SUMMER 2022
The Award-Winning Publication of the Berks County Bar Association
What's Driving
Putin 's War in Ukraine Also:
Two views on the Ninth Amendment Tense evening with the
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SPRING 2016
Content for Summer 2022
BOARD OF DIRECTORS JAMES M. SMITH, President GABRIELA G. RAFUL, President-Elect KAREN H. COOK, Vice President NIKOLAS D. CAPITANO, Secretary PAUL F. TROISI, Treasurer HON. TONYA A. BUTLER, Director AMY J. LITVINOV, Director JOHN E. REIGLE, Director MARK E. ZIMMER, Director LAUREN M. MARKS, Director THAD M. GELSINGER, Director JUSTIN D. BODOR, Immediate Past-President KOURTNEY E. BERNECKER, President YLS
BAR ASSOCIATION STAFF KORI A. WALTER, Executive Director ROSE M. JOHNSON, Law Journal Secretary/Office Manager CAROLYN FAIR, Marketing Manager LUCY BRITO, Community Service Manager PAMELA L. VANFOSSEN, Law Journal Editor J. CHADWICK SCHNEE, Law Journal Assistant Editor MATTHEW M. MAYER, Barrister Editor
Please submit materials or comments to: Berks County Bar Association 544 Court Street, P.O. Box 1058 Reading, PA 19603-1058 Phone: 610.375.4591 Fax: 610.373.0256 Email: info@berksbar.org www.berksbar.org
Thank You
Our thanks are extended to the numerous people who have contributed to The Berks Barrister. Your time, energy and efforts are sincerely appreciated.
Features: 10 Putin’s Delusions, Ambitions Driving War with Ukraine 16 Pleading the Ninth 17 The Ninth Amendment: Not A Blank Check 21 Counting Coins Backstage with the “Godfather of Soul” 24 Bench-Bar Conference 28 Miscellaneous Docket 29 In Memoriam 32 Jazz Fest Dinner
Departments: 6
Opening Statement
30 Restaurant Review 35 Closing Argument
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Opening Statement
Leak undermines judicial independence I
n early May, we learned that someone inside the U.S. Supreme Court had leaked to the public Justice Samuel Alito’s draft opinion supporting overturning the Court’s landmark decision in Roe v. Wade. Justice Alito’s draft in the Court’s pending case of Dobbs v. Jackson Women’s Health Organization was circulated in February to the other Justices for review and comment. The draft is labeled a majority opinion, meaning at least five of the Court’s Justices presumably support the decision and its rationale. At the submission of this article, only days after the leak, we have already witnessed organizations opposing the reversal of Roe v. Wade spew the expected vitriolic rhetoric that funds their political machinery. We have also witnessed the doxing of Supreme Court Justices assumed by the machine to make up the draft opinion’s majority followed by the intended effect of doxing: large, loud and angry protests outside their homes to intimidate the Justices into changing course to comply with the opinion of the loudest voice. As members of this Bar, we will, and we should, rigorously debate the Court’s decision and the Justices’ rationale—both for and against—when it is finally issued. But the leak itself— particularly where intended to undermine the integrity of the Court, its deliberations, its decisions, or its operations—presents an immediate and very real threat to the vitally important tradition Continued on page 8
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Opening Statement Continued from page 6
of judicial privilege and its role in preserving an independent judiciary that compels action. It is widely accepted that judicial deliberative privilege is rooted in the Constitutional doctrine of separation of powers and the preservation of an independent judiciary “able to carry out its public duties without regard to political concerns, external pressures, and more generally, without fear of retribution.” 1 Maintaining the confidentiality of the judicial decision-making process fosters a judge’s ability to make impartial decisions because confidentiality insulates judges from the pressure of public opinion and the temptation to make decisions consistent with shifts in public opinion. Without a privilege protecting the substance of judicial communications, judges, anticipating public dissemination of the substance of judicial communications, would refrain from speaking frankly during deliberations or conversations with staff members for fear that the public would deride judges’ positions that are unpopular. Furthermore, a judge may refuse to change an opinion during subsequent deliberations once the judge’s position becomes known to the public. … Because the prospect of an unfavorable public reaction to a judge’s decision could influence a judge’s ability to adjudicate impartially, the preservation of the confidentiality of the judicial decision-making process is justifiable. Confidentiality minimizes the possibility that judges will succumb to public pressure and abdicate judicial impartiality in favor of conformity to public opinion.2
It is vital that we speak out to protect judicial independence, not only from challenges presented by the co-equal legislative and executive branches, but also from popular opinion. As Michael H. Reed wisely wrote in a 2018 ABA Journal article: This is not a Democrat versus Republican issue. Nor is it a liberal versus conservative issue. Threats to judicial independence have arisen from the right and the left, and judicial independence has been defended by those on the right and the left. Judicial independence is part of the DNA of American judicial systems [and] is one of the features that make our courts models for other democracies.3 The judiciary, by design, is the only branch of our federal government intentionally not subject to direct public opinion, preserving its ability to uphold the Constitution, especially when doing so is unpopular. So, while one may argue that the legislature should be led by popular opinions, judges should certainly not. To the contrary, the courts were designed to temper the emotions of the mob and anchor us to the Constitution alone. Americans champion the phrase: “The courts are the final bulwark against tyranny.” And rightfully so. In a 2018 ABA Journal article, Attorney Rew Goodenow encouraged us as citizens, as I encourage the members of this Bar, to “build up, fortify, populate and reinforce our bulwark against the stormy seas of public opinion. If the bulwark fails, then how will our democracy survive?” 4 Mr. Smith is the 89th President of the Berks County Bar Association and Founding Member of the Smith Bukowski firm in Wyomissing.
1
Privilege Precludes Asking: What was the Judge Thinking, Boston Bar Journal, J. Nancy Gertner (12/19/2012)
2 The Doctrine of Judicial Review: The Historical and Constitutional Basis Supporting a Privilege for the Federal Judiciary, 44 Wash. & Lee L. Rev. 213, 231-33 (1987) https://scholarlycommons.law.wlu.edu/wlulr/vol44/iss1/11/
Judicial Independence—An Essential American Value, Michael H. Reed, ABA Journal (3/29/2018). https://www.abajournal.com/news/article/ judicial_independence_an_essential_american_value#:~:text=Judicial%20independence%E2%80%94the%20ability%20to,a%20Democrat%20versus%20 Republican%20issue 3
4 Digital Age Reinforces the Need for Judiciary to Act as a Bulwark Against Tyranny, Rew Goodenow (7/19/2018) https://www.abajournal.com/news/ article/digital_age_reinforces_the_need_for_judiciary_to_act_as_a_bulwark_tyranny
8 | Berks Barrister
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Putin 's
Delusions, Ambitions Driving War with Ukraine 10 | Berks Barrister
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A look at Russia’s invasion through the eyes of a former Air Force intelligence analyst and local lawyer By Douglas S. Wortman, Esquire
A
s a senior attending Kutztown University in 1993, I participated in an overseas study program at the Diplomatic Academy of the Russian Federation in Moscow. This was just two years after the unsuccessful August 1991 coup against Secretary General Mikhail Gorbachev had sealed the fate of the Soviet Union. Planned by hardline Communists, the coup diminished Gorbachev’s power and propelled Russian President Boris Yeltsin and the democratic forces in the nation to the forefront of Soviet and Russian politics. The coup failed, but Gorbachev resigned his leadership of the Communist party shortly thereafter. A few days after the failed coup attempt, the Baltic States, Ukraine and Belarus all declared their independence from the Soviet Union. Amidst these dramatic changes across Eastern Europe and Russia, President George H. W. Bush’s administration prioritized the prevention of nuclear catastrophe (including theft of nuclear weapons and materials), the curbing of ethnic violence and the stable transition to new political orders. On September 4, 1991, Secretary of State James Baker articulated five basic principles that would guide U.S. policy toward the emerging republics: self-determination consistent with democratic principles, recognition of existing borders, support for democracy and rule of law, preservation of human rights and rights of national minorities, and respect for international law and obligations. In early December of 1991, Yeltsin and the leaders of Ukraine and Belarus met to form the Commonwealth of Independent States (CIS), effectively declaring the dissolution of the Soviet Union.
To understand why Russian President Vladimir Putin launched an invasion of neighboring Ukraine, one must understand Russia’s relationship with its Baltic neighbor and the mindset of a leader who has made empire building his mission. Here’s a look at some key factors fueling the conflict and what Putin’s end game may be.
Vladimir Putin After serving 15 years as a foreign intelligence officer for the KGB, August of 1999 marked the beginning of Vladimir Putin’s reign over Russia when he was appointed acting prime minister by Boris Yeltsin. Yeltsin resigned soon after due to health issues and named Putin acting president. Putin was elected president in his own right in 2000. By his own account, Putin sees himself, not as the heir to the Soviets, but as a champion of Russian civilization and Moscow’s Eurasian empire, whose roots extend back to a much earlier Vladimir— St. Vladimir, the Grand Prince of Kiev from about 980 to 1015. St. Vladimir was ruler of what the Russians consider their first empire, the Slavic state known as Kievan Rus—based in what is now Kyiv, the capital of Ukraine. St. Vladimir’s conversion to Christianity in 988 later gave rise to the idea that Russia would be the “third Rome”—the heir to the fallen Roman and Byzantine Empires following the surrender of Constantinople to the Ottomans. It is why, like Putin, many Russians refer to Kievan Rus as “the cradle of Russian civilization” and Kyiv as “the mother of Russian cities.” Continued on next page
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Putin’s delusions, ambitions driving war with Ukraine Continued from page 11
This history is key to understanding Putin’s delusional view that Ukraine is not, and can never be, a separate country and “never had a tradition of genuine statehood.” Putin made this plain in a speech three days before the invasion, and in a 6,800-word essay from July 2021 titled “On the Historical Unity of Russians and Ukrainians.” In that essay, he reached back more than ten centuries to explain why he was convinced that “Russians and Ukrainians were one people—a single whole.” He claimed it was important to understand that Russians and Ukrainians, along with Belarusians, “are all descendants of Ancient Rus, which was the largest state in Europe.” Putin wrote: “The spiritual choice made by St. Vladimir … still largely determines our affinity today.”
Slavophilism This ideology is known in Russia as “Slavophilism,” a Russian imperial ideology that is more than 200 years old, but today has been directed at what Putin and his supporters see as the corruption of Western democracies. Slavophile thought is a national tribalism extending to all Slavic peoples including Ukraine, Belarus (literally translated from Russian - “White Russia”), Poland, and the Balkans, who must be gathered back into the Russian fold. It is crucial to Putin’s worldview. This ideology also enabled Putin to make what is to him a coherent argument that, while the Soviet communist regime will never be restored, the Slavophilic ideal that was its true lifeblood can and will be. 12 | Berks Barrister
Red Square in Moscow. Photo courtesy of Douglas Wortman.
Putin’s historical focus is also meant to convey his deeply entrenched belief that Russia is a distinct civilization that has little in common with the West. This is a key element of Slavophilism. This is based on the belief that Russia and its dominions (Ukraine and Belarus) are distinct economies and cultures that belong to a single imperial whole. It is a defensive mechanism. If you integrate with the world, then you become more vulnerable. Their world-view is and always has been, “We are fortress Russia. We don’t need anyone else.”
Patriarch Kirill and the Russian Orthodox Church This attitude has profound religious roots in Russian history as well. Central to their faith is the Russian belief that Orthodox Christianity is superior to the West’s liberalized Christianity, which Putin and other conservative Russians view as corrupted by Enlightenment ideas. A speech delivered on April 3, 2022, by Patriarch of the Russian Orthodox Church Kirill, held in Moscow’s Cathedral of the Armed Forces, may provide keen insight into what will come next for Ukraine. In the Russian Orthodox tradition, the Fourth Sunday in Lent is dedicated to the commemoration of St. John Climacus (also known as St. John of the Ladder). His treatise The Ladder of Divine Ascent, divided into thirty parts, is meant to be a guidebook to a Christian life. Patriarch Kirill took St. John of the Ladder as the basis for his sermon in which he reminded his audience that, “The greatest and
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holiest feeling God has given to man is the feeling of love.” But then, about halfway through, the sermon took a disturbing turn. Here the Patriarch said he had come to address the leaders of the Russian forces, and through them, their troops. He reminded the assembled congregation of Vladimir Putin’s favorite propaganda point in this war: that Russia was fighting fascism in Ukraine just as it had in the Second World War. Then the Patriarch presented a version of history that denied Ukraine’s very existence. He blamed “various forces” (i.e. outsiders, including the West) that emerged in the Middle Ages for what he regards as a false division between Russia and Ukraine. In fact, he doesn’t even acknowledge there are such people as Ukrainians, referring to all involved parties (including Belarusians) as “Holy Russians.” Disregarding for a moment how factually skewed Patriarch Kirill’s history is, this sermon marks a ominous escalation in the rhetoric coming from the Patriarch of the Russian Orthodox Church—and we can assume by extension, the Russian state since the church and the state are in virtual lockstep in this war. Patriarch Kirill’s sermon does no less than refuse to acknowledge the distinction between Russian and Ukrainian culture and identity. It denied Ukraine’s right to exist as a sovereign nation, both historically and in the present, and legitimized the ongoing violence as “a necessary and holy battle against the Western AntiChrist.”
National Security Whether or not Vladimir Putin’s invasion of Ukraine ends any time soon, what is certain to continue is the Russian president’s abiding hatred and mistrust of the United States and NATO, which he believes left him no choice but to invade and “demilitarize” Ukraine. Ukraine became the touchstone of Putin’s anti-Western attitudes in large part because the Russian leader and his supporters saw their historical brother nation as the last line in the sand after a long series of Western humiliations. Putin, in his speeches, has repeatedly called NATO’s expansion into Eastern Europe “the West’s anti-Russia project.” These perceived slights and the Russian national inferiority complex go back a very long time—not just in the 30 years since the Cold War ended, nor even in the 100 years since the Soviet Union was formed in 1922. They reach all the way back to the European Enlightenment of more than three centuries ago, which gave rise to liberty, democracy, and human rights. To Russian nationalists like Putin, these developments have threatened to eclipse Russia’s distinct character as a civilization. The Russian president’s antagonism toward the West is compounded by his personal history as a child of a World War
II veteran and career Soviet spy as well as the tangled, thousandyear history of Russia itself—or at least Putin’s reading of it. In Europe, most borders have been set by rivers and mountain ranges, but that is not the way Russia looks at how national boundaries are set. Russia’s borders have fluctuated over time, based in large part on foreign invasions and Moscow’s fears of invasion. Today, the borders of Russia are essentially the borders of Russia in 1721. The way they see it, the collapse of the Soviet Union in 1991 undid 300 years of geopolitical and territorial advances. Since the end of World War II (known in Russia as the Great Patriotic War), a war in which the Soviet Union suffered an estimated 30 million dead, including some 20 million civilians, Soviet/Russian foreign policy has been driven mainly by an old strategic concept, embraced by dictators Napoleon Bonaparte, Adolf Hitler, and other traditional strategists from recent centuries, of the need for “strategic depth” or buffer zones to defend one’s borders. For Putin, whose father fought in World War II, and for many other Russians, the defining event of their lives was, and is still, the trauma of Hitler’s invasion and the deaths of tens of millions of their countrymen. That was likened at the time, and still is, to Napoleon’s calamitous war on Russia the century before. As Thomas E. Graham, a distinguished fellow at the Council on Foreign Relations and cofounder of the Russian, East European, and Eurasian studies program at Yale University, recently explained: Russia has been repeatedly invaded. That’s something that’s very difficult for us in the United States to understand because we never faced a catastrophe of those dimensions. It is a sense that goes back centuries: In order to survive, you need strategic depth, so you need to push borders out as far away from the heartland as possible—not so much physical as geopolitical barriers. You just push until you meet something that can resist you. Putin’s consolidation of power and attempts to take back parts of the former Soviet bloc, starting with his incursion into Georgia in 2008, are also a result of a burning sense of defeat and humiliation after Soviet Russia’s defeat in the Cold War. One reason Putin has been so popular is that many ordinary Russians share his sense of national injustice. These views are also shared by many Russian elites, the infamous “Oligarchs” who have supported him for over two decades, and is also a primary reason for Putin’s domestic popularity, even as he has turned himself into a dictator and Russia into a nearly totalitarian state reminiscent of the Soviet Union at its worst. * Continued on next page
* The closest thing to an independent pollster in Russia is the Levada Center. According to their latest poll, Putin’s favorability ratings increased from 69% in January to 83% in late March, a month into the so-called special military operation.
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Putin’s delusions, ambitions driving war with Ukraine Continued from page 13 Additionally, due to the sanctions and other economic penalties, Russia is almost as isolated economically as it was during the Soviet era. Despite all this, there are few indications that Russia is considering cutting its losses. By all accounts, ceasefire negotiations have reached a dead-end with Russia refusing to compromise on any of its initial positions.
The Russian Intelligence Community and the Military In many cases, the direction a war takes is not solely determined by battlefield success or failure. Rather, major decisions—especially about when to end the war—are often dictated by the interests of the key political players within the country. Therefore, truly understanding the Kremlin’s decisionmaking process requires focusing on the key power dynamics within the regime. Putin’s domestic political base consists of two rival power blocs: the intelligence community and the military. Both have suffered major blows to their credibility during the war. However, as they continue to jostle for Putin’s favor, both also have a vested interest in prolonging the conflict.
The State of the War The writing has been on the wall for years regarding Putin’s grand geopolitical ambition to reestablish Russia’s control over at least some part of its former Warsaw Pact and Soviet possessions, without much regard for the desires of the people who live there. This obsession with distant history is why Putin, typically considered a clever and formidable, but restrained, geopolitical tactician, has made his biggest mistake by invading Ukraine. In doing so, he has united the Ukrainians, the Europeans, the United States and most of the rest of the world against him. So far though, Russia’s war in Ukraine is not going according to plan. The sinking of the Moscva—the flagship of the Black Sea fleet – is just the latest major military setback. In the course of less than two months, Russia lost six generals, between 15,00020,000 troops and hundreds of tanks and armored vehicles, all while failing to secure any appreciable gains. This, along with Russia’s apparent inability to replenish destroyed military equipment, a consequence due in large part to Western sanctions, has led many military observers to wonder whether the Russian war machine is figuratively and literally running out of gas. 14 | Berks Barrister
The intelligence bloc includes the current and former leadership of the FSB (the successor of the Soviet KGB) and other intelligence agencies. Having started his career as a KGB intelligence operative, Putin has maintained a symbiotic relationship with the agency throughout his tenure. Several FSB leaders are long-time members of Putin’s inner circle and his confidants. The other power bloc consists of the heads of the military and defense structures, including Defense Minister Sergei Shoigu, Chief of Staff Valery Gerasimov, and leader of the Chechen Republic Ramzan Kadyrov. These individuals have earned Putin’s trust as a result of decades of service and unwavering loyalty. Despite important similarities—conservative, anti-democratic and anti-West—the interests of the two blocs are not perfectly aligned. The intelligence community’s focus is primarily covert. It specializes in controlling domestic dissent (broadly defined to include the former Soviet republics and former Warsaw Pact nations), staging covert operations, and both domestic and international political sabotage. The military community is naturally the party of war. It derives its influence from foreign policy adventurism. The intelligence agencies reign during peacetime, the military rules during war. For Putin, the war has revealed the true state of affairs within both the military and intelligence apparatus. Intelligence took the first hit. Moscow’s original plan was to take Kyiv in two days. Russian troops brought parade uniforms, expecting to march down Khreshchatyk in a victory celebration. The ambitious plan was based on intelligence reports that Ukrainians would greet Russian soldiers as liberators—faulty information that led to
massive strategic miscalculations and losses during the war’s initial stage. The military has not escaped failure and scrutiny. The war has shown the world the inadequate state of the Russian army, a consequence of decades of deferred maintenance and blatant corruption. Low morale, excessive dependence on conscripts, poor training, lack of a professional non-commissioned officer corps, and equipment failures and vulnerabilities have shone an unflattering spotlight on what was considered the world’s second strongest military. However displeased he most certainly must be though, Putin cannot afford to purge his military command during the war. As long as the war lasts, the military leadership will not be held accountable, despite their poor performance. Hence, the military command has a strong preference for prolonging the war to delay the inevitable day of reckoning. The intelligence agencies have also lost influence after their early failures, and the end of the war may bring frightful repercussions for failed intelligence. This means that the best possible scenario for top intelligence officials is a stalemated war, with little fighting, but no permanent resolution to allow them to redeem themselves with the Russian leader the way they know best—through covert operations in the occupied territories. Both groups have an interest in prolonging the war and even if things continue to go badly, neither group is likely to advise Putin to end hostilities any time soon.
Economic Sanctions Western foreign policy experts too often forget that dictators like Putin need not concern themselves about public opinion and economic prosperity in the way that democratically elected leaders must. In power for life, they can set these concerns to one side for prolonged periods of time in service of the greater goal of national honor. This lust for national honor at the expense of material self-interest is an unalterable feature of Putin’s nature and that of the nation he rules. Putin's aims are for Russia to be honored, respected, powerful and feared. To achieve this, Putin will go to much greater and more ruthless lengths in pursuing his ambitions than elected democratic leaders are able or willing to—a fact that he knows and which he believes gives him a key advantage in his confrontation with the West. In a return to Soviet style “Brinksmanship,” he is willing to march up to the very edge of a general war in Europe, or perhaps even cross that line, and he is perfectly willing to put the Russian people through extreme material and economic deprivation in support of his cause. To Putin and to many Russians, honor and national pride come first. So, while sanctions are doing tremendous damage to the Russian economy, in the end they will not be enough to alter Putin’s decisions in Ukraine. It’s not that Putin doesn’t want economic
prosperity for Russia. His early economic policies were based on stabilizing the ruble, economic revitalization and participation in the global economy. But to Putin, the economy takes a distant second place to restoring Russia’s national pride and dignity after what he views as the “catastrophe” of the Soviet empire’s humiliating defeat in the Cold War.
End Game If Putin succeeds in seizing eastern Ukraine and establishes a land corridor to the Crimea, Moscow would have a stronger position in any negotiated settlement. If Mariupol falls, Russia will have control of the Ukrainian seacoast from Rostov in the east along the shores of the Sea of Azov and then on to the outskirts of Odessa. This would clear the path for logistics support for Russian forces in the south and further degrade Ukrainian efforts to defend Odessa and its large port. If Russia can push through in the east, Putin will be better positioned at home to sell his socalled “special military operation” as a limited success and claim he has secured protection for Ukraine’s pro-Russia minority and Russia’s access to the Black Sea. Ukraine does have the advantage of the support of NATO’s considerable economic and technological might and they are fighting cleverly and valiantly. After weeks of focusing on antitank and anti-aircraft weaponry like Javelins and Stingers, the new shipments of weapons from the West over the last few weeks have included long-range artillery, tactical vehicles and mobile radar systems to help the Ukrainians detect and destroy Russian artillery positions. Other countries are sending tanks, more artillery and anti-ship missiles. If the Ukrainian military can stop Russia’s advance in the Donbas, a very real possibility, Mr. Putin will be faced with a stark choice: commit more combat troops and equipment to a fight that could drag on for years, or negotiate in earnest at peace talks. Even if things continue to go badly militarily and economically though, Putin is unlikely to withdraw his forces from Ukraine until he can claim some sort of military or geopolitical victory. Until then, sadly, tragically, the war will go on.
Mr. Wortman is founder and principle of Justicia Law in Reading and a former Soviet/ Russian analyst for Air Force Intelligence. He holds a B.A. in Russian and Eastern European Studies and a M.A. in European History.
Summer 2022 | 15
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Pleading the Ninth
How the American Left Legal Community has Awakened to a New Tool to Counter Conservative Judicial Activism By Raymond Edward Baker, Esquire
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n January 26th, 2022, the news many politicos, attorneys, and others had been waiting, or praying, for arrived; 83-year-old Supreme Court Justice Stephen Breyer announced his retirement. Within months, President Joseph Robinette Biden, Jr. would be able to name his first Justice to the Supreme Court, and it came with two self-imposed caveats from The President – one expected and one not. First, President Biden guaranteed that Jurist would be the First Black Woman to ascend to the Court1,2. Second, that Jurist would need to have a proper judicial philosophy and belief, “that there are unenumerated rights to the Constitution. And all the amendments mean something, including the Ninth Amendment.” 3
The Ninth Amendment of the Constitution states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”; 4 this amendment has seen little usage over the centuries. The average attorney, professor, and law student has treated it much like the Third Amendment; one that exists and will never appear in any important opinion.5 For most of the amendment’s history, this has been correct. It has received passing mentions
in U.S. Public Workers v. Mitchell and Griswold 6 v. Connecticut 7, however, it has not been the pillar of the expansion, exclusion, or protection of rights in the way the Fourth, Fifth, Tenth, and Fourteenth have. Nearly every appearance of the Ninth has been to say what unenumerated right an American is not entitled to under the Amendment. Notable examples include growing marijuana8, marrying someone of the same sex9, or avoiding the death penalty10.
So why would President Biden and, to a certain extent, the left side of the aisle feel that the Ninth Amendment has become a legal necessity? To find the answer one should look across the aisle to The Federalist Society and the growth of Legal Conservatism & Originalism in the 1970s and '80s. With their backs up against a wall by the rulings of the Warren Court and Early Burger Court, Conservatives fought back by building a legal philosophy around “Originalism,” the idea that it was their duty once in seats of power to “adjudicate the Constitution as the Founders intended,” as it related to each part of the Constitution. Critics argue this is a farce, as 250 years ago the Founders writing The Constitution, and later The Bill of Rights, would have never intended one of Originalism’s Continued on page 18
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NINTH AMENDMENT: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The Ninth Amendment: Not A Blank Check By Joan E. London, Esquire
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ustice Stephen Breyer announced his retirement from the Supreme Court in January, raising the question of a successor’s judicial philosophy on Constitutional interpretation. A month later, President Joe Biden nominated D.C. Circuit Judge Ketanji Brown Jackson. Throughout Judge Jackson’s confirmation hearings before the Senate Judiciary Committee, numerous questions were asked of her regarding opinions she had written, and arguments that she had made, to attempt to discern her judicial philosophy.1 There are at least six theories of constitutional interpretation (“judicial philosophy”). They are best described in terms of either attempts to analyze the meaning of the text of the Constitution at the time it was written (mainly “originalism,” and “textualism”) and the view of the Constitution as a “living document” and looking at balancing of interests and “ethos of the Constitution” to decide cases.2 Originalists “believe that judges should follow the intent of the framers in constitutional adjudication… and constitutionalize only those rights specifically contemplated by
the framers.”3 Conservative jurists tend to embrace originalism and textualism, while liberal jurists tend to utilize the “living document” philosophies, such as moralism and prudentialism. Judge Jackson, in the Senate confirmation hearings, did not identify adherence to any judicial philosophy. In response to a question from Judiciary Committee Chairman Senator Richard Durbin, Judge Jackson responded citing a three-step methodology for making decisions. Several Senators, including Pat Toomey from Pennsylvania and Ben Sasse from Nebraska, refused to vote for Judge Jackson’s confirmation because of a perceived lack of a judicial philosophy, and “the likelihood she will continue to reach beyond the limited role of the judiciary.”4 In discussions of judicial philosophy of Court nominees, as more cases on individual rights are in position to be heard, the Ninth Amendment to the U.S. Constitution has received more attention, even though there is little jurisprudence on this amendment. The Ninth Amendment states: Continued on page 19 Summer 2022 | 17
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Pleading the Ninth Continued from page 16
key supporters, Justice Clarence Thomas, to have voting rights or freedoms, let alone the ability to serve as a Supreme Court Justice! Nevertheless, it has become the leading legal theory of many Jurists of the Federal and State Judiciaries. By choosing a core philosophy, growing a belief from it, then instilling it into young legal minds whom support it, Originalism has spent the last 30 years bearing the fruit from the seed they planted. This has sowed a clear path to victory and success for those wishing to do the same with the Ninth and unenumerated rights.
This begs the question why, with limited exception, has the Ninth remained dormant on issues such as abortion, racial discrimination, and freedom of sexual preference and gender identity, mostly due to the reliance on the Interstate Commerce and Due Process Clauses and the 14th Amendment as a cudgel against the States infringing on Americans' rights. While the Ninth got a passing mention in Roe,11 by the time of Planned Parenthood v. Casey12 The Fourteenth and Due Process Clause were the sole concerns and has remained so in the recent line of cases.13 The same can be said of the right to choose a sexual partner14, a spouse15, or to discriminate based upon race16. However, the usage of the Fourteenth is on its back foot, as what was once always the Dissenting Opinion17 may already be the majority with the seating of Justice Amy Coney Barrett in place of Ruth Bader Ginsburg. The Originalists who have stated the Due Process Clause for these “rights” was invented whole-cloth in the 1960s look to have the Majority.18 Thus, unless the Left thumbs its nose at precedent, which The Court would be doing if Casey, Lawrence, and/or Obergefell were overturned, Jurists appointed by Democrats would need a new tactic, which leaves the Ninth Amendment sitting there in wait. While one can speculate what direction the philosophy will play out, it seems like the Legal Left will begin to assert that an unenumerated right retained is the right to the privacy to have an abortion19. Justice Arthur Goldberg’s Dicta in his concurring opinion in Griswold very directly lays out, “The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights,
On February 25th, 2022, a near month after Breyer’s announcement, President Joseph Biden announced he would nominate Honorable Judge Ketanji Brown Jackson to the Supreme Court, fulfilling his promise. See: Pager, Tyler, et al. “Biden to Nominate Ketanji Brown Jackson to the Supreme Court.” The Washington Post, WP Company, 25 Feb. 2022, https://www.washingtonpost.com/ politics/2022/02/25/ketanji-brown-jackson-supreme-court/. 2 On April 7th, 2022 Justice Kentanji Brown Jackson was confirmed to the Supreme Court becoming the first Black Woman to serve on the United States Supreme Court. William, Kevin B. “Senate Confirms Ketanji Brown Jackson to Supreme Court, Making Her the First Black Woman to Serve as a Justice.” CNBC, CNBC, 7 Apr. 2022, https://www.cnbc.com/2022/04/07/ketanji-brownjackson-confirmed-to-supreme-court-first-black-woman-justice.html. 3 Nelson, Steven. “Biden Meets Senators, Kamala Harris to Talk Supreme Court Pick, ‘Evolving’ Constitution.” New York Post, 1 Feb. 2022, https://nypost. com/2022/02/01/biden-meets-senators-harris-to-talk-scotus-nominee/. 4 USCS Const. Amend. 9 5 USCS Const. Amend. 3; The 3rd Amendment states that all American Citizens have the absolute right to refuse to Quarter Soldiers in their homes. This has never been challenged in the Supreme Court of the United States. 6 United Public Workers v. Mitchell, 330 U.S. 75 (1947) 7 Griswold v. Connecticut, 381 U.S. 479, 485 (1965) (Goldberg J. Concurring) 8 United States v. Fry, 787 F.2d 903 (4th Circuit App.; 1986) 1
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protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments.” 20
However, depending on the future of the laws, it may not end there. “Unenumerated rights” is so broad a term, that it could easily be expanded to cover protecting things, such as access to ballot boxes, availability of transgender surgeries and rights, as well as the right to housing, food, and medical care. These are some of the many other protections that may find themselves under the safety of the Ninth Amendment. This could be a double-edged sword, as those on the right side of the aisle could argue for their own unenumerated rights that benefit them completely. Such as the belief that school choice or the right to educate your child is a right guaranteed. This could put a further nail in the coffin of public-school destruction as it is the hobby horse of the GOP and conservatives in America. However, as the old saying goes, you can’t win if you don’t play and, for the past 30 years, the left side of the legal field has lacked a response to Originalism and the Conservative Judicial Activists who have forwarded it. Now, with the Ninth Amendment, the left may be able to fight back using the Bill of Rights the Founders instituted to turn the theory to ashes in the mouths of their opponents. The battling theory of whether the Constitution is a Dead or Living Document has entered a new chapter.
With this opening salvo by President Biden, no one can truly know where we are headed. The Legal Left taking the offensive are waters not charted since the 1960s and the battle has just begun. It will not end in 2022, and an amendment once tossed out like a useless acorn into the dustbin of history may yet grow into a mighty oak which could become the pillar of one half of the legal spectrum. Mr. Baker is an assistant district attorney for the County of Berks. These opinions do not reflect the opinions, policies or beliefs of the Berks County District Attorney's Office. They are the sole opinion of the author. Baker v. Nelson, 191 N.W.2d 185 (Supreme Court Minnesota; 1971) – This was of course overturned by Obergefell v. Hodges, 574 U.S. 1118 (2015) 10 Alley v. Little, 181 Fed. Appx. 509 (6th Circuit App.; 2006); United States v. Henderson, 485 F. Supp. 2d 831 (S.D. Ohio; 2007) 11 Roe v. Wade, 410 U.S. 113 (1973) 12 Planned Parenthood of Southeastern Pennsylvania et. Al. v. Casey, 505 U.S. 833 (1992) 13 June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2133 (2020) (Roberts C.J. Concurring) 14 Lawrence v. Texas, 539 U.S. 558 (2003) 15 Obergefell v. Hodges, 574 U.S. 1118 (2015) 16 Brown v. Board of Education of Topeka Et. Al., 347 U.S. 483 (1953) 17 June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2142 (2020) (Thomas J. Dissenting) 18 Id. At 2149-51. 19 This issue now at the forefront with the expected overturn of Roe v. Wade & Planned Parenthood v. Bob Casey Sr. et al. Barnes, Robert, and Mike DeBonis. “Supreme Court Is Ready to Strike down Roe v. Wade, Leaked Draft Shows.” The Washington Post, WP Company, 3 May 2022, https://www.washingtonpost.com/ politics/2022/05/02/roe-v-wade-supreme-court-draft-politico/. 20 Griswold v. Connecticut, 381 U.S. 479, 488 (1965) (Goldberg J. Concurring) 9
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The Ninth Amendment: Not A Blank Check
Continued from page 17
“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”5
this theory, are not empowered to enforce the retained rights. Under this view, the Ninth Amendment was intended to limit governmental power.
It has been observed that “[w]hile its counterpart amendments constantly are dragged into court battles and dissected in academic papers, the Ninth rests easily in the margins and footnotes of constitutional law.” 6 The Ninth Amendment was the result of a compromise authored by James Madison, to defend against arguments by some of the framers that the listing of rights in a Bill of Rights would lead to the interpretation that listing some rights would be limiting. The Ninth Amendment, according to Professor Lawrence E. Miller, was “an open-ended acknowledgment that many remaining rights belong to the people, and not the government.”7
• That the Ninth Amendment does not refer to federal constitutional rights, but merely preserves pre-existing rights under state laws and constitutions.
President Biden, in discussing a possible successor to Justice Breyer, specifically referenced a nominee’s views on the Ninth Amendment. Specifically, President Biden stated that he was seeking a nominee “with a judicial philosophy that is more one that suggests that there are unenumerated rights to the Constitution… including the Ninth Amendment.” In her testimony before the Judiciary Committee, in response to questions from Utah Senator Mike Lee, Judge Jackson stated that while “[t]he Supreme Court, …has not identified any particular rights flowing directly from the Ninth Amendment, although, … the text of the amendment suggests that there are some rights that are not enumerated.”8 Judge Jackson was not alone in being asked about views on the Ninth Amendment. Justice Brett Kavanaugh in his 2018 confirmation hearings, in response to questions on his view of the Ninth Amendment and unenumerated rights, opined that Supreme Court precedent protects unenumerated rights rooted in “history and tradition.” 9 Likewise, Justice Neil Gorsuch was asked in his confirmation hearings in 2017 whether he believed that the Constitution guaranteed the (unenumerated) right to privacy (he answered in the affirmative). There are four originalist/textualist views of the Ninth Amendment not acting as a source for “constitutionalization” of unenumerated rights, as follows: • That the Ninth Amendment is not capable of judicial interpretation, and where the meaning cannot be ascertained, the Constitution has not spoken on unenumerated rights and the courts cannot enforce them (e.g., the “hidden under an inkblot” argument of Judge Robert Bork in his 1987 Senate confirmation hearings); • That the framers did not intend unenumerated rights to be determined by the courts, and these rights were, instead, areas where the government ought not to act. The courts, under
• That the Ninth Amendment is a rule of constitutional construction, and neither confers, nor is a source, of enumerated rights.10 Those jurists and scholars not of the originalist or similar conservative philosophy view the Ninth Amendment as a source of new and additional rights, not mentioned in the body of the Constitution or its amendments. We see this most notably in Judge Arthur J. Goldberg’s concurring opinion in Griswold v. Connecticut, a case which found a right under the Ninth Amendment of marital privacy in the right to obtain contraception, even though such a right is not enumerated in the Constitution.11 In a dissent in Griswold, authored by Justice Hugo L. Black, the more limited interpretation of the Ninth Amendment, based on its history, is explained: My Brother GOLDBERG has adopted the recent discovery that the Ninth Amendment as well as the Due Process Clause can be used by this Court as authority to strike down all state legislation which this Court thinks violates “fundamental principles of liberty and justice” or is contrary to the “traditions and (collective) conscience of our people.” He also states, without proof satisfactory to me, that in making decisions on this basis judges will not consider “their personal and private notions.” One may ask how they can avoid considering them. Our Court certainly has no machinery with which to take a Gallup Poll. And the scientific miracles of this age have not yet produced a gadget which the Court can use to determine what traditions are rooted in the “(collective) conscience of our people.” Moreover, one would certainly have to look far beyond the language of the Ninth Amendment to find that the Framers vested in this Court any such awesome veto powers over lawmaking, either by the States or by the Congress. Nor does anything in the history of the Amendment offer any support for such a shocking doctrine. The whole history of the adoption of the Constitution and Bill of Rights points the other way, and the very material quoted by my Brother GOLDBERG shows that the Ninth Amendment was intended to protect against the idea that “by enumerating particular exceptions to the grant of power” to the Federal Government, “those rights which were not singled out, were intended to be assigned into the hands of the General Government (the United States), and were consequently Continued on page 20
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The Ninth Amendment: Not A Blank Check Continued from page 19
insecure.” That Amendment was passed, not to broaden the powers of this Court or any other department of “the General Government,” but, as every student of history knows, to assure the people that the Constitution in all its provisions was intended to limit the Federal Government to the powers granted expressly or by necessary implication. If any broad, unlimited power to hold laws unconstitutional because they offend what this Court conceives to be the “(collective) conscience of our people” is vested in this Court by the Ninth Amendment, the Fourteenth Amendment, or any other provision of the Constitution, it was not given by the Framers, but rather has been bestowed on the Court by the Court. This fact is perhaps responsible for the peculiar phenomenon that for a period of a century and a half no serious suggestion was ever made that the Ninth Amendment, enacted to protect state powers against federal invasion, could be used as a weapon of federal power to prevent state legislatures from passing laws they consider appropriate to govern local affairs. Use of any such broad, unbounded judicial authority would make of this Court’s members a day-to-day constitutional convention.12 Justice Black declined to find that the Ninth Amendment was a source of new rights, but rather to guarantee limitation of federal power and overreach. The more limited view of the Ninth Amendment, espoused by originalists, is that “the framers Judge Jackson was confirmed by the Senate by a 53-47 vote on April 7, 2022. She will become the 116th Supreme Court Justice and the first Black woman to sit on the Supreme Court bench. 2 Scott Douglas Gerber. “The Constitution Won’t Interpret Itself. Keytanji Brown Jackson Owes Us An Answer On Her Judicial Philosophy.” USA Today, March 25, 2022. 3 “Earl M. Maltz. Unenumerated Rights and Originalist Methodology: A Comment on the Ninth Amendment Symposium. 64 Chi.-Kent L. Rev. 981 (1988). 4 Statement of Senator Pat Toomey on Confirmation Hearings for Judge Ketanji Brown Jackson, April 3, 2022. 5 U.S. Const. amend. IX. 6 Jim Ross. “Ninth Amendment Leaves Room for Interpretation.” Tampa Bay Times, December 10, 1991. 7 Id. 8 Testimony of Judge Ketanji Brown Jackson, March 22, 2022, from March 22, 2022 Press Release from Senator Mike Lee “Senator Lee Questions SCOTUS Nominee Ketanji Brown Jackson.” 9 Damon Root. “Brett Kavanaugh Dodges Question About the Ninth Amendment and Unenumerated Rights.” https://reason.com/2018/09/06/brettkavanaugh-dodges-question-about-th/ 1
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intended only to guard a wide range of state-created rights from the suggestion that they were somehow eliminated by the enumeration of rights in the federal Constitution…”13 The late Justice Antonin Scalia argued that “the Constitution’s refusal to ‘deny or disparage’ other rights is far removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.” 14 There is considerable argument that the Ninth Amendment was adopted to limit the powers of government, especially the federal government, and was not intended as a source of new or additional Constitutional rights. Rather, the Ninth Amendment presumes “a body of rights [existing] prior to the making of the written Constitution” and that “the creation of other constraints on government by the framers’ constitution-making process should not destroy those rights.” 15 The framers wished to place a check on government power over existing rights of the people – not write a blank check to the government. As we see cases involving individual rights before the Supreme Court, there may yet be a new body of law on the Ninth Amendment, with a conservative majority limiting its scope. Ms. London is an attorney with Kozloff Stoudt in Spring Township.
Chase J. Sanders. Ninth Life: An Interpretive Theory of the Ninth Amendment.” Indiana Law Journal, Vol. 69, Iss. 3, Article 4 (1994). See also, Roger Pilon. The Unconfusing Ninth Amendment. Robert A. Levy Center for Constitutional Studies, October 26, 2015 11 Griswold v. Connecticut, 381 U.S. 479 at 488 (1965). 12 Griswold, supra, 381 U.S. at 518-520 (Dissenting Opinion of Justice Black) 13 Maltz, supra at 982-983, citing Russell Caplan. The History and Meaning of the Ninth Amendment, 69 VA. L. REV. 223 (1983). 14 Randy E. Barnett and Louis Mitchell Seidman. The Ninth Amendment. National Constitution Center. 15 Id. at 984. 10
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Counting Coins Backstage with the
“Godfather of Soul” By John J. Speicher, Esquire
I
t was 1985 and the Godfather of Soul, James Brown, was seeing his music career have a resurgence thanks to his hit “Living In America,” from “Rocky IV.” A client of mine called and asked me what I knew about the world of entertainment law and concert promotion. I confessed that I knew virtually nothing, but it would entail lots of contacts, lots of contracts and lots of money. My client informed me that he had been approached by a group of concert promoters about bringing James Brown to Reading for a concert and that they wanted my client to be the promoter. I asked him why concert promoters were asking my client, who had no experience doing this, to be a promoter. Why were they not doing this? He explained that because of past concerts that didn’t go so well, there were people in the industry who wouldn’t work with them anymore and they needed an unknown person to be the lead guy for this concert. As we talked, it became clear that these guys had stiffed many of the people that you need to put on a concert…sound engineers, lighting experts, security guards, stagehands, etc. The list goes on and on. We spent a long time going over the apparent financial costs that a promoter would incur in putting on such an event. The plan was to have the concert at Reading High’s gym, the Geigle Complex, on a Sunday night. Brown was playing in Philadelphia on Saturday and flying to Europe on Monday, so a stop in Reading was easy.
As my client and I were adding just the obvious costs, it was clear that even with a sellout, the profit would be very small, at best. The risk/benefit analysis just didn’t make this a good financial investment. I tried to talk my client out of moving ahead with something that had so little chance of making a profit. He didn’t have experience doing this. Even with the disgraced promoters helping him from the shadows, he was entering into a totally unknown business. But, he was too excited about getting into this business that he disregarded my advice. To keep his expenses down, he only called me infrequently and went it alone as far as contract negotiations. I had little contact with him after the initial phone call until the concert was a few weeks away. The next time I heard from him, he was in a panic. Pre-concert sales were lagging behind his expectations, and costs were soaring. He was almost out of money just funding the promotional end of the concert. The fixed costs for all those businesses outlined above hadn’t even kicked in. I had more desperate calls with him, but there was little I could do. He had made a commitment with many people including James Brown and his entourage. At this stage in his career, James had a large band. There were the normal guitars, keyboard and drums, together with a great horn section. He also had background singers. All total, I am guessing that he had 12 to 15 people with him…not to mention the brains of the group, James’ wife, Veronica. Continued on next page
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Counting coins backstage for “The Godfather of Soul” Continued from page 21
As Sunday night approached, ticket sales continued to lag. The Geigle would only be a third full at the rate things were going. My client had cashed in his life insurance policy to get some extra cash, but that was now gone. A catastrophe was looming. I had heard that many performers refuse to come to the concert venue until they had been paid in full. They would normally have the promoter visit their hotel room prior to leaving for the concert where the final payment would be delivered. No money, no concert. I was at home wondering what was going to happen. My client had asked me not to come and help, but i just couldn't abandon him on what could be the worst night of his life. So, after discussing my options with my wife, I decide to arrange to meet my client at the Geigle Complex well in advance of the scheduled concert. Once there, it was clear that my client was in a terrible emotional state. Who wouldn’t be? He told me how bad the finances were and that his only hope of avoiding a complete disaster was a large last minute sale of tickets at the door. There was a long line of people going down 13th Street so there was some small glimmer of hope…but it was very small. Shortly after arriving my client asked me to go with him to see James and Veronica to discuss the economic shortfall that existed. They were in one of the locker rooms getting ready and waiting to be paid the balance of the money that was contractually due to them. As we approached the locker room, I told my client that maybe it would be best if I talked to them alone. He agreed. As I entered the locker room, I wondered what I was going to see…was James’ hair real…it had to be a wig, didn’t it? I found both James and Veronica near the back of the locker room. His hair was real! He was finishing getting his flamboyant outfit on, looking ready to wow the Berks County crowd. Veronica was considerably younger than James and was all business. She calculating how much they were still owed for the concert. James was pacing around like a basketball player nervously waiting for the run out onto the court for warm-ups before a big game. I introduced myself to them. I think they momentarily thought I was coming with good news, like a bag of money. I told them we were still waiting for gate receipts and Ticketmaster sales, but even with that, it didn’t look good. James was pacing faster, now mumbling, “It’s the wrong venue…the wrong venue.” 22 | Berks Barrister
I thought it could be lyrics to a new song. He explained that a Sunday night concert in a gym after just having played in Philly made this concert a bad idea. “It was the wrong venue.” I told them that I would get updates on the gate receipts and see where we were. By this time, his band was getting ready to go out on stage. That was a positive thing. I went out onto the gym floor and saw it wasn’t even half full. Sadly, the front rows were occupied with various dignitaries who hadn’t even paid for the price of admission. By the time I had most of the money from ticket sales that night, the band was out playing the overture to “Living In America.” I hoped that maybe James had decided to play with the financial issues unresolved. Silly me. I went back into the locker room with bags of money…literally bags of dollar bills and coins. James, Veronica and I started counting the bags of money, as his band continued playing the overture to “Living In America.” I couldn’t make this stuff up. The three of us were sitting on the locker room benches counting the bills and nickels, dimes and quarters. I don’t remember how much the gate came to, but maybe we had three thousand dollars in change. I mean, you have to understand, three thousand dollars in change is a hell of a lot of change. But it wasn’t making a big dent in what was owed just to James Brown, not to mention all of the other people responsible for putting on the concert. As the realization of the shortfall was becoming more and more apparent, James began to pace again and returned to his common theme, “This is the wrong venue.” I told him, “I couldn’t agree with you more, Mr. Brown. Now what can we do to get you out on that stage?” We reviewed what other sources of receipts were still outstanding. There weren’t many. I wrote out on a legal pad an assignment of all Ticketmaster receipts. We didn’t know what they would end up being, but we still weren’t where we should be. Meanwhile, James’ band continued playing. This was now going on for at least half an hour and probably more. I wondered what the audience thought was going on. I pitied the band and the audience for having to hear that same song over and over again. I finally looked at both James and Veronica and told them that there was nothing more I could do. I hoped he would go out and perform but I would understand if he didn’t. I think many performers might have walked. Other might have done
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an abbreviated show. Not James Brown. He went out and performed as if it were a sellout at Madison Square Garden. It was magical. I’ve been to great concerts, including probably a half dozen or more Bruce Springsteen performances. James Brown stood with the best of them. The energy generated from the stage was electric. He did the cape routine where he would fall onstage in feigned exhaustion, only to be revived by a band member putting a cape around him and patting him on his back. The cape having done it magic, James would rise up and begin singing and dancing again. His band blasted away, his singers sang their hearts out and by the end of the night the five or six thousand people at the Geigle had witnessed a great, not good, but great concert. Lots of other things happened that night that were not so great. Many hard working people, who played a big role in putting on the concert, were stiffed. But I went back into the locker room with James and Veronica and finalized the few extra receipts that had come in late. It was clear that Veronica was the financial brains of the group. I admired her a lot. She ran the financial end of the show, but was realistic about what could be done. We came to an agreement on the money that was still owed and they prepared to leave. As they were going out, I saw something I will never forget. There was James Brown walking out of the locker room with bags of dollar bills and lots and lots of coins, some in his hands while others were stuffed in his pants pockets. Even unencumbered, James didn’t just walk, he would strut. But now, as he walked, the clinking coins could clearly be heard. He strutted, moving side to side more than forward, as if the money was pulling him with each step he tried to take. I had no idea what James and Veronica did with all of that change. They were flying out of Newark the next day for the European leg of his tour. I never saw them again or heard anything about the debt they were still owed. They knew they were not getting paid. But that vision of James Brown with the bags of money, was worth any legal fees I would not be receiving for services rendered that night. Mr. Speicher is an attorney with Barley Snyder in their Spring Township office.
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Bench-Bar We welcomed roughly 200 members to the annual Bench-Bar Conference at the DoubleTree Hotel in downtown Reading on April 20th. The Bar Association's premiere professional development event featured seminars in the areas of civil litigation, family law, and criminal law. In addition, judges from the Berks County Court of Common Pleas, U.S. Bankruptcy Court, and the U.S. District Court discussed a number of hot topics during some lively judges' round tables.
State Sen. Judy Schwank discusses the Berks County Pardon Project during a criminal law session. The Bar Association is proud to partner with Sen. Schwank and Berks Connections/Pre-Trial Services on this important community initiative. Paula Barrett of RKL (left) and Joan E. London of Kozloff Stoudt attend a session on the SECURE Act and other estate planning issues.
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Civil Litigation Section Co-Chair Jeffrey D. Bukowski, left, moderates a civil litigation judges round table. Participating in this round table were: Berks County Common Pleas Court Judge J. Benjamin Nevius, second from left; Patricia M. Mayer, U.S. Bankruptcy Court Judge for the Eastern District of PA; Jeffrey Schmehl, U.S. District Court Judge for the Eastern District of PA; and Berks County Common Pleas Court judges Jeffrey K. Sprecher, James M. Lillis and Madelyn S. Fudeman.
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Conference
Beth Kohl, President-elect Gabby Raful, Heidi Masano, Berks County Common Pleas Judge Scott E. Lash, Tom Bell and Marc Sigal enjoy a well-deserved break at the Post-Conference Reception.
Rebecca Batdorf-Stone and Marge Collins of the Berks County Domestic Relations office in between seminars.
Judges, assistant district attorneys, and assistant public defenders kicked off the conference with a criminal law case law update.
Berks County Common Pleas Court Judge Scott E. Lash and Immediate Past President Justin D. Bodor. Continued on next page Summer 2022 | 25
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Bench-Bar Conference Continued from page 25
Eden R. Bucher of Barley Snyder, left, Jeffrey A. Bukowski of Smith Bukowski, and Matthew G. Brushwood of Barley Snyder connect at the cocktail reception.
Berks County Common Pleas Court Judge Tina M. Boyd stops by the ARCPoint Labs table to chat with Al Dallao and complete her "Vendor Passport". All the completed passports were entered into a random drawing for gift cards to local restaurants and businesses.
Berks County President Judge Thomas G. Parisi delivers his "State of the Bench" remarks during the Bar Association's Spring Meeting, which was held during lunch.
David R. Dautrich Jr., and Michael J. Hillegas of the Berks County Public Defender's Office get a chance to unwind after a day of quality classroom learning at the Bench-Bar Conference.
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Prince Law Offices colleagues Warren H. Prince, left, and Jeffrey A. Franklin.
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Cheryl J. Allerton of Allerton & Bell and solo practitioner Ronald E. Cirba are ready for the next seminar.
Ryan McAllister visits the Smart Start table to learn more about their services.
Priscilla Natale of Rowe Law Offices, left, and Julie J. Marburger of Brennan & Folino. Bar Association President James M. Smith, left, presents the 2021 PBA Pro Bono Award to William C. Matthews. Matthews and Jesse L. Pleet were co-recipients of the award for their volunteer work with the Eviction Prevention Program launched by Executive Director Emeritus Donald F. Smith Jr. and the Reading Office of MidPenn Legal Services. Matthews accepted his award at the Spring Meeting as he was unable to attend last year's annual meeting, where Mr. Pleet received his plaque. Summer 2022 | 27
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M i s c e l l a n e o u s
Terry D. Weiler received a Pennsylvania Bar Association President’s Award during a recognition breakfast at The Hershey Lodge on May 13. Kathleen D. Wilkinson, the 2021-22 PBA President, presented the award to Weiler. Weiler served a three-year term as PBA treasurer and is a former Zone 2 Governor in the House of Delegates. In addition, Weiler served on the PBA Strategic Planning Committee and remains active in the PBA Business Law and Family Law sections as well as the PBA Civility in the Profession Committee. Weiler was also Bar Association President in 2001.
Timothy Bitler Jr. married Katie Nagy during a ceremony at Meredith Manor in Pottstown on March 12. The couple enjoyed a honeymoon in St. Lucia.
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Eden R. Bucher (President 2020) joined the Board of Directors for the Easterseals of Eastern Pennsylvania in March. Bucher is a partner at Barley Snyder in Spring Township. Easterseals serves children and adults with physical and cognitive disabilities, autism, and other social, sensory, and developmental disorders and their families through various programs designed to increase independence, maximize opportunities, minimize barriers, and enhance the quality of life.
Ellen West retired on May 2 after 25 years of dedicated service as an Assistant District Attorney for the County of Berks. District Attorney John Adams said West prosecuted some of the office’s most challenging cases, including sexual assault, child abuse and domestic violence. During a luncheon in the County Services Center on her last day on the job, Adams, colleagues and judges offered West their best wishes for a long and fulfilling retirement.
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In Memoriam E
Eugene F. Wisniewski
ugene F. Wisniewski, 95, passed away on January 19, 2022. Mr. Wisniewski attended Reading Public Schools, but graduated from Santa Maria Union High School in 1943. He then entered the U.S. Naval Air Corps in 1943 and served during World War II in the Asiatic-Pacific Theater. After his military service, Mr. Wisniewski graduated from Muhlenberg College in 1950, and then received his law degree from Temple University Law School in 1953. Mr. Wisniewski was admitted to the Berks County Bar Association in December 1953 and later served as its President from 1976 to 1977. In 1982, Mr. Wisniewski was appointed to serve as a U.S. Administrative Law Judge and served as a Regional Chief Administrative Law Judge for the Philadelphia Region, which consisted of Pennsylvania, Delaware, Maryland, West Virginia, Virginia and Washington, D.C. from 1984 to 1996, when he was assigned to the Reading office as an Administrative Law Judge with the Social Security Administration, Office of Hearings and Appeals. Mr. Wisniewski then served as a Senior Administrative Law Judge in various capacities with different U.S. government agencies until December 2007. Finally, in September 2008, he became a legislative aide to Representative Thomas Caltagirone. Mr. Wisniewski was a lifetime member of St. Anthony’s Roman Catholic Church in Reading, Pa., until it closed and then of Sacred Heart Roman Catholic Church in West Reading. He also served as a member of the Board of Directors of the Reading School Board from 1967 to 1973, President of the Flying Dutchman Ski Club, Executive Director of the Reading Redevelopment Authority, member of the Board of Directors of the Reading Police Pension Fund, and Solicitor to the Reading Policemen’s Association. Mr. Wisniewski is survived by his daughters, Kim, Karen and Deborah, his son James, ten grandchildren and ten great-grandchildren.
Smith Bukowski is welcoming applications for an experienced Family Law Attorney with a desire to establish a long-term relationship with the firm and the communities it serves. We are a general practice firm located in Wyomissing, Berks County, Pennsylvania and represent businesses and individuals throughout eastern Pennsylvania in practice areas that include family law, civil litigation (in state and federal courts and administrative agencies), business transactions and counseling, real estate and land use issues, and estate planning and administration. Other practice areas and information about our firm can be found at our website: www.SmithBukowski.com. The ideal candidate will have five or more years of family law experience. Smith Bukowski is an equal opportunity offering a flexible working environment with opportunities for professional development. The right candidate will earn a salary ranging from $75,000 to $120,000 and be eligible to participate in a number of benefit plans, including health insurance (with dental and vision coverage available) and company 401(k) Plan with generous employer matching. Associate attorneys at Smith Bukowski are also eligible for annual performance-based bonuses. To apply, email your cover letter, resume, and a writing sample to our Firm Administrator at KKoslesky@SmithBukowski.com.
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A Final Toast: Remembering William H. Woolworth, III By Susan N. Denaro, Esquire
J
ulia Child once said that people who love to eat are always the best people. In the case of William H. Woolworth, III, she couldn’t be more on point. His unexpected passing on March 30, 2022, left an empty chair at the table that sadly may never be filled again by anyone with as big of an appetite for life and food as Bill’s. I’ve always maintained that what we eat is never as important as who we eat with, and Bill, as he was known to his friends, was one of those people who always made any meal special. Bill owned and operated Dans Restaurant at Green Hills with his husband and partner of 23 years, MD Moniruzzaman, who was simply known as Monir to one and all. They initially took over Dans when it was located in the City of Reading and moved it to Green Hills when that space became available years ago. Regardless of which location we patronized, it was rare that we would dine there without Bill stopping by our table to chat or bring us something the kitchen was developing that we “just had to try.” It was also not unusual for us to end our nights at Dans’ Green Hills location in the bar enjoying one more for the road with Bill on a stool beside us and clinking glasses with us. Those shared times were a large part of why we returned so often.
Bill Woolworth’s passing leaves an empty seat at our table that may never be filled.
Bill, who was everyone’s favorite partner in crime, had a knack for making everyone feel special and valued, something that was clear from how he always remembered our favorite wine or cocktail. He was not just a gregarious restaurateur and sommelier with a warm smile, he was a lawyer who served as the Executive Vice President & Chief Risk Officer at Malvern Bank, NA. Born on November 27, 1965, to Joan and Duane Woolworth, he grew up on Mulberry Street in Reading. This accomplished Eagle Scout graduated from Exeter High School with the class of 1983, where he went from playing trombone in the band to being drum major his senior year. People have been following his lead ever since. He earned a BA in Economics from West Chester University, an MBA from the University of Baltimore, a law degree from Widener School of Law, and went on to become a Certified Internal Auditor.
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Food and conversation were always plentiful thanks to the hospitality of Bill and his partner of 23 years, Monir. Pictured here on one of our visits are (from left) Chris McKinney, my husband, John Cullen, Monir, Bill, myself, and Beth McKinney.
Throughout his professional career he worked primarily in banking and was an adjunct professor at Penn State Berks Campus. Although he spent some time living and working in Baltimore, he never called anywhere but Reading and Berks County his home. To say that Bill had a large appetite for life would be an understatement; those of us who were shell-shocked by his untimely demise take comfort in that fact that he crammed a lot of living into his 56 years. An avid traveler and fan of cruises, Bill had no less than five trips booked at the time of his passing. But while he was known to work and play hard, Bill was also known for making time to give back to our community. Not only did he leave an empty space at the dinner table, he left an open director’s chair at the Board of Director’s table at Co-County Wellness Services (“CCWS”) where he served as President. He was one of those rare officers who rolled up his shirtsleeves and worked tirelessly for causes he believed in. He was a driving force behind recent Good Thyme for Life fundraising events for CCWS and those of us who attended as much to support the cause as to support him, will miss his sparkle at those future dinners. The outpouring of adoration for Bill after his passing benefitted the Yocum Institute for Arts Education’s (“Yocum”)
most recent Dancing with the Reading Stars fundraiser. Bill and his long-time compatriot, Pat Perfect, were to dance at the April event, hoping to raise as many dollars as possible for the Yocum with their choo-choo train inspired dance routine. It was performed instead by Holly James and Santo Marabello. To no one’s surprise, Pat and Bill raised over $14,000, the majority of which was received posthumously and earned them the coveted title of Grand Champions for the event. Even in death, Bill is still giving back to causes near and dear to him. Robin Williams once said that death is nature’s way of telling you your table is ready. I’d like to think that Bill is seated at the best table in the house, enjoying a feast fit for a king, receiving the biggest slice of everything, and the last drop of wine from the bottle. But knowing Bill, I’m willing to bet he’s spending half the time in the kitchen, whipping up something scrumptious, and then generously serving everyone else instead. Bon appetit, Bill. Ms. Denaro is with the Wyomissing law firm of Georgeadis||Setley.
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Jazz Fest Dinner Members kicked off the 31st Annual Boscov’s Berks Jazz Fest with a pre-concert dinner at the Bar Association on April 1. Following dinner, members enjoyed an opening night performance by Wynton Marsalis and the Jazz at Lincoln Center Orchestra.
The Jazz at Lincoln Center Orchestra prepares for their performance.
Bob Hobaugh (left) and Rick Grimes, Jr.
Brenna and Toby Mendelsohn
From left, Mary Wolfe, Florita and Bob Hobaugh Clockwise from back: Amy and Levi Wolf with guests Stacey and Chris Pietrowski 32 | Berks Barrister
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Jesse Pleet (right) and guest, Maria Solomon
Beverly and Ken Myers
Michael and Mary Wolfe
Marc Sigal and his wife, Stephanie Knarr
Justin and Jessica Bodor
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Jazz Fest Dinner Continued from page 33
The Hon. Patrick T. Barrett and his wife, Paula
From left, Stephanie and Bryan Boughter and Richard Joyce
Stephanie and Douglas Rauch Woody and Lisa Siciliano
Clockwise from back: Evelyn Kuter, Debra Franklin, Jeffrey Franklin and Stanley Kuter
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Daniel and Ellen Huyett with guest Katie Hannon
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UNACCEPTABLE AND JACKASSERY BEHAVIOR
C
hoosing a “lesser black woman” is what Ilya Shapiro claimed would result in his tweet on January 26th, regarding President Biden’s decision to limit his choice to an African American woman to succeed U.S. Supreme Court Justice Stephen Breyer. At the time, Shapiro was about to begin a teaching position at Georgetown University and as executive director of its law school’s Center for the Constitution. He later deleted the tweet and apologized for his “inartful choice of words,” writing in his Wall Street Journal op-ed article of March 23. He continued, “But, I stand by my view that Mr. Biden should have considered ‘all possible nominees,’ as 76% of Americans agreed in an ABC News poll.” On March 1, Shapiro was to be part of a panel at San Francisco’s UC Hastings College of Law speaking about the vacancy created by Justice Breyer’s retirement. He never had the chance. Given his tweet, students in the audience screamed obscenities, physically confronted him, blocked his access to the lectern, and shouted down a dean. Shapiro left without being heard. The following week, on March 10, a panel discussion at Yale Law School on civil liberties included Kristen Waggoner, general counsel for the Alliance Defending Freedom (ADF), and Monica Miller, a lawyer for the progressive American Humanist Association. The ADF is a conservative group that promotes religious liberty, but is viewed by some as demonizing the LGBTQ+ community, earning it a hate group designation from the Southern Poverty Law Center. More than 100 law students protested, some holding signs supporting the rights of transgender people and other LGBTQ+ causes. Dozens repeatedly interrupted Waggoner, one loudly proclaiming, “I’ll literally fight you, bitch.” The moderator was eventually able to convince the protesters to leave the classroom and the event continued, but the protesters persisted making noise in the hallway outside the room. Law students. Aspiring lawyers. In their future practice of law will they
By Donald F. Smith, Jr., Esquire
incessantly interrupt opposing counsel during argument, show disrespect toward judges with whom they disagree, threaten to fight their opponents or prepare offensive written briefs and motions? After reading of these rebellious acts of disrespect for opposing points of view at two esteemed law schools, I worry about the future of the profession. Shapiro is correct when he writes in his Journal piece: “You’d think that law students should have a particular appreciation for spirited and open engagement with provocative ideas. They’ve chosen a career that centers on argument and persuasion.” After all, Justice Oliver Wendell Holmes, Jr., famously described freedom of
speech as embracing “the principle of free thought—not free thought for those who agree with us but freedom for the thought we hate.” (U.S. v. Schwimmer) Two weeks after the event on her campus, Yale Law School Dean Heather Gerken broke her silence, sending an email to the Law School community. According to the Yale Daily News, she wrote that the protesters engaged in “unacceptable” behavior, but did not violate Yale’s free speech policy which grants students three strikes before they are to be removed by security. “I expect far more from our students, and I want to state unequivocally that this cannot happen again,” Dean Gerken emphasized. On April 7, an open letter was sent to Yale Law School administrators criticizing their response to the March 10th protest. It was signed by hundreds of notable individuals, including U.S. Sen. Ted Cruz of Texas. The letter notes: “Our nation desperately needs the next
generation of attorneys, legislators, judges, and Supreme Court justices to be marked by the character and values that undergird the American legal profession and a free society.” Well, after reading of Sen. Cruz’s and other of his Senate Judiciary Committee Republican colleagues’ questioning of Supreme Court nominee Ketanji Brown Jackson, one can only conclude that, when it comes to abiding by the “character and values” of our legal profession, Sen. Cruz and company subscribe to the belief: “Do as I say and not as I do.” Sen. Cruz asked Judge Jackson if she believed “Babies are racist.” Sen. Marsha Blackburn of Tennessee wanted her to “provide a definition for the word woman.” Sen. Lindsey Graham of South Carolina asked the nominee to rate her faith on a scale of 1 to 10. She was accused of being soft on crime because she had once been a criminal defense attorney. Such questioning showed tremendous disrespect toward a member of the federal judiciary and for one whose duty as a public defender was to protect her clients’ constitutional rights. Even fellow Republican, Sen. Ben Sasse of Nebraska, was moved to refer to the questioning by them as “jackassery.” Nevertheless, Judge Jackson demonstrated poise, tolerance and intelligence in her responses. She was not the lesser person in the room. While some members of our society are increasingly intolerant of thoughts they hate, future and current lawyers need to maintain “the character and values that undergird” our profession. We can disagree without being disagreeable. Let us all strive to follow the example of an Old Testament prophet, given in chapter 50, verse 5, of Isaiah: “The Lord God has opened my ear, and I was not rebellious…” To do otherwise is to be a lesser person.
Mr. Smith is Executive Director Emeritus of the Berks County Bar Association.
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