Juris Magazine Winter 2001

ALSO IN THIS ISSUE •••

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Digital Privacy in a Terrorized Coun y E-Mail and Internet Monitoring in the Workplace: Is the Tide Turning on Employer Impunity?

Why Animal Law? Pennsylvanialegalresearch.com: A One-Step Guide to Pennsylvania Legal Research

STAF"F" Editor-in-Chief Deborah L. Kutzavitch &ecutive Editor Melissa A . Walls VOLUME 35 •

NUMBER ONE • WINTER 200 1

Senior Editor Rebecca Verdone

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EDITORIAL

Managing Editor

Constitutional Rights for Sale Deborah L. Kutzavitch

Wenly Nelson

Production Editor Robert P. Woods, Jr.

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COVER STORY

Justice Sandra Day O'Connor Visits Duquesne University School of Law Melissa A. Walls and Deborah L. Kutzavitch

Web Editor John Miller

Assistant Editor-in-Chief Morey Smorey-Giger

Digital Privacy in a Terrorized Country

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Amy Elizabeth McCall

Assistant Executive Editor Wenly Nelson

Terrorism: America's Achilles' Heel

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Rebecca Verdone

Assistant Managing Editor John E. Egers, Jr.

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z Pursuing Justice ••• One Step at a Time The Allegheny County OPD, the Consent Decree, and the Public Defender John E. Egers, Jr.

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Why Animal Law? Pamela L Roudebush

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E-Mail and Internet Monitoring in the Workplace: Is the Tide Turning on Employer Impunity?

Melissa A. Walls

z 1 Pennsylvanialegalresearch.com: A One-Step Guide to Pennsylvania Legal Research Kashif Chowdhry

z z Ameliorating the Insurance Crisis vs. Preserving Equal Protection

Contributing Writers Koshif Chowdhry Jennifer Czernecki Robert Potterson Dunlop II Lori Edwards John E. Egers, Jr. Kirk W . Junker Lou Anne Kreh Deborah L. Kutzovitch Amy Elizabeth McColl Jennifer Nicely Pamela L. Roudebush Marcy Smorey-Giger Rebecca Verdone Melissa A . Walls

The Lobbyists' Rush to Limit Medical Malpractice Recovery Claims

Faculty Advisors

Jennifer Nicely

Associate Deon John Rago Professor Kenneth Gormley

z 4 Is An Orderly Transfer of Responsibility Legal News for Ireland?

Kirk W. Junker, Jennifer Czernecki and Lori Edwards

Visit the Juris website at:

www.juri1.duq.edu 3

z Important Professional Skills and Legal-Ethical Issues That Law School Teaches Us First-Year Writing Contest Winner Lou Anne Kreh

3 4

IRS Responds to Terrorist Attacks Robert Patterson Dunlap II

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s The Effect of the Environmental Rights Amendment: How Article I, Section 27 of the Pennsylvania Constitution Has Impacted Environmental Law in Pennsylvania Marcy Smorey-Giger

E-Mail us at:

juril@duq.edu

JURIS is a semi-annual student publication of the Duquesne University School of Law. The views and opinions expressed herein are not necessarily those of JURIS or of the Duquesne University School of Law.

© 2001 Duquesne University

JUHJS •

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EDITORIAL

Constitutional Rights For Sale •

Deborah L. Kutzavitch

T

he tragic events and horrific engaging in a struggle abroad, where we images of September 11 have are promoting freedom and democracy, had a profound and lasting while at the same time undermining those impact on everyone. It is hard to imagine values at home. that any human was untouched by the The gentle erosion of our waves of shock and fear that resounded constitutional rights has already begun. throughout the country and world on that Under the auspices of providing greater fateful day. Needless to say, there will be a protection of our homeland security, day years from now when we will ask Congress passed the USA Patriot Act in "Where were you?" or "What were you late October. Federal agents can now doing?" But in a year or two or ten what if review unopened e-mails and voice mails we were asking "Do you remember when without a warrant and can detain we could travel to Florida for vacation immigrants suspected of terrorism or without registering our travel plans?" or supporting terrorism up to seven days "Do you think we'IJ ever get to enjoy our without being charged with a crime. While civil liberties again?" It may be difficult to the sunset provision calls for the Act to conceptualize the day when we ask expire in 2004, is this the first attempt at ourselves these questions, but the result of putting a price on our liberties? At what the September 11 trauma will undoubtedly point does the trampling of our cause us to reexamine our laws pertaining constitutional rights and freedoms cause to surveillance, search and seizure, us to put a stop to the decay of these rights? wiretapping, immigration, and our In his dissent in Scales v. United States (367 constitutional freedoms of speech and U.S. 203, 1961), former Supreme Court Justice William 0. Douglas stated that "We association and the right to travel.

Our cherished constitutional rights, must choose between freedom and fear the freedoms we too often take for granted, we cannot have both." There is no doubt and the privileges to which we have become that we cannot and wilJ not have both accustomed are about to be scrutinized. freedom and fear in this country. But what We have to ask ourselves some important price are we willing to pay to retain the fundamental questions - At what cost are freedoms embedded in our culture? Here we willing to sell our personal freedoms in is our choice: Do we selJ our constitutional exchange for personal safety? At what point rights for safety and security?

As a fourth-year evening student at the does the cost to our civil liberties outweigh the additional security provided by Law School, the memones of necessary legislation? And, are we willing constitutional law are still fresh in my mind to allow the Bill of Rights to become a (and hopefully my memory will not fade historic document, one which furure before next July, when I take the Bar). I generations will talk about as providing the took seriously the lessons our professors attempted to convey and instill - that this rule of law in times gone by?

How we choose to answer these and country was founded on the principles of similar questions will determine the extent freedom, justice and liberty for all. But to which we allow infringement upon our are the fundamental rights to legal counsel, values of freedom and democracy. The a fair trial by judge or jury, searches and challenge is in reconciling the risk of seizures based upon probable cause, and 2

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access to proper judicial procedures equally applied to the terrorist? In the absence of a declaration ofwar, the terrorists are simply criminals who have perpetrated a crime of monumental proportions. We must distinguish ourselves from these criminals.

Providing a fair trial would be the ultimate demonstration of our democratic and civil society, one in which our Constitution will be upheld and respected.

Our right to travel freely among the states is one we all take for granted. Since 1778, when the Articles of Confederation first recognized the right of the people to "have free ingress and regress to and from any other State," we have enjoyed the longstanding fundamental constitutional right to travel between and among the states.

While this right has been tested in the courts during the past two centuries, our right to travel freely has not been put to a test in light of the present circumstancesterrorism living among us. Consider how much safery and security you are willing to give up in exchange for maintaining the fundamental rights to which you have always enjoyed, including your right to travel.

In the days to come debates will be heated, arguments will be made, laws will be written and rewritten, constitutional rights will be eroded, and our freedoms will be restricted all in the name of safety and security. Let's not unwittingly take the step toward allowing the sale of our constitutional rights or permitting the Bill of Rights to become a historic document.

Let's stand and unite for the representative republic for which men and women have died as heroes. •

Deborah l. Kutzavitch is a fourth-year evening student.

COVER STORY

justice Sandra Day O'Connor Visits Duquesne University School of Law-

Celebrating the 20th Anniversary of Justice O'Connor's Appointment to the Supreme Court and the First Recipient of the Carol Los Mansmann Award for Distinguished Public Service • Melissa A. Walls and Deborah L. Kuttavitch

F

ortitude. Perseverance. Tenacity.

These words have been associated with United States Supreme Court Justice Sandra Day O'Connor throughout her life and career as a public servant as she forged new paths and created unprecedented opportunities for women .

On Friday, September 21, 2001, Duquesne University School of Law was privileged to host Justice O 'Connor to help commemorate the 20th anniversary of her appointment to the United States Supreme Court.

Former President Reagan nominated Sandra Day O'Connor in September, 1981, to fill the seat vacated by Justice Potter Stewart. Prior to her nomination , Justice O'Connor served in the Ariwna state legislature, was the first woman Senate majority leader in the nation, and was a Judge of the Superior Court of Maricopa County and of the Arizona Court of Appeals. Seventeen of the eighteen members of the Judiciary Committee recommended her approval to the U.S. Supreme Court, and the Senate confirmed her appointment 99-0. September 26, 1981 marked the historicaJ event when Sandra Day O 'Connor took the oath of office to become the 102nd Supreme Court Justice and the first woman appointed to the Uni red States Supreme Court. Ttme magazine called it a "breakthrough" in the "shamefully long and needlessly tortuous march ofwomen toward full equality in American society. "

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University President Charles }. Dougherty and his wife, Honorable Sandra Dougherty. welcoming Sandra Day O'Connor to Duquesne University In the 20 years of Justice O 'Connor's service on the Court, she has authored numerous important opinions, some of them controversial, but always expressing a deep concern for the importance of adhering to precedent. Justice O'Connor does not like to be referred to as a "swing vote." But many of her opinions and votes have had a dramatic impact on the American legal system. Some of the significant decisions of her tenure include her vote with the majority in stopping the recounr in the presidential election of2001,

1930

1946

Domin ElPuo,Tau

Graduated high school at age 16

paving the way for George W Bush to become President; allowing nativity scenes in public places as long as there was no government endorsement of religion; and numerous opinions holding that race cannot be a factor in setting district boundaries.

Hard work and challenges have dominated her life. In 1988, Justice O'Connor faced a staggering crisis, that many predicted would end her judicial career. During a difficult period of (continued on page 4)

1950 • Graduated Stanfuul University with a degree in cc:onomics magna cum laude • Semd on Stanfoul Law Review • Married John Jay O'Connor, m JURIS •

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COVER STORY

University Chancellor j ohn E. Murray Jr. and his wife, Liz, greeting Justice O'Connor chemotherapy for rrearmenr of breast cancer, she persevered, missing nor a single day of court business. Seventy-hour work weeks were part of her normal routine soon after Justice O'Connor's cancer scare - she quickly returned to her balanced, disciplined and unruffled way of life.

Justice O'Connor's visit ro Duquesne was organized by Professor Ken Gormley, who mer the Justice in the summer of2000 during "Justice Week" at the Chautauqua Institution in New York, at which they were both speakers. She agreed ro visit Duquesne nearly two years ago, bur could never have an rici pared what lay ahead. The evening before September 21, Justice O'Connor arrended President Bush's

address to rhe Joint Session of Congress, dealing with the terrorist attacks of September 11; on the morning of September 21, Justice O ' Connor was almost forced to cancel her visi r to , Duquesne due to the events of September 11. True to form, the Justice insisted on fulfilling the original plans and made up her mind that the program would go forward. Despite two cancelled flights and numerous delays, Justice O'Connor and Hon. Carol Los Mansmann, Hon. her husband, John, were prepared to drive Sandra Day O'Connor, and U.S. to Baltimore to catch a flight. They Attorney Mary Beth Buchanan eventually arrived at the Pittsburgh Airport as planned. From there, they were escorted O 'Connor insisted on a tour with Law to Duquesne by United Stares Marshalls.

School Dean Nicholas P. Cafardi , Professor Ken Gormley and University President Charles]. Dougherty. Justice O 'Connor ''I know that all ofus declared the building robe one of the most beautiful and spectacular academic facilities men and women - in the in the country. profession thank her for The formal progran1 began at 3 p.m . standing as a symbol of in the Student Union Ballroom, and was attended by over 1,000 students, faculty, equity andjustice, andfor judges, lawyers, alumni and members of inspiring us her the Duquesne community - one of the outstanding professional largest events ever held in the Ballroom.

by

achievements, compassion and integrity. " - DISTRICT JUOl3E DONETTA W. AMBROSE

Ar a special lunch for federal judges, Duquesne Law School faculty, and other VIPs, Judge Carol Los Mansmann (sworn in by Justice O'Connor both as a federal district judge and judge of the Court of Appeals) delivered remarks and offered a special roast to Justice O'Connor. After the luncheon, Justice O'Connor joined Chancellor John E. Murray Jr. in unveiling a plaque that will be affixed to the new Murray Pavilion at the Law School.

Despite the fact that the Murray Pavilion was still under construction , Justice

1952-53

19 52

4

Graduated diird in her class from ranfOnl School of Law

Served as Deputy County Attorney of San Maceo

(ChiefJusticz William Rehnquist WIS fim in her elm)

Coun~ California

• JURIS • WINTER

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Federal District judge Donetta W Ambrose

1952-57 Moved to Frankfurt, Germany. John O'Connor graduated from Stanford School oflaw and joined t:be U.S. Anny Judge AdYocaa: Gcncal CofP'- Justice O'Connor serml as civilian aaoroey fur Quam:rmaster Market Center

COVER STORY The program included remarks by President Dougherty, Dean Cafardi and Professor Gormley, who introduced a 20m inure video documenring Jusrice O'Connor's life and career. Along wirh local artisr and film-maker Man Kambic, Professor Gormley produced the video especially for rhe occasion. Borh Justice O ' Connor and her husband were genuinely overcome by emotion ar the presentation of the video. In facr, Justice O'Connor requested a copy of the producrion so rhar it could be donared ro the U.S. Supreme Court archives for historical purposes.

Recitation ofthe Law chool's Proclamation by Dean Nicholas P. Cafardi

"This is a fitting tribute to a woman who has pioneered many firsts during her long career as a public servant. "

importance of public service and the unique importance oflawyers, particularly in rhe afcermarh of rhe even cs of September 11 . The Justice's comments about che September 11 cragedy were her first since che crisis. She stated rhat she believed rhat, "rhe need for lawyers does not diminish in rimes of crisis, it only increases." Justice O 'Connor also cited greater wirecapping, surveillance and curbs on immigration as possible consequences of rhe September 11 attacks and stated: "It is possible, if not likely, that we will rely more on international rules of war, than on our cherished constitutional standards for criminal prosecutions in responding to rhreats ro our national security. As a result, we are likely ro experience more resrrictions on our personal freedom rhan has ever been the case in our country ... Where do you draw the line between terrorises and criminals? . . . It's likely chat rhese issues will take years ro resolve."

Following che program, Juscice O'Connor strolled through the crowd, greeced scudents, posed for pictures, signed programs and engaged in brief conversacions with inceresced guescs.

Justice O'Connor moved upstairs for an invication-only reception wirh Duquesne Law School alumni, as part of rhe special Fall Law Alumni Reception . Jusrice and Mr. O'Connor spenc over an hour (continued on page 6)

us - men and women - in rhe profession rhank her for standing as a symbol of equity and justice and for inspiring us by her oucstanding professional achievements, compassion and integrity."

Barry Lipson, immediare past president of che Federal Bar Association of - UNITED S T ATES SUPREME Western Pennsylvania, joined by Judge COURT CHIEF" JUSTICE Ambrose, presented Justice O'Connor WILLIAM REHNQUIST with che first Carol Los Mansmann Award for Distinguished Public Service. The Following rhe video, Judge Donma award, besrowed by the Western W Ambrose spoke about rhe impacc Juscice Pennsylvania Chapter of rhe Federal Bar O 'Connor had on her life, and che lives of Association, will be given annually ro "a hundreds of other women, who soughr public figure who has made unique and posirions as judges in rhe afcermarh of rhe omstanding contributions to che legal Justice's historic appointment ro che U.S. profession rhrough diligence, dedication to Supreme Courr. "There were chose who principle, and commirmenr ro rhe paved che way- brave and bright women profession's highesr srandards. " In a letter who served as lawyers and judges with addressed to the Duquesne community, extraordinary devotion and disrinction," Uni red Scares Supreme Court ChiefJustice remarked Judge Ambrose. "Justice Sandra William Rehnquist summed up che award Day O ' Connor was among these by staring, "This is a firring cribute to a oucscanding women who made ic more woman who has pioneered many firsts realistic for legions of women in rhe fucure during her long career as a public servant."

Afrer graciously accepting che award ro aspire ro and achieve a full life in rhe law, and less difficult for many ochers, and receiving a prolonged sranding including myself, ro gain appointment or ovation, Justice O ' Connor gave an tudem:s greeting justice O 'Connor election ro che judiciary. I know char all of exrraordinary address about the following her presentation

1958 Pncticed law wirh her parmer. Tom Tobin, but she tmps working :dier the birth of her accond child

1960-65 Pulkime mother and wluntcer (wrote questions for the Arizona bar exam, helped start die smtc bari lawyer referral service. served on a local zoning commission and worked as a county precinet officer for die Republican pany) JlJlUS •

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COVER STORY

1969 Returned to full-time employment as Assistant State Attorney General and continued her volunteer work as a member of the Governor's Committee on Marriage and Family, an adviser to the Salw.tion Army and as a volunteer in a school for blacks and Hispanics

1972

Appointed to Am.ona Senate by the Governor and wins redecrion to the state scnare for twO successive terms

Elected Senate majo rity leader, the first woman to hold such office anywhere in the U.S.

justice andra Day O'Connor meets with female faculty members and judges.

(Bottom row fiwn left) M argaret Krasik, Nancy nke, Sandra Day O 'Connor, Alison ulentic ( Top row from left) Vtmessa BrowneBarbour, D onetta W Ambrose, Carol Los Mansmann, Sandra Dougherty, Jaclyn Cherry mingling and posing for countless pictures.

Mr. O'Connor, a distinguished lawyer in his own right, later said that in 20 years, he had never seen Justice O'Connor agree to take so many pictures and enjoy herself so much at an event.

The following morning, Professor Gormley, along with the U.S. Marshalls, accompanied Justice and Mr. O'Connor to the airport, where the O'Connors were complimentary about the program, referring to it a "one of the most extraordinary we have ever attended." In fact, Justice O'Connor paid Professor

1973 Elected IO Maricopa County Superior Court

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1979 Fust appointee: of Democratic governor 10 the Arir.ona Court ofAppeall

WINTER 200 1

Gormley the ultimate compliment when she invited him and his wife, Laura, to have lunch with her and Mr. O'Connor at the Supreme Court in October. Despite the anthrax scare in Washington, the Gormleys had lunch at the Supreme Court and were given a personal tour of the Supreme Court. During the tour Justice O'Connor remarked, "I hope to see Duquesne University students and faculty in this Court often."

Justice O'Connor, in a recent speech, left the nation with this hope: "That whatever our gender ... whatever our

19 81 8/191 Nominated by Praidenc Ronalclllapn to the U.S.

background, we all may become wise ... wise through our different struggles and our different victories, ... wise through our work and play, family and profession."

History books will forever refer to Sandra Day O'Connor as the 102nd Justice and first woman of the United States Supreme Court, and undoubtedly will cite her dedication to excellence, principle, and unwavering belief in equal opportunity.

Truly, the name "Sandra Day O'Connor" will be among America's heroes . . . and heroines. •

t/151 Senate confirmed her appointment 99--0 as~Jusr:iceof

Supreme Court to 611 the Rat the U.S.~ wcated by Justice Poaef Stewart C.Ourt

912'1 Took the oach ofoffice and become the 102nd Supreme Court Justice and the fint woman appointed to the U.S. SuplCIDC Coun

Digital Privacy in a Terrorized Country • Amy Elizabeth McCaJl

0

n Tuesday, September 11, 200 I, sites visited, and che amount of rime spent terrorists changed the face ofour at chose sires. The FBI does not need co nation.

Although the present probable cause co gee a warranc co immediate physical results of chat attack obtain chis information. As long as the were horrifying, chat nightmare was just FBI can claim chat the information is the tip of an iceberg-an iceberg chat necessary for an ongoing criminal allows fear co overwhelm our belief in investigation, chat face, without probable freedom and our commitment co cause, is sufficient co obtain a warranc. 4 Probable cause is not required to constitutional civil liberties. As the Supreme Court said when renouncing deploy a Carnivore because the United anti-Communise statutes enacted during Scares Supreme Court has ruled with a different time of fear, " Ir would indeed regards co the use of pen registers chat be ironic if, in the name of national defense, citizens have no expectation of privacy in we would sanction the subversion of one the telephone nwnbers which are conveyed of those liberties .. . which makes the co the telephone company.5 A pen register defense of our nation worchwhile. " 1 is a device placed at the phone company More specifically, if the government co record all the numbers dialed from a has the ability co ignore current individual particuJar phone number. The FBI and constitutional liberties because of the che Department of Justice argue chat che exigencies of war, it may be that the war is information gleaned from Carnivore is already lost, for without individual merely the equivalent of a pen register in freedom , what is the United Scares the digital communications world. This defending? It is true chat individual issue has not yet reached the Court, conscicucional Ii berries always suffer at lease however, recencly passed anti-terrorism somewhat in a time of war, 2 but citizens legislation would explicitly allow chis muse continue co ensure chat the extension of che pen regiscer exception co government proceccs their interescs as well. the requirement for probable cause. 6 Two immediace chreacs co digical Although the FBI's argwnent has been privacy, both of which were realized wichin fairly successful thus far, the councer hours of che accack, are che removal of argument that e-mail should be monitored safeguards cradicionally required before a no more than physical mail also has merit. search can proceed and the rescriccion of Capturing header information on e-mails effective encrypcion cechnologies from the goes much further than capturing phone numbers. When headers are captured, the Uniced Scates markecplace.

On Sepcember 11, che Federal Bureau FBI also gets all routing information, such of Invescigacion (FBI) began inscalling as e-mail addresses, and perhaps even Carnivore syscems ac Incernec service names, of all prior and presenc recipients, providers and ocher e-mail companies chat an electronic message has ever had. around the councry as a resulc of che Carnivore can also trap information actack. 3 Carnivores, which have recencly regarding web sires visited and the amount been re-named co che more policically of cime spent at individual sires, which has correcc DCS 1000, are compucers thac are no equivalent in the telephone-pen register capable of monitoring all che craffic thac world. One must never forger that every passes through an Internee service provider. time we allow further incrusions into our When operacing in "pen" mode, liberties, che next "liccle" intrusion carves Carnivores capcure address information away more until, eventually, there are no from incoming and oucgoing e-mail, web liberties remaining. 7

The Pennsylvania Supreme Court shared chis worry about loss of privacy when it ruled in Commonwealth v. Meli!!? that the use of pen registers in Pennsylvania violated Article I, Section 8 of the Pennsylvania Conscirution.9 Although the majority of states follow the federal lead regarding pen registers, at lease four other scares have found chem co violate the scare constitutional rights of their citizens. 10 The feder al government may still use chis information for federal purposes and, of course, the Supremacy Clause dictates that federal law trumps state law on chis issue, bur these contrary opinions from scares case the constitutional issues in a murkier lighc. 11 On Thursday, September 13, quire liceral.ly in the middle of the night and with essentially no debate, the U.S. Senate passed an amendment, called the Combating Terrorism Act, ro an appropriations bill chat would have expressly authorized the use of Carnivore as a "trap and trace device." 12 The amendment passed on the same day it was submitted and proposed by Senator Orrin Hacch. 13 Seven other senators joined as co-sponsors. 14 A clear interpretation of that proposed amendment has yet co be determined, but the implications of words like "routing" and "addressing" may include nor just the addressing information from e-mails, bur information regarding the web sites a person visits and the amount of time spent there. This information would be available co law enforcement without a showing of probable cause because the U.S. Supreme Court found no expectation of privacy in the telephone numbers a person dials. 15 This particular legislation was eventually shelved , bur virtually identical language is included in the legislation chat was signed into law on October 26, 2001. 16 (continued on page 8) jlJHIS •

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Although Carnivore is not a new system, its explicit authorization for use as part of an unfocused investigation of terrorism is new. The Supreme Court may find this use accepcable, but citizens should be aware that their e-mail and web visits are being monirored. Citizens who believe, as Justice Brandeis believed, that the "freedom ro think as you will and ro speak as you think" is necessary to a healthy democratic republic must continue to make their legislators aware of their opinions of the anticipated impact of this invasion in their personal privacy. 17 This awareness becomes ever more necessary as civil liberties are threatened by war rime fears . Broad, generalized searches without a probable cause basis are not the only invasion of digital privacy that the public needs to fear. Proposed limits on encryption technology could have an even broader impact.

Attempts to regulate cryptography, or encryption, generally raise First Amendment , rather than Fourth Amendment, concerns. Before discussing the proposed encryption regulations and the consequent restrictions of citizens' First Amendment rights , it is helpful to understand what encryption is and its significance in protecting digital commurncanons.

Cryprography is the science of hidden writing. 18 Encryption is the process of using cryptography to protect informarion. 19 Just as a lock that protects a safety deposit box requires a key to access its contents, an encrypted message requires a key to decrypt and view its contents. In the cryptographic sense of the word, a key is a string of characters and generally the longer the key, the more secure the encryption . Encryption is used by businesses to prevent unauthorized access of the digital information stored on their computers and transferred over phone lines or the Internet. Just before the arrack, a survey was published in Infonnation Uleek showing that over half of the businesstechnology companies participating in the survey encrypted their stored and transmitted daca, including financial and personnel files. 20 Those companies rely on B •

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strong encryption, i.e. encryption that cannot be decrypted with current technology within a reasonable period of time. 21 In many ways encryption systems support crime prevention, because "encryption helps ro protect burglar alarms, cash machines, postal meters, and a variety of vending and ticketing systems from manipulation and fraud." 22 Obviously, Internet commerce would come to a halt without encryption to protect financial information such as customer identities and credit card numbers.

Encryption is also used to protect individual communications, either because of a desire to keep certain (or all) information private or because of a fear that unpopular opinions will be used against the encryption user. 23 Phillip Zimmerman , creator of rhe popular encryption sysrem PG P (Pretty Good Privacy), has scared that encryption is used by virtually every human rights organization in the world to prorecr their members from reprisal. 24 The regulation of encryption in this country has a checkered past that has led to at least three direct challenges to regulations that put encryption technology in the same export category as munirions. 25 Regulations restricting encryption technology, which have only recently been weakened, could easily be srrengrhened again. Those strengthened regulations would serve little purpose except ro inhibit United States business and weaken the legitimate use of encryption in this country.

There are rwo basic avenues through which citizens' rights to free expression are being threatened by hastily conceived legislative proposals regarding encryption in the wake of the mosr recent terrorist arcacks. These proposals, "key escrow" 26 and export regulation, 27 are not new - both were defeated during the 1990s, 28 but that was a time when the United Scares was at peace.

Government vigilance must increase during times of war, but as Thurgood Marshall said, "History teaches that grave threats to liberty often come in rimes of urgency, when constitutional rights seem too extravagant to endure ." 29 After opportunity to reflect, chose hastily

imposed limits on liberty are often more dangerous to our way of life than the initial threat for which those limits were a response.30 As stated previously, access to strong encryption is a necessary condition for private digital communications. Proposed regulations on encryption necessarily restrict digital privacy rights. The first proposed restriction on these rights is a system known as key escrow. Key escrow proposals require thar all manufacturers of encryption software provide some way for the government ro obtain and keep a copy of the key for possible future use by law enforcement. This is sometimes known as a back door into an encryption product.

This key would allow the government to decrypt messages as needed, purportedly after seeking and obtaining a warranr. 3 1 Norwirhsranding rhe porenrial for government abuse of chis system , cryptographic and security experts warn of grear dangers. A terrorise obcaining one of these back door keys could wreak havoc in our ever more digitally dependent world .

The com purer storing these escrowed keys would become a primary rarger for both physical and cyberrerrorism.

Key escrow is nor a new proposal. Ir was first raised by rhe Clinton adminisrrarion and subsequenrly dropped after companies and consumers alike said they would nor buy a produce that had government access built in to ir. 32 Nothing has changed in rhe interim chat would make key escrow more palatable. And nothing prevents terrorists from encrypting their communications, using a readily available strong encryption method, before using a legally compliant encryption system with a back door.

A second encryption related challenge ro the First Amendment freedoms of U .S. citizens is rhe export regulation of cryptographic algorithms and producrs.33 Unril very recenrly, rhe export of encryption produces was highly regulated, and i r srill is ro some exren r. 34 On September 13, Senator Judd Gregg (RN.H.) called for a global prohibition of encryption produces without back doors, with the Uni red Scares serring an example

wich appropriate legislarion. 35 However, returning ro previous resrricrions on rhe exporr of encryption would be a mistake.

The regulation of encryption was only loosened after domestic companies proved rhar foreign companies had strong encryption of cheir own. The only rhing char che previous encryption regulations accomplished was ro give Unired Srares businesses a disrincr disadvantage in rhe global marketplace. Some commentators believe char che encryption regulations were also loosened when rhe government faced che knowledge char chey were about ro lose courr cases challenging rhe consrirurionaliry of rhose regularions. 36 These courr challenges were based on rhe Firsr Amendment righrs of programmers who wrore rhese encryption programs. 37 The current chrear from rhis direction seems robe minimal. Senator Gregg found lirrle support for his current legislarive proposals and announced on October 16 rhar he would no longer seek to place language requiring back doors in encryprion products into anri-rerrorism legislation being rapidly proposed in rhe Senare. 38 Many securiry experts contend char weakened encryption would open che door for rerrorisrs, allowing cyberrerrorism ro rule rhe day.

However, rhe language explicitly permitting the use of Carnivore systems as onl ine versions of che pen registers remains in rhe current anti-terrorism law. 39 The use of chis information against rerrorisrs is something most people can support. In fact, in a survey conducred for Newsweek magazine, pollsters asked, "Would you favor reducing encryption of communications to make ir easier for rhe FBI and CIA to monitor che acriviries of suspected terrorists-even if ir might infringe on people's privacy and affect business practices?" 4° Fifty-four percent of che respondents answered yes.41 This is particularly disturbing in lighr of che facr that there is a legitimate dispute over whecher che terrorists used encryption and whether any of rhese proposed changes would have enabled a defense against char rerrorism .42 This is a complicated issue and che implicarions may nor be apparent

wichout srudy. Ir is also worrh noting thar many commentators have recognized rhat weakening encryption merely makes us more vulnerable for arracks. 43 In our democracy, citizens musr be ever vigilant in ptorecring rhose rights char "make the defense of our nat ion worrhwhile. " 44 Abandoning digital privacy because of some unspecified belief rhar doing so will somehow enable law enforcement ro srop future occurrences of terrorism is a misplaced sacrifice.

Encryption rhar is unbreakable by current standards is readily available worldwide. 45 The sacrifice is mostly char of che privacy of individuals who do nor realize rhar in our terrorized counrry, individual consriturional rights are rapidly being abandoned wirhour any showing of benefir. •

Amy Eliz:abeth McCall is a third-year evening student.

ENDNOTES 1

United States v. Robel 390 U.S. 258 (1967).

In Robel, the Subversive Activities Control Act was decl ared unconstitutional because, by subjecting a citizen to criminal penalties for belonging ro the Communist Parry, Congress was abridging the citizen's First Amendment right of Association. Id. 2 "Historically, rhe most stringent conuols on speech h ave appeared during periods of national emergency. " The Sed irion Act restricted speech when war with France seemed imminent.

Abolitionist literature was suppressed by Southern Stares before the Civil War, and Northern stares did their share of restricting dissent. World War I brought new restrictions on speech, leading with rh e Espionage Act of 1917. Most of these resrricrions withstood First Amendment challenges, if rheywere challenged ar all. Bur alter World War I. a strong movement began ro use the First Amendment ro provide greater freedoms.

Gradually it has become accepted that freedom of expression may nor be curtailed without a showing of imminent danger as a result of that express ion . DANIEL A. FARBER , Tm. FIRST AMENDMENT, 57-61 (1998).

3 Dedan McCullagh, Anti-Attack Feds Push Carnivore, WmED NEWS, 9/ 12/01, at http:// www.wired . com/news/polirics/ 0, 1283,467 47 ,00.hrml.

4

18 U.S.C. 3123 (a) authorizes the use of a pen register or trap and trace device without probable cause if "the informacion likely ro be obrained is relevant ro an ongoing criminal investigation." The Center for Democracy and Technology argu es char rhe 1986 federal law which requires a courr order for use of pen registers, trap and trace devices and thus Carnivore has a "standard for approval [that] is so low as to be nearly worthless-a prosecuror does nor have ro justify the request and judges are required to approve every request. " The Center For Democracy & Tech ., Amending the Pen Register and Trap and Trace Stature in Response ro Recent Internet Denial of Service Attacks and ro Establish Meaningful Privacy Protections, at http:// www.cdr.org/securiry/000404amending.shrml (Apr. 14, 2000).

5 In Smith v. Maryland, 442 U.S. 735, the Supreme Court found rhar a citizen lacked an objective expectation of privacy in telephone numbers which were conveyed ro the telephone company.

6 USA PATRIOT Act, H .R. 3162, 107'h Cong. (2001) (enacted).

7 "They rhar can give up essential Ii berry ro obtain a lirrle temporary safety deserve neither Ii berry nor safety. " Benjamin Franklin, Hisrorical Review of Pennsylvania ( 1759).

8 555 A.2d 1254 (Pa. 1989).

9 PA. C ONST. arr. I, §8, stares: "The people shal.I be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant ro search any place or ro seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by rhe affianr." Bur see Commonwealth v. Rekasie, 778 A.2d 624 (Pa. 200 l). ln Rekasie, the court found that a cirizen did nor have an expectation of privacy in the conrenrs o f a telephone conversation in their home. A strong dissent by Justice Zappala nores that the Pennsylvania courrs had accepted the claim ch ar an expectation of privacy in rhe numbers one dialed from that home in Meli/Ii and found it odd that a person could have an expectation of privacy in the numbers one dialed from a telephone in one's home, bur no ex pectatio n of privacy in the contents of that phone call. Id Whether rhis case impacts rhe pen register decisions will be played our in the courrs in rhe future.

10 Richardson v. Texas, 865 S.W 2d 944 (Tex. Cr. App. 1993); People v. Sporleder, 666 P.2d 135 (Colo. 1983); State v. Thompson, 760 P.2d 1162 (Idaho 1988); and State v. Gunwall, 720 P2d 808 (Wash. 1986).

11 E.g. when a person is charged with both scare and federal crimes the evidence gathered by C arnivore systems would be validly used for rhe (continued on page I 0)

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federal issues and excluded for rhe srare issues.

12 Senare Amendment S.A. 1562 ro House Bill H.R. 2500. Rep. Barney Frank (D-Mass.) said of rhe entire process: "This bill, ironically, which has been given all of rhese high-flyin g acronyms-iris rhe Parrior bill, iris the USA bill, ir is rhe srand-up-and-sing-rhe-Srar-SpangledBanner bill-has been debared in rhe mosr undemocraric way possible, and ir is nor worthy of rhis insrirution. " Declan McCullagh, USA Act Stampedes Through, WIRED NEWS, 10/25/0l ar h rrp: //www . wired .com/ news/ p ri n ti 0, I 294,47858,00.hrm 13 Id " Id Those Senators were: Dianne Feinsrein (D-CA), Jon Kyl (R-AZ), Michael DeWine (ROH), Jeff Sessions (R-AL), Fred Thompson (RTN), Strom Thurmond (R-SC), and John McCain (R-AZ).

"Smith v. Maryland, 442 U.S. 735 ( l 979).

16 USA PATRlOT Acr, H.R. 3 I 62, I 07'i.

Cong. (2001) (enacred). §2 16 - Modificarion of Authoriries Relaring to Use of Pen Regisrers and Trap and Trace Devices inserrs rhe language specifically aurhorizing Carnivore as a rrap and rrace device. Id 17 Whitney v. California, 274 U.S. 357 at 375 (1927).

18 SI MON SINGH, THE CODE BOOK: THE EVOLUTION OF SECRECY FROM MARY, QUEEN OF SCOTS TO QUANTUM CRYPTOGRAPHY 6 (I 999).

19 See SSH Communicarions Security, lnrrodw:tion to Cryptography, at http://www.ssh.fi/ tech/crypro/inrro.h tml.

20 John Rendlemean, The debate over encryption intensifies as the government lnoks to crack down, !NFORJv!ATION WEEK, October 1, 2001 ar http: //www. info rma tionweek .co ml s rory I IWK20010928S0040.

21 As computing speeds rapidly increase and computing costs lower, longer keys are necessary ro retain strong encryption. The strength of the sysrem and thus the lengrh of the key required depend on the amount of time that the information must remain secret. If ten years is sufficienr for rhe secrer rhen a shorter key can be used rhan that required ro reasonably prorecr informarion which will srill be sensitive I 00 years in rhe furure. See STEPHEN LEVY, CRYPTO, 200 l.

22 Hal Abelson et al., The Risks of Key Recovery, Key Escrow, & Trusred Third Parry Encryprion, Digiral Issues no. 3, June l 998 ar h rrp://www.cdr.org/ cry pro/ risks98/.

23 The Supreme Court has recognized rhe need for rhis anonymous expression in such cases as NMCP v. Alabama, 357 U.S. 449 (1958) (holding that the NAACP need not reveal membership lists) ; Talley v. California, 362 U.S. 60 ( 1960) (holding a Los Angeles ordinance prohibiting the distribution of leaflets without identificarion of rhe source ro be an unconstirurional restriction of free expression); , 0

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1

36 and Mcintyre v. Ohio Elections Commission, l 15 See Declan McCullagh, Don't-Ask-Don'tS. Ct. 15 I l (1995) (holding an Ohio stature Tell Encryption, WIRED NEWS, January, 14 , 2000, requiring rhe name and add ress of rhe issuer on at h ttp:lwww.wi red.com/news/print/ all campaign lirerarure robe invalid).

0, 129433651,00.hrml, (last modified 1114/00).

24 37 Phillip Zimmerman response ro Karn v. U.S. Dept. of Commerce, 925 Washington Posr Arricle (Ariana Eunjung Cha, F.Supp. I (D.D.C. 1996); }unger v. Daley, 8 To Attacks' Toll Add a Programmer's Grief, F.Supp. 2d 708 (N.D. Ohio 1998); and Bernstein W11SHINGTON POST, September 21, 200 I, ar http:/ v. U.S. Dept. a/State, 945 F.Supp. 1279 (N.D.Cal. lwww. wash ington post .com/wp-dyn/ arr icles/ 1996).

Al 234-200 I Sep20.hrml). Response posted on JR Robert Lemos and Stefanie Olson, Slashdor ar hrrp://slashdor.orglarricle.pl?sid=O I/ Proposed Crypto limits Draw Broad Criticism, 91 09/24/ 162236&mode=rhread.

2610 l , at hrrp://news.cnet.com/news/0-100525 Those cases are Karn v. U.S. Dept. of 200-7310346. html, and Deel an McCullagh, Commerce, 925 F.Supp. I (D.0.C. I 996);}unger Senator Backs Off Backdoors, WIRED MAGAZINE, v. Daley, 8 F.Supp. 2d 708 (N .D. Ohio 1998); 10/17/01, ar hrrp://www.wired.com/news/prinr/ and Bernstein v. U.S. Dept. ofState, 945 F.Supp. O, l 294,47635,00.html.

1279 (N.O.Cal. 1996) rev'dmb nom. Bernstein v.

J 9 USA PATRlOT Acr, supra note 16.

40 U.S. Dept. a/Justice, 176 F.3d I l 32 (9"' Cir. 1999).

Wendy McAuliffe, Americans back 26 See Hal Abelson mpra nore 22; Michael encryption controls, MSNBC, Seprember 18, Froomkin, ft Came From Planet Clipper: The 200 I, ar http://stacks .msnbc .com/news/ Battle Over Cryptographic Kq Escrow, 1996 U. 630646.asp.

41 Chi . L. Forum 15.

Associated Press, Terrorism attacks renew 27 See Bernstein v. United States Department debate over encryption software, September 24, ofjwtice, l 76 F.3d 1132 (9'h Cir. I 999)(vacated 200 I, ar hrrp:/ /www.cnn.com; McAuliffe, mpra reh'g granted en bane, remanded in light of new note 41. regulations)(discussing th e recent hisrory of U.S. "' See Neil Barrett, Must privacy die too?, IT regulation of cryprography).

WE EK, October 15, 2001, at http:// 28 See }unger v. Daley, 209 F.3d 48 1 (6'h Cir. www.zdnet.co.uk/itweek/columns/200 I /39/ 2000)(regarding regulation of export of barretr.hrml; Rendleman, supra note 20; Duncan cryprography); See Froomkin , supra note 26 Campbell, How the plntters slipped US net, ICIJ (discussing rhe failure of rhe Clipper Chip and INVESTIGATIVE REPORTS, at http://www.icij.org/ rhe demise of other escrow proposals). investigare/campbell5.html.

29 1 Skinner v. Railway Labor Exerntives' Assn., 489 '- E.g. "There will be some poinr in the furure where a criminal or terrorist uses encryption U.S. 602 at 635 ( l 989) 10 Eg. Korematsu v. United States, 323 U.S. to pull of a horrific crime," says Mike Godwin, a 214 (1944), in which rhe Court upheld the policy fellow with the Center for Democracy and conviction of an American citizen of Japanese Technology. "What we have to ultimately dissenr for being in a place from which Japanese recognize is that we're safer from those criminals citizens were banned . Forry years later this if we have those encryption rools than we would decision was vacated on grounds of government be if we didn'r have them." McCuUagh, mpra misconduct. Korematsu v. United States, 584 note 38. Universiry of Miami law professor and F.Supp. 1406 (N.0. Cal. I 984). encryption expert Michael Froomkin has said thar 31 Governmenrs which have tools available politicians now seem ro realize that encryption is ro them may be tempted to use those rools. E.g., a "double-edged sword" which can protect borh during World War II, census data, which by law criminals and non-criminals alike. Id. t,; Robel, supra note 1. is to be used for nothing except the census, was 45 used to idenrify individuals of Japanese dissent Programmers have worked for a number so rhey could be placed in inrermem camps. of years ro create the shortest version of a workable BRUCE SCHNEIER, SECRETS & LIES: DIGITAL form of rhe RSA encryption algorithm (one of SECUR!TY IN ANETWORKED WORLD 52 (2000). th e strongest encryption systems currently 12 · John Schwanz, Disputes on Electronic avai lable). The current winner is the following Message Encryption Take on New Urgency, N. Y. 3-line Perl scripr which fits simply on a business TIMES , September 25, 200 I , a r hrrp :// card and can be entered into any computer rhat www.nyrimes.com/200 I /09/25/rec hnology/ can interpret rhe programming language Perl:#!/ 25CODE.hrml?rodaysheadJines. bin/perl -sp0777i <X+d* 1Mla A* 1No/oO]dsXx .lJ Senator Gregg's remarks on the floor of ++IM l N/d sMO<j ]dsj$/ the Senate are available ar htrp://cryprome.org/ =unpack(' H*',$_);$_ ='echo I 6dio\U$k"SK$/ SM$n\EsNOp[ IN* I I K[d2 %Sa2/ gregg09 l 30 l .O<r.

J ·; Federal Register, Vol. 65 , No. 203, p. d0$" lxp"ldc' ;s/\ W /lg;$_ =pack('H*' ,/( (.. )*)$/) 64600, l 5 CFR Parrs 732, 734, 740, 742, 744, The quest for the most diminutive munitions 749, 770, 772, and 774. program, ar htrp:I /www.cypherspace.org/ -adam/ 35 Supra, note 34. rsa/srory.html.

Terrorism: America's Achilles' Heel •

Rebecca Keating Verdone

T

en days before rhe horror of September 11 , 2001, I stood high above New York City, atop the World Trade Center roof. I felt safe knowing I was only going to be there that day for a short sightseeing trip, bur eerily enough, the thought crossed my mind that the bujlding had been targeted by terrorists once before and could be again. 1 My friends and I even argued over how long it would take to get down the stairs from the 11 Oth floor in an emergency.

It never occurred to me that people in rhe building in a crisis situation wouldn't have the opportunity to flee. Ir never occurred to me that buildings as massive and as strong as the World Trade Center could be made ro collapse so easily. Ir never occurred to me rhar someone was our there, plotting evil, and had found America's AchiUes' heel. 2 I've always thought of America as a sort of hero among the nations of the world, bur we have our weaknesses too, and most noticeably, it is terrorism.

Terrorism has had a profound affect on America since the events of September 11, 200 l. Our vulnerabil iry is painfully obvious, and the awareness that terrorism has rhe potential to hit anywhere at any time is beyond merely frightening. The victims on rhe planes rhar crashed on September 11 were from all over the country. The victims lost in the World Trade Center were from all over the world.

Americans are facing the stark reality that if someone wants to harm them, there are many means available, including rhe threat and uncertainty of biological warfare.

Worst of all, Americans may be terrorizing each other. There have been countless bomb threats and threats that anthrax was deliberately left in buildings or mailed to people. Americans are more

suspicious than ever before of strangers acting in ways that could be perceived as peculiar or suspicious on planes and buses.

Instances that once may have been ignored are instead stirring responses. We are afraid, plain and simple.

We can only hope that sooner or later our resources will help us stop terrorism.

Security measures do work when people enforce them strictly and are on heightened alert. But who's to say our problems won't begin again when people are lulled into a sense ofsecurity? WJJ we take our freedom for granted yet again? Will we forget once more that there are people in this world who hate us? Will we start trusting too much?

For now, the government continues to do its best to halt any future attempts at terrorism and we, the people, are left to cope. It seems inevitable that, as suggested

by Justice Sandra Day O'Connor, we will be more restricted in our personal freedoms than befote. 3 The tragedies of September 11 will most likely result in various changes to laws pertaining to immigration, wiretapping, criminal surveillance, and the like. 4 Some measures taken may only be temporary, but some will be implemented on a permanent basis. In the past, in response to threats to national security, Congress enacted major expansions ofstare police powers and some rougher penalty laws. 5 Other nations are responding to the trauma, as well. European Union leaders are planning on tightening laws on terrorism across Europe. 6 Traditional extradition procedures are expected to change, and terrorists being sought in any one of the 15 member countries will nor be permitted to seek sanctuary in another. 7 Other changes being considered are more uniform sentencing laws. 8 Ir comes as no

surprise that other nations are seeking to head off disaster before it strikes. Citizens of about 80 countries were among those lost in the collapse of the World Trade Center's twin towers. 9 Personally, I'm glad to know that other countries see terrorism as a global problem that they, too, must fight. Unfortunately, it's no consolation to those who lost friends and family in any of the tragic events of September 11. I'm thankful that I didn't actually know anyone who was harmed .

Sometimes, though, my thoughts wander back to my day at the World Trade Center.

Although I can't recall the specific features of each face I encountered, I remember some of the people who were working. Among them were a security guard, the gray-haired lady who sold my friends and me rickets to the observation deck, a soft-spoken, dark-haired girl seUing "I love N.Y." r-shirts at a kiosk, and a smiling young photographer laughing at his subjects. I like to think that perhaps they escaped since they were on lower floors of the Trade Center.

More disturbing are my thoughts of the youthful-looking elevator attendant.

And what of the man and woman who worked on the 11 Orh floor selling their souvenir photos to tourists? Where are they? I suppose I'U never know if they were working on that tragic day, bur I proudly wear my "I love N.Y." r-shirr and I think of them often. God bless them, wherever they are. •

Rebecca Keating Verdone, a gradu.ating third-year day student, is Senior Editor ofJuris and Chairperson ofthe !ntef!ectu.af Property and Technological ltzw Society.

ENDNOTES ... see page

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12 1 1

ENDNOTES

Terrorism: America's Achilles' Heel Rebecca Keating Verdone 1

On February 23, 1993, six people were killed and 1,000 injured when bombs exploded in c:he World Trade Cenrer parking garage beneac:h c:he building. McDermon, Terry and Runen, Tim, Monumental World Trade Center Symbolized American Dream, Pirrsburgh Posr-Gazene, Sept.

12, 200 I, National at A-21.

2 Achilles was a Greek hero who fought in c:he Trojan War. When he was a child his mother held him by the heel and dipped in him rhe magical River Sryx ro make him immorral. The warer made him invulnerable except the small porrion of his heel by which his morher held onro him. Achilles foughr many bardes and remained unscac:hed unril one day an enemy discovered Achilles' weakness and morrally wounded him in rhe heel. "Achilles," Microsofr® Encana® Online Encyclopedia 2000 hrrp:// encana.msn.com© 1997-2000 Microsofr Corporarion. All rights reserved.

3 Greenhouse, Linda, O'Connor 'Xarns of Fewer Freedoms, Pirrsburgh Posr-Gazene, Sepr. 29, 200 I, World at A-5.

4

Id.

5

Pianin, Eric, and Edsall, Thomas, Civil Rights Could be Held Hostage in Terror Fa/1'mt; Legal Experts Fear Loss of Freedoms in Federal Crackdown on Public Safety, Pimburgh PosrGazene, Sepr. 12, 200 I, National at A-5.

6 Meade, Geoff, EU Leaders to Agree Tighter Laws on Terrorism, Press Associarion, Sept. 20, 200 I, Home News.

'Id. 8

Id.

9

Vedanram, Shankar, Attack Aftermath Sweeps Up Innocent Hate Crimes Indiscriminately Targeted, Pirrsburgh Posr-Gazene, Sept. 23, 200 I, Narional at A-14.

l 2

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Pursuing Justice ... One Step at a Time The Allegheny County OPD, The Consent Decree, and the Public Defender • John E. Egers Jr.

I

n December of 2000, I was at Shuman that the OPD Juvenile Detention Center as part of a did not provide class assignment for my course in constitutionally Juvenile Law. While at Shuman, another adequate legal law student and myself were able to speak services. Prior to a class of students there. Students asked to trial, all us about the criminal justice system and parties entered made several complaints based on their into a consent experiences with it. Ir was then that I first decree in which heard the term "Public Pretender."

Allegheny Now, as an unpaid intern for the C o u n t y Office of the Public Defender (OPD), I committed itself to improving the quality experience firsthand the criminal justice of representation offered by the OPD. process at Pirrsburgh City Magistrate's Among the concerns rhat the consent Court. As the "jailers" (the accused) come decree addressed were the salaries of OPD through the door three at a time so they attorneys, OPD attorneys working only can speak with a Public Defender jusr part rime, and lack of attorney training, as minutes prior to their preliminary hearing, well as physical resources such as office phrases such as "I want a real lawyer" can space and equipment. The consent decree be heard during some interviews. Certainly litigation will remain on the Allegheny suspects of crimes will be "disgruntled" so County Court of Common Pleas active to speak, because of their situation. But in docket through 2004.

In following the mandates of the regard to the adequacy of their legal representation, Sue Ruffner will have consent decree, Ruffner and the 0 PD have something to say about that. steadily been making progress. As of 1999, M. Susan Ruffner became the Public all attorneys hired in the OPD must be Defender of Allegheny County in February hired on a full-rime basis. In February of of 2000. With experience as an assistant 2000 when Ruffner came to the office, district attorney, working with former there were only 10 full-rime attorneys, Commissioner Hafer on Prison Board including herself As of today, including matters, being Chief Magistrate for Ruffner and her deputies, there are 75 Pittsburgh City Court, counsel for the Port attorneys, 51 of which are employed fullAuthority of Allegheny County and after time. Ruffner has also added 30 computers a stint as Commons Pleas Court Judge to the OPD and given all employees e-mail handling Juvenile Delinquency matters, services. The office has expanded its space Ruffner has seen the various problems of in the County Office Building as well. As the criminal justice system. Yet, when for starting attorneys' salaries, they are equal accepting the position as Public Defender, to starting assistant district attorneys Ms. Ruffner inherited the political morass salaries at approximately $36,200 per year.

New attorneys are also trained in a fiveknown as the Doyle Consent Decree.

The Doyle Consent Decree was week course which covers (among other entered into as a result of litigation that topics) substantive law including the began in 1996 in the case of Doyle v. Pennsylvania Crimes Code, Rules of Allegheny County Salary Board et al. Evidence and Criminal Procedure, and trial (Allegheny County Court of Common and hearing tactics. The new hires are also Pleas GD 96-13606). The lawsuit alleged given a tour of the relevant offices to

understand where filings are sent and how they are processed. Office policies and practice standards are also taught. At the conclusion of this training, tests are administered ro the probationary arrorneys.

Afrerward, the probationary attorneys enter into the pre-trial division for their first work assignment where they handle preliminary hearings, summary appeals and other pre-trial hearings. After spending approximately one year in the pre-trial division, attorneys can be elevated ro the trial division. A program, which specifically develops trial skills, is administered ro the attorneys transferred to the trial division. Finally when the attorneys face their first trial , they are "second-seared" by their supervisor. All attorneys are given annual reviews with the recently hired probationary attorneys being evaluated more frequently.

And, for those interested in actually getting the job of assistant public defender, Ruffner has instituted a merit hiring process which requires vacancies for arrorney positions to be advertised in local newspapers, all Pennsylvania law schools and local bar associations. All applicants must fill our an application form, submit a writing sample, law school transcript, and supply three references. If a prospective employee is accepted for an interview, he/ she will be interviewed by a hiring panel of three management-level employees.

From there, recommendations as to who is qualified and preferred are sent to the Director and eventually a recommendation of employment is sent to the Allegheny County Manager.

There are still some gaps to be filled.

Currently, the non-management attorneys are represented by the United Steel Workers of America (USWA). Their contract with the county ends ar the end of 2002. In April 2000, the County and most of the USWA atrorne ys entered into a memorandum of understanding, whereby arrorneys who were working on a part-time basis were given rhe one-rime option of discontinuing any private law practice they had in exchange for working at the OPD full-time for salaries equal to assistant district atrorneys with the same years of

She offers that her door is open at any experience. Nor all attorneys opted for this compensation and full-rime work . rime to any of her employees. She even Therefore, some part-rime attorneys still began a newsletter to keep her employees practice in the OPD and rhe salary scales informed about what is currently are computed on a percentage-based yearly happening with the OPD. In regard to increase without reference to what assistant criticism of her requirements for strict district attorneys are earning. In addition, scheduling of employee work hours, the consent decree only addressed starring especially investigators in the Support salaries for newly hired attorneys; it never Service Division, Ruffner stares char set forth a uniform compensation plan for investigators are permitted to work afrerhours and weekends if the need arises. the OPD. Ruffner also is attempting to develop Same day notice for working that evening a Major Felony Division . Under her afrer-hours can usually be granted . framework, Ruffner has reorganized the Requests for ovenime pay have never been OPD into five divisions: Pre-trial, Trial, denied. However, Ruffner explains, if an Post-Trial, Major Felony, and Support investigator can rake pictures of an Services . There is a Deputy Public intersection on a Friday, it's nor necessary Defender in charge of each division. to rake the same pictures on Saturday Ruffner's main obstacle in developing the morning instead. Furthermore, requests Major Felony Division is the lack of office for overtime pay when the supervisor was space. Her main goal for this division is not notified of the overtime hours in "vertical representation" whereby an advance are nor granted. In response to individual's case will be handled from pre- her large increase in salary in the past year, trial hearings up ro any possible appeal by Ruffner comments that the prior salary was not even commensurate with managers in one attorney.

The present system allows for an the District Attorney's Office.

Ruffner adds that there is a bigger issue individual to be represented by a different with regard to funding of all Public attorney at each stage. Support Services personnel begin the process with an intake DeFender's Offices in each county of interview in which rhe client's income Pennsylvania. Pennsylvania and Wyoming information is obtained in order ro are currently the only two states that fund determine their eligibility for OPD and operate a Public Defender system at representation. From there, an attorney is the county government level. Allegheny assigned to the preliminary hearing at a County currently funds the OPD. Ruffuer specific magistrate and will represent the notes that there is a model for stare funding client at that stage of the process. Should oF the OPD in the grant-in-aid funding the case reach trial, a new attorney from provided to the County Probation Office Trial Division will represent the client at by the state. In the end, the Director sums trial. Upon appeal, a separate division of up the simple mandate for the OPD: "We attorneys researches, writes, and argues the owe the public our work for the money appeal. In addition to adult criminal that they are giving us." â&#x20AC;˘ representation, the OPD also represents john E. Egm~ Jr. is a third-year law juveniles charged with crimes in Juvenile Court, individuals charged with indirect student at Duquesne University. john has a criminal contempt, such as violations of Bachelor ofArts degree in Criminal justice PFAs, summary charges and appeals .frorn Edinboro Univmity of Pennsylvania, therefrom , and individuals facing where he graduated surnrna curn !aude in 1999. John Lives in Washington, PA. involuntary civil commitment.

As for any public criticism of Ruffner, she is not phased by it. In response to my inquiry as for her own description of her management style she says, "I lead . But I don't lead by consensus all rhe rime."

JlJRJS â&#x20AC;˘

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â&#x20AC;˘

1 3

Why Animal Law? Pamela L. Roudebush

•

The greatness ofa nation and its moral progress can be judged by the way its animals are treated- Mahatma Gandhi

T

he abuse and lack of emparhy rowards animals is deeply ingrained in nor only sociery's mindser, bur also in our laws and our legal sysrem. Every day living, breathing beings are rorrured, exploired, and killed by our narion's insrirurions, indusrries, and cirizens. So whar is rhe big deal? We have laws ro prorecr animals from abuse and ro prosecure rhe abusers, don'r we? Yes, we do have laws in place; however, many animals have rhe unforrunare fare of being in siruarions where laws are eirher nonexisren r or inadequare ro provide prorecrion. Large groups of animals are vicrimized because of loopholes rhar provide exemprions from rhe very stare and federal laws designed ro offer rhem prorection. Laws rhar could have rhe power and porenrial ro provide prorecrion ro many animals fail ro do so as a resulr of eirher loopholes in the laws rhemselves or due ro budgerary resrrainrs rhar prevenr proper enforcemenr.

One such federal law, rhe Animal Welfare Act (AWA), is supposed ro provide humane rrearmenr ro animals, inter alia, used for scienrific research. The AWA covers "any live or dead dog, car, monkey (nonhuman primare mammal), guinea pig, hamsrer, rabbir, or orher such warmblooded animal". 1 A major loophole in rheAWA was rhar in addition ro specifically excluding horses, livesrock, and poulrry in research siruarions, rhe Unired Srares Deparrmenr of Agriculrure (USDA) inrerprered rhe acr ro exclude rars, mice, and birds.

Recenrly, rhis USDA inrerpretarion relaring ro rars, mice, and birds was overrurned by rhe USDA as pan of a serrlemenr ro end a lawsuir. 2 While 14

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rhe resulrs of rhis serrlemenr would seem robe a favorable resulr for rhe animals rhar make up more rhan 90% of rhe animals used in research serrings, an I I rh-hour amendmen r ro rhe Fiscal Year 2001 Agriculrural Appropriarion Bill forbade using any funds ro prorecr rars, mice, and birds. 3 Animals covered under rhe AWA rules are ro receive rhe "minimum requirements for handling, housing, feeding, warering, sanirarion, venrilarion, shelrer from exrremes of wearher and remperarures, [and] adequare vererinary care". 4 The baresr minimum usually rums our ro be rhe equivalenr of rhe maximum prorecrion rhese animals receive. The AWA, rhe only major law designed ro provide laborarory animals wirh humane rrearmenr, "does nor prorecr animals during an experimenr, regardless of how painful or even unnecessary it is." 5

':.. many animal.shave the unfortunate fate ofbeing in si.tuations where laws are either non-existent or inadequate to provide protection. " The AWA is a classic example of a how a law wirh grear prorecrion porenrial can lose irs srrength rhrough borh loopholes and budgerary consrrainrs. Bear in mind rhar rhe AWA is only one of many federal laws rhar has major flaws and loopholes relaring ro animals. Furrher in-deprh analysis of mosr federal laws relaring ro animals, such as rhe Federal Meat Impection

Act, Horse Protection Act, Endangered Species Act, Environmental Protection Act, Migratory Bird Treaty Act, and Marine Mammal Protection Act, show rhese same rypes of flaws. Many of rhe flaws can adversely affecr humans, such as in rhe case

of animals raised for food producrion.

Many animals raised for food producrion, commonly referred ro as livesrock, are left unprorecred from borh federal and stare laws rhrough exemprions creared under rhe guise of rerms such as "acriviry underral<en in normal agriculrural operarions 6 ", "accepred pracrices and disciplines 7 ", and "commonly accepred agriculrural and livesrock pracrices 8 ."

Idaho specifically eliminares animals commonly considered ro be livesrock or raised for food producrion from irs srarurory definirion of "animal 9."

These exemprions have left open rhe door for rhe modern agriculrural facrory farm. Wirh no laws ro cover rheir care "wherher overcrowded in feedlors and buildings or virrually immobilized in crares and cages, facrory-farmed animals are neared like machines wirh no concern for their pain or suffering. The grearesr number of animals are raised in rhe smalJesr possible space and ar rhe lowesr possible cosrs ro maximize producriviry and profirs." 10 Because of these exemprions, and many orhers rhar have nor been lisred, farm animals in mosr cases do nor receive any legal humane prorecrion - farm animals are even exempr from prorecrion ar rhe srockyards under rhe Packers and

Stockyards Act. 11 The problems from these loopholes rhar apply ro rhe facrory-farming arena go beyond jusr rhar of rhe humane rrearmenr of animals. A series of orher porenrial resulrs of facrory farms are coming ro lighr, including (I) agriculrural runoff (wasre, nurrienrs, and anribiorics) becoming rhe largesr polluranr of nearly 60% of rivers idenrified as "impaired"; (2) 7,000 square miles along the Gulf of Mexico becoming considered a dead zone from damage caused by agriculrural runoff; (3) a 1997 hog wasre spill killing 450,000 fish in rhe

Chesapeake Bay, 45,000 fish in North Carolina, and causing numerous human illnesses; (4) a 1997 nutrient runoff from poultry farms killing 30,000 fish in the Chesapeake Bay; (5) a major loophole in the federal Clean Air Act exempting polluted agriculruraJ runoff; (6) one in three poultry workers suffering from workrelared musculoskeraJ disorders resulting in many of the workers becoming permanently disabled; (7) loopholes in the Office ofSafery and Health Administration (OSHA) that do nor apply to factory farm workers exposed to toxic gases, airborne particles, and microbes in factory farms; and (8) findings published in the New England Journal of Medicine (vol. 337, p.

1558) that reinforce the claim that anribioric-resisranr bacteria can spread from farms where animaJs are fed growth-promoting anribiorics by humans. 12 In addition to the specifics briefly discussed above, many orher issues should be considered when addressing the laws that relate to animals raised for food production. The customary industry practices involved in raising and slaughtering these animals are not only extremely cruel but lead to the topic of potentially deadJy heaJrh hazards posed ro humans from these very practices.

EnvironmenraJ damage and eradication of our natural resources occurs as these practices slip through loopholes in our legaJ regulations. Eradication of wild animaJs, such as coyotes, bison, and wolves, is allowed because these animaJs conflict with rhe raising of farm animaJs. In addition, the physical and emotional injuries of human workers should be considered. According to information from the Bureau of Labor Statistics, 36 injuries or illnesses for every 100 workers makes mear packing rhe mosr dangerous industry in rhe United Srares. 13 ''A worker's chances of suffering an injury or illness in a meat plant are six times greater than if chat same person worked in a coaJ mine." 14 The results of inadequacies in our laws as applied to animals raised for food production reach out and much many areas

beyond just the sometimes callous lack of properry crimes, and three rimes more humane protection for the animals . likely to have a record for drug or disorderly Without stronger laws, rhe porentiaJ exists conduct offenses." 19 The HSUS study for irreversible environmenraJ damage and reported that 21 % of cases of intentional possibly deadJy human illnesses not only animal cruelry aJso involved some form of from the animaJs themselves, but aJso from family violence, 13% involved domestic the secondary effects of the manner in violence, and 7% involved child abuse. 20 which the animaJs are raised.

FBI SpeciaJ Agent Brantly, a former psychologist at a maximum-securiry prison and current trainer ar rhe FBI's BehavioraJ Science Unit which is responsible for "Without stronger IAws, the providing information on the behavior of potential exists for violent criminaJs, responded when asked irreversibk environmental how many serial killers had histories of damage andpossibly deadly animaJ abuse "[t]he real question should !II human iunesses ... " be, how many have nor?" 21 SpeciaJ Agent Brandy further stated, "AnimaJ cruelry is nor as serious as killing human beings, we AnimaJs not considered livestock do have to agree to that, but certainly it's not fare much better under stare laws. moving in an ominous direction . This is Currently only 32 srates 15 have provisions nor a harmless venting of emotion in a in their anti-cruelry statutes rhat elevate healthy individuaJ; this is a warning sign some form of animaJ abuse to a felony rhar this individuaJ is not mentally healthy classificarion. Many of these stares, and and needs some sort of inrervenrion. severaJ states rhar do not elevate animaJ Abusing animaJs does not dissipate those cruelry to felony srarus, have some rype of violent emotions; instead, it may fuel felony provision for poisoning animaJs, them." 22 Police departments are also harming law enforcement animaJs, cock recognizing rhe connection between or dog fighting, and elevating to felony animal abuse and family violence. An classification for subsequent animaJ cruelry article in Police Chief about the link convictions. In many instances, a penaJry between animal abuse and domestic for animaJ cruelry is considered a "slap on violence stated "animaJ abuse . . . is aJso rhe wrist" for the offenders. According to considered a high-risk indicator on most a study conducted by the Massachusetts lethal i ry assessment tools" and Sociery for the Prevention of Cruelry to "investigators shouJd be trained to make Animals (MSPCA), of the 80,000 inquiries about animaJ abuse a routine part complaints received from 1976 through of aJI domestic violence casework. "23 This 1996, only 268 reached the adjudication recognition by persons involved with srage and fewer than haJf of chose cases human violence and the results of the resulted in guilry verdicts. 16 The average studies discussed, and many ochers rhar fine paid was $132, and the average jail have not been discussed, show that animaJ time was 4.5 months. 17 A study by the abuse is an issue rhar not only needs to be Humane Sociery of rhe United Stares addressed, ir needs to be ta.ken seriously.

(HSUS) found that 31 % of acts of In Pittsburgh, Pennsylvania, several intentional cruelty to animals were extreme cases of animal abuse have committed by persons under the age of occurred within the past year. On February 18 and 4% were committed by children 27, 2001, a rwo-year old femaJe terrier mix under the age of 12. 18 received second degree bums over 75% of Why are these figures important? The her back; veterinarians believe the burns same MSPCA report found rhar "people were caused by acid or boiling warer. 24 On who abuse animaJs were five times more April 24, 2001, a male car was shot 21 likely to commit violent crimes against times at close range with a pellet gun; rhe people, four times more likely to commit (continued on page J 6)

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car lost his eyesight in one eye and still has 11 pellets lodged in his bones and back legs. 25 In May 200 I, a one-year old female German Shepard and a I 0-year old male Dalmatian were fed sandwiches dipped in antifreeze while playing in their yards; both animals were unable to survive the damage done by the poison. 26 On September 17, 200 I, a male kitten had his entire body singed or burnt, including his ears, nose, and eyes, when he was thrown into a bonfire; the pads of his paws were also severely burned.27 In October 200 l, a three-year old male Labrador Retriever's rotten body was found short-chained in a family's basement after the family had allowed the dog to starve to death.

Investigators believe the entire family (rwo adults and a teenage child) regularly walked past the dying dog which was chained next to their washer and dryer, a lawn mower with fresh grass clippings, and a computer that was on when the body was discovered. 28 In October 200 l, three cars were poisoned in an East-End neighborhood; none of these cars were able to survive the damage caused by the poisons. 29 A 16-year-old has been convicted for the car shooting. This same youth, who admitted he enjoys hunting and shooting cats and other animals for fun, was also arrested for shooting into the windshield of a stranger's moving vehicle. 30 Pittsburgh Police Officer Catherine Luffeywas quoted as saying "[r]he (problem with) people who start out with animals is that they escalate ... when it's no longer interesting for them to watch an animal die or an animal suffer, then they start with people and that's what we're seeing." 31 A 17-year-old has confessed to the dog poisonings. A 19year-old has been arrested for the kitten burning. Under Pennsylvania law, if convicted, those who perpetrated these crimes may at most "be sentenced to pay a fine of nor less than $1,000 or to imprisonment for not more than rwo years, or both," 32 and at rhe least "pay a fine of not less than $50 nor more than $750 or to imprisonment for nor more than 90 days, or both." 33 This certainly is not much of a deterrent or a penalty. Remember, l 6

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these examples are just those that received media attention in Pittsburgh - how many more occurred that did not receive media attention? A simple computer Internet search will show that many, many more of these types of attacks against animals occurred in the United States during this same rime period. Are the persons committing these crimes just walking time bombs? Will they cross from animals to humans, and when they do, what will be the results? Perhaps one of these persons will be the next serial killer or the next school shooter. Realizing these are valid questions, individual states are beginning to address this issue and change their laws to provide for psychiatric counseling and evaluations for perpetrators of animal cruelty.

'Without the ability to speak for themselves, animals a-re unable to stand up and speak out against the wront1 they

suffer.,,

Criminal laws are designed to prohibit, deter, and punish wrongs committed against society. Laws that are either a piecemeal of loopholes and exemptions or are inadequately funded do nor accomplish these goals. Education and, most importantly, legislation are the solution keys to many of these problems.

Through programs intended to raise the awareness of legislators, judges, attorneys, teachers, law enforcement officers, community violence social workers, humane officers, psychiatrists, psychologists, and society as a whole, we will be able to work collectively towards correcting the injustices that exist in our legal system and bring about needed changes to provide protection for the animals, and ultimately protection for humans. Without the ability to speak for themselves, animals are unable to stand up and speak our against the wrongs they suffer. We, as humans, have the ability, intelligence, and responsibility to be their voice. •

Pamela L. Roudebush (2E) is the co-founder and President ofthe newlyfounded Duquesne University Law School Animal Law Society.

The Animal Law Society is planning a fit!lday conference on the link between animal cruelty and violence to humans. Jfyou would like to be notified ofany such programs or be added to a mailing list being compiled by the Society, please feel .free to either e-mail pghpam@earthlink.net or leave a message at (412) 388-1784.

ENDNOTES

7U.S.C.§2132(1999).

Alternatives Research & Development Foundation v. Glickman, I 0 I F.Supp.2d 7 (D.D.C. 2000).

3 Pub. L. No. I 06-387, 114 Stat. 1549 (2000).

4 7 U.S.C. § 2143 (1999) (emphasis added).

5 In Defense of Animals, Animal Welfare Act, at http://www.idausa.org/facts/awafacts .html (accessed Aug. 15, 200 I).

6 18 Pa. Cons. Stat. Ann. § 5511 (West 2001).

7 Iowa Code Ann. § 717.2 (West 1993 & Supp. 1998).

8 Mont. Code Ann.§ 5-8-211 (1997).

9 Iowa Code Ann.§ 717B. I (West 1993 & Supp. 1998).

10 Humane Society of the United States, Farm Animals & Sustainable Agriroltttre, at http://www.hsus.org/programs/ farm/factory/realprice.html (accessed Oct. 15, 200 I) [hereinafter Farm Animalr].

11 Farm Sanctuary, Inc., Introduction to the Downed Animal Protection Act, at http:// W\VW.nodowners.org/intro_dapa.htm (accessed Oct. 15, 2001).

12 Fam1 Animalr, supra.

13 Gail A. Eisnitz, Slaughterhouse, 272 (Prometheus Books, 1997).

14/d.

15 Alabama, Arizona, California, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, New Hampshire, New Mexico, New York, North Carolina, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, Washington, and Wisconsin.

(Note: To determine which states had felony provisions in their anti-cruelty states I performed state specific searches for all 50 states using the keywords "animal cruelty", "animal abuse", and I

2

"c rue lty to animals" at www.lawschool. wesrl aw.com. I then reviewed each srare's statures and djd additional searc hes as needed under "felon y classificarions" and "felony definitions".

This information was obtained on-line on Ocr. 14, 2001.)

16 Massachusem Society for rhe Prevent ion of C ruelt y to Animals, Cruelty to Animals and Other Crimes, Dec. 1997.

17

Id.

18

Humane Society of the United Stares, The

Humane Society of the United States First Strike Campaign 2000 Report ofAnimal Cntelty Cases, April 13, 2001 [hereinafrer First Strike Campaign Report].

19

Massachusem Sociery for the Prevention of C ruelry to Animals, supra.

° First Sti·ike

2

Campaign Report, supra.

(emphasis added).

21 Rand a ll Lockwood, Ph . D. and Ann C hurch, Deadly Serious: An FBI Perspective on Animal Cruelty, (Humane Sociery of rhe Un ired Scares, Wash. D .C.), 1996.

22 Id. (emphasis added).

23 Nancy Turner, Animal Abuse and the Link to Domestic Violence, The Police Chief: The Profess ion al Voice of Law Enforcement, June 2000, ar 28.

24 Pimburgh Pose Gazene, Rescue League Searching far Abuser who Burned Dog, ar hrrp:// www. pos r-g a ze r re. co ml regions rare/ 200 I 0227 burneddog8.asp (accessed on Ocr. 16, 2001).

25 Pimburgh Pose Gazerre, Cat Peppered with 21 Pellets Undergoes Surgery, ar hrrp://www.posrgazerre.com/regionsrare/200 l 0424car4.asp (accessed on Ocr. 16, 2001).

26 Pimburgh Pose Gazerre, Two Dog Deaths tied to Anrifi'eeu Poisoning, ar hnp://www.posrgazene.com/neigh_ciry/200 I 0502dogs6.as p (accessed on Ocr. 16, 200 I).

27 Natalie N. Allund, McKeesport Couple Charged with Starving their Dog, The Daily News, Ocr. 3, 200 I and Ocr. 7, 200 I. 28 Pirrsburgh Post Gazene, Glassport Cat Awmd Increases ar hrrp://www.posr-gazene.com/ neigh_easr/20011011eburbsl01 Jp9. as p (accessed on Ocr. 16, 200 I).

29

Poisoning ofEast-End Cats Alerts Neighbors

(WTAE-TV C hannel 4 television broadcast, Oct. 2001).

10 · WTAE-TV Channel 4 Website - The Pirrsburgh Channel. Cat Shooting Suspect Arrested Again arhnp://www. rhepinsburghchannel.com/ pir/news/scories/819400200 I 0613- 190645.hcml (accessed on Ocr. l , 200 \.

Jl .1

2

id.

18 Pa. Cons. Scar. Ann . § 551 J (Wes r

2000). .ll

id.

E-Mail and Internet Monitoring in the Workplace: Has the Tide Turned on Employer Impunity?

•

Melissa A. Walls hould your employer be permitted to monitor your e-mail and Internet use with impunity? The answer seems to be yes. However, it has also proved to be fraught with uncertainty, and judges, employers and employees have all struggled to find the right answer. The reaJ question at the heart of this controversy seems to be " What is the proper balance between privacy interests of employees and legitimate interests of employers?"

Like most inventions, the proliferacion of computer use, and more specifically email and Internet access in the workplace, have brought new controversies that require a balancing of interests.

Unfortunately, legal protections and limitations have not paralJeled the rapid growth and access to e-mail and the Internet in the workplace. For example, ro dare, no specific adequate legislation addresses an employee's privacy right in his e-mail, and the concomitant monitoring of employee e-mail and Internet use by employers. Therefore, employers and employees must rely on exiscing federal and stare constitutional and statutory provisions char might apply to e-mail monitoring, as well as existing tort law. 1 In recent years, courts were forced ro confront this issue and determine what privacy, if any, an employee has in her email. In general, "a company's interest in preventing inappropriate and unprofessional comments or even illegal activity over its e-mail system outweighs any privacy interest the employee may have in those commenrs." 2 Despite the Smyth decision, the debate over e-mail and Internee privacy in the

S

workplace rages on. In 1999, the United States Congress considered passing the Notice of Electronic Monitoring Act ("NEMA") , which would have required employers to give clear and conspicuous notice before monitoring. The bill would not srop employers from monitoring their employees' communications. However, the bill would require a notice to describe the form of computer use being monitored, the method of monitoring, the informacion obtained by the monitoring and how the information is to be stored, used and disclosed . However, the bill sraJled in committee and has not been re-introduced.

At the federal judicial level, the latest twist in this on-going debate stems from an action taken by federal appeals court Judge Alex Kozinski in May of 2001. In an effort spearheaded by Judge Kozinski, he and other judges ordered the shutdown of software tracking the online activities of aJJ employees in his Ninth Circuit Court of Appeals. Judge Kozinski's opposition to this contentious issue led to what may be the first step toward eliminating an employer's ability to monitor e-mail and Internet use with impunity. The administrative office of the court proposed a policy, which explicitly stared rhar the 30,000 court employees, including judges, had no expectation of privacy "at any time," while online at work. 3 This proposal was eventuaJly withdrawn before a scheduled vote by the Judicial Conference on the United States, the policymaking body for the courts.4 On September 19, 2001 , the 27-j udge panel , led by Chief Justice William Rehnquist, approved a revised (continued on page 18)

"What is the proper balance between privacy interests of employees and legitimate interests ofemployers?"

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''Ifyou do not think your employer is monitoringyour e-mail or Internet use, think again." version of the proposal, which does not permit e-mail monitoring and onJy permits limited tracking of web surfing. 5 The consensus is that the judges' action has heralded a new era that could effectively set the standard for both public and private employers. One of the judges involved in the decision acknowledged that the policy may be seen as a precedent. "I think anything the court system does overalJ may have an impact on the operation of private businesses," said Chief U.S. District Judge Charles H. Haden II, who sits in the Southern District of West Virginia in Charleston. 6 "Certainly it was a factor in the decision making process," he said. 7 "We as judges are particularly concerned about privacy and any content monitoring." 8 State lawmakers are aJso struggling with this volatile issue. In California, Governor Gray Davis, D-Calif., vetoed a bill on October 9, 2001 from the state legislature that would have prevented employers, in many situations, from reading and monitoring their employees' e-mail. 9 The Governor's rationale for vetoing the bill was not because he disregards employee privacy, but because he is not interested in putting a reguJatory burden on businesses. 10

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If you do not think your employer is monitoring your e-mail or Internet use, think again. The Society for Human Resource Management ("SHRM"), along with West Group, recently conducted a study of human resources professionals at 722 companies. The study found 74 percent saying they monitor employees' Internet use at work; 72 percent said they check on employees' e-maiJ; and 51 percent said they review telephone calls. 11 This practice will surely continue to increase in the future. Therefore, the time has come for the courts and legislators to answer the fundamental question, "What is the proper balance between privacy interests of employees and legitimate interests of employers?"

The remainder of this article will briefly delve into the existing federal and state constitutionaJ and statutory provisions, and existing tort law that might apply to e-mail monitoring.

Federal Constitutional Provisions The Fourth Amendment of the United States Constitution protects citizens of the United States from federal and state governmental invasions of privacy.

Specifically, the Fourth Amendment provides for "the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures." However, it is well settled that the Fourth Amendmenr does not extend to the private workplace.

The landmark U.S. Supreme Court case of O'Connor v. Ortega, 480 U.S. 709 (1987), set the course for privacy rights of public employees and work-related searches and seizures. In Ortega, the Supreme Court stated that it "must balance the invasion of the employees' legitimate expectations of privacy against the government's need for supervision, control, and the efficient operation of the workplace." 12 While the Court found that an employee who works for a government employer has a reasonable expectation of privacy, it qualified that expectation,

opmmg: The operational realities of the workplace . .. may make some employees' expectations of privacy unreasonable when an intrusion is by a supervisor rather than a law enforcement official. Public employees'

expectation ofprivacy in their offices, desks, and file cabinets, like similar expectatiom in the private sector, may be reduced by virtue of actual office practices andprocedures, or by legitimate regu.Lation. 13 Ortega seems to indicate that there is little protection for employees' privacy rights in either the public or private sectors. 14 Therefore, e-mail communications wouJd be subject to the same restricted privacy expectation, and it is unlikely that e-mail wouJd be protected under the Fourth Amendment.

Federal Statutory Provisions The Electronic Communications Privacy Act of 1986 ("ECP Act") protects the privacy of electronic communications. 15 The ECP Act expanded the scope of the so-called "Wiretapping Statute" to include the interception of electronic communications and stored electronic communication among computers or between a computer and a system user. 16 Therefore, e-mail is presumably included within the definition of electronic communications.

A key word in the ECP Act, and one that is important to understand for purposes of e-mail privacy, is "interception." The ECP Act defines "intercept" as "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." 17 However, courts have concluded "there can be no interception ... if the acquisition of the contents of electronic communications is not contemporaneous with their rransmissions." 18 In Senate discussions surrounding the enactment of the ECP Act, e-mail was described as technology

chat enables two parties co communicate through the transmission of digital messages over public or private telephone lines. The e-mail message is then held in a computer "mail box" until it is retrieved by the recipient. 19 On the ocher hand, the ECP Act does not prohibit the monitoring ofoored e-mail messages; they are not considered co be "electronic communications" under the acc. Electronic communication is defined as "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio , electromagnetic, phoroelecrronic or phocoopricaJ system," bur it "does nor include ... any wire or oral communicarion." 20 Moreover, "e lectronic storage" is defined as "any temporary, intermediate storage of a wire or electronic communication incidental co rhe electronic transmission thereof" and "any storage of such communication by an electronic communication for purposes of backup protec tion of such comm un icarion ."21 Unlike rhe definition of wire communication , rhe definition of electronic communication does nor speciftcal ly include scored information.

Wire communication is defined as "any aural transfer made in whole or in part through rhe use of facilities for the transmission of communications by rhe aid of wire, cable, or other like connection . ..

this rule created by the ECP Acr. Interception will be permitted when: l) private employers provide employees with e-mail service through a company-owned system; 2) there is implied or actual prior consent; and 3) interception is done in the ordinary course of business.

Commentators predict rhar most private employers will be exempt from rhe ECP Act under the first exception if they provide employees with e-mail service through a company-owned sysrem. 24 Ir is uncertain whether this exception could be used to shield private employers who simply provide e-mail service co their employees through a third-parry Internet service provider. 25

'~ .. there

is no reasotzable expectation ofprivacy in e-mail messages, and there is no violation ofan individual's state or federal constitutiotzal rights."

The second exception generally applies when one parry to rhe communication has given prior consent, either actual or implied. For example, a published e-mail monitoring policy provided to all employees may allow and such term includes electronic storage of employers to escape the ECP Act such communication .. ."22 This distinction prohibitions .26 Moreover, courts have lead rhe Fifth Circuit co opine in Steve found implied consent when an employee Jackson Games, Inc. v. United States Secret knew, or should have known, of an Service, 36 F.3d 457 (5d' Cir. 1994), that employer monitoring policy.27 "Congress' use of rhe word 'transfer' in rhe The third exception enables employers definition of 'electronic communication,' ro monitor e-mail in the ordinary course and its omission in that definition of the of business if it is for a legitimate business phrase 'any electronic storage of such reason. Legitimate business reasons could communication' (part of the definition of include such things as preventing abuses 'wire communication') reflects rhar of rhe system, computer crime, system Congress did nor intend for 'i ntercept' co failure or unapproved personal use, such apply to 'electronic communications' when as browsing pornography websites. Courts rhose communications are in 'electronic will nor always allow employers co claim srorage."' 23 rhis exception, and employers should While iris unlawful co intercept e-mail inform employees that routine monitoring messages contemporaneously with their would occur in order to further a company transmission, rhere are three exceptions co objecrive. 28

State Statutory Provisions Numerous scares have promulgated statures analogous to rhe ECP Act ro prorecr employee privacy of scored wire and electronic communications. For example, Pennsylvania's Wiretapping and Electronic Surveillance Control Act ("WESC Acr") definition of "intercept" is similar to rhe ECP Acr's definition . The WESC Act defines intercept as "[a] ural or other acquisition of rhe contents of any wire, electronic or oral communication through rhe use of any electronic, mechanical or other device ." 29 Ir is therefore unlawful for a person to intentionally intercept, disclose or use any wire, electronic or oral communicarion. 30 The Pennsylvania Superior Court applied the same interpretation for the term "interception" as has been established under the ECP Act. Consequently, it is unlawful to intercept e-mail messages contemporaneously with their rransmission.31 The court also found that e-mail messages fall within rhe mutual consent provision of the WESC Act. This section provides: § 5704 - Exceptions to prohibition of interception and disclosure of communicanons.

It shall nor be unlawful and no prior court approval shall be required under this chapter for: *** (4) A person, to intercept a wire, electronic or oral communication, where all parries to the communication have given prior consent to such interceprion.32 The court reasoned that sending an e-mail message is analogous to leaving a message on an answering machine.

The sender knows rhar by rhe nature of sending rhe communication a record of the communication, (continued on page 20)

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'~ .. in

light ofthis evolving area oflaw, employers should adopt policies or guidelines regarding thei.r monitoring practices... " including the substance of the communication, is made and can be downloaded, printed, saved, or, in some cases, if not deleted by the receiver, will remain on the receiver's system. Accordingly, by the act of forwarding an e-mail or communication via the Internet, the sender expressly consents by conduct to the recording of the message. 33 Therefore, there is no reasonable expectation of privacy in e-mail messages, and there is no violation of an individual's state or federal constitutional rights. 34 Tort Law Provisions Employees have generally asserted claims of invasion of privacy against their employers for alleged unauthorized access to their e-mail messages. Smyth v. Pillsbury Company, 914 F.Supp. 97 (E.D. Pa. 1996), is the leading decision governing e-mail privacy in private sector employment. The U.S. District Court for the Eastern District of Pennsylvania determined that under Pennsylvania law, a "company's interest in preventing inappropriate and unprofessional comments or even illegal activity over its e-mail system outweighs any privacy interest the employee may have in those comments." 35 The decision of the court is notable since the plaintiff's complaint was dismissed despite allegations that the defendant employer had given assurances that e-mails would not be intercepted. The Smyth court also found that a reasonable person would not consider the defendant employer's interception of e-mail messages to be a substantial and highly offensive invasion of privacy. 36 E-mail monitoring in the workplace continues to increase, and at the present time employers can lawfully monitor 20 •

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employee e-mail messages and are not required to notify employees of this practice. However, in light of this evolving area oflaw, employers should adopt poLlcies or guidelines regarding their monitoring practices, clearly communicate this information to all employees, and consistently enforce the policies.

Employers would be wise to heed the following advice: The e-mail policy should be a clear, specific written policy. The benefits of a written policy are manifold. First, it sets the boundaries for employee use of e-mail and the Internet. Second, and most important, it puts an employee on notice that the employer will monitor the use of its computer equipment and electronic services.

This destroys any reasonable expectation of privacy an employee may have regarding e-mail or Internet usage. A copy of the policy should be distributed to each employee, and it is probably wise to require that employees sign consent forms acknowledging that they have received and agree to the terms of the policy.

Although a signed consent form may not provide additional protection if not uniformly enforced, it still demonstrates employee awareness and may help to defeat a right to privacy claim.

37

•

Melissa A. Walls is afourth-year evening student and Executive Editor of]uris.

ENDNOTES

1 Hall Adams, III et al., E-mail in the Workplace: The Good, the Bad and the Ugly,

DEFENSE COUNSEL JOURNAL, Jan. 2000, ar 35 (ciring Michael Higgins, High Tech, Low Privacy, A.B.A.J.,May 1999,page57).

2 Smyth v. Pillsbury Company, 914 F.Supp.

97, 101 (E.D. Pa. 1996).

3 Philip L. Gordon, Esq., Federal Judge's

Victory just the First Shot in the Battle over Workplace Monitoring, Sepe. 20, 200 I, available athttp://www.privacyfoundarion.org/workplace/ law/law_show.asp?id= 75 &action=O.

4Id 5 Id

6 Andy Sullivan, judges Set Precedent for Workplace Privacy, Sepr. 19, 200 I, available at

hnp://dailynews. yahoo.com/.

7 8

Id Id

9

Roberr MacMillan, California Gov Vetoes E-Mail Privacy Measure, Ocr. 9, 200 I, available at hrrp://www.newsbyres.com/news/O I I 170966.hrml. io

Id

11

Larry Keller, Carefitl-shouldyou read this?

Monitoring empklyees: Eyes in the workplace, Jan. 2, 200 I, available at http://ww.cnn.com/200 I/ CAREER/rrends/O I /02/surveil lence/.

12 O'Connor v. Ortega, 480 U.S. 709, 71920 (1987).

13 Id ar 717 (emphasis added).

14 Adams er al., supra nore I, ar 37.

15 18 U.S.CS. § 2510 er seq. (1994). The ECP Act was enacred in response ro a 1985 Office of Technology Assessment report char emphatically expressed rhe rhrear unregulated invasions into electronic communications had on personal privacy. See Sarah Diluzio, Workplace E-mail: It's Not As Private As You Might Think, 25 DEL.J.CORP.L 741, n.24, (2000).

16 The Omnibus Crime Comrol and Safe Sueets Acr of 1968, amended by rhe ECP Acr, was the so-called Wiretap Srarure.

17 Id. ar § 2510(4).

18 Weslry College v. Pitts, 974 F.Supp. 375, 385 (D.Del. 1997).

19 See S.REP. No. 99-54 i, 99'h Cong., 2d Sess. (1986), reprimed in U.S.CCA.N. 3555, 3562.

20 18 U.S.CS. § 2510(12) (Lawyers 1993).

21 Id at§ 2510(17).

22 18 U.S.CS. § 2510(1) (Lawyers 1993) (emphasis added).

23 Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 457, 461-62 (5"' Cir. 1994).

Quoted in United States v. Smith, 155 F.3d I 051 (9'h Cir. (Cal.) 1998) (emphasis added), cert.

Denied525 U.S. 1071 (1999).

24 See Diluzio, supra note 6 ar 746, n.33.

25 Id at 746, n.34.

26 Id ar 748, n.46.

27 Id ar 748, n.48.

28 Id ar 747-48, n.42.

29

18 Pa.CS.A. § 5702.

18 Pa.CS.A. § 5703 (I) - (3).

31 Commonwealth v. Proetto, 771 A.2d 823, 829 (Pa. Super. 200 I).

32 18 Pa.CS.A. § 5704 (4).

33 Proetto, 771 A2d ar 830.

34 Id ar 832.

35 Smyth v. Pillsbury Company, 914 F.Supp.

97, 101 (E.D. Pa. 1996).

30

36

Id

37

Adams et al., supra note I, ar 44.

Pennsylvanialegalresearch.com: A One Step Guide to Pennsylvania Legal Research

e

~»il l

Kasif Chowdhry n rhe pasr 20 years there has been perhaps no bigger innovation than the Inrernet. Its revolutionary impact has been felt in aJI aspects of our everyday life as businesses have exchanged traditional physical locations for web addresses and students have replaced the Dewey Decimal Sysrem with web browsers. The legal profession is no exception from the effecrs of these sweeping changes. Today's attorneys can meet their research needs nor only through traditional manual sources and databases such as Lexis and Wesdaw, bur also through various Interner locarions.

Information can be found on an abundance of legal topics including statutory law, case law, rules and regularions, secondary sources, and much more. Many of these sires are maintained by government affiliares, while privare individuals or organizarions maintain others. Th.is wealth of information can prove valuable to legal professionals, particularly those associared with small firms that cannor afford to mainrain rhe same resources that are found in large regional or national firms. Yer, this abundance of information does have its drawbacks. The biggest of which may be that the information is too abundanr .

Almosr anyone who has attempted a search on the Internee has come across significant amounts of useless information. As a result, a mechanism that was designed to expedire the research process can often turn into a frustrating and rime-consuming ordeal.

In an effort to maximize rhe research capabilities of legal practirioners conducting research in rhe Commonwealth of Pennsylvania, Dittakavi Rao, the Associare Director of the Duquesne Universiry Law Library, has created the Pennsylvania Legal Research web sire, which can be found ar www.pennsylvanialegalresearch.com.

According to Mr. Rao the purpose of rhis site is to "provide a comprehensive compilarion of Pennsylvania legal sources •

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in one location so as to provide for more efficient legal research over the Internet."

The Pennsylvania Legal Research site is a compilation of independent web sites organized in one location to allow for effective and efficient legal research. The physical parameters of the site are essentially divided into four areas. First, users can find background informarion on common research tools such as digesrs, case law reporters and Shepardson the left hand side of rhe screen. These links provide information as to the funcrion rhese legal tools serve and do not provide research capabilities. Second, users can obtain Pennsylvania legal opinions by court (i.e.

Commonwealth Court, Superior Courr, Supreme Court, etc.) on the righr hand side of the screen. These links are rypically to the particular court's web site which ofren offer limired search capabilities.

Third, a series of "quick links" are provided at the top of the page for the convenience of users (i.e. legal dictionary, Pa . Code and Bulletin). Finally, in the middle of the page are links to 95 law-related topics. Clicking on one of these topics will lead the user to various links within the selected topic.

Furrher subdivisions can also be found under their corresponding heading by simply scrolling down rhe screen. Federal legal research sources in this area are highlighted in red text.

The purpose of the Pennsylvania Legal Research site is to allow for more efficient research by compiling various resources in

one locarion. However, rhis sire also offers some unique features that rypically cannot be found elsewhere. One such fearure is the compilarion of "Law Review Articles Relared to Pennsylvania Law." For example, if a user is seeking law review arricles related to the topic of Criminal Law, all he/she needs to do is click on the corresponding icon to obtain a listing of Pennsylvania Law Review articles relared to the topic of Criminal Law. This feature can be parricularly useful for those engaged in scholarly work or merely seeking general background on a parricular topic. This feature provides the title and citation to the parricular article but does nor produce the actual article itself. Additionally, no search mechanism is available.

Another unique feature from rhe Pennsylvania Legal Research sire can be found under the heading "Execurive Orders." Generally, web sires containing links to execurive orders only aHow users to search such orders by year. This can be particularly tedious if one does nor know the year in which the order was issued. In order to alleviate this problem, rhe Pennsylvania Legal Research site has categorized all executive orders in an alphabetical framework. Thus, users need only know the tide of the executive order and nor rhe year that the order was issued.

Similarly, rhis sire has also organized rhe Administrative Code. Most sires char provide links to the Code organize ir by title, which obviously requires the user to know the tide before searching. The Pennsylvania Legal Research sire avoids this problem by allowing users ro search by ricle or by topic.

The Pennsylvania Legal Research site is a comprehensive legal research rool thar provides users with the abiliry to meer their research needs in one location . It is organized and created for the purpose of providing convenience to researchers and has even reorganized certain links so as to provide additional ease to the user. While this site may not provide rhe same functions as fee-based sires such as Lexis and Westlaw, ir does provide a convenienr forum for practical and cost-effective Internet legal research. • JURIS •

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•

2,

Ameliorating the Insurance Crisis vs. Preserving Equal Protection: The Lobbyists' Rush to Limit Medical Malpractice Recovery Claims â&#x20AC;˘ Jennifer Nicely

tate legislation designed co curb the rising cost of medical malpractice insurance premiums has failed miserably. Health care providers are still burdened with the rising cost of medical malpractice premiums, and malpractice claimants are denied equal protection under rhe law.

During the mid- l 980s, health care providers complained to their respective state governments char technological advances in the medical field were encumbered due to expensive medical malpractice insurance premiums. In response, the insurance industry blamed immense court-awarded damages for the skyrocketing premiums; they rallied their lobbyists together; and, they petitioned their respective scare legislatures co act quickly. The lobbyists argued that the premium hikes constituted an insurance crisis that waged war on the availability of heath care. One poignant prong of this crisis, claimed the health care lobbyists, was that the private insurance industry ceased making malpractice insurance available co "high-risk" health care providers. 1 After considerable pressure from the medical field and insurance lobbyists, most, if not all of the stare legislatures enacted statutes limiting the damages recoverable in medical malpractice suits. At the time, it was thought char a damage limitation would stabilize insurance risks and thereby reduce the malpractice insurance rares. The anticipated end result was co stop the substantial financial burden imposed upon health care providers, thereby allowing physicians to continue high-risk medical practices in rhe state and provide quality medical services at a less expensive level than would otherwise be the case. 2

S

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All of these statutes placed an arbitrary ceiling on monetary recovery claims by medical malpractice claimants . For example, a statute places a recovery cap anywhere from $625,000 to $1,000,000 depending upon the jurisdiction . Any monetary damages awarded above the permissible statutory cap are either foregone by rhe claimant or paid-out through catastrophe loss recovery funds contributed entirely by the physicians themselves via payment of high insurance premiums. In effect, the medical malpractice claimants cannot recover fully for their damages and physicians, as a whole, are faced with paying even higher premiums.

State legislatures not only failed co eradicate the insurance crisis, bur they actually aggravated the situation. The end result of rhe legislative efforrs is high premiums for physicians and governmental encroachment upon the private rights of malpractice claimants. By enacting the malpractice insurance statutes, the respective state legislatures unconstitutionally distinguished between medical malpractice plaintiffs and other corr victims, and also between less seriously and more seriously injured patients, the former being able to receive full compensation for their damage within the statutory limitation, while the latter are noc. 3 Some states rook a severe approach limiting total medical malpractice recovery co a certain statutory dollar figure, while ochers limited only punitive aspects of the damage award. As a result of the differing statures, state courrs disagree on what standard to apply co the constitutional implications of equal protection. Some

courrs apply an easily obtainable rational basis test, which upholds a statute as long as the classification bears a rational relationship to a legitimate governmental objective, i.e. to reduce medical malpractice insurance premiums.4 Other courrs find this standard too relaxed and apply a balancing test, justifying the statute as a reasonable measure only if the restriction of private rights sought to be imposed is not so serious that it outweighs the benefits sought to be conferred upon the general public. 5 A third judicial view is that the damage limitation is pan of a complex plan. These courts see a plan to reduce the dramatic rise in medical malpractice insurance premiums having an adverse effect on the quality of medical services of people of the state. Thus, they reason that the reduction was a rational response to the legitimate legislative purpose of maintaining the integrity of the health care for citizens of the state. 6 Regardless of the standard applied, the courts are all wary of the statutes' implications upon equal protection. The majority of courts find a violation of equal protection because the statutes impermissibl y discriminare between medical malpractice victims and other tort victims, and discriminate within the class of medical malpractice victims, denying a complete recovery of damages only to those with non-economic damages exceeding the statutory limit. 7 In order for a court to apply any of these standards, the court must look at the perceived evil, the statute enacted to ameliorate it, and whether rhe statute is achieving its original objective.8 The first major issue is whether chis perceived insurance crisis actually exists. A study conducted by the United Srates General

Accounting Office suggests that the interpretations of the law do not exist. A connection between damages caps and the legitimate stare interest should supercede total cost of health care is remote.9 The and control under an equal protection study went on to state that despite statutory argument; however, the statures in question reform, including damages caps, in place must effectively serve the state interest. If for nearly 10 years in some states, total the statures fail to alleviate the problem they medical malpractice costs for physicians were enacted to solve, they should be struck and hospitals rose by more than either the down.

Stare legislators need to go back to the consumer price index or the medical care index in that period. Furthermore, the cost drawing board and rethink the medical of malpractice insurance is the product of malpractice insurance premium issue once a number of elements, the size and again. Now rhar legislators have the frequency of claims resulting from damages advantage of hindsight and rhe reports awards or settlements being only two of from the General Accounting Office, they those elements, and insurance coses made should draw effective policy that will up only a small percentage of total address the true problems of the health care professional expenses for self-employed industry and present a fair solution that will nor cake recovery rights away from physicians. 10 Based upon the General Accounting entitled claiman ts nor cause healthcare Office's determinations and a number of providers to bear a large fin ancia l other studies, courts began concluding that burden. • the correlation between the damages cap Jennifer R. Nicely is a third-year day and the reduction of health care costs to scare residents is, at best, indirect and student. remore. 11 By contrast, the courts point out rhac the burden imposed on rhe rights of individuals to receive compensation for serious injuries is direct and concrete, falling most heavily on rhose who were the most severely maltreated and thus most deserving of relief. 12 Furthermore, the srarures operate to the advantage of those health care providers who were the most irresponsible. Thus, in balancing the direct and palpable burden placed upon carascrophically injured victims of medical malpractice against the indirec t and speculative benefit rhar may be conferred on society, the damages cap represents an unreasonable exercise of police power. 13 There is a weak relationship between rhe legislative goal and the means chosen to attain it because paid-our damage awards constitute only a small part of total insurance premium costs , and few individuals suffer non-economic damages in excess of rhe statutory cap. 14 Anytime public policy is drafted, one interest (either that of rhe private or public sector) must prevail over the other. Courts are split as to where chis delicate balance should be struck. When a law is challenged for suppressing an individual right, clear legal

ENDNOTES

1 Johnson v. St. Vincent Hospital inc. 404 N.E.2d 585 (Ind. 1980).

2 61 Am. Jur. 2d Physicians, Surgeons, and Othn· Healers§ 373 (l 98 1).

16B Am. Jur. 2d Constitutional Law§ 885 (1998).

4 Logan v. Zimmerman Brush Company, 455 U.S. 442 (l 982). ; Carson v. Maurer, 424 A.2d 825 (N. H. 1980).

6 Hoffman v. United States, 767 F.2d 1431, 1985 U.S. App. Lexis 21 712 (9'" Cir. Cal. 1985); Knowles v. United States, 829 F.Supp 11 47, alf'd in part 29 F.3d 1261 ( D.C. Cir. 1993).

7 Fein v. Permanente Medical Group, 695 P.2d 665 (Cal. 1985), appeal dismissed 474 U.S. 892 (1985).

8 Knowles, supra; Hoffman, supra.

9 Moore v. Mobile infirmary Association, 592 So.2d 156 (Ala. 1991).

10 See Moore mpra.

II fd 12 Id. I] fd 14 Carron, supra.

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23

--·-. ---Ireland

Is an Orderly Transfer of Responsibility Legal New-s for Ireland?

• Jennifer Czernecki, Lori Edwards and Kirk W. Junker " (A] n orderly rransfer of responsibiliry back to Britain, which has exclusivel y governed Northern Ireland for most of the past three violem decades" is a phrase that ended a recent world news brief in a Pimburgh newspaper. 1 To the uninitiated, rhis may look like the same old Irel and; in fact , it may nor even look like news .

C erra.i nly, it is nor quick change. (See rhe companion essay "From Belfast ro Dublin on I-79?") Bur if we unpack this simple statement, we find that rhere is much that is new here, and much that is of imeresr to those who might want to approach things Irish from a legal perspective. Indeed, approaching Ireland from a legal perspective may be precisely what is new.

While our research has found much di scussion of the social , political and historical aspects of Irish culture, there is nor much rhar would both qualify as legal scholarship and is up-to-date in a siruation that experiences significant changes daily.2 To place the current legal perspective in context, we begin with a brief review that is in part historical and in pan polirical.

This review sers up the discussion of rhe most fundamental legal change in Ireland-by way of amendment to Articles 2 and 3 of the Irish C onstitution, rhe Republi c of Ireland has removed its rerrirorial claim ro jurisdiction over Nonhern Ireland. For the people of the Republic, of Nonhern Ireland, and especially of the belJigerem factions within 24

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Northern Ireland, ir is an historic change rhar of course does nor single-handedJy solve "The Troubles," bur does help to ease long-sranding tensions among rhese many and varied imerests.

Before proceeding, it is worth making a point abour rhe various labels that are used to refer to the interesrs involved. Ir requires study and patience to understand rhe differences berween "Protestants" and " Unionists," berween "Catholics" and "Republicans," and between "Loyalists" and "Unionists," just ro name a few. The use of familiar dichotomies such as "Protesram versus C atholic" and "Loyalisr versus Republican" can be as naively

..MY Ul&ter

blood is 11\Y most lll'iceless

heritage:.

reductionist as putting white hats on some and black hats on others. In addition, such labels, including "North" and "South," can be factuaJJy incorrecr. For example, the norrhern rip of Counry Donegal, parr of the Republic of Ireland, exrends furrher north rhan any other poim on rhe entire island, including the province of Northern Ireland. For rhe purposes of our legal perspective, we shall only make the poim that the labels "Catholic" and "Protestant," as used by the news media and in common parlance regarding Ireland, need ro be understood as class distinctions and labels of narional loyalries, rather rhan as distinctions between Christian doctrines alone. Sometimes though, they do refer ro religious doctrine-hence rhe need for study and parience. 3

Constitutional-Historical Review: " .. . The study of Irish history does nor excite political animosiry bur leads rn rhe very oppos ite result.

Thoroughly to appreciate the history of this or any country it is necessary to sympathise with all parries . ... " -A.G. Richey, from A Short History ofthe Irish People, 1869 There is an Irish proverb, "Ni neart go cur le cheile, " which in translation means

~st Belfast Partisan

Mural

approximately "There is no strength withour uniry." While the Irish language

may carry che sentiment of chis proverb, it has nor been until very recently that the votes of divided Irish people have carried legal action consistent with the sentiment.

Recent amendmenrs to the Irish Constitution-producrs of che 1998 Good Friday Agreement--exhibit a new unity and cooperation among the people of the various factions in Northern Ireland, che United Kingdom and the Republic of lreland. One might say chat the tension among the various factions in the Norch, and the very separation of sovereignty berween che Irish Republic and Norchern Ireland is a result of English colonization extending at least as far back as che l 2ch century. 4 Prior to English colonization, chere had certainly been recorded bodies of law in Ireland, notably the great collection known as che Serchas Mdr from approximately the first quarter of the 8ch century, and also the less notable Crith Gablach ("che Branched Purchase," a name for which che origin is unknown), which may be as old as the 6th century. 5 Law formed a very important factor boch in public and private life in ancient Ireland . Because a judge was called a "brehon," in Irish, che native Irish law is commonly known as che "Brehon Law." 6 Irs proper designation is Fenechas, however; that is, che law of the Hine or Fine, or free land-tillers. 7 The native legal system existed in its fullness before the ninth century. Ir was somewhat disturbed by che Danish and Anglo-Norman invasions and still more by the English settlement. One may regard the strongest act of English colonization to have been char oflanguage, such that we treat Irish legal history as knowable only chrough English recounts.

Although Richard FitzGilberr, Earl of Pembroke (known popularly as "Strongbow") led che Normans to Ireland in 11 7 0, it took some rime before the common law was wholJy received. Brehon Laws continued to be in use our.side the Pale around Dublin even after che visit of King John in 1210, when he ordered chat English law was to be observed.

Nevertheless, by the 16th century, England had a prominenr grasp on lreland.8 Nor only did England establish

irself in Ireland ch rough military force, but religion too played an integral part as the presence of Protestantism increased. 9 Brehon Law was finally abolished in the beginning of the seventeenth century. In 1719, wich the passing of che Dependency Act, the English Parliament became supreme. 10 By 1800, England fully extended its reach when the Act of che Union was passed, joining Ireland and England as one to be governed by Westminster. 11

with the so-called Easter Rising by Irish Republicans. 15 This uprising of Irish nationalists, proclaiming the formation of an Irish Republic, failed. 16 The Easter Rising helped to create a following for the newly formed Sinn Fein , the parry that advocated Irish independence. This following manifested itself in the 1918 general election in which Sinn Fein won a majority of che seats over che Unionisrs. 17 The following year, Sinn Fein declared the formation of irs own Ddil .Eireann

1

First Parliament ofIreland Building, College Green, Dublin. That Parliament was disbanded by the Act ofUnion, 1801.

Ireland's call to be more independent was evidenced by the many resistance movements over the next century. The most notable was the " Home Rule" movement of che 1870s, which "pushed for the establishment of a separate Irish Parliament to govern domestic a.ffairs." 12 Home Rule became a prime issue of debate as Protestants, who were strongly opposed to Home Rule, resisted che largely Cacholic movement. 13 It was 1877 before a full hierarchy of courts was put in place under English jurisdiction. Although che push for Home Rule was in part interrupted due to the start of World War I, the push for a more independent Ireland in ocher ways continued. 14 Ireland's next big push for independence from Britain began in 1916,

or Irish Parliament, seated in Dublin, 18 and drew up a document , known as the Constitution of Dail Eireann . Among other things, that Constitution promulgated a " Declaration of Independence" and a "Democratic Programme, " which reaffirmed the sentiments expressed in the Proclamation of the Irish Republic of che Easter 1916 Rising. This Constitution has had no subsequent constitutional or legal significance. 19 Soon thereafter, Michael Collins led the Irish Republican Army (IRA) in armed action against Britain in an attempt to establish independence. 20 The war ended with the North geographically partitioned from the Souch. 21 In December 1921 , a Free State

(continued on page 26) JURIS.

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â&#x20AC;˘ 25

General Post Office (GPO), O'Connell Street, Dublin. Site ofthe Easter 1916 proclanuiti.on ofindependence - "Easter Rising"

From Belfast to Dublin on 1-79?

• Kirk W. Junker

Leaving Belfast, as you turn onto the M-1 highway that leads to Dublin, the first sign that you come to says "Dublin 102."

If I recall correctly, that is exactly the distance on the first sign that you see leaving Meadville and turning south on 179 - "Pimburgh 102." (In Northern lrdand, things are srill measured in miles, nor ki lometers.) And when you are in Ireland was declared with jurisdiction returning from Meadville to Pinsburgh on over the 26 southern counties and a 1-79, at just about the point when you northern state of six counties, allied with would cross I-80, that great north-south Britain, were established by the signing of divide where the glacier once ended and the Anglo-Irish Treaty. 22 che snow often still does, if you could The Constitution of the Irish Free imagine yourself driving from Belfast to State (Soarstat Eireann) Act, 1922 was Dublin, you would be crossing the border passed by Dail Eireann sitting as a between the Province of Northern Ireland constituent assembly on October 25, 1922. and the Republic of Ireland.

The Constitution of 1922 still included These days, cars are probably held up the requirement that each member of the more often, and fo r longer periods of rime, government ( Oireachtas), consisting of the by road work on I-79 than they are by King, the Senate and the Dail, take an Oath soldiers or police when crossing the Irishof Allegiance to the Constitution and to Irish border. The Newry barracks was just the British Monarch. That Constitution lase year removed from its perch on a hill of 1922 did not meet with political in the Mourne Mountains at rhe border. approval by all parties, and gradually it was The heliport remains. From behind the dismantled. The abdication of King smoked glass of the barracks, a motorist Edward Vlll in 1936 provided an could not tell whether Irish (or British) eyes opportunity to remove the Crown almost were smiling upon him or not. Likewise, completely from constitutional affairs. one ca n not know whether messages Early in 1937, the new Constitution was bounce across the communication towers drafted. Ir is this constitution that remains that line the border's hilltops. Gone, in effect in Ireland today. For present however, are the lines of cars and lengthy purposes, we are most concerned with searches that once clogged this road. And Articles 2 and 3 of the Constitution of permanent barricades at other border 1937. (The full text of these articles is in towns with names like Aughnacloy the insert, see page 28.) Article 2 states have been removed. When troubles that the national territory is to consist of flare up, soldiers do still patrol, and the whole island of Ireland (including at times left unexplained, you still Northern Ireland) and Article 3 contains will see army helicopters circling at the right to make laws for the whole the border. After all, this is not the national territory. It was in 1949 that The fall of the Berlin Wall, where the Ireland Act officially declared the Republic titanic struggle between East and of Ireland in the south. 23 The unrest West seemed to end abruptly in one continued as did bloody conflicts between celebratory crash as the barricade various factions, including Catholics and fell. No, the Irish border is more (continued on page 28) like the glacier at 1-80-a slow thaw.

26 •

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While working in Ireland, I make weekly journeys along the roads between Dublin and Belfast, and in between, I always stop in the city that is the Irish ecclesiastic capital of both the Church of Ireland and the Roman Catholic ChurchArmagh. They say that Saint Patrick had his church where the Church of Ireland's Saint Patrick's Cathedral stands. On a day which represented an unusually quick moment in the political thaw-the inaugural meeting of the new North-South Ministerial Council, whose seat is also located in Armagh-the road north from Dublin was, rather ironically, coated with an unusual frost. But on this day, the helicopters circling in Armagh were not policing The Troubles, but rather the meeting of the new North-South Ministerial Council.

When the heat was a few degrees warmer in April of 1999, on a Saturday morning drive northward from Dublin to Belfast, a visitor joined me. Out of political interest, I promised that we would visit Portadown, the site of many marches of the Orange O rder and their clashes with Cat holic activists. The marches are essentially parades-parades of Orangemen and their pipe-and-drum music. If you like marching bands, these marches can be entertaining. Ifyou cannot understand how a band of 1,500 men in bowler hats, white gloves and orange sashes, playing pipes and drums can be

Orange Parade, April 25, 1999

Brentwood would have had if a youngster had just set off a firecracker at a Fourth of July parade and burned his fingers-as chis for left {twin young man did on the burning flag. These towers) is St. Patrick's Cathedral are the slow degrees by which the glacier is (Roman Catholic); melting.

As the drums, pipes and 1,500 up the hill on the right is St. Patrick's bowler-bedecked Orangemen marched off Cathedral (Churr:h co Drumcree Church down chat same ofIreland).

Garvaghy Road where I had driven the Armagh is the previous December, the spectators ecclesiastical capital returned to their cars and drove back home. ofall ofIreland for Some drove through che center of both churr:hes.

Portadown, where on this bright spring afternoon, shoppers shopped and children Saturday, the circling helicopters and laughed. My visitor and I drove on to marching Orangemen did not provoke Belfast to eat dinner with friends in a new trouble. Rather, the spectacle attracted the Moroccan restaurant. If the chaw in Irish same son of interest that I used to politics continues, there is promise that for experience as a child during Fourth ofJuly the first time, both sides of the border will parades in Brentwood. People were driving be interested in investing money to up to the barricade of Northern Irish police construct and improve the roads between (Royal Ulster Constabulary, or RUC) north and south. Then perhaps it will be armored land rovers, getting out of their possible to drive the l 02 miles in under cars, and pointing cameras, not guns. two-and-a-half hours' time. Bue if that People parked on lawns much as they happens, surely there will be a bypass would to get close to public sports events around towns like Drogheda, Dundalk and or other celebrations. Some brought their Porcadown, and drivers like me will not children in strollers. And when one stumble upon the policies of the world. adolescent set fire to a British flag within a And if all chat roadwork really happens, few feet of the police, onlookers turned to then perhaps the Irish will know what it is look in the same mixed manner of really like co drive between Meadville and amusement and fear chat people in Pittsburgh on 1-79. •

Armagh, Northern !rel.and. On the

threatening, then you will need to visit Northern Ireland for yourself and have a chat with some of the locals.

Perhaps the most famous of these annual marches begins each July at the center of Portadown, and then makes its way out of town along the Garvaghy Road, out to the country church at Drumcree.

On a wet December morning in 1998, I traced this parade path with a friend who knew the area. It was cold and quiet then.

The country church sac peacefully at the top of the damp meadow, and farm animals next door, without politics or religion, scrolled around the grounds next co the graveyard. Had I not seen television reports from this very meadow on earlier occasions, with soldiers and torches lighting the night, I would not have thought the scene could ever be so drastically different. On this Saturday morning, much more than the weather had changed.

The "march season" is usually described as two weeks in the beginning ofJuly-and that is certainly when it is at its peak. In fact, in the past, some public buildings in Belfast closed during this time if they could, co avoid "The Troubles." But like Christmas shops, the marches never really go away, they just go a bit out of season at other times of the year. On this particular Saturday morning in 1999, as we approached the border, we saw several helicopters circling overhead. As much as I would like co have said that I knew why, the fact was chat I obviously did not or I would not have been there.

Bue on chis particularly sunny April

PortadtJwn, Northern Ireland. ApriL25. 1999

JURIS •

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• 27

In With the New Republic On December 2, 1999, known as ''Devolution Day, "Michael Devine reported in The Belfast Telegraph, a Northern Irish newspaper often regarded as Unionistleaning, that "The &public's controversial claim to jurisdiction over Northern !rt/and was scrapped today at a historic meeting of the Irish Government. " In the interests ofa balancedperspective, we have therefore elected to use Devine's account ofthe changes to the Republic's constitution.

diversity of their identities and traditions, recognising that a united Ireland shall be brought about only by peaceful means with the consent of a majoriry of the people, democratically expressed in both jurisdictions in this island.

"Until then, the laws enacted by the Parliament established by this Constirution shall have the Like area and extent of application as the laws enacted by the Parliament that existed immediately before the coming into operation of this The historic changes tharwere today Constitution. made to the Republic's constitutional • Institutions with executive powers articles which had claimed jurisdiction over and functions that are shared between those jurisdictions may be established by their Nonhem Ireland. respective responsible authorities for seated purposes and may exercise powers and OLD: functions in respect to all or any part of Article 2: "The national territory the island." consists of the whole island of Ireland, its In addition to the changes to Articles islands and territorial seas."

2 and 3, two new sections are added to Article 3: "Pending the reintegration Article 29: of the national territory, and without • "The State may consent co be bound prejudice co the right of the Parliament and by the British-Irish Agreement done at Government established by chis Belfast on the 10th day of April 1998, Constirution co exercise jurisdiction over hereinafter called the Agreemenc.

• 'J\.ny instirution established by or the whole of the territory: the laws enacted by that Parliament shall have the like area under the Agreement may exercise powers and extent of application as the laws of and functions thereby conferred on it in Saorsrar Eireann (Irish Free Scare) and the respecc of all or any part of the island not like extraterritorial effect." withstanding any or other provision of this Constitution conferring a like power of NEW: function on any person or any organ of State appointed under or created or Article 2: "It is the entitlement and established by or under this Constirurion. birthright ofevery person born in the island Any power or function conferred on such of Ireland, which includes its islands and an institution in relation to the settlement seas, co be part of the Irish nation. That is or resolution of disputes or controversies also the entitlement ofall persons otherwise may be in addition to or in substitution qualified in accordance with law co be for any like power or function conferred citizens oflreJand. Funhermore, the Irish by this Constitution on any person or nation cherishes its special affiniry with organ of State as aforesaid.

• "The State may exercise extrapeople oflrish ancestry living abroad who share its cultural identity and heritage." territorial jurisdiction in accordance with Article 3: "It is the firm will of the the generally recognised principles of Irish nation, in harmony and friendship, international law." co unite all the people who share the (Michael Devine, "Constitutional territory of the island of Ireland, in all the Claim Dropped, "page 7.)

28 •

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WINTER 200 1

Protescams. This began a period in Irish history commonly referred to as "The Troubles."24 The most famous episode of this period was marked, in 1972, when British paratroopers killed fourteen people afrer opening fire on a group of Catholic demonstrators. 25 This "Bloody Sunday" heightened the animosities within the North, and between the North and the Republic. Britain, soon after, declared direct rule over Northern Ireland , governing the province /Tom London. T his period of direct rule lasted for the next 26 years. 26 The 1974 Sunningdale Agreement brought some hope for cooperation. It was an agreement between the Uni ted Kingdom and the Republic of Ireland to share some powers. 27 However, the Agreement fell through because of disagreement and strife over some of the power-sharing provisions.28 The Article 3 Constitutional right of the Republic to extend legislative jurisdiction over Northern Ireland was exercised in the Criminal Law Uurisdiction) Act, 1976, which permitted the arrest and trial in the Republic of persons alleged to have committed certain offenses in Northern Ireland. T he bloodshed continued into the 1980s, which brought more paramilitary action, terrorism, riots, and little hope for compromise among the factions. 29 Finally, in the Anglo-Irish Agreement of 1985, the United Kingdom and the Irish Republic agreed that the Irish Republic would maintain "a consultative role on behalf of Catholics in some matters concerning Northern Ireland. "30 Although the hostiliry continued, the Anglo-Irish Agreement of 1985 provided some hope for a future of compromise. T his was the first time that the government of the Republic of Ireland established itself as a "legitimate player" in Northern Ireland. 3 1 Tired of the violence carried out by paramilitaries on all sides, in the early 1990s Britain launched multi-party talks to establish new relations among the parries of Northern Ireland and the Irish Republic. 32 Britain's original plan fell through in 1992, but renewed expectations brought the "Downing Street Declaration"

the next year. 33 The Declaration was a milestone that invited all parries co the rable co discuss rhe future of relations, and most importantly, the future of Northern Ireland, bur only if the paramilitary groups setcled peacefully and haired the violence. 34 In August 1994, the IRA responded to the renunciation with a declaration announcing "complete cessation of military operations," which precipitated talks between the Republic of Ireland and Brirain for the first time in over 20 years:15 For the next few years, however, heightened hostility and upheaval, along with the withdrawal of the IRA cease-fire, transgressed the road co peace. 36 In 1996, in an attempt to ease tensions, former U.S. Senator George Mitchell headed an international panel, which offered a "compromise to end the deadlock."·17 The discussion ultimately concluded with al.lparty talks in which Sinn Fein and the Ulster Unionists, headed by David Trimble, came to the cable co discuss the future of compromise for the island. 38

An T.'loiseacb (Prime Ministe1; Republic of Ireland), M1: Bertie Aheam (left) and Kirk

junker {right} in Armagh atJim meeting of North-South Ministerial Council in 1999

berween the rwo srates and co assist one another in common interests. Strand Three establishes the British-Irish Council (BIC) to "promote the harmonious and mutually beneficial development of the totality of relationships among the peoples of these islands." 40 The BIC council is comprised of representatives of rhe British and Irish governments, Northern Ireland, Scotland and Wales, the Isle of Man and rhe Channel Islands.

Legal Perspective: On April 10, 1998, a new legal period The Good Friday Agreement also would begin in Ireland. It was on this day recognized that in order for the changes to that the Belfast Agreement, also known as occur, both the people ofNorthern Ireland the Good Friday Agreement, was signed and the Republic ofireland must agree by by the governments of the United separate referenda. If the results of the Kingdom, rhe Republic of Ireland, and referenda were favorable co the change, the representatives of the province of Northern United Kingdom government had to agree Ireland. The document set into morion co a form of united Ireland. This did not many types of change, including significant mean that the United Kingdom did nor legal ones thar would attempt co quiet "The have legal jurisdiction over Northern Troubles" and achieve peace in Ireland.

Ireland, but rather chat the Republican The agreement was set forth in three parries-most notably Sinn Fein-now sections called "strands." Strand One had a political presence in Northern concerns the Democratic Institutions of Ireland's government. Some regarded this Northern Ireland. In restoring the rule of as an effective repeal of the Government Northern Ireland to Northern Ireland oflreland Act of 1920, which formed part (rather than direct rule by Westminster), of the ride deeds of the United Kingdom's it "provides for a democratically elected sole sovereignty over Northern lreland. 41 Assembly in Northern Ireland which is To complement this, the Republic of inclusive in ics membership, capable of Ireland agreed to re-word Articles 2 and 3 exercising executive and legislative of the Irish Constitution so as co eliminate authority, and subject to safeguards co the territorial claim over Northern Ireland.

To accommodate these changes, the protect the rights and interests of all sides of the community."39 Strand Two relates Republic of Ireland proposed rhe co the North-South Ministerial Council Nineteenth Amendment to rhe whose purpose it is to develop cooperation Constitution. The Bill was introduced into

the Dail on April 21, 1998, and was passed by both Houses on April 22. The next step in the process would occur on May 22, 1998, when rhe agreement would be put to the people in accordance with Article 46 42 of rhe Constitution of the Republic of Ireland. However, just rwo days before the voting was co take place, a case was brought before the High Court ofireland seeking co restrain the holding of the referendum. In Riordan v. An Taoiseach, 43 Denis Riordan claimed that the procedures required by Article 46 of the Consrirurion were being violated. The court dismissed the claim on the merits and refused co delay the referendum.

In Northern Ireland, a copy of the Agreement was sent co every household.

The authority for che order was provided

by Section 4 of the Nonhern Ireland Act 1996. The Minister of State, Mr. Paul Murphy, noted that "peace in Northern Ireland has co be founded on a settlement, and this settlement is squarely based on the principle of consent. . . Consent was needed from the parties through the agreement; from che House of Commons and rhe House of Lords; and, of course, from the people of Northern Ireland ... "44 On May 22, 1998, the people of all of Ireland-the Republic and Northern Ireland-for the first rime in 80 years had the opportunity to vore on an issue simultaneously. 45 Northern Ireland was voting on the propositions in the Good Friday Agreement, while the Republic of Ireland was voting on the referendum to the Constitution of Ireland. In Northern Ireland, 71.2% of the people approved the Good Friday Agreement. 46 In rhe Republic of Ireland, 94% of the people supported the amendment to the Irish Consrirurion.47 The then-Secretary of State for Northern Ireland, Marjorie ("Mo") Mowlarn, srated that "by these referendums, the people of Ireland , north and south , have voted oveiwhelmingly to say yes to the principle of consent; yes co using only peaceful means co resolve political disputes; yes to fairness and equality; and yes to building new relationships based on agreement, not coercion." 48

(continued on page 30)

JURIS •

WINTER 200 1 • 29

As a result of these votes, two decisive actions occurred. First, in the Republic of Ireland, changes were made to Articles 2 and 3 of the Constiturion. (See the insert for a comparison of the articles before and after Devolution Day.) Second, in Northern Ireland, The Northern Ireland Act was passed.

The changes to Article 2 of t h e Constitution are significant because the language shifts the focus from the territory of Ireland to the peop who make up the 'de, in pan, now Irish nation. The states, "it is the entitle enrand birthright of every person born in the island of Ireland, which includes its islands and seas, to be a part of the Irish nation. That is also the en ti de men t of all persons otherwise qualified in accordance with law to be citizens oflreland. "49 There is no longer a distinction between the different parts of the island, but rathe r a common relationship among the citizens of che nation that solidifies irs unity.

In a similar manner, Article 3 now emphasizes the diversity of the people ..in their identities and traditions, recognizing that a uni red Ireland shall be brought about only by peaceful means." SO It identifies the need for democratic consent by a majority of the people in each of the jurisdictions of the island. The second section of Article 3 draws attention to the executive powers and functions that are shared by both jurisdictions and their ability to "exercise po'\\'ers and functions in respect ofall or any part of the island."51 In Norrhern Ireland, the changes chat occurred as a result oft e referendum were enforced in the Northern Ireland Act of 1998 ("Northern Ireland Act") . T he purpose of this act is to give effect to the whole of the Good Friday Agreement. Ir was introduced to the hlouseofCommons at Westminster on J ly 15, 1998 and became law on November 19, 1998. T he act established the constitutional provision, the Assembly's legislative powers, the appointment and functions of ministers, the elections to and operations of the assembly, the relation between the NorthSou th bodies and the commissions provided for under the Good Friday 30 •

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WINTER 200 1

Agreement. The constitutional position of Northern Ireland within the jurisdiction of the United Kingdom is addressed in section I of the Northern Ireland Act. It re-works rhe demanded inclusion of Northern Ireland within the United Kingdom. By contrast, the demand that Nori:hem lreland reoognize an "ail-Ireland" dimension is met through the creation of the North-South Ministerial Council, the six agreed-upon cross-border bodies, and a British-Irish Intergovernmental Council as well as a new Bri cish-I rish Council made up of representatives from all over the British Isles. 52 G iven chat the United Kingdom does not have a written constitution, an act of Parliament such as the Northern Ireland Act is one of the most tangible and concrete legal mechanisms by which we can observe legal changes. As John Morison, Professor of Jurisprudence at the Queen's University of Belfast School of Law puts it: "T here is now the full realization of the policy chat successive British Governments have pursued of searching for a political compromise char could be crystallized into a constitutional structure of governm~nt. "5 3 The changes to the Constitution of Ireland, resulting in the relinquishing of claims to jurisdiction in Northern Ireland, and the establishment of a devolved and inclusive government in Northern Ireland through the Northern Ireland Act are significant because they focus less on the land and more on the people. Attention is placed on the citizenship of the nation in all of its diversity rather than the boundaries char comprise "Ireland." Whether an individual considers h imself or herself British or Irish is far less important in the legal perspective and, in fact, is a permitted distinction. The new revisions allow for "all persons otherwise qualified in accordance with the law co be citi7.ens of lreland."54 As a result, both countries have taken significant steps in a long process towards peace-this time using rhe legal system. Yet, even as this article was being written, the Assembly in Northern Ireland was in danger of being suspended once again, and ministers and polirical officials threatened resignations. Bur even rhese

setbacks do nor change the facts thar the Consrirurion of 1937 no longer claims Northern Ireland as part of the Republic's national territory, thar it no longer claims law-making jurisdiction in Northern Ireland, or thar the United Kingdom has put constirurional legislation in place for an inclt1sive Nonhern Irish Assembly and a devolved government. We give rhe lasr words to one who is there: "As ir rediscovers the noanalcy of political argument and administration th rough institutions of representative g0vernment, Northern Ireland has the building blocks to construct simultaneously a new version of constitutionalism char can support and augment traditional mechanisms." 55•

Note: In the next issu.e oj)uris, we will be comparing the Irish constitutional changes with those that took place in Gennany when the German Democratic Republic ceased to exist.

Jenn ifer Czernecki is a third-year evening student at Duquesne University School of Law and Treasurer of Duquesne's International Law Society.

Lori Edwards is a second-year evening rtudmt at Duquesne University School of Law and is the President of Duquesne's International Law Society.

Kirk W. junker is a Visiting Professor in International Law at Duquesne University School of Law and is the Advisor to Duquesne's International Law Society. He is visiting.from Ireland where he holds a joint appointment at The Queen's University of Belfast and Dublin City University.

The authors would like to thank David Torrans of Belfast for his comments and political novelist john K White of Dublin for reviewing this text.

Photographs provided by Kirk W.junker.

ENDNOTES

'Pittsburgh Post-Gazette, Ocrober 9, 2001, A-2, "N. Ireland Coalirion Splir".

'John E. Finn, Constitutions in Crisis: Political Violence and the Rule ofLaw (New York: Oxford Universiry Press, 1991) provides an excellenr srudy in rhings consrirurional for

Nonhern Ireland, but it stops with 1990.

Fordham International law journal 22:4, 1999 is an emire issue dedicated to George J. Mitchell, David Trimble, and John Hume on rhe topic of "Analysi s of the Nonhern Ireland Peace Agreement." The monumemal issue provides very balanced commentary &om an emire list of"who's who" in Northern Irish policies. Therein, John Morison , "Constitutionalism and Change: Representation, Governance, and Participation in rhe New Northern Irel and ," pp. 1608-1627 focuses on legal and consriturional changes in Northern Irel and.

3 For derailed study of who is who in Northern Irish history, see for example W. D. Flacks and Sidney Ellion, Political Directoryof Northern Ireland (Belfast: Blackstaff Publishing, 1999). A qualiry sc holarly history dm needs updating bur addresses mese points-and there are many such histories of the Republic of Ireland-is Robert Kee's The Green Flag (three volumes) (New York: Penguin, 1972). This work was made imo a thirteen part television special shown in Ireland, me UK and rhe USA. 4 Tim Ito and Aileen Woo, Ireland's TroublRd History, < hnp://www.was hingronposr.com/wrsrv/ in at II Ion grerm/ n i rel and/ overview.hr m> (updated April 1999), accessed October l 0, 200 l.

5 Crith Gablach, D. A. Binchy, ed. (Dublin: The Stationery Office, 194 I).

6 Paul O'Higgins, "Ireland," International Encyclopedia of Comparative Law, volume I, National Reports, Drodnig Hubert, Editor (Tuebingen: J.C. B. Mohr (Paul Siebeck) 1972) , page 1-66.

7 Brian Walsh , A (much) Smaller Social History ofAncient Ireland, 1997, chapter!Y, "The Brehon Laws, " found ar hHp://www.alia. ie/ rirnanog/sochis/ iv. hrml, accessed 19 October, 2001.

8 Id. The increased religious persecurion of rhe Catholics during this period was due mainly because Elizabeth I, a Protesram, rook the throne in 1558. Id. Queen Elizabeth insisted char all newly appoimed governmem officials, or in "posi tions of rrusr" should function under rhe monarch in all affairs. R. F. Foster, ed., The Oxford Illustrated History of Ireland (Oxford: Oxford University Press 1989) l l 5- l 16. As positions opened in rhe Dublin administration, only English-Born Proresrams were appoimed. Id. at 116.

9 Robert Kee, The Green Flag, Volume I: The Most Distressfi1l Country (New York: Penguin , 1989) 13.

10 Brian Doolan, Principles of Irish Law (Dublin: Gill and MacMillan, Ltd .. 1981).

II

12 I)

14

Id. Id. Id. Id.

i s Tim lro and Aileen Woo,

Ireland's

TroublRd History, (updated April 1999) < hnp:// www.washingronpost.com/wr-srv/inatl/longrerm/ nireland/overview.htm>. Irish nationalists, in search of independence from Britain, stormed me Post Office and omer buildings in Dublin during Easter week. Id. Pauick Pearse, a recruit of the Supreme Counc il of the Irish Republican Bromerhood, mobilized Irish Volunceers and Irish C itizen Army for the rising. R. F. Foster, ed ., The Oxford Illustrated History of Ireland (Oxford: Oxford University Press 1989) 237-239. ir. Tim Ito and Aileen Woo, Ireland 's Troubkd History, (updated April 1999) < hrrp://www.washingtonpost.com/wr-srv/ ina cl/longterm/ nireland/ overview.h rm>. accessed October l 0, 200 l. After only six days, Pearse surrendered after meeting "carnage and devastation" when the British forces responded ..

R. F. Foster, ed., The Oxford Illustrated History of Ireland (Oxford: Oxford University Press 1989) 239.

17 Tim ho and Aileen Woo, Ireland's Troubkd History, (updated April 1999) < hnp://www.washingronpost.com/wr-srv/ inatl/longrerm/nireland/overview.htm>, accessed October l 0, 200 l. In rhe 1918 election, Sinn Fein won 73 sears over rhe 31 for me Unionists (British loyalists) Id. 8 ' Id. Eamon de Valera, leader of Sinn Fein, became presidenr of chis Dublin Parliament. Id. 19 Doolan , id., 5.

Id. Id. The partitioning was ser form by the Governmem oflreland Acr in 1920. Id. Separate 20 21

parliamenrs were created by rhe partition: the six coumies in the North were serviced by Belfast and the remaini ng rwenty-six counries were under me auspices of Dublin in rhe sourh. Id 22 Id. Members of Sinn Fein and British officials signed mis agreemenr. Id. 2 J Tim Ito and Aileen Woo, Ireland's Troubkd History, (updated April 1999) < hnp://www.washingronposr.com/wr-s.rv/ inad/longrerm/nireland/overview.hrm>, accessed October l 0, 200 I. 24 R. F. Foster, ed., The Oxford I!Lusmzted History of Ireland (Oxford: Oxford University Press, 1989) 21-24.

2s Fosrer, Id. 26

27

is 29

Id. Id. Id

Tim ho and Aileen Woo, Ireland's Troubkd (updated April 1999) <hnp :// www.washingronposr.com/wr-srv/inatl/longrerm/ nireland/overview.hrm>, accessed October 10, 200 I. Bobby Sands, an I RA member died as a result of a hunger strike ro "protest his status as a common prisoner, ramer than a poliricaJ one."

Id. His dearh, along wirh rhe dearh of nine ocher JRA members brought increased hostility and more riors. Id.

History,

JO JI

.l2 JJ

Id Id. Id. Id.

34

Tim Ira and Aileen Woo , Ireland 's TroublRd History, (updated April 1999) <h ttp:// www.washingronposr.com/wr-srv/inatl/longrerm/ nireland/overview.htm>, accessed October l 0, 2001.

JS JG

.\7 JS

Id. fd Id. Id

J9

The Full Text of rhe Good Friday Agreemenr ar hnp:/www.wesleyjohnsron. com/ users/irealand/today/good_Friday/full_rext.html, pg. 6.

40 Id. ar 15.

41 l.R.K. Paisley, "PeaceAgreemenr- Or Last Piece in a Sellour Agreement?'; 22 Fordham Intl Lj. 1273 (1999), ar Westlaw pg. 8.

42 Article 46 provides chat every proposal for a n Amendmem to rhe Co nstitu tion be iniriared as a Bill and upon being passed by both Houses, be "submirred by Referendum to rhe decision of the people."

4J Riordan v. An Taoiseach , [ 1998) I EH C 77 (20'h May, 1998).

44 House of Commons Hansard Debates for 22 April 1998 ar hHp:// www.publicarions.parliamenr.uk/pa/cm 199798/ cmhansrd/vo980422/d .. ./80422- 54.h r, pg. I, accessed October I 0, 200 I .

45 An Irish View of rhe Northern Ireland Peace Agreemem rhe Inreracrion of Law and Policies, 22 Fordham Int'! Lj. 1206 (1999), ar Wesdaw pg. 4 46

Political Progress Leading to Devolution aJ

hHp ://www2. nio.gov. uk/implem .h tm , pg. I , accessed October I 0, 200 l.

47

Id.

48

House of Commons Hansard Debates for June 1998 ar hnp:// www.publicarions.parliamenr.uk/pa/cm 199798/ cmhansrd/vo98060 I /d .. ./80601-1 O.h t, pg. I, accessed Ocrober I 0, 200 I .

49 Brmreacht na hfireann (Constiturion of Ireland) , Government Publication s Office, Dublin. so Id. SI

Id.

s2 Further details of these bodies and rhe derails of rhe power sharing of the executive are clearly ou rl i ned in John Morison.

"Consrirurionalism and Change: Represemarion , Governance, and Pani c iparion in rhe New Northern Ireland," ar pages 1610-1613.

53 /d, page 1613.

51

Id

55

Morison, 1627.

JURIS â&#x20AC;˘

WINTER 200 l

â&#x20AC;˘ 3 1

FIRST-YEAR WRITING CONTEST Traditionally, Juris Magazine has invited all first-year students to participate in a writing contest, and that tradition continues. This year's topic was "Important Professional Skills and Legal-Ethical Issues That Law School Teaches Us." The winner ofthe writing contest was selected by the Juris Executive Board, and this year's winner is Lou Anne Kreh, a first-year evening student. She will receive a $500 scholarship, and it is also a continuing tradition to publish the winning article in Juris. The Executive Board would like to thank all those who participated in the writing contest, and congratulate Lou Anne Kreh on her winning article.

Important Professional Skills and Legal-Ethical Issues That Law School Teaches Us •

Lou Anne Kreh

W

earing a business suir and looking like an arcorney means nothing in a courtroom if you don'r possess rhe professional skills and legal erhics necessary in rhe pracrice of law.

Duquesne University School of Law realizes chis, staring part of irs mission is "co rrain lawyers co a high degree of professional skill with a special, Catholic sensiciviry to ethical and moral concerns .. . The Duquesne lawyer is well-trained in the law, but also understands the difference between what the law allows us to do and what we should do-the difference between what is legal in a given situation and what is right." With these premises, the Duquesne law student will be able to accomplish the goals of learning the law and applying such knowledge in a virtuous manner.

Acquiring the professional skills an attorney needs includes not only reading cases and studying case law, but also adopting a completely different thought process. By using the Socratic teaching method, law students are forced to think for themselves as opposed to having information handed to them in lecture form. This learning technique is so crucial to future lawyers that professors take great pride in using it. As Professor McClendon said to a classmare, "Please don't cell anyone I give lectures . . . you'll ruin my reputation." Of course, the word lecrure was a slip of the tongue by my fellow student, because we all know Professor McClendon would never give a lecture.

So, it's through self-teaching that we 32 • JURIS • WINTER 2001

begin to understand what will be expected of us in the future.

Reading, comprehending, and chinking about how some scenarios are different than and/or similar to ochers we've been exposed to helps us sift through the materials and find the common bases which will be the foundation for our legal stances. Being witry doesn't come natural to everyone, but being a law student definitely hones that character trait.

Furthermore, law school requires that we vocalize our knowledge and opinions to others. Many people possess a fear of public speaking. Attorneys cannot be successful without the self-confidence necessary to stand and scare their opinions to a judge, jury or other tribunal.

Communicating skills are a must, and the professors at Duquesne Universiry make sure their students actively participate in class to prepare them for future litigation.

Everything is covered from using correct verbiage to the volume exerted when articulating. Considering this, rhe phrase shy Duquesne Law School graduate would be an oxymoron .

Law school not only teaches the importance of verbal communication, but also fulfills the requirements for proper written correspondence. Legal Research and Writing class is mandatory for all firstyear students. We learn how to explore our library's vast wealth of information and become familiar with the currer.t computerized technology available to rhe legal communiry. We're taught how to write case briefS, memorandums, appellate briefs, and case citations.

Although this class is imperacive for students to acquire legal wriring skills, it also teaches rhe importance of preciseness.

We learn to choose our words carefully and give the bases for them. Following the rules in rhe citation book is the introduction of following the rules of the court in rhe future.

We learn that different forums have different procedural requirements and to know chem beforehand. Using Fayette Counry rules in an Allegheny Counry case wouldn't be fruitful . Likewise, citing a case which has been overruled would be nonproductive. Therefore, Legal Research and Writing serves as a srrong foundation for building a legal career.

Another aspect of the imporrant professional skills law school teaches us is the demand for timeliness. Emphasis on meeting deadlines begins long before a law student is officially accepted for admission.

Much consideration and preparation go into this decision. From the moment prospective students consider law-school matriculation, they are on a stringent time line. Correspondence is imperative for students to understand what is expected, and Duquesne Law School's staff is excellent in aiding chem.

Duquesne offers a yearly open house for those interested in becoming part of its family. Oftentimes, this is the first official experience people have with the school, so it's important co provide as much information as possible. Families are given a full tour of the law school, speakers welcome rhe guests, and the admissions process is detailed. Everyone artending also receives a packet of useful information and

senses the pride Duquesne Law School possesses.

Soon thereafrer, prospective students must meet deadlines for LSAT testing, written application materials, and various fees. Next, the skill of patience is applied until official notice is received of acceptance or rejection. For those accepted, the next step is ta.ken to reserve their places in the newly-constructed class. Timely deposits must be made and official transcripts forwarded from undergraduate schools.

Meanwhile, as students are congratulated, it's stressed that law school will be both "rewarding and challenging" as well as "demanding and enjoyable." These words make it apparent that law school won't be easy but will enhance our lives.

I'm reminded of the speeches given at orientation. We were eloquently told that law school is a marathon, not a sprint. Law students are in it for the long run . As long as we persist, we will find the stamina to endure this seemingly never-ending opportunity to become a part of the elite Duquesne Law School alumni .

Dean Cafardi conveyed words of wisdom encouraging us to allow ourselves to remain human beings while in law school. He emphasized the importance of staying focused in our family lives as wives, husbands, mothers, fathers, daughters, sons, sisters, and brothers while we attend Duquesne Law School. Losing ourselves in the journey of becoming attorneys is like finishing the race and forgetting why we wanted to run it. Family and friends will help keep us sane. The stronger these ties remain while in law school the more we'll grow as a result thereof. Essentially, the Dean was conveying the importance of learning coupled with realizing self worth, both which a person needs to be wellrounded .

This concept doesn't disappear when you pass the bar exam . Actually, the need becomes greater for practicing attorneys to remember their purposes as individuals so they don't get lost in their work. Too many lawyers become disgusted because their professions consume their lives. Some haven't taken vacations for several years because they think they don't have the time.

To this, I'd relay a message from a Duquesne Law School graduate: "Life is too short to be in a hurry. " Although the goal is to help others, if we don't help ourselves first, what do we really have to offer?

At Duquesne, it's obvious that all members of the law school staff are willing to help. They don't want to see anyone struggle, fall behind or fail. They are eager to assist those in need. Additionally, the students are anxious to form new relationships. As first years, we're oblivious to expectations and fearful of the unknown.

Yet, our law school, through the Student Bar Association, again reaches out and assigns every new student a big brother or sister. They gather at a picnic held before orientation. This gives new students the opportunity not only to meet their big brothers and sisters, but also other students.

It's a time when the experienced law students can share their knowledge and insight with the entering class and aid with the immense transition. This offers proof that no one in our school should feel isolated or outcast. It's another fine reflection of the positive impact Duquesne Law School has on its family, i.e. decency.

Logically, merely possessing the professional skills needed won't make people successful attorneys if they lack legal ethics. Although morality is a lifelong process, law school helps us decipher our past learnings and apply them to the tremendous tasks of studying and practicing law. From the first year (or first month) of law school, we begin to ask ourselves why. Why? Why what? Why anything? We begin to question everything. We learn to never assume anything. What ifs and what thens become common for law students. It may sound nonsensical, but we crave facts, reasons, and justifications for motives and outcomes of all situations.

We can look at ourselves in different lights and wonder why we became who we are and where we're going with our newfound goals and ambitions. Nothing will ever be the same afrer law school, bur we realize it would have changed anyway.

We introspectively ask if the transformation

will be gratifying. The answer lies within ourselves.

This is when we become aware that our future happiness depends on how much we extrapolate from our years at Duquesne and integrate into future endeavors. When we make decisions, how will we do so-from our wallets and checking accounts or from our hearts and souls? Will we do what is morally correct, or will we do what is most profitable?

When we walk out of the courtroom , will it be with a sense of pride or a sense of shame?

The question isn't whether attorneys will be able co find business. Unfortunately, there will always be widows or widowers with children awaiting payments for wrongful deaths. Likewise, there will always be defendants charged with vehicular homicides, perhaps of entire families, due to driving under the influence of drugs and/ or alcohol. The need for legal representation will always exist. The question is whether we would prefer to fight for justice and fairness or give in to temptation and greed.

Duquesne Law School emphasizes the integration of"technical skill with wisdom, compassion and prudence." It requires the course of Professional Responsibility and has electives of Law and Religion and Philosophy of Law, all of which reflect upon morals and values as they relate to the law profession. Assuredly, Duquesne Law students will be well prepared for future dilemmas wherein moral and ethical decisions are warranted.

My hope is that all current students, alumni, staff members, and future students of the Duquesne University School of Law be blessed with the wisdom required to avoid sorrow or grief as a result of moral wrongdoing in light of the fact that they've all learned and/or taught at this University the importance of ethical behavior in all aspects of their lives. This is proven by our law-school motto: "Education for the Mind, the Heart, and the Soul." May God bless each and every one of us as we strive co attain the attributes of skilled, ethical professionals. •

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The IRS Response to the Terrorist Attacks •

Robert Patterson Dunlap II

F

or rhose of us who work or inrend returns unril the parmerships rhat they co work in the area of Federal were members of paid their taxes using a Taxation, we are often amazed wirh K-1 (the equivalenr ofa W-2 for corporare a perceived lack of the Inrernal Revenue employees). The clienrs rhat were on Services' versatility. A perfecr example is extension had also nor forwarded me their rhe recenr "Economic Growth and Tax rerurn information to meer the October Relief Act of 200 l ,'' which is finally 15 deadline. I expected these individuals indexing certain employee benefir limirs to undergo additional penalties and inrerest that were becoming grossly out of date. charges when rhey were delayed. H owever, Employees who wanred ro defer their I was very p leased when , after the income inro qualified plans were limited catastrophe, rhe IRS announced special to $10,500 per year. This may be ample exceprions for all raxpayers. for many employees; however, ir is quire This relief could be claimed b y insufficienr ro properly fund a reriremenr taxpayers regardless of where they reside. plan for mosr of rhe clientele of a IRS Norice 2001-61 applied to raxpayers tradirional raxation firm . Thar starutoty with an original filing deadline fo r rax amounr was just recencly indexed and a rerurns thar was between Seprember 11 new carch-up provision was added to allow and November 30, 2001. It gave rhose older taxpayers to conrribute addirional taxpayers an additional six months plus funds that were previously disallowed.

120 days ro file tax returns and make During my recenr experience in the paymenrs. T hose individuals who were Duquesne School of Law Low-Income scheduled to make estimated rax payments Tax Practicum, I encountered an exception on Seprember 17, 2001 could posrpone to the "sragnared bureaucracy" impression that paymenr simply by including thar I held of the lnrernal Revenue Service. T he amounr with their final esrimated 2001 Tax Practicum gives Duquesne School of paymenr (which was due on January 12, Law srudenrs rhe opporrunity ro help 2002). Taxpayers musr wrire in red ink individuals who couldn'r necessarily afford "Seprember 11 , 2001 - Terrorisr Attack" legal represenrarion. My experiences in the on the rop of any returns they file. Some Tax Pracricum included helping states, including Pennsylvania, offered individuals with rax conrroversies arising similar relief for stare tax issues. from an inability ro pay prior rax liabilities.

Under the Soldiers and Sailors Civil Like all Americans, the rragic events Relief Act, reservists are eligible for special of September 11 affecred even rhe mosr non-automaric rax relief. Members of the unexpecred facers of my daily activities. I armed forces can apply to defer their rax immediarely found m y clients obligarions if caJled to active duty. This understandably unresponsive when it came would mean char these taxpayers would rime ro make esrimared payments afrer the larer pay the amounr owed withour any arracks. Esrimared paymenrs are for rype of reducrion . This Acr prorected raxpayers that withhold on their income military service personnel long before our below statutorily acceprable limits. T hese currenr conflicr, bur the IRS still has limits raxpayers musr make quarterly payments to their generosities. The IRS News Release ro make up the difference or pay penalries. IR-2001-93 warned all service personnel Many of my clienrs were on extension thar this deferral would nor extend rhe because there were unable to file their 2000 deadline ro file their rerurns. These 3 4

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raxpayers musr file exrensions or complere tax returns by April 15 wirhour exception.

Some taxpayers residing in the federally declared d isasrer areas of New York C ity and Arlington County, Virginia, will have access to additional types of relief.

T hese benefits will go to individuals who aided in the relief efforr, whose places of business were in affecred areas, or whose records were kept in affecred locarions.

Congressional bills were inrroduced ro provide additional tax relief, including a one-year exemprion from federal income raxes for those individuals who were killed during rhese arracks. T his exemption would rel ieve a raxpayer from being required ro file a return for 2001 by allowing them ro file ar their oprion.

All this leeway did have an ending poinr. The line can be quickly drawn along the boundaries of rhe personal raxpayers and the corporate taxpayers. Corporare tax arrorneys hoping ro have cerrain exrensions delayed found the IRS unsympathetic with respect ro employment or excise tax deposit. The IRS has indicated in the IRS News Release (IR-2001-92) char ir would nor exrend the deadline for such deposi ts.

However, rhe IRS did indicare ir would waive penalries wirh respecr ro paymenrs as long as rhe deposirs were made by November 15, 200 1.

My clienrs were appreciarive o f the addiriona l tim e and considera rions provided by the IRS. I am now able ro restart the process of aiding these individuals who, in the beginning of the fall, were so in need of help. I am pleased ro report from my experiences rhis semesrer that the norion thar bureaucracy has given way to the norion of fair play. Seprember 11 will live on in our minds, but "The Service" has done its parr ro help people ger on with rheir lives. •

The Effect of the Environmental Rights Amendment: How Article I, Section 27 of the Pennsylvania Constitution Has Impacted Evironmental Law in Pennsylvania â&#x20AC;˘ Marcy Smorey-Giger

I

n 1971, Pennsylvania's citizens adopted an amendment to the state constitution. The Amendment focuses on establishing principles that serve to protect and conserve Pennsylvania's valuable natural resources and environment. The Amendment is also effective in reinforcing the application of environmental legislation and regulation.

And, as constitutional law, Article I, Section 27 has abundant meaning and is ultimately more necessary than its original supporters may have ever envisioned. But, does the Amendment have the power that a constitutional provision should have? As this article will describe, the answer is no.

Although the general objective of America and many other countries has resulted in improved management of the global environment, there remains a need for long-term planning and goals. By implementing the Environmental Rights Amendment to the Pennsylvania Cons ti tu ti on, Pennsylvania legislators

~it appears,

the Amendment has not yet played a significant rok in the development and impkment:ation of . ...._11aw. " envtronmenuu attempted to recognize the immediate need for environmental planning. The founders concentrated on environmental values which are dependent on political, social and economic conditions. Considering that much environmental decision-making is fragmented and loosely coordinated as an effort directed at a given issue or a specific problem, has the Amendment had a positive impact? Is it effective? Again, the answers are probably no. This article is presented to explore the purposes and effect of the Amendment to the

Understanding Article I, Section 27: The Environmental Rights Amendment On May 18, 1971, the citizens of Pennsylvania overwhelmingly approved this provision for environmental protection, amending their Constitmion. 1 Article I, Section 27 of the Pennsylvania Constitution, commonly called the Environmental Rights Amendment, is constitutional law. 2 It should not be considered to be of any less influence or equipped with less power simply because it pertains to the environment. 3 As it appears, the Amendment has not yet played a significant role in the development and implementation of environmental law. Those who voted in favor ofArticle I, Section 27 surely did not anticipate major reversals in their standard of living resulting from its adoption, otherwise, they probably would not have supported it. Yet, it is unlikely that the people considered their support meaningless or they would have made no effort to vote at all. 4 Article I, Section 27 of the Pennsylvania Constitution has not been completely effective for four basic reasons.

First, although it contains two distinct and separate rules, it is treated as a single indivisible influence. Second, the Amendment has been construed to categorically support anti-development, assumed to potentially halt the bulk of all human activities. Third, significantly more attention has been given to the creation of citizen rights than to the governmental responsibilities and accountability on which those rights are fundamentally established. 5 Finally, and perhaps most importantly, there is no generally accepted (continued on page 36)

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explanation for why Article I, Section 27 is necessary given the dominant role of legislation and administrative regulation which address environmental protection and conservation of natural resources. 6 The framework necessary to understand the Amendment begins with the recognition that the Amendment creates two separate constitutional rules.

One rule addressing the public's right to the preservation of certain environmental values: ''The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment." 7 And, one rule concerning the public's right to the conservation and maintenance of public natural resources: "Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people."8 Read in tandem, the Declaration of Rights and the Public Trust Doctrine form a policy statement that constructs a solid base for dealing with environmental issues. 9 Article I, Section 27 gives the same legal protection to the environment as other provisions of the state constitution give to individual property rights. The Amendment, when evaluated together with provisions developed to protect property rights, is not found to be antidevelopment. Rather, it is directed toward conservation, and what we now call sustainable development. Sustainable development has been defined as "socially responsible economic development" that protects "the resource base and the environment for the benefit of future generations. " 10

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"Generally, environmen:tal amendment:s to sttlte consti.tutions are valuable only ifthey can be applied in a meaningful and effective manner.

Unfonunately, the Pennsylvania cases... have not provided the coherent andpractical framework necessary for meaningful . . ,, interpretation.

where legal disparities exist, courts should enforce the substantive rules contained in the Amendment and courts should also use Arricle I, Section 27 to support the application of other legal rules. 14

Common Law Influenced by the Environmental Rights Amendment A.

Commonwealth v. National Gettysburg Battlefield Tower, Inc. Without much surprise, the first court battles which implicated Pennsylvania's Amendment concerned enforcement.

Commonwealth v. National Gettysburg Battlefield Tower, lnc. 15 was the leading case in the Pennsylvania Supreme Court in which the Attorney General of Pennsylvania brought an action to enjoin the construction of an observation rower near historic Gettysburg Battlefield. 16 The Commonwealth alleged that the proposed observation rower would blemish the natural and historic environment of the area, thereby violating Article I, Section 27 of the Pennsylvania Constitution. 17 The The Amendment must be interpreted Commonwealth Court affirmed the primarily on the basis of governmental Judge's holding, which determined that the responsibilities. Even though citizen rights Commonwealth failed co carry its burden are essential and are a fundamental part of of proof on the issue of whether the tower the Amendment, citizen rights should be would damage the historic Gettysburg directed primarily at the administration environment. The Court divided on the and enforcement of governmental duties. 11 issue of whether the Attorney General had Generally, environmental necessary authority based solely on Article amendments to state constitutions are I, Section 27 of the Pennsylvania valuable only if they can be applied in a Constitution to bring suit, 18 asking, in meaningful and effective manner. ocher words, whether this Constitutional Unfortunately, the Pennsylvania cases Amendment was self-executing. which have interpreted Article I, Section The Pennsylvania Supreme Court 27 have not provided the coherent and granted allocatur, allowing a thorough practical framework necessary for evaluation of the important question of meaningful interpretation. 12 Such cases whether the Amendment of the have not recognized the constitutional Pennsylvania Constitution was selfstatus of Article I, Section 27 and have executing, that is, did the Amendment merely inconsistently recognized the establish substantive rules that can be Amendment as a source of government enforced in the absence of any authority. Furthermore, they have not implementing legislation? 19 The majority imposed any meaningful restraint on opinion, written by Justice O'Brien and government power. 13 When legislation or joined only by Justice Pomeroy, upheld the administrative regulation provides as much Commonwealth Court's refusal to enjoin or more protection as the Amendment, the construction of the tower. 20 judicial enforcement of the Amendment Additionally, the majority of the Supreme is found to be unnecessary. However, Court held that the Amendment was not

self-execuring, and therefore the Attorney General of Pennsylvania did not have the necessary authority to bring suit. 2 1 As a result of this holding , the majority concluded that it was not necessary ro resolve the issue of whether the Commonweal th had met its burden of proof to show that the historic Gettysburg environment would be harmed. 22 Justice Roberts wrote a concurring opinion, joined

by Justice Manderino, which also affirmed the Commonwealth Court's ruling, which asserted that the Amendment was selfexecuring because the Commonwealth has the authority to proceed in parens patriae, acting on behalf of the citizens and in the interests of the community, as trustee of the state's public resources. 23 Two justices supported the view that the Amendment was nor self-executing, while four justices affirmed rhe Commonwealth Court's decision that an injunction was not warranted.

Finally, the dissent, written by Chief Justice Jones and joined by Justice Eagen, rigorously disagreed with the majority's conclusion that the Amendment was not self-executing. Chief Justice Jones stated that the majority viewpoint would result in reducing the Amendment to an "ineffectual constitutional platitude." 24 Chief Justice Jones also maintained that the Judge's conclusions oflaw were in error and that the proposed observation rower would cause disrespect for the natural, scenic, aesthetic, and hisroric values of the Gettysburgenvironment. 25 Justice Nix did not join any opinion; however, he did concur in the result. 26 Hence, five of the seven justices upheld the Commonwealth Court's decision refusing to enjoin construction of the rower, but only rwo justices actually held that the Amendment was not self-executing, while four of the seven, which includes two dissenters, asserted that the Amendment is selfexecutmg.

B.

Payne v. Kassab In the next major decision construing this Amendment, Payne v. Kassab,2 7 the Commonwealth Court cited the Gettysburg Tower case proposing that the Amendment

was self-execuri ng , 28 and Payne's interpretation of the Gettysburg Tower holding on this important issue did appear to resolve rhe dispute within the Commonwealth Court. 29 Payne established a three-point standard for appellate review which encourages a balancing test for Court-labeled "social" concerns with the environmental concerns found in Article I, Section 27. 30 In effect, these "social" concerns exclusively comprise considerations for permitting "the normal development of property." 31 Thus, very early in the interpretive development of the Amendment, the Amendment's effect on economic development was introduced into the deliberations. The Payne balancing rest gave the same potency to considerations of economic development as given to constitutionally protected environmental values, thus diminishing the effect of the Amendment. Payne's threepoint standard required that the reviewing Court analyze the foregoing decision by considering: "(l) Was there compliance with all applicable statutes and regulations relevant to the protection of the Commonwealth's public natural resources?

(2) Does the record demonstrate a reasonable effort to reduce the environmental incursion to a minimum?

(3) Does the environmental harm which will result from the challenged decision or action so clearly outweigh the benefits to be derived therefrom that to proceed further would be an abuse of discretion?" 32 On appeal to rhe Pennsylvania Supreme Court, rhe Commonwealth Court's decision in Payne was affirmed; however, the Court held that it was unable to identify any "impediment[s] to asserting rhe constitutional claim" under rhe Amendment. 33 The majority also held thar it "could see no need ... ro explore the difficult terrain of whether the Amendment is or is not self-executing."30 Therefore, after the Court held that the plaintiffi had the authority to bring suit under Article I, Section 27, the Court then said it would not revisit the general question of whether Article I, Section 27 was self-execuring. 35 As a result of rhe posture differences of the Commonwealth

in Payne and in Gettysburg Tower, and because some environmental protection legislation already existed at the time of Payne, (but not during Gettysburg Tower) the Supreme Court unwillingly held that the Amendment was partially selfexecuting. Therefore, the issue of whether the Amendment was self-executing remained an open question. The Pennsylvania Supreme Court's holding in Payne - perhaps because of its vague, ambiguous and confusing qualities - is rarely cited in subsequent cases. Since the Supreme Court has not again addressed this issue and because the Gettysburg Tower holding is indeterminate, this important question remains without definitive resolution. 36

C

Community College ofDelaware County v. Fox Prior to the Supreme Court's review and affirmation of the decision in Payne on appeal, the Commonwealth Court decided another important case on the basis of Payne's three-point test. In Community College ofDelaware County v.

Fox,37 the Environmental Hearing Board ruled on the propriety of the issuance of a sewage permit for a proposed sewer extension made by the Department of Environmental Resources. The Board held that Article I, Section 27 mandated consideration of certain environmental factors, including the impact of the sewer extension project on each of the environmental values enumerated in the Amendment as well as the long-term , indirect impact on the environmental values resulting from potential increased development or other secondary results. 38 Because the Board found that the Department and the associated municipal planning agencies involved in the permit application failed to evaluate the project under the proper standards, the Board withdrew the issuance of a permit. 39 On appeal, the Commonwealth Court (sitting en bane) rejected the determination of the Board and asserted that the additional evaluation standards utilized by the Board could not justifiably be imposed within (continued on page 38)

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Payne's parameters.

The Commonwealth Court's holding in Fox further diminished the effectiveness of the Amendment. First, the Court held that the trust accommodation established in the Amendment was not broad enough to allow rhe Deparrmenr to consider aspecrs of planning and wning, which were more properly the concern and responsibility of locaJ agencies. 40 The Court held that requiring the Board to consider rhe long-rerm impact of the proposed development implicated issues best reconciled by local planning and zoning authorities. Thus, rhe Department was resrricred to its statutorily mandated functions, nor including land-use planning, even though such planning had potential immediate and long-range environmental effects. 41 The Court then determined rhat provisions of the Pennsylvania Constitution shaJl nor be used to expand the statutory powers of a state agency, and therefore the Department did not have the authority to withhold a permit on the basis of non-statutory criteria. 42 The Court's decision in Fox made it virtually infeasible for a Commonwealth agency to exercise its power as trustee of rhe state's public narural resources, or to develop standards for administering protection for rhe environment enumerated in Article I, Section 27. 43 This interpretation of the Amendment thus removed an entire category of cases namely, agency action appeals - from review under rhe Amendment, because ir effectively prevented agencies from declaring rhar they were rhe sole rrusrees of all the environmental values potentially impaired or damaged in any given condition.

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The Fox decision resulted in a narrowing of the Payne holding, for while rhe Payne three-point test initially requires the reviewing Court ro check for compliance with all applicable statures and regulations relevant to the prorecrion of the Commonwealth's environment, ir also prescribes attention ro other factors outside rhe statutory scheme. 44 The Fox Court; however, rested irs decision on a conclusion rhar rhe conduct of the Department fell outside its srarutory authority in refusing to give a permit. 45 Having reached rhar decision, rhe Court gave no further consideration ro Payne's three-fold standard which is derived directly from rhe Amendment.

Following rhe Commonwealth Court's decision in Fox, 46 in In Re: Condemnation for Legislative Route 2 J2,47 rhe Court determined rhar because of rhe lack of a specific regulation requiring no rice of an impending public project, rhe language of Article I, Section 27 would add nothing to the notice requirements.48 The Court held rhar they can nor find any such consri ru rional directive wi rh in this Amendment. 49 This demonstrated rhe Court's hesitation in making Article I, Section 27 viable unless rhe violation of a stature or regulation gave rise to a specific cause of action . In effect, rhe Court terminated its analysis under Payne at rhe first step of rhe rest based on the deficiency of a specific stature authorizing the relief rhar rhe citizens requested. so A close reading of rhe Payne decision; however, does nor support such interpretation. The Commonwealth Court's decision in Payne determined rhar the Amendment is selfexecuring. In consideration of rhar determination, the Commonwealth Court created rhe three-point standard for determining rhe constitutionality of an acrion.s 1 Only rhe first step of rhe rest requires rhe Court to examine whether there was compliance with all applicable statures and regulations relevant to rhe prorecrion of the Commonwealth's public natural resources.s 2 Nevertheless, rhe Courts have interpreted Payne ro connote rhar rhe absence of a stature regulating rhe challenged action prevents the Court from

continuing rhe analysis via rhe second and rhird points of rhe Payne test. This interpretation renders Payne's holding rhar Article I, Section 27 is self-executing rather meaningless.s3 The first step of rhe Payne rest simply directs the Court to check for compliance with all applicable statures and regulations, rhe instructions do nor, however, stare rhar if there has been noncompliance or if no statures or regulations exist, then the analysis should rerminare.s4 Thus, ir appears that Courrs have struggled and fulrered in their interpretation ofPayne, in effect, within rhe Commonwealth Court, ir has become irrelevant whether Section 27 is or is nor self-executing. The Court has consistently held rhar if there are no statures or regulations which apply, then Article I , Section 27 cannot independently serve as rhe basis of a cause of action. 5s

D. United Artists' Theater Circuit v.

City ofPhiladelphia Courts in Pennsylvania have decided constitutional challenges to government regulation by depending partly on Article I, Section 27 as authority for stare or local action. One line of cases involves rhe protection of historic, private property.

Here, the Amendment acted as a cushion against rhe expansion of private property righrs that could interfere with protection of rhe values identified in rhe first part of the Amendment. In UnitedArtists'Theater Circuit v. City ofPhiladelphia, 56 rhe city of Philadelphia designated a morion picture theater as historic, which subjected rhar property ro certain restrictions. The theater's owner then challenged such design a rion. s7 Al though, historic preservation ordinances are generally valid under rhe U.S. Consrirurion, the theater's owner maintained an argument rhar rhe ordinance violated rhe Pen nsylvania Consrirurion because ir caused a raking of private property without just compensarion.s8 Essentially, rhe rhearer's owner claimed rhar rhe Pennsylvania Constitution provided more protection fo r private property owners than did rhe U.S. Consrirurion. When rhe case was initially decided, the Pennsylvania Supreme Court

agreed with that claim and held the ordinance to effect an unconstitutional taking. 59 Nonetheless, afcer supplementary argument, the Court subsequently held that the ordinance did not produce a taking. 60 In reversing itself, the Court relied, in part, on Article I, Section 27, wherein the first sentence explicitly provides a public right to preservation of the historic and aesthetic values of the environment. The Amendment, in effect, protected the ordinance against the takings claim brought by the theater owner. The takings provision of the Pennsylvania constitution is virtually identical to that in the federal constitution; 61 however, in a situation in which the state and federal constitutions contain the same rights, the Pennsylvania Constitution is permitted to provide more protection of individual rights than the U.S. Constitution. 62 In order to assert a claim that the Pennsylvania Constitution provides greater rights, litigants are required to address, among other things, "unique issues of state and local concern . " 63 In consideration of unique issues of state and local concern, the Court held that Article I, Section 27 weighed against a determination that the historic preservation ordinance induced a taking.M The Amendment, the court held, "reflects a state policy encouraging the preservation of historic and aesthetic resources."6 5 The court added that Article I, Section 27 reflects "a general public interest in preserving historic landmarks," that no other practical means exist for preserving such landmarks, and that the ordinance neither deprives the owner of a profitable use nor constitutes a physical intrusion on the property. 66 As the Supreme Court's analysis in United Artists indicates, the protection the Amendment provides against constitutional challenges is not absolute.

The same reasoning that protected the historic preservation ordinance under the environmental rights clause could also sustain decisions which protect public natural resources under the public trust portion of the Amendment. Unlike the environmental rights clause, the public trust clause dictates an affirmative

Conclusion The text ofArticle I, Section 27 should matter. The text contains two separate and distinct sections, one focuses on environmental rights concerning actions on public and private property, and the other focuses on public trust which applies to only to publically owned natural resources.

The Amendment also imposes limits on governments ability to adversely affect the environment. Article I, Section 27 should be used to support the exercise of governmental authoriry for environmental protecnon.

The provision of the Amendment which acknowledges the people's right to clean air, pure water and to preservation of natural, scenic, historic and aesthetic values of the environment is far more than a declaration of rights not to be denied by to the government, rather the Amendment establishes rights to be protected by the government. Although the Governor may have lost his battle at Getrysburg in an effort to bar the construction of the observation tower, he may have "won the t. war" for the Amendment by obtaining a ruling that the Amendment is selfexecuting. Had the Courts ruled responsibil iry on the state. The public trust differently, the Amendment would have no section is no more ambiguous as compared effect until compatible legislation was to other constitutional provisions and is adopted (Gettysburg Tower).

Article I, Section 27 is intended to likely to be precise enough to be selfexecuting. Furthermore, use of the word yield normal development of property "shall" in any constitutional amendment within the Commonwealth while indicates that the provision is self- simultaneously constitutionally affixing a executing.67 Thus, the public trust section public trust concept to manage of the Amendment is capable of being Pennsylvania's public natural resources (Payne). implemented without legislation.

In addition, the Pennsylvania Thus, by the consistent broad reading of the laws protecting the environment, the Supreme Court found that Pennsylvania Pennsylvania Supreme Court has deducted law expressed an original and forceful from its notion that the Pennsylvania commitment to environmental rights and Constitution imposes a strong and historic preservation derived from fundamental obligation to preserve natural common law and an authoritative resources, to protect the environmental Amendment to the state constitution values enumerated in Article I, Section 27, (United Artists). Cases such as United Artists and because it has traditionally equated its suggest that environmental principles and power to discontinue degradation of the values will be deemed qualified to enable environment with its authoriry under the complete protection only if they are common law to order the abatement of determined to be of equal legal status when compared to other values and principles public nuisances. 68 (continued on page 40)

"The provision ofthe Amendment which acknowkdges the peopk's right ckan air, pure water, and to preservarion ofnatural, scenic, historic and aesthetic va/,ues ofthe environment is for more than a declaration ofrights not be denied by the government, rather the Amendment establishes rights to be protected by he government. "

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39

identified in the Constitution. Bur, instead such cases prove that Article I, Section 27 is material in providing environmental and historic protection that statures and regulations cannot.

Although successful in may ways, we should nor be bound by the way in which prior cases were litigated under the Amendment, nor bound by rhe way they were judged as we may identify new ways of understanding and applying the Amendment.

The afore-presented discussion is intended to incite consideration into what Article I, Section 27 means and should be recognized to mean. Article I, Section 27 deserves contemplation nor only because it protects the environment, bur also - and most fundamentally - because it is constitutional law. Article I, Section 27 is very rich in meaning and ultimately much more necessary than we may have initially imagined. Except, we can only know that, and benefit from it, if we address the Amendment with rhe seriousness rhar ir, and all, constitutional law deserves.

It has been nearly three decades since the beginning of the modern environmental era and since the adoption of Article I, Section 27. Although we have a much better understanding of what we have accomplished and what challenges we have yet to face, we wiJl be better prepared and equipped to embark on such endeavors with a clear understanding of the purpose and power of the Environmental Rights Amendment. The role of constitutional provisions within natural resource conservation and environmenral protection is likely to continue to grow in importance. Any lawyer handling environmental litigation should have a thorough understanding of Article I, Section 27.

Now, consider the benefits if the United States Constitution were to embody such a provision, whether as partially successful as Article I, Section 27 of rhe Pennsylvania Constitution, or porenrially more so .... •

Marcy Smorey-Giger is a fourth-year evening student.

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ENDNOTES

Commonwealth v. National Gettysburg Battlefield Tower, Inc., 454 Pa. 193, 311 A.2d 588. n. I (Pa 1973). (A total of 1,021,342 voters supported the Amendment) .

2 Margaret]. Fried and MoniqueJ. Van Damme, "Environmencal Protec tion in a Constitutional Sening," 68 Temple L. Rev. 1369, (1995).

3 I 03 Dick. L. Rev. at 697. · 4 John C. Dernbach, ''A Reappraisal of Article I, Section 27." Pennsylvania Bar Institute, 2662 ( 1999) Fourth Annual Environmental Law Forum, PB! Press, 1999 ac I

s.

6

Id Id

7.

PA Const. art. I,§ 27.

8.

Id.

9 Franklin L. Kury, "The Environmental Amendment to rhe Pennsylvania Constitution ."

Pennsylvania Bar Institute, 2241 (1999) Pennsylvania Environmental Law and Practice, Ed. Terry R. Bossert and Joel R. Burcat, PB! Press, 1998 at 10.

10 · Dernbach, supra noce 21 , "A Reappraisal of Article I, Section 27" PB! Press, 1999 at 1-4.

II .

103 Dick. L. Rev. at 699.

12.

103 Dick. L. Rev. ac 699.

13.

Id.

14 .

I 03 Dick. L. Rev. ac 700.

311 A.2d 588 (Pa. 1973).

IS. 16.

17.

18.

19.

20.

21.

22.

23.

24.

2S .

26 27

Id. Id. at 590.

Id. Id. Id. at 595.

Id. Id. Id. (Roberrs, J., concurring).

Id. at 597 Oones, C.J., dissenting).

Id. Id. at 595 (Nix, J., concurring).

Payne v. Kassab, 312 A.2d 86

(Pa.Cmwlth . Cr. 1973), a/f'd, 468 Pa. 226, 361 A.2d 263 (1976).

28 68 Temp. L. Rev. ac 1389.

29 · Id. See also O'Connor v. Pennsylvania Pub. Util. Comm'n, 582 A.2d 427 at 431 (Pa.Cmwlth. 1984), (this case is an exception as it cited Gettysburg Tower respecting rhe assertion that the Amendment is not self-executing).

30 312 A.2d at 94.

3 1.

i2

n

Id. Id. Id. at 273.

34

Id. at 272.

Id.

3S .1><>.

37

·

Id.

Community College ofDelaware County

v. Fox, 20 Pa .C mwlch . 335, 342 A.2d 468 (Pa.Cmwlth . 1975).

38 Id at 476. · 39 Id. at 483.

40.

Id at 481.

41.

Id. Id. ac 482.

43.

Id. at 476.

44.

Id. 1S. Id. 46 .

Id. 47 · See, e.g., In Re: Condemnation far Legislative Route 212, 22 Pa.Cmwlth . 440, 349 42.

A.2d 819 (Pa.Cmwlt:h. 1975).

48 Id. at 822.

49.

Id.

68 Temp. I. Rev. ac 1394. st.

See Payne v. !Vissab, 312 A.2d 86, 94 (Pa.Cmwlch. 1973) (establishing three-point standard for determining che consciturionaliry of an action), aff'd, 361 A.2d 263 (Pa. 1976).

so

)2.

S3 14

Id. Id. 312 A.2d ac 94 .

United Artists' Theater Circuit v. City ofPhiladelphia, 528 Pa. 12, 595 A2d 6 (Pa. 1991 ), ss

a/f'd, 535 Pa. 370, 635 A.2d 612 (Pa. 1993).

16 S7.

SS. S9.

60.

Gt.

Id. Id. Id., see also PA Const. arc. I, § I 0.

595 A.2d 6 (Pa. 1991).

635 A.2d at 622, 635.

U.S. Const. amend. V and PA Const.

arc I , §10.

62

·

Gi. 60 ·

I 04 Dick. L. Rev. at 161.

Id.

635 A.2d at 620.

Id., (With respect to me ocher three factors considered, the Court recognized that rhe text contained in the state and federal provisions is similar. The Court also noced chat che state generally follows federal case law on the takings, and chat no state court had held chat a historic designation deemed a taking).

66 ld.at618-19. · 67 · John C. Dernbac h, " Taking the Pennsylvania Constitution Seriously When it Proceccs che Environment : Pan II Environmental Rights and Public Trust," 104 Dickinson L. Rev. 97, 117 (Fall 1999).

68 68 Temp. L. Rev. ac 1400.

GS.

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