The Support Center for Child Advocates enlisted the aid and talent of Pepper’s Brian Downey, Liz Duffy, Kelly Ryan and Judge Spaeth recently to attempt to narrow the scope and effect of the U.S. Supreme Court’s much-criticized decision in DeShaney v. Winnabago County Dep't of Social Services, 489 U.S. 189 (1989). The Support Center issued the call to arms when it, along with the Office of General Counsel and the County Commissioners' Association, was invited by the Commonwealth Court to participate as amicus curiae in Robbins v. Cumberland County Children & Youth Services, after the parties' briefs had been filed and just weeks before en banc argument, which took place on April 12, 2000.
Seth Fitzgerald Robbins is an eight-year-old boy. At the time the events described in the complaint occurred, Seth was living with his brothers, Sean and Stephen, and his mother, Susan Fitzgerald. On February 20, 1995, when Seth was three years old and Sean was four-and-a-half, his mother broke Sean's arm, and Sean was taken to the emergency room. Two days later, the mother broke Sean's right arm and Sean was again taken to the hospital. The treating physician referred the case to Cumberland County CYS. Pennsylvania's Child Protective Services Law requires that all suspected abuse cases be investigated within 24 hours of a report, but the CYS caseworker waited 19 days before visiting the Fitzgerald home. After the visit, and without further investigation, she closed the file as "invalid."
Less than two weeks later, the mother broke two-year-old Stephen's left forearm. CYS reopened the file and sent the x-rays to an independent physician, who determined that the fractures were "unusual" and "remarkably similar."
On June 2, 1995, the mother broke Seth's left arm and gave him closed head injuries, multiple contusions and abrasions. Despite the fourth arm fracture on the third child in the same family in less than four months, without further investigation, CYS closed the file on June 19, 1995, once again labeling the file "invalid."
On August 3, 1995, Seth's mother stabbed him with scissors in the back of his head and broke his right arm. Less than three weeks later, on August 20, she attempted to suffocate Stephen with a pillow. After three more hospital visits over the next three days for seizures, on August 29, Stephen was again rushed to the hospital, and died shortly after his arrival.
The coroner ordered an autopsy and concluded that Stephen's death was suspicious. The next day, the caseworker made only her third visit to the Fitzgerald home, and CYS, for the first time, ordered medical records on the caseworker canceled a September 12 visit, and rescheduled it for two weeks later. On September 12, Seth's mother attempted to suffocate him by placing a pillow over his face. On September 13, 1995, for the first time, CYS recommended that Seth and Sean be removed from the Fitzgerald household.
Before and after DeShaney, the decision to remove a child from a home can lead to liability for an agency or individual, subject to the defense of qualified immunity. After DeShaney, however, the decision of an agency or a social worker, as a matter of federal constitutional law, is beyond challenge in constitutional tort. The Pepper team asked the Commonwealth Court to read Article I, Section 1, of the Pennsylvania Constitution more broadly than the Supreme Court has read the federal due process clause, and find that CYS violated Seth's rights to both procedural and substantive due process by failing to conduct an appropriate investigation into the reports of suspected abuse that specifically identified Seth to CYS, as mandated by Pennsylvania law.
Additionally, the Pepper team argued that the social worker and her supervisors were liable for their willful and wanton violations of their statutory duties to protect Seth, after he was identified as in danger. Once Seth was in their custody, defendants not only encouraged contact between Seth and his mother, but forced him to spend time with the woman who admitted that she had killed his brother and had attempted to suffocate Seth.
Finally, the Pepper team argued that, even under DeShaney, Seth had stated a claim for violations of his substantive due process right to protection from the injuries he sustained while in the custody of CYS.
NOT ALL LITIGATION REQUIRES A FIGHT
After a brief training session and a referral from the Volunteers for the Indigent Program, Joanna Cline took on the representation of the mother of a five-year old West Philadelphia boy, Sam, in a special education matter. Sam's mom perceived that he was having difficulty articulating certain sounds and words and asked the school district to provide speech therapy at school. She had little success in getting the district to respond to her requests.
Joanna was to represent Sam's mother in her efforts with the school district, and as it turned out, she fulfilled her role as an advocate largely in a non-adversarial manner. The situation called for simple communication rather than adversarial posturing. After a few phone calls to Sam's mom, his doctor, a speech therapist and the school district's attorney, Joanna discovered that the district agreed that Sam has a speech problem. The only remaining matter was to formalize an Individual Educational Program (IEP) so that Sam's therapy could begin.
Along with Sam's mom and his concerned and very helpful pediatrician, Joanna attended the IEP meeting at Sam's school. At the meeting, Joanna worked with the teachers and school officials to develop an IEP that everyone deemed appropriate for Sam. The atmosphere was one of guarded cooperation — the mere presence of an attorney resulted in a respect for the mother's position and a sense of urgency that likely would not have existed had she come alone.
Sam has begun therapy, and Joanna recently was invited to his birthday party, which she was happy to attend.
WASHINGTON GETS THE JOB DONE
As a participant in the Partners in Education Program in Washington, D.C., Pepper Hamilton has been active in volunteer activities at the Stanton Elementary School in Anacostia, a neighborhood in Southeast Washington.
The firm has helped the school establish a peer mediation program, training the students and teachers in the skills needed to run the program on their own at the school. This program has been in effect for two years and is going strong. Participants include Don Green, Dan Prywes and O'Kelly McWilliams along with a few new associates each year. Current involvement includes training new peer mediators each year, periodically going to the school to observe and make recommendations or suggestions, and ending the year with a luncheon for the student mediators, recognizing their work and giving each student a certificate of participation.
The office staff is also active in a tutoring program every week at the school, working with students who need special attention in reading and math. Pepper participants this year have been Renee Qualls, Gina Gee, Valerie Caison, Crystal Thompson and others. Agnes McShane has organized this group for the past two years.
For the past two years, students from the school have also attended the firm picnic at the start of the summer. At Christmas for the past two years, the firm has taken a group of 25-30 students to The DC Revels, a musical event specifically targeting children. Liz Rodriguez has organized this program each year. We have also held a contest for seasonal drawings from the children and used the drawings for the holiday cards that the office sends to clients. Barbara Folensbee has arranged this every year. She also arranged a book club for fifth-grade girls last year and handled various projects with the school librarian.
HELPING THE ARTS TO THRIVE
For nearly 15 years, Pepper Hamilton has provided pro bono legal assistance and basic business counseling to area artists and cultural organizations through Philadelphia Volunteer Lawyers for the Arts (PVLA), a nonprofit legal services organization founded in 1978. Thousands of visual artists, musicians, performers and writers, as well as hundreds of cultural organizations, have thrived because of PVLA's pro bono legal services, educational programs and self-help publications.
Michael Gallagher, Kathryn Donohue, Mindy Ellis Schwartz and Gabrielle Sellei are among Pepper's PVLA volunteer attorneys. Gabrielle recently joined long-time board member Michael on the PVLA board of directors. This dynamic team of dedicated lawyers advise artists and writers on a variety of contract and intellectual property questions. Kate enjoys working on PVLA projects because "the questions raised by PVLA clients are interesting and challenging and definitely require me to think 'out of the box.'" Nearly every month the team receives a request for legal assistance.
Examples of recent work include: Kate assisting a local musician with the copyright aspects of her first television appearance and assisting an artist with a variety of issues involving the use of famous images in new multimedia artwork; Mindy helping a local children's musician in a dispute with a large California-based record company over use of the name "Cool Beans Music;" assisting a local rap artist in obtaining copyright protection for his lyrics; counseling a local playwright/director on making derivatives of third-party literary and dramatic works; and aiding a local author in obtaining permission to use characters from a popular children's story about the Titanic in her own fictional version of the Titanic saga.
SUPPORTING 'MAN' AND HIS BEST FRIEND
PhillyPAWS is a nonprofit organization that recognizes the emotional and physical benefits that a pet can have on a person suffering from a life-threatening disease. PhillyPAWS helps care for the pets of individuals with the HIV virus who cannot afford veterinary services and pet supplies. The organization is staffed entirely by volunteers who see to the pet care needs of hundreds of people each month. For example, for those no longer able to walk their dog, groups of volunteers make certain that each dog is walked at least twice each day.
PhillyPAWS' office is located in downtown Philadelphia, close to the community they serve. Unfortunately, Center City real estate can be expensive, especially for a charitable organization, and PhillyPAWS has been forced to lease space in a building that they can afford as opposed to space that they desire.
Over the years, PhillyPAWS has, to little or no avail, complained to their landlord of leaking ceilings, no heat in the winter, no air conditioning in the summer, unresponsive maintenance and management personnel and a litany of other building-related problems. Scott J. Ciocco of the Cherry Hill office has worked with PhillyPAWS over the past year to try to resolve their numerous problems with their current landlord, but the landlord has been uncooperative.
PhillyPAWS' current lease is up for renewal at the end of this year and Scott is working to find more suitable space. One option is subleasing space from other organizations in more desirable buildings. PhillyPAWS has found that subleasing will give them more location options with fairly priced rent. This time, with our assistance, PhillyPAWS will be prepared to move to new space prior to the expiration of their lease and will not be left at their landlord's mercy.
Pepper Hamilton has served as general counsel to PhillyPAWS since 1996. In the past year, Brian Katz established a conflict of interest policy for the directors and officers and worked to amend the by-laws of the organization. Enger McCartney-Smith negotiates contracts and attends and provides legal guidance at Operating Group and Board of Directors meetings. Enger recently completed drafting an agreement for the provision of consulting services for the annual PhillyPAWS-A-Thon (a six-day telephone fund raising event).
PEPPER'S PHILADELPHIA BAR FOUNDATION FELLOW
This year Pepper is sponsoring its first Philadelphia Bar Foundation Fellow. Barbara Delaney, who was a Pepper summer associate in 1998 and will be joining Pepper's Intellectual Property Group this September, is spending her first year in practice at the Disabilities Law Project – a statewide nonprofit public interest law firm that represents the interests of disabled people by providing individual and class-based legal services.
The Philadelphia Bar Association, in cooperation with Pepper and other participating law firms, developed the Philadelphia Bar Foundation Fellowship to address the critical personnel needs and limited resources of Philadelphia's public interest bar. The Fellowship program provides the public interest firms with the services of enthusiastic new attorneys, who receive valuable experience (often involving activities which a new associate at a private law firm would not ordinarily undertake). This "win-win-win" program, which has been described as a "self-funded Legal Peace Corps" by members of the Public Interest Section of the Philadelphia Bar Association, is unusual in that it is made possible by the combined financial commitment of all participants. Fellows agree to work at half pay, spreading their first-year salary over two years, the first at the public interest organization and the second at the sponsoring private firm, which funds the Fellow's salary and benefits. The public interest firm provides office space, training, malpractice insurance and staff support.
This self-funding frees the Fellowship program from the necessity of ongoing fund-raising and permits Fellowships to be created at will, whenever a private firm and its new associate are both willing to make the necessary commitments. Barb is Pepper's first PBF Fellow, and as it happens, she is the only fellow this year. Barb's legal representations have included fighting for the elimination of architectural barriers in places of public accommodation under the Americans with Disabilities Act. Her work has resulted in many favorable outcomes, including the construction of wheelchair ramps or other measures to ensure access to disabled people. Barb has also worked on ensuring that mental retardation services are provided in the least restrictive setting, and that people are not unnecessarily institutionalized to receive the services they need to lead full and productive lives. In addition to writing several briefs to federal district and circuit courts, Barb is drafting portions of an amicus brief to the U.S. Supreme Court in Garrett v. University of Alabama, arguing that the application of the ADA to the states is consistent with the Eleventh Amendment.
These activities are intellectually challenging and can make a difference in the lives of disabled people. They are heady stuff for a first-year associate, so it is not surprising that Barb believes her experience as a PBF Fellow is well worth the financial sacrifice. She observed that "given the recent inflation in starting salaries at the large firms, I’m surprised that more first-year associates are not taking advantage of the opportunity – even at half pay, a fellow's salary is comparable to the earnings that experienced public-interest lawyers are willing to accept indefinitely. The financial sacrifice I am making really isn't any different than a new graduate who commits to a two-year clerkship, and the intensive introduction to federal litigation that I am receiving during my fellowship year will be invaluable when I start my career at Pepper."
'VICTORY' IN HABEAS APPEAL
In June 1999, Tony Vale accepted an appointment from the Third Circuit as counsel to Nathaniel West whose second habeas petition had been dismissed by the District Court (Judge Giles). Mr. West, who was convicted of murder in 1983, was attempting to have the jury instructions at his trial declared unconstitutional in light of Cage vs. Louisiana, 498 U.S. 39 (1990) (Due Process Clause requires that conviction not be based on instructions equating a reasonable doubt with a substantial doubt or grave uncertainty).
Under the inelegantly-named Antiterrorism and Effective Death Penalty Act of 1996, the merits of West's second habeas petition could not be considered unless he relied on a new rule of law made retroactive to cases on collateral review by the Supreme Court. The issue on which the appeal turned was whether Cage was a "new rule" and whether the Supreme Court had made it retroactive on collateral review of a conviction.
Four other circuits had ruled against petitioners in West's position, and West's case therefore presented a significant challenge. The Third Circuit, however, had not considered whether the 1996 Act eliminated the analysis required by Teague vs. Lane, 489 U.S. 288 (1989). In Teague, the Supreme Court had created an analytical framework for determining when courts should apply retroactive new rules of criminal procedure.
In a thorough opinion by Judge Becker, the Third Circuit ruled that the Supreme Court had made Cage retroactive on collateral review. West vs. Vaughn, 204 F.3d 53, 61-63 (3d Cir. 2000). Unfortunately for Mr. West, however, the Court of Appeals affirmed dismissal of his habeas petition on the ground that the jury instructions did not violate the requirements of Cage.
and Dana Blaney
, two Pepper project assistants who previously worked in the Philadelphia Public Defender's office, provided excellent assistance with the case.
HELPING THE HOMELESS
Summer associate Ed Groh, along with associates Karen Suddath and Sedesh Doobay, recently helped staff the legal clinic at St. John’s Hospice on 12th and Race Street. The legal clinic at St. John’s is one small part of a larger, ongoing effort by the Homeless Advocacy Project of Philadelphia to put the Philadelphia legal community in touch with a homeless population that is often in need of legal assistance it could otherwise neither obtain nor afford.
In advance of the clinic, Sean Kirby at St. John’s had already met with several of the residents to determine the scope and legitimacy of their legal needs. Under the HAP program, we do not provide representation for litigated matters.
However, the other legal needs of the homeless can be quite diverse, and while some of these matters might appear simple, they are not always easy to resolve. There are several reasons for this. Many of these residents are putting their lives back together after long battles over family problems, alcohol or drug addictions or run-ins with the law. Just attending to their basic everyday needs — food, shelter and clothing — can be a strain for these individuals. Accordingly, sorting through legal needs is a challenge because they may not have the energy to help lawyers assist them. Second, because these individuals are homeless, they often lack formal identification or documentation establishing their education or employment histories, former addresses or other information that would ordinarily be useful in solving their problems. Third, the homeless often move from one place to the next, failing to inform each shelter about their intended destination. This makes contacting homeless clients for follow-up information nearly impossible.
Ed reports that during the May 25 clinic, he and Karen met two homeless men, one of whom asked for help in obtaining a copy of his credit report and to confirm his marital status. While they did attempt to assist this client, he left St. John’s hospice shortly thereafter and Ed and Karen have since been unable to contact him for follow-up. The second client is seeking an uncontested divorce from his wife of seven years. Ed and Karen are presently following up on this matter and hope to have proceedings underway shortly.
Barbara T. Sicalides, Brett G. Sweitzer and Daniel J. Anders