Thursday, April 21, 2016

Crimes and Punishments

Obedience to the law is demanded as a right; not asked as a favor.
— Theodore Roosevelt, Third Annual Message (1903)

A number of readers have written inquiring whether it is acceptable to have state attorneys general continue to serve in that capacity when they have been charged with criminal conduct and/or have lost their licenses to practice law. The reason for the inquiry is that readers know that the attorney general of a state is the chief law enforcement officer of the state, serves as the state’s principal legal advisor, and represents the state in litigation. Those tasks have to be done by someone who is licensed as a lawyer. Those are good questions and, happily, there are two real life examples that enable me to provide the answers to both those questions.

The first comes to us from Texas, where the attorney general is Ken Paxton. Ken was elected attorney general of Texas in November 2014. His official webpage says he is “known for his principled and uncompromising devotion to America’s founding values.” He served as attorney general with uncompromising devotion to America’s founding values for 8 months before being iindicted for three different crimes that took place before he was the attorney general.

One crime involved directing his legal clients to a friend’s investment company without being properly registered as an “investment adviser representative,” a third-degree felony. The other two charges were first-degree felony fraud charges. In addition to having been criminally indicted, on April 11, 2016, the SEC filed civil charges against Mr. Paxton accusing him of breaking federal securities laws. He allegedly pressured five people to invest in a tech firm without disclosing that he was being paid a commission for the sales. He himself had not invested in the company because, he said, the president of the company said: “I can’t take your money. God doesn’t want me to take your money.” Apparently God didn’t have the same reservations about the president accepting money from Mr. Paxton’s investors. As of this date, Mr. Paxton faces three criminal indictments and the civil SEC suit filed in early April. He continues to serve as attorney general of Texas.

Mr. Paxton sees nothing wrong with continuing his work as attorney general while the assorted charges are pending. Indeed, commenting on the immigration case that Texas and 25 other states brought against the Obama administration that was argued in the United States Supreme Court on April 18, 2016 he said: “Our goal was pretty basic, defend the Constitution and stop President Obama’s lawlessness.” The word “lawlessness” may soon be used to describe Mr. Paxton’s conduct. The Texas Board of Disciplinary Appeals has ordered the Texas State Bar to pursue disciplinary hearings against Mr. Paxton because of his alleged criminal conduct. If that body finds he violated the disciplinary rules governing the conduct of lawyers he may lose his law license as well as the ability to continue to serve as attorney general.

Mr. Paxton’s predecessor as attorney general is Texas Governor Gregg Abbott. Commenting on the accusations against Mr. Paxton when the criminal charges were first filed, the Governor said that the legal process simply had to “run its course.” Republican legislators have remained silent. There have been no calls for the attorney general to resign nor has there been talk of impeachment. In that respect, Texas is a bit behind Pennsylvania, the state that answers the question of whether an attorney general can continue to serve when his or her law license has been suspended. Pennsylvania’s contribution to the oeuvre is Kathleen Kane.

Kathleen was sworn in as Pennsylvania’s attorney general on January 15, 2013. She was considered a rising star until August 8, 2014, when assorted criminal charges, including perjury, were filed against her. Although she had not been tried for the alleged offenses, on September 21, 2015, the Pennsylvania Supreme Court responded to a request by the court’s disciplinary board for lawyers, that it issue an “emergency temporary suspension, ” by ordering that: “Respondent Kathleen Granahan Kane is placed on temporary suspension.” Under Pennsylvania law, a person serving as attorney general must be licensed to practice law.

February 5, 2016, the Pennsylvania Supreme Court unanimously rejected the attorney general’s request to reinstate her license to practice law. As of this writing, the attorney general faces 12 criminal charges including felony perjury. Nonetheless, she has refused to resign and continues to act as attorney general even though she is no longer licensed.

February 10, 2016, the Pennsylvania House of Representatives voted to begin the impeachment process against the attorney general by a 170-12 vote, Democrats and Republicans alike voting in favor of the process. The attorney general’s criminal trial is to take place in August 2016. It is, of course, not possible to know how that trial will come out. What is known is that as of this writing she is still in office and, like Attorney General Paxton, sees no reason to resign.

The difference between Texas and Pennsylvania is that the legislators in Pennsylvania are willing to take steps to remove someone from office who fails to see why she shouldn’t continue to serve. Legislators in Texas see nothing wrong in having an attorney general under indictment continuing to serve. That tells us as much about Texas as the criminal charges filed against Attorney General Paxton tell us about him-none of it good.


Thursday, April 14, 2016

Cremation, Confusion and Solicitation

The Northern Lights have seen queer sights
But the queerest they ever did see
Was that night on the marge of Lake Lebarge
When I cremated Sam McGee

— Robert W. Service, The Cremation of Sam Magee

It is enough to give cremations a bad name, especially after an industry publication said in bold letters that: “Cremation is the New Tradition” suggesting a tradition can be created as quickly as, say, instant oatmeal. The new tradition, however, had a bad spring. In March it was reported that a Bronx funeral home inadvertently cremated the wrong corpse and in April a suit was filed against a mortuary in Rochester that cremated someone who had left specific instructions that following his death he did not want to be cremated. Those kinds of mistakes could of course, happen to anyone and should not put the practice in bad odor. Nonetheless, it is unfortunate when that kind of mistake happens, since depending on the nature of the mistake, it can be hard to correct. The Rochester suit is an example of that. Once cremation of the wrong person has taken place, there is nothing the funeral home can do to correct the error. The Bronx case was different.

In the Bronx case the family had an elaborate open casket service at a church in Harlem in which the wrong person had been placed in the casket attired in the decedent’s clothes and jewelry by the funeral home employees. Although some who viewed the decedent before the service were surprised by her appearance, they attributed that to the fact she had had a serious illness and lots of medical treatments that had altered her appearance. (A small child immediately said the person he was viewing was not his grandmother but his observation was ignored.) It was only after the wrong corpse had been cremated that the error was discovered. Since the wrong corpse had been on display, as it were, over 100 people were attending a service at which the corpse of honor was not in attendance. That was the bad news. The good news was that although the wrong corpse had been cremated, it was possible to cremate the proper corpse after the error had been discovered. The director of the funeral home, who is presumably expert in these matters, was shown a photograph of the two women involved and said “Looks like the same woman to me.” He went on to say to the reporter that: “We’re known for our care, compassion, professionalism, the quality of our work.”

It was nothing more than a coincidence that just as those unfortunate events were being reported I got two almost identical missives a month apart. One came from the National Cremation Society and the other from the Neptune Society. On each envelope was information that might cause those inclined to put such materials in the trash without opening the envelope, to open the envelope. The legend on each envelope that was tantalizing was “Free Pre-Paid Cremation! Details inside.” Like so many beneficiaries of such solicitations, I was sure there was a catch, such as a requirement that I would have to claim my free cremation by a certain date and the offer of a free cremation would expire on that date if I had not. It turned out, upon opening each of the two offers, that the offers were identical and neither offer expired on a certain date. On the other hand, neither contained the promised free cremation. Instead I was give the opportunity to participate in a monthly drawing and and if I won the drawing, I would be entitled to a free cremation no matter how long I chose to postpone the happy event.

The National Cremation Society’s invitation to participate in the monthly drawing is affixed as a P.S. to the letter describing the benefits and advises the recipient that last month’s winner was Martin Miller. The Neptune Society’s invitation to participate in the lottery is in a banner across a corner of the mailing and announces that Laura Williams is last month’s winner. Neptune Society inexplicably adds an apology to its solicitation: “[I]f this letter has reached you at a time of serious illness or death in your family,” the exact time one might think such information might be most useful. The National Cremation Society does not include an apology but does say that among the other benefits it provides are the “care and shelter of the deceased,” benefits that do not immediately come to mind as being of much value following death. Indeed, if cremation is the selling point of the mailing, an offer of free shelter seems almost superfluous.

It was a coincidence that both mailings arrived just as the miscremations were making news. Here’s another coincidence. Although the mailings appear to come from two different companies, the return envelope provided in which to accept the invitation to participate in the lottery that comes from National Cremation Society is addressed to NCS Information Center, P.O. Box 826 in Kutztown, PA and the one to be sent to Neptune Society is addressed to Cremation Information Center, PO Box 827 in Kutztown PA. Who knew Kutztown had such a thriving cremation business?


Thursday, April 7, 2016

Justice Land of Cotton Style

Old times there are not forgotten. . . .
—Dixie, Daniel Decatur Emmett

It was bad news for Alabama, a state that had just gotten two doses of very good news. The first had come from the United States Supreme Court, and the second from Robert Bentley, its governor.

On March 7, 2016, the United States Supreme Court had patiently explained to Chief Justice Roy Moore and his somewhat dull colleagues on the Alabama Supreme Court, that when a same sex couple adopted two children in Georgia and the adoption was valid in Georgia, Alabama did not have the right to opine, as Roy and his colleagues had done, that the adoption was void and not entitled to full faith and credit in Alabama. That was the first piece of good news.

The other piece of good news came on February 23, 2016. On that date the Governor announced that he was introducing the Alabama Prison Transformation Initiative Act. That was great news for those who were incarcerated in Alabama prisons. The need for the Act, although not a cure all for all the ills of the Alabama prison system, was obvious.

According to a report by the Southern Poverty Law Center, Alabama prisons have a population that is almost double the number they were designed to accommodate. Instead of holding 13,318 prisoners, the prisons are home to 24,000 prisoners. The reason there is such crowding, according to the Center, is that Alabama incarcerates “more of its citizens, per capita, than all but two other states.” To make matters worse for those incarcerated, Alabama ranks last in in the country in what it spends per prisoner. The governor’s plan, if approved by the legislature, would provide for the construction of four new prisons, and would, as Governor Bentley said when introducing his proposal, make Alabama “a national leader in safe and effective incarceration of inmates.” Although his comments were hyperbolic, there was clearly a need for his proposal. On March 11th and 14th, 2016, shortly before the Alabama State Senate was to begin consideration of the governor’s proposal to issue $800 million in state bonds to fund construction of new facilities, there were two riots at the William C. Holden Correctional Facility. That prison is home to 900 prisoners even though it is designed to accommodate only 581. (It is also home to Alabama’s execution chamber which, from time to time, serves to reduce the overcrowding in the prison.) During the riots two prison officials, including the warden, were stabbed by the inmates.

The governor’s announcement of his proposal was greeted with enthusiasm by those concerned with the state’s prisons, but received a somewhat less enthusiastic response from legislators who are reluctant to authorize the issuance of up to $800 million in bonds to fund the effort. Comments made by legislators, following the governor’s announcement, indicated that the proposal would have a rough time in the legislature. It now turns out that the legislature is probably off the hook. That is good news for the legislators and bad new for prisoners and others who hoped that at long last the state would address severe overcrowding and its attendant problems. It is also bad news for the governor.

On April 5thth the legislature returned from its Easter vacation. It is no longer interested in prisons. It is no longer interested in prison reform. Upon returning from its Easter vacation, a group of Alabama lawmakers said they were introducing articles of impeachment against the governor. They decided to do that because on March 23, 2016, it was publicly disclosed that Governor Bentley had made what were described as “inappropriate and sexually charged remarks” to one of his female aides. Although not articulated, it was hinted that the behavior might have included more than just sexually charged remarks. In Alabama, where perceived sexual misbehavior is taken seriously, news of his behavior shocked his Alabama constituents and their elected representatives.

The governor has admitted that he made made inappropriate remarks to his female aide but denies that there was an affair. He has tried to move beyond the crisis affecting his administration, explaining, as recently as April 4, that he has asked God for forgiveness. It is unknown how God responded, but as of this writing it appears that the legislators may proceed with the impeachment. The process is not complicated.

If a simple majority in the Alabama House of Representatives votes to impeach, a trial will be conducted in the Alabama Senate. The presiding officer at the trial in the senate will be the constitutionally impaired Chief Justice, Roy Moore. In the House proceedings, Mike Hubbard, the speaker of the House, will be the presiding officer. There is a chance, however, that he will not be able to serve. That is because he was indicted on 23 felony counts in 2014 and is going to be tried on those felony counts beginning April 11, 2016. Unlike the governor’s sexual indiscretion that may cost the governor his job, in Alabama, apparently, a 23 count criminal indictment does not have the same effect on a mere legislator. Go figure.