There are some fundamental requirements in United States jurisprudence. There are some things we just do not do as a matter of fundamental due process. One of those things we do not do is ask minors to make important legal decisions. Yet, that is exactly the slippery slope upon which the Trump administration has embarked. A five year old Honduran who as seeking asylum was separated from her grandmother. She was then asked to sign away her right to a bond hearing. The ABA Bar Journal is relying on a New Yorker magazine article for the story.

Helen arrived in Texas with her grandmother, Noehmi and her teenage uncle, Christian in July. The Trump administration had supposedly ended the practice of separating children from their families weeks before Helen arrived. Yet, Helen was separated from her family.

All immigrants have the right to a hearing to determine whether they are entitled to bond. If the court finds they are likely to appear for their hearing, then the court allows them to post bond and go free until his/her hearing. Little Helen checked the box indicating she wanted a bond hearing. Later, someone handed her a form, with adult language and in English, asking if she wanted to waive her right to a bond hearing. The form was checked that she wished to withdraw her request for a bond hearing. Her signature appeared in typical kindergarten scrawl, just one word, “Helen.” There was no last name.

In Texas, the age at which one may enter into a contract is 18. But, in reality, many businesses require an older age, 21. My son cannot rent a car in his own name until he turns 21. Five years old is definitely below the minimum.

The age of consent affects countless areas of law, everything from marriage, to a driver’s license to voting. It is, or was, a fundamental precept of American law. See the ABA Bar Journal report here.

Later, Noehmi and Christian were re-united. But, at the hearing, the immigration judge and the Department of Homeland Defense lawyer did not appear to realize Helen existed. The lawyer for Noehmi and Christian tracked down Helen and found her. Helen was returned to her family on Sept. 10, 2018. But, now, she is afraid to go to sleep at night for fear her family will leave her in the night.

It is safe to say no one ethnic or religious group has a monopoly on patriotism. Yet, some Republican precinct chairs in Tarrant County believe just the opposite. Some Tarrant County Republican precinct chairs are trying to remove Shahid Shafi as Vice Chairman of the GOP party in Tarrant County. The chairman, Darl Easton, appointed Mr. Shafid to the post last Summer. Some Republicans have been trying since August to remove Mr. Shafid. Said one of the leaders, Dorrie O’Brien, “We’re patriots who don’t allow jihadists to play in the fields of the Lord.”

In August, some members of the board posted messages on social media claiming Mr. Shafid did know what sharia was, even though he would claim otherwise. They claimed he is a practicing Moslem. (Oh no!)  Many Republicans in Tarrant County oppose the move. Mr. Easton has rightly noted this is pure religious discrimination. Mr. O’Brien insists they did not oppose Mr. Shafid because he is Muslim, but because they oppose the global jihad to conquer nations and make them subject to sharia law. See Ft. Worth Star Telegram report for more information.

Ok, I get that. We should all oppose jihadis who seeks to impose anything on unwilling persons. I served in one war to help stop them from killing people in Iraq. But, what does global jihadism have to do with Dr. Shafid? He is a doctor in Southlake and sits on the City Council there. Somehow, I doubt he has spent time in the forces of ISIS or Al Queda…….

 

We often hear about the Magna Carta and how that great document eventually led to our Declaration of Independence. But, what was the Magna Carta all about? In 2015, San Antonio’s own Prof. Vincent R.  Johnson at St. Mary’s Law School wrote a nice piece about the Magna Carta. He explained in his article what was so new and ground-breaking about the “Great Charter.”

One of the problems with the Magna Carta, he explains, is that it is not organized by topics. One must study the whole document to understand it.

One of the first topics Prof. Johnson mentions is due process. The bad King John would frequently take action “by force of arms against recalcitrants as though assured of their guilt, without waiting for legal procedure.” In some cases, noblemen were deprived of their estates not by their peers, but entirely by Crown nominees. So, Clause 39 states: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” Without due process, nothing else matters. No right can be protected without due process. This clause ensured the king could not seize property aided and abetted by his cronies.

Today, we often cite the Magna Carta as the basis for trial by jury. Prof. Johnson explains that some historians disagree. Clause 39 refers to judgment by one’s equal peers. But, one historian says the “judgment” refers to the initial decision regarding how trial would be conducted. The jury of peers would decide whether trial would be by ordeal, by hot iron or by water, compurgation, wager of law, trial by battle, or production of charter. Judgment, according to this view, did not refer to the final decision, but to the method to reach that final decision. The men of the time believed that God would render the final decision after one of these trial methods.

“Compurgation” refers to the medieval practice of of allowing the accused to swear an oath regarding his innocence. The accused would then need an oath from a certain number, often 12, other persons saying they believed the oath of the accused person.

But, added the professor, regarding a dispute between then King John and King Alexander of Scotland, the Magna Carta provided that a dispute over hostages should be resolved by judgment of his equals in “our court.” So, at least when trial by combat or by ordeal was not possible, the signers of the Magna Carta believed that trial by peers was the solution. So, suggests Prof. Johnson, some portions of the Carta did indeed refer to the trial itself, not simply the means by which trial would be conducted.

Clause 39 also presented a new form of evidence. It required that in the future, no official shall place a man on trial upon his own unsupported statement. He must produce credible witnesses to support his own “official” assertion. Officials at the time were generally lords. So, this clause removed from the lords the power to imprison a common man simply on his own, unsupported word.

A well-known provision, Clause 40 provides simply, “To no one will we sell, to no one deny or delay right or justice.” In a time when the Catholic Church would routinely “sell” dispensations, many judges were bribed to rule one way or the other. This provision set a new standard, by which justice was (mostly) not for sale. We take judicial independence for granted today, but once, that was not so.

Clause 36: “In [the] future nothing shall be paid or accepted for the issue of a writ of inquisition of life or limbs.” The writ of inquisition allowed a criminal defendant to avoid or delay trial – which was often trial by combat. Some call trial by combat “legalized private revenge,” because the accuser could exact the combat. The writ of inquisition involved a procedure in which one’s neighbors could could exonerate a defendant. The writ, however, was used as a revenue device by King John and was sold only to those with deep pockets. Making this writ freely available decreased the numbers of trials by combat.

The Magna Carta addressed proportionality in sentencing. Clause 20  provided. “For a trivial offense, a free man shall be fined only in proportion to the degree of his offense, and for a serious offense correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a villein (a feudal tenant) the implements of his husbandry, if they fall upon the mercy  of a royal court . . . ” The goal was to not reduce a criminal to beggary. There were similar provisions for earls, barons and clergy. The concept, which was new at the time, was to make punishment “fit the crime.” We see this concern still resonating on our modern time when some seek reforms regarding bail. Bail for misdemeanors often result sin persons staying in jail for months before they see a trial.

Widows could be married to any man willing to pay the going rate. The payment would be made to the widow’s feudal overlord. But, some widows were wealthy enough to outbid suitors and buy a charter guaranteeing she would not have to remarry. King John did a fruitful business in selling these charters to women who wished to marry their own choice, or not remarry at all. Clause 8 provides, “No widow shall be compelled to marry, so long as she wishes to remain without a husband. But she must give security that she will not marry without royal consent, if she holds her lands of the Crown, or without consent of whatever the lord she may hold them of.” This provision created new legal rights for women. This was not true freedom, but it was a step.

Clause 1 was addressed “TO ALL FREE MEN OF OUR KINGDOM.” Clearly, the rights in the Magna Carta were guaranteed to all free men, meaning not to vassals and the like. Clause 40, which guaranteed access to justice, was not limited to free men. It simply said “to no one will we sell, to no one deny or delay right or justice.” So, Clause 40 was much broader in scope than just the free men. And, Clause 60 asked that regarding all these rights, “let men of our kingdom . . . observe them similarly in their relations with their own men.” Clause 60 then expressed the hope that these rights would be extended by the free men to to those not free.

The treatment of debtors was addressed. Clause 9 provided that the King would not seize any land or or rent in payment of a debt, so long as the debtor had movable goods with which to pay the debt. That means the creditor could not seize land when smaller goods would suffice to pay the debt. That provision provided some protection in an agrarian society, so the debtor could still earn a living.

The Magna Carta was not a perfect document. But, it was ahead of its time. The protections afforded the common free man far surpassed that found in other countries of the time. It was to these protections that the Founding Fathers looked in 1776.

As I have mentioned here before, I served 12 months in Iraq during the Iraq war. It was one of the most wonderful experience of my life – except when it was not! ….   Seriously, it was a searing and very positive sort of experience, overall. The big fear in the war was the IED’s, also known as roadside bombs. A large IED, and by the time I was there in 2005-2006, most IED’s were large – a large IED would obliterate a HMMWV. One sailor, a Navy SEAL, Dan Crenshaw, lost an eye to an IED. He probably lost more than that, but not that he can discuss.

I knew a few soldiers who drove through IED’s and lived to tell the tale. Even when you live, the IED does things to your brain. There is something about the concussion effect on the brain in a close confined space, lined with armor, that harms your brain. Doubtless, Dan Crenshaw suffers other, unseen effects. Mr. Crenshaw is running for Congress as a Republican in Texas.

So, when Pete Davidson makes a joke about his eye patch and comments, “I’m sorry, I know he lost his eye in war or whatever…..  whatever,” I do not get the joke. In fact, I find his comment pretty offensive. See CBS news report. I like SNL fine. But, jokes about losing body parts to an IED just are not funny to me.

I knew a soldier, a National Guardsman who went outside the wire often. It was his job to leave the relatively safe confines of the FOB several times a week. He drove through a couple of IED’s. He said the ringing in hs ears would last for days afterward. He wrote the name of all the soldiers his unit lost on his helmet. He wanted to remember them.

Pete Davidson lost his father in the 9/11 attack. He should understand “sacrifice,” we would think. Losing a dad who was a fire fighter is similar to sacrificing in a war zone.

A female comrade was a truck driver in Baghdad. They were told the terrorists were using kids to stop convoys. “Do not stop to help kids!” she was told. If she stops, the entire convoy has to stop. When you stop, you get attacked. She did not stop for kids. Years later, she was still dealing with deep PTSD because she might have run over a child.

A young soldier was in a Reserve unit. He thought he got out of the Reserves. He should have been, but was not processed out. About a year after he thought he was out of his Reserve unit, he received a phone call, “Chin, get over here in 30 minutes, or you will be court-martialed!” Chin did get there in 30 minutes, barefoot and without a shirt. Chin served his 12 months in Iraq and never complained.

Another major went home on his six month break. He found his wife was dating someone. That someone was reading bedtime stories to his children. That major came back after his break and did his second six months, knowing he would need a divorce lawyer when he got back home. Yet, that same major had to make major decisions, like who leads the convoy when his unit has to travel 2-3 hours in pitch black darkness with no headlights, or who mans the turret gun in his vehicle when the main guy is hurt. He has to focus, or people get hurt. There is no time for self-pity.

I am sure Pete Davidson faced some huge emotional issues in losing his father. You have to respect his experience. But, that does not give him space to minimize the service and sacrifice of others. None of these war experiences deserve a “whatever.” Neither does a sailor who lost his eye.

A non-compete clause for physicians requires adherence to certain criteria to be effective in Texas. Texas has a state law applicable to physician noncompete agreements.

  •  A physician noncompete must not impinge on a doctor’s access to a list of his/her patients upon his/her departure
  • The departing doctor must have access to the patients’ records when authorized by the patient
  • The physician must not be prevented from providing treatment to an acutely ill patient
  • The agreement must provide for a “reasonable” amount for a buy-out clause, or allow an arbitrator to make a decision on a reasonable amount

See Texas Business & Commerce Code Sec. 15.50 for additional information.

If you are a person with an impairment, should you volunteer information about your impairment during an interview? When I worked at Disability Rights of Texas, we advised persons with disabilities to not discuss their impairment until necessary. An employer cannot lawfully ask about an impairment until a job offer has been made. And even in that situation, the employer should simply state these are the job functions, can you perform them?

Dr. Daniel Ryan, author of the Job Search Handbook for Persons with Disabilities, agrees. He says resumes are often used to screen pout people. So, it is better to provide information about an impairment later in the application process. The problem may come if you have a large gap in your resume, due to some disability. In that case, says Dr. Ryan, you should have a filler – something that explains the gap. Dr. Ryan advises to use the resume to open the door and use the interview process to tell who you are. See Military Times report.

In civil lawsuits, we do these things known as “depositions.” We depose a witness with no judge present. The depositions usually occur in lawyer’s offices, but they can take place anywhere. The two warring sides meet up and the only brake on poor behavior are social norms. In a deposition in Las Vegas, a lawyer was deposing the person who had accused him of defamation. The lawyer, James Pengilly, was sued for defamation. Mr. Pengilly represented himself in the lawsuit. He was deposing the person who had filed the lawsuit. He used various vulgar terms, interrupted the witness and his attorney, made inappropriate statements and was generally aggressive.

Then, apparently not liking an answer by the witness, he move this hand near a pistol he wore on his belt and asked the witness if he was “ready for it.” The witness left the room. When he returned, Mr. Pengilly displayed his weapon to the witness and the opposing attorney. The two were frightened by this odd conduct and called the police.

The Nevada Supreme Court has suspended Mr. Pengilly. It said there was serious risk of harm to all who were present. Interviewed by the local newspaper, Mr. Pengilly said he always carried a weapon, because his father had worked at a law firm in San Fransisco where a gunman killed eight people. He has the pistol with him everyday, he explained. “I always carry a gun because I’m attorney and people don’t like me.” See ABA Bar Journal news report. I suppose they don’t…….

In your average lawsuit, this is not supposed to happen. Key witnesses are not supposed to suddenly recall something they have previously denied. Yet, that is what happened in the 2020 Census lawsuit. Wilbur Ross, the head of the Commerce department, now suddenly does recall conversations with then advisor Steve Bannon and Attorney General Jeff Sessions about the citizenship question. The Commerce department is responsible for the census in 2020. Secretary Ross added a question asking whether each person is a U.S. citizen. The plaintiffs in the lawsuit contend the question is designed to intimidate persons into not completing the census.

Earlier, when he testified before Congress, Secretary Ross denied any such conversation. The Department of Justice said it could neither confirm or deny involvement by AG Sessions. But, now he remembers. Secretary Ross says he recalls a phone call from Steve Bannon in March, 2017 asking him to speak with Kris Kobach, the Secretary of State of Kansas, and immigration hard-liner. Mr. Ross also now remembers speaking with AG Sessions in the Spring of 2017 and later. See Politico news report here.

The Secretary has been resisting attempts to take his deposition. This latest court pleading apparently seeks to prevent the depositions by admitting to some things the plaintiffs might ask. We can see why he would prefer not to remember these discussions with Mr. Bannon and Mr. Kobach. If this decision to ask about citizenship was based solely on best practices, why would he need to discuss the question with a political advisor like Steve Bannon?

Now, suddenly he remembers things he did not recall months ago. Typically, the memory works in just the opposite way. Usually, we recall things better when asked closer to the event. But, in Mr. Ross’ case, he remembers things better the further away he gets from the event. Uh huh. That’s the ticket…….

The Americans with Disabilities Act provides that a person is entitled to an accommodation if needed. But, sometimes the need for accommodation is not so apparent. Back injuries are notorious for being unpredictable. Russell Holt applied for a job with BNSF railway. He received a job offer conditional on passing a physical exam. Mr. Holt had a history of back surgery. His medical doctor and medical information supported a positive result. But, the employer’s doctor, Dr. Jarrard, refused to certify the applicant unless he received an MRI. Mr. Holt could not afford an MRI. The Equal Employment Opportunity Commission filed suit, alleging that requiring the job applicant to pay represented discrimination against a person with a disability. That lawsuit became EEOC v. BNSF Railway Co., No. 16-35447, 2018 WL 4100185 (9th Cir. 8/29/2018).

The applicant’s insurance company would not pay for the MRI, because he was not in any pain, at present. The MRI would then cost over $2500.

The Ninth Circuit Court of Appeals asked the question, who must pay for a medical exam. The court viewed the claim as a “regarded as” disabled claim, noting that Mr. Holt suffered from permanent disc damage. BNSF tried to argue that it did not consider him impaired. It just wanted to be “sure.” The court was not persuaded. The employer pointed to a case that was in effect overruled by the ADA Amendments Act. But, more importantly, in requesting more information about Mr. Holt’s back condition, BNSF had made an assumption that the applicant had a back condition which prevented him from performing the duties. That presumption would persist unless the applicant could overcome it. The employer, said the court, cannot hide behind the level of uncertainty about the precise nature of his back condition. A “perceived impairment” is consistent with the ADAAA’s broad coverage.

The court then addressed the requirement that the applicant pay for the physical exam. The court had no trouble in finding that requiring a job applicant to pay the cost of a physical exam is a condition of employment which is based on a perceived impairment. An employer can only impose a condition of the job if it imposes the same requirement as all applicants. BNSF, however, only imposed this requirement to pay for an MRI on the job applicant who was perceived as impaired. That condition amounts to a violation of the ADA. And, noted the court, if the employer was not required to pay for such tests, then the test would act as a screening criteria for persons with a disability. That would also amount to a violation of the ADA. The court affirmed summary judgment in favor of the plaintiff.

See the decision here.

Every discrimination case involves some amount of he said/she said. Most acts of discrimination occur behind closed doors. So, the testimony will be all about a swearing match. But, that does not mean the two stories cannot be confirmed or denied. In a discrimination case, we would want to know, for example, the circumstances behind a demotion or a firing. Does the story make sense? Do the surrounding details support or undermine the main story line?

It is the same with Judge Brett Kavanaugh and Dr. Christine Blasey Ford. The fact that no witness appears able or competent to confirm or deny their respective stories does not mean either story is false. The details become more important in such situations. Dr. Blasey Ford remembers very few details, other than the actual assault. She does recalls, however, that she saw Mark Judge at a nearby Safeway grocery store weeks after the incident. When we look at the book written by Mark Judge, we do indeed see that he worked at a Safeway in the Summer of 1982. Mark Judge wrote a book about his recovery from alcohol abuse. It goes into great detail about his excessive drinking in high school.  So, again, Dr. Blasey Ford’s story is confirmed in another respect, that a young Brett Kavanaugh drank a lot. And, in another important detail, Mark Judge mentions that he and his friend, “Bart O’Kavanaugh” partied hard in high school. See Rolling Stone news report here. “Bart” appears several times in Mark Judge’s book.

That is how a discrimination story is confirmed or denied, on the edges, around the periphery. It is circumstantial proof. But, sometimes circumstantial proof is more trustworthy than someone’s hazy memory.