cindrich, Lauralee Snyder, Michael Ivory, Ed Santillan, Suzanne Kimberland, Nwenenda Adele, and Cathy Waggle.

Lastly, I would personally like to thank three people of whom I could attribute the same things: efficiency, organization, enthusiasm, foresight and support. These people are Rosalie Pugliese, Cathy Waggle and Jan Daschbach. These qualities which they all possess are matched only by their great friendship.

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