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Criminal Justice

In Case of Bank vs. Vet, Courts Rule for Service Member


wachovia
Photo by Mark Chang
A former Air Force reservist charged that Wachovia, now part of Wells Fargo, violated federal law when it essentially cut his pay and demoted him after he returned from active duty.

When Michael Serricchio was called up for active duty by the United States Air Force Reserve soon after Sept. 11, 2001, he left his job as a financial advisor at a Stamford, Conn., office of Wachovia Securities, LLC. Upon returning from military service in 2003 he claimed his original job, but the employer offered him an inferior and lower-paying position. Serricchio sued Wachovia alleging violation of the federal Uniformed Services Employment and Reemployment Rights Act or USERRA.

Last week the Manhattan-based U.S. Court of Appeals for the 2d Circuit, which covers Connecticut as well as New York and Vermont, ruled that the law guaranteed Serricchio reinstatement to his prior employment position or its equivalent and that Wachovia violated the law and the veteran's rights. Three appellate judges agreed with the findings of a lower federal court jury and judge that defendant Wachovia had violated the USERRA by failing to promptly rehire the plaintiff and to place him in a position of "seniority, status and pay," similar to what he left. It took six months to rehire him instead of the mandated two weeks, and he was not returned to his prior job.

The appeals court therefore affirmed the lower court including an award of $389,453 in back pay and, because the defendants acted willfully, an equal amount in damages. Wachovia was also ordered to pay Serricchio $12,300 a month for three months, while he caught up and could begin generating commissions again. The goal was to provide compensation that would be the equivalent of what he could have expected to earn had his employment not been interrupted by his military service. That came to $6,500 per month or approximately $78,000 per year in commissions.

Civilian Life

The USERRA is one of a series of laws going back to World War II and amended during America's war in Vietnam. The purpose has been "to encourage military service by eliminating or minimizing the disadvantages to civilian careers; to minimize the disruption to the lives of service members and their employers by providing for the prompt reemployment of service members and to prohibit discrimination against service members."

Wachovia ignored that here, the courts determined. The bank had intentionally violated the federal law meant to protect men and women returning from the military service since he had been entitled to a prompt "opportunity to reenter the workforce with comparable earning potential and chance for advancement as his own book of business provided prior to his service, regardless of whether the same clients are in the substituted books." As described by U.S. District Court Judge Janet Arterton, the delayed "reinstatement offer [was one] that a reasonable person could regard as financially precarious and professionally degrading."

Prior to going on active duty, Serricchio was responsible for servicing as many as 200 accounts and for personally managing over $4 million dollars. But Wachovia argued it did not have to offer Serricchio the same commission opportunities he had before going on active duty and that USERRA provides only that an employee "who takes military leave will be returned to work at the same commission scale that he worked at prior to the leave, along with an initial monthly draw." In other words, the bank maintained it only had to provide Serricchio with the same commission structure but not with his prior book of business, upon the service member’s return from active duty.

A jury and judges disagreed. When Serricchio was honorably discharged in October 2003, Wachovia offered him something akin to an entry level position, the opportunity to make "cold calls" to rebuild his book of business, "a task," wrote the appellate court, "he had not been required to undertake since the early days in his career."

The Labor Department's View

The trial judge sought input from the federal government, seeking interpretations of the law. The Department of Labor submitted that in addition to returning him to his seniority and entitlement to any benefits and opportunities, "Wachovia should have determined what Serricchio's book of business would have been but for his military service by examining how Serricchio's financial analysis fared during his absence, and then offered Serricchio his original and/or comparable client accounts that corresponded to his 'escalator position' book of business. If that was not possible the labor department continued, "Wachovia should have taken steps to restore Serricchio to a position of like 'pay,' such as paying him an appropriate interim salary or offering him other opportunities for additional compensation while he built up his book of business to the requisite level."

The department stated that Wachovia violated USERRA when it required Serricchio to "cold call" to rebuild his client accounts. "This requirement diminished Serricchio’s level of responsibility, his position vis-a-vis other employees, and his opportunity for advancement," it said.

While the act does contain an exception "if the employer’s circumstances have so changed as to make such reemployment impossible or unreasonable," Wachovia did not raise that point in a timely fashion and therefore could not pursue it or seek a finding that it did or did not have merit.

(In the years since Wachovia, once the nation's fourth largest bank, teetered on the brink of failure until it was taken over by Wells Fargo.)

The three-judge appellate bench composed of judges Rosemary Pooler, Richard Wesley and John Koeltl, whose opinions are binding on federal courts within this circuit, concluded that the relevant statute entitles a returning service member to the "seniority and other rights and benefits determined by seniority that the person held on the date of the commencement of service in the uniformed services plus the additional seniority and rights and benefits that such person would have attained if the person had remained continuously employed."

Emily Jane Goodman is a New York State Supreme Court Justice

Constitution Lets Public Health Trump Religion, Judge Rules


vaccination

All children entering school in New York state must be immunized from certain diseases.

According to the state's Public Health Law, "No principal, teacher, owner or person in charge of a school shall permit any child to be admitted to such school, or to attend such school, without evidence of the child’s immunization against" polio, mumps, measles, diphtheria, rubella (or German measles), varicella (commonly known as chicken pox), hepatitis B, pertussis or whooping cough, tetanus, and, where applicable, influenza and pneumonia."

But the law goes on to say that the requirement "shall not apply to children whose parent, parents or guardian hold genuine and sincere religious beliefs, which are contrary to practices herein required."

In the last decade, the number of parents who refuse to vaccinate their children or who delay their vaccinations has risen. An increasing number of parents who object to inoculating their children are relying on the religious exemption in refusing immunization. Claims of religious prohibitions on vaccinations must be reviewed on a case-by-case basis, at the school and Department of Education or school district level, but sometimes there are lawsuits.

Relying on God

In July, the Brooklyn-based U.S. District Court for the Eastern District of New York rejected the claims of a Long Island couple who, beginning in 2007, asserted a religious basis for their refusal to immunize their daughter who was then almost 4 and an applicant to pre-kindergarten. After the school principal denied their request for an exemption, the parents declined a meeting with the superintendent, and in Caviezel v Great Neck Public Schools sued their local school system in an effort to enroll their child, identified in court records only as "CC," without complying with the inoculation requirement. The parents, whose three older children had been inoculated, now claimed to have a religious objection to immunization, and argued that they were protected by New York's statute and both the state and the U.S. Constitution.

At a court hearing, the mother, Martina Caviezel, testified, "I don't believe that vaccinations are necessary. I just believe if you look at the human being, if you look at the universe, we're divine, we're just divine. It's just the design is perfect. There's no other way to say it. It's just perfect. I’m a hypnobirthing practitioner. ... If I were to explain my religion, I probably would say I'm a Pantheist. I see God in everything. I believe God's present." She testified that in her religion she practiced mostly breathing, "because in breathing, to be present, I can be present to the presence of God. You could call it breathing meditation, yes, but I also mean just stopping for a moment and taking a breath and starting to hear the birds, starting to see the flowers, starting to notice people around you."

She told the court that she was ordained as a priest two years earlier by the Sanctuary of the Beloved, which is a "church," in Buffalo. According to the group's website, its priests "are not required to 'give up' anything they believe in or to resign from any other organizations. They are simply given an 'energy boost' to enhance the work they are already doing. There is no doctrine they must follow." Caviezel described her training as a minister as one-day preparation for energetic ordination.

The court found it significant that Martina Caviezel testified that, as far as she knows, the Sanctuary of the Beloved does not take any position on the propriety of vaccination and never instructed her that she could not get her children vaccinated. The court's decision also cited Caviezel's general objection to vaccinations because of her concern about their safety and possible link to autism.

Caviezel's lawyer attempted to convince the judge that the mother had tattoos that are actually prayers, and that the family engaged in "religious rituals, prayer, meditation, tattooing, fasting and the other types of activities" that would be "considered an indicia of religion." The court ruled that the lawyer had improperly raised this argument and so did not consider it.

The Public Good

In recent years, immunization has been challenged and refused by parents and advocates who believe that vaccines cause autism, although they have not been able to establish that scientifically. Those opposed to allowing children to remain susceptible to diseases, argue that those who are not immunized either because they object, or perhaps come from other parts of the world where particular diseases are common and vaccinations are not, present a danger to others within their own families and to the public. The concept that prevails, known as "herd immunity" is that there is a tipping point within a community at which a certain percentage of individuals lacking inoculation against a particular disease threatens other members of that community, including, for example, pregnant women or inoculated individuals who may have had an immunity to the vaccine.

Last month Judge Arthur Spatt dismissed the claims of Martina Caviezel and Andreas Schenck Caviezel as not being "religious in nature." His decision went beyond that, however, to rule, that despite the religious exemption granted by New York's legislature, the state's immunization requirement does not violate the Constitution’s First Amendment. He specifically rejected the claim that it did. Spatt referred to the U.S. Supreme Court which has not directly addressed the inoculation issue, but has stated, “Generally the right of parents to raise their children in accord with their personalized and religious beliefs must to yield the health of children is at risk or when there is a recognized threat to public safety."

According to the Spatt decision and other federal cases, "It has been settled law for many years that claims of religious freedom must give way in the face of the compelling interest of society in fighting the spread of contagious diseases through mandatory inoculation programs."

Another local federal decision held, "Society's compelling interest in preventing disease must override any personal opposition to immunization that some persons may possess. Therefore, the statutory exception must be restricted to persons whose opposition to immunization stems from 'religious’ belief'; not views founded upon medical, personal, philosophical or even moral considerations."

Still, the language in the Spatt opinion is the strongest on this issue so far. Under the U.S. Constitution, it holds, there is no religious basis to refuse immunization of children.

Emily Jane Goodman is a New York State Supreme Court Justice

With Money Tight, Will State Finally Overhaul Its Public Defender System?


justice
Photo by kbjesq

"Don't waste your tears on him," Darryl Johnson of Albany's Center for Law and Justice told the family of a high school student accused of burglary, referring to the court-appointed lawyer who was certain that jail time was the teenager's future.

New York State's indigent defense system has long been criticized for being poorly organized, underfunded and unable to give defendants proper representation. Advocates say the poor in New York state simply cannot receive a fair trial because the system designed to protect them is overburdened. In New York City hundreds of defendants can wait hours to see one of a few available public defenders -- only to get just a moment of their time. During their next court appearance they are likely to have another representative.

While recent efforts by the state legislature and Chief Judge Jonathan Lippman have lead to the first steps in reforming the system, a true overhaul in which the state would take over the reins and set standards now seems long off due to the state's fiscal trouble. In fact, even the small gains that have been made seem in jeopardy. Meanwhile the New York Civil Liberties Union has brought suit against the state in hopes that it can expedite justice for thousands of poor New Yorkers.

The Risk of Court-Appointed Counsel

The Albany family was desperate and indeed in tears; they had asked Johnson to come sit in on a meeting with the lawyer. Johnson's comment sparked the defender's ire.

"I don't know what they want from me!" the lawyer told Johnson. The court-appointed attorney told Johnson that the judge hearing the case was typically hard on burglary.

"He was frightened," said Johnson of the defender. But with Johnson's prodding and oversight the attorney pressed the judge to allow the youth to return to high school to earn his diploma, before serving any jail time. The judge agreed. Johnson wonders what would have happened if there had been no outside organization watching over the case.

Late last month, two middle-aged men sit in swivel chairs taking swigs of black-cherry store-brand soda out of medicine sized plastic cups. They laugh as they fish animal crackers out of a big plastic bag and recall their past experiences as defendants in New York state courts.

For Thurmon Brooks and James Holmes the public defender system has been both a blessing and a curse. Sometimes, they say, they have had knowledgeable lawyers who want to fight. Other times, they say, they didn't see their court appointed representatives for weeks, and then only to find out that the lawyer had cut a deal with the prosecution -- without ever consulting them.

"They come in and say, 'You gotta take this,' said Brooks. "They say you gotta take the cop-out and they don't give you any other option, and you ain't ever said you was guilty."

The pair describe the distrust defendants have of court-appointed council. "You don't see them for weeks, and then they either want you to plea or they are talking to the prosecution," says Holmes. “They don't take the time to know you, to ask whether you are guilty, where you are from. But they know the judge and the prosecutor."

Johnson, office operations coordinator for the Center for Law and Justice, leads the discussion. He, too, has spent time as a defendant and been represented by a public defender.

Johnson, a former resident of Harlem, recalls the days when he was a criminal defendant and was stuck "in a pen of 75 other guys waiting to get my chance to talk to one of the three public defenders."

Johnson was able to pay for his defense through some of the process, but eventually his cash ran out, forcing him to rely on a public defender. " I had to tell them how to defend me,” said Johnson.

In the years since, Johnson has become involved in helping others whose lives are tied up in the justice system. One of the major issues he confronts is the quality of representation for those who can't afford their own counsel.

Alice Green, who runs the justice center, was recently alerted to such a case. "A family wrote us a letter about their son, who has been in Albany County Jail for 14 weeks and has seen his lawyer only once. When he [the defender] saw him he told him he had a plea deal for him, but he didn't want to plead guilty,” explained Green. "We get a lot of complaints that their defenders have waived their right to an initial hearing before they even talk to them. These people are just being fed into the machine." Green said the current system leads poor minorities to not only be funneled into the system without legitimate trial but also breeds a strong distrust of the justice system throughout those communities.

Problems in the System

The New York Civil Liberties Unionhas filed suit against the state charging that the public defender system does not provide the constitutionally required quality representation for indigent defendants. The case is currently in discovery. Some advocates hope the case will eventually force the state to reform the system.

"This is a systemic deficiency we are talking about," said Corey Stoughton, lead counsel on the NYCLU case, "not simply one bad apple." Because funding for indigent defense in New York is left up to New York City and 57 upstate counties, each locality has a different structure for their system and provide various levels of financial support.

Some of the most important people in New York's justice system agree on the necessity of change. In fact, Chief Judge Lippman has made reforming the system one of his top priorities. Attorney General Eric Schneiderman was an outspoken proponent of reforming the system when he was a Democratic state senator and sponsored bills designed to do just that. And the New York Times has focused on defendants who received shoddy representation. But this year, with budget battles and the stuttering state and national economies at the forefront of most agendas, not much has been said about improving New York's indigent defense system.

Some steps have been taken. In 2009 the state established the Office of Indigent Legal Services to provide cash to counties to improve their defender systems. The state also created a nine-member Indigent Legal Services Board, which was asked to recommend ways counties could change the system to better represent defendants. Lippman is the board chair and the group is still working on its recommendations. Another bill capped the number of cases a public defender can take on in one year in just New York City.

Although every county in the state is responsible for providing funding for indigent defense, some counties can't afford to or simply choose to allocate less funding than others. While the U.S. Constitution requires defendants who can't afford their own representation to be assigned counsel, no state-wide standards govern what kind of defense is acceptable. "There are different levels of service in every county due to the varying fiscal health of each county," says Lippman.

In New York City, individual public defenders used to carry up to 700 cases per year. Seymour James, attorney-in-charge of the criminal practice of The Legal Aid Society and president-elect of the New York State Bar Association, said he has seen a drastic reduction since the cap went into effect. We were at 687 cases per year, and we expect it to be reduced to 565 by the end of September. Certainly our objective is to get it down further to 400, and 70 by 2014." However, James notes that there are ongoing studies to see whether even 70 may be too high for lawyers to carry out a proper defense.

Lippman declined to comment on the NYCLU case but said, "I think the policy side is where things are going to change. It is where we need to focus. Case caps may be part of it. I think the caps have made a tremendous difference, and I think the goal of 70 cases per lawyer by 2014 is a wonderful number. You would love to get it down to one case per year but it just isn’t possible."

As for the Office of Indigent Legal Services, it is still pulling itself together. "The creation of the office is an important first step, but it is not likely to change the experience of those that live the reality of the system," says Stoughton. "But it is a recognition that the state owns this. Change is coming but we have a long way to go."

Bill Leahy, a veteran public defender and the former head of Massachusetts Committee for Public Counsel Services, leads the office and is slowly using the agency's small, $1.5 million budget to hire staff. The agency was slated to receive $3 million in funding, but after Senate Republicans moved to eliminate the office entirely during this year's budget process its funding was reduced to $1.5 million.

"Bill Leahy is committed to these issues,” said Stoughton, "but after the legislature created the office they slashed the budget before we could even take a victory lap."

As head of the Massachusetts Committee for Public Counsel Services, Leahy had a $202 million annual budget, oversaw 265 state attorneys and got to oversee the state's entire public defender system. His current gig only allows him to work toward making recommendations to improve standards for the system and to hand out a grants set aside for counties that agree to improve their legal defense services.

"Right now we are adequately funded to get started," says Leahy. “We are just starting to staff up. We are a small agency, and we will be a small agency. I am very optimistic about where we are going but in these fiscal times we need continued fiscal and political support."

Lippman also is worried about how the state's finances may play into the effectiveness of the Office for Indigent Legal Services. "Of course I'm concerned about the fiscal climate and staffing, but now more than any other time -- during this time of fiscal crisis --we need to help people from falling off the cliff. We have to make sure everyone gets their day in court."

On Friday, Leahy was excited to report that he was sending out contracts to 11 counties to enable them to receive state cash to fund projects that would streamline their indigent defense programs. Chenango, Delaware, Franklin, Herkimer, Livingston, Schuyler, Steuben, Tioga, Washington, Wyoming and Yates were on the list, and Leahy said a steady flow of contracts to the rest of the state’s counties should begin in the next few weeks.

"The folks I've spoken to at the county level say this is the first time they have talked to anyone from the state about public defense and what they need to focus on," says Leahy. "If you're a cynic you can look at it as a small step, but we look at it as an important step forward.

Beyond the Patchwork

Leahy admits New York's approach is not ideal.

"The optimal arrangement would be to have a single state agency to oversee defense so there is equal representation that doesn’t depend on an individual counties' resources," he said.

James endorses that. "The problem," he said "is that we don’t have an enforceable guidelines or standards for proper representation. The bar has guidelines but they are not enforceable."

Jonathan Gradess, executive director of the New York State Defenders Association, said he thinks processes are in the works that could lead to a complete overhaul to the system. "I think people are giving them space to act. If there isn’t progress made, then I think there is a perfect storm that will either force the legislature to act or we will see the lawsuit force change. Both things are in equipoise."

And Gradess has another hope: He thinks Schneiderman, who reportedly has a copy of The New Jim Crow: Mass Incarceration in the Age of Colorblindness by Michelle Alexander on his desk, could very well effect reform of the system. "I expect the AG will make a difference if for no other reason than that change in the public defender system has come from attorneys general at both the national and state levels. We hoped the previous attorney general would make strides in this area but he didn’t. He is the governor now, so he has a good shot." Gradess said.

Schneiderman is in an awkward position, since the NYCLU is suing the state that he represents over the failure of a system that Schneiderman has also criticized. But his office issued this statement: "Attorney General Schneiderman has always been deeply committed to ensuring a strong statewide public defense system that effectively serves the people of New York. He looks forward to the implementation of the board's recommendations on improving the delivery of the state's indigent legal services, so that every New Yorker will have access to the meaningful assistance of counsel they deserve."

Lippman says he believes Schneiderman will be instrumental. "Its not a question of if," said Lippman, "We have talked many times about how we are going to work together. I know he cares about this in his soul. He has told me many times and he has been very involved in this area."

As the meeting in the Law and Justice Center winds down, both Brooks and Holmes want to make it clear that they have worked with good public defenders,whose names they share with other former inmates. Knowing who is a good defender is valuable information. "You just gotta know where to find 'em," jokes Holmes.



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