SPECIAL FEATURES IN THI S ISSUE ••• Military Tribunals and the War o n Terrorism: Does Congress Ma tter? The Tax Assessment Appeal Process: The Proced ure and Histo ry of Ta x Assessments in Allegheny County An Environme ntal "Problem" with Constitutional Ramifications

STAFF

Editor-in-Chief Deborah L. Kutzavitch

Executive Editor M elissa A. W alls

VOLU M E 3 5 • N U MBER Two • SP R IN G 2002 Senior Editor Rebecca Keating Verdone -

Managing Editor Wenly C. N el son

Production Editor EDITORIAL Ro bert P. W oods. Jr. z A Moral Dilemma Web Editor Deborah L. Kutzavitch John Miller

CO V E R STO RY AssiJfant Editor-in-Chief 3 A Vision and the Visionary M arcy Smorey-Giger Deborah L. Kutzavitch and Melissa A. Walls Assistant Executive Eclitor Wenly C. Nelson 6 Military Tribunals and the War on Terrorism: Does Congress Matter? Greg N eugebauer Assistant Managing Editor John E. Egers, Jr. i o Tax Assessment Appeals: The Procedure and the History of Tax Assessments in Allegheny County Contributing Writers Thomas Reisdorf and Robin Maxwell Kevin Coleman Jen nifer Czernecki 1 4 Duquesne University School of Law Civil Rights Clinic Goes Up Against Lori Edwards Small-Town Government in Free Speech Case-Again John E. Egers, Jr. Kevin Coleman Stephan Hobe Kirk W . Junker l 6 Constitutional Options for a Heated, Fast, German Unification Deborah L. Kutzovitch Robin M axwell Jennifer Czernecki, Lori Edwards, Stephan Hobe and Kirk W. Junker Greg Neugebauer Th omas Reisdorf 2 6 Let' s See-Cell Phone, Pager••• Are You Dealing? John E. Egers, Jr. W endy Smith Marcy Smorey-G iger zs The Fight of Southern Attorney P. Walter Jones: Overturning " Yellow M oriah Snoddy Paper- Black Man" Discrimination in the Georgia Jury System and Melissa A. Walls Desegregating the Georgia Prison System Faculty Advisors Mariah Snoddy Associole Deon John Rago Profe sso r Kennelh Gorm ley 3 2 An Environmental " Problem" with Constitutional Ramifications Marcy Smorey-Giger Vi sit the Juris websi le at: www.juris.duq.edu 3 7 Adult Protective Service Statutes: Are the States Doing Enough to Protect Their Elderly? E-Ma il us at: Wendy Smith [email protected]

JURIS is a semi-annual student Cover photo and photos in the cover story "A Vision and the Visionary" by Michael Haritan, publication of the Duquesne University Photographer School of Law. The views and opinions expressed herein are not necessarily those of JURIS or of the Duquesne University School of La w.

© 2002 Duquesne University.

.Jl .HIS • S PR I NG 200 2 • l EDITORIAL

or rh e pasr fo ur ye;irs of my life J (Multi srate Pro k,., ional Responsibility lrn·e to be human beings' have arr ended law school ar Exam) review cou rse lecture still rin g in l )uques ne Uni ve rsiry espouses ro be a F Duques ne Uni versiry as an evening my ears: "There·, no de n1i11im!s exce prion, "s pecial trust to seek truth and disseminate srudenr. T am ce nain many of my not even mil k fo r a dying baby." Several knowledge within a moral and spirirnal classmares have shared similar experiences orher studems ;mend ing die ~dm e lccw1·e, fr amcwo t·k in ord er ro prepare leaders and emori ons during chis rime, oFcen 1·ai sed rh eir· heads fr(,i lll takiug notes, as I d isri ngu ished not only by their academic jugglln g a full -rime job, famil y did , in disbe li ef o ( rh i> i!1lerp re ra rion of and professional expertise, but also by their respo nsibili ries, and preparing for class on rhe ru le. O bviouslr rhac shockin g ech ics, and guid ed by consciences sensitive a weekl y basis. There is no doubr we are statement bo thered others as IL did me. ro the needs of society. " And Duquesne all berrer prepa red fo r rhe rigo rs of a legal Co mm e n t~ ro R.u le 1. 8, howeve r, adverr ises to prov id e "Educacion for the ca reer rh anks ro chi s ex peri rnce and rh e ex platn rh law swdenr's (soon the profess ional rules. But, would yo u fed prov iding fina ncial ass istance ro a client. to be lawyer's) perspecrive, th e profess ional compelled ro help your client on a perso nal The exceprions are, of course, that a lawye r rules are miss ing a component which is level' How wo uld you explain ro your may adva nce court cosrs and ex penses of v.ital to pe rsona l well bein g. Tha t d iem that yo u wo uld violare the Rub of liri ga ci on vvich rh e understanding rh ac co mponenr is at the core of th e moral Profess ional Conducr if yo u prov id ed repay menc is co minge m on rhe outco me duri e~ whi ch a la \\'ver (rhar is, a perso n) fina ncial ass ista nce ro rhem' Isn't it most of the case, :ind a Ja v,'Yer may pay court owe~ to himself or herse lf, as wel l as the rmporrnnr rn he 3 person fir st and a lawyer costs and expenses of an in d igenr clienc. moral duties owed ro famil y, fr iends, and second' • To drive ho me the poinr of chi s rul e, co -wo rkers. How can we, as la w students h oweve t» cb e words of a Barbri and lawye rs, reco nL ile rhe obl ig

2 • .Jl "IUS. SPRING 2002 COVER STORY

A Vision and the Visionary

• Deborah L. Kutzavi tch and Melissa A. Wall

This article is based on interviews with Di'. subsequenr Deans Egan, Laughlin, Brophy, Bertha Lisette Gauvin • Firsr female law John E Murra), Jr., assorted matma!from Quinn, Manderi no , Davenporr. cuillo, studem g1·aduared in 1918 the Sumrner 1986 issue and Fa!! 199 7 issue and Cafardi have scru pulousJ y adhered ro ofJuris Magazine, statements by Dean rhe original vi sion espoused in 1911. The John Egan• Fir r Dean of the Law School Nicholas P Cifardi, Professor Ke11neth L. currcnr de;rn of the Law School. Nicholas to have graduated from rh e Law School H irsch and Carl G. Grefmstt:tte, and P Cafardi , conrinues to build rh e vision as irsclfin 1915 materials provided by Paul Demilio of the 1-vell. In ;:n inrerview jusr a few years after Duquesne University Archii1es. his being named rh e ninrh dean of rh e Law John W. Givens • Fim Black srudenr to School, Dean Cafa rd i stared. "My mai n gr:iduare From the Law School in J 929 The Vision goal is to conrinue ro retain rh e besr faculty For over 90 ye us. sin ce rh e Law available for it is the faculty who will help T l1om as F. Quinn • First Dean of the Law School's inccprion in 1911, rhc forcsigl1r ro continue the excellence in lega l School robe selected in 1957 from ourside ;ind vi sion of rhe School's nine lk :rn s, education for which Duquesne is known." th e S hool since irs inception fa cul ty and adminisuarion uf Duques ne During Dean C1 fa rd i's tenure lie has have disringuished ir from orher law libera lized the curricu lum, added over _:)Q Full-Time Day ivision • First fi.ill-rime schools in rh e narion. In 1911, Jose ph M. new courses, developed practical clinical day division was add ed ro rhe curriculum Swearingen, rhe firsr Dean aod vi>iona ry programs, and added several 11ew fa culty in I 959, coi nciding with the opening of of rhe Law School, proclaimed his vision members. Rockwell i l.11 1 tha r has permeared rhe halls and classrooms since thar time- he would expose sru dems Vision and History Americrn Bar Associarion •Initial approval ro rh e pracrical as peers of a legal career. Ir is di fEc ulr to envi sion a plan for rhe by iltc American Bar Association in Dean Swearingen encou1·aged students future without visiting momenrs frorn 1 he Febrn:iry, 1960, leJ co accreditation less to observe proceedings :it d1e courrhouse past. Looking h;.ick, rh e Law School has rhan two years larcr in Pimburgh, which was only rwo blocks cclebrared ma11y "firsrs" in irs history, away from rhe George Building on Fourrh including so me of rhe more memorable Law Review• First issue of the Law Review Avenue, whe re rhe Law School \\a> firsr events such as: appeared in 1963 housed He :iko insrirured rh c S.- linol's f11-,r moor court program, proviJing for further Duquesne Law School h rs to Juris • First issue of Juris went to press in prac ti cal experience for fi.1rure lirigarors. 1967 During Dean Swearingen's renure. th e Sepremher 2"i , 1911 • First Duquesne Liw merirs of rhe textbook and casebook School class oF 12 srudenrs mer in rhc Ro nald R. Davenport • f irst Black Dean merhods of instrucrion were conside1·ed, George Building ar 436 Fourth ven ue , ofa prominently ra nk d law school and Swea ringen chose ro combine rhem Pitrsburgh (all 12 sr udents passed the "to impress upon rhc srudcms nor only rhe Pennsylvania Srare Bar Ex~m1 in 191 4) Today's Vision from the Visionary principles of la w, but also the rea so n ca n Swe;1ringc:n's philosophy and the employed in arriving at the principles." Joseph M. Swc3 rin o n • f-irsr Dean of the ideology of rhose who followed him are )bvious in Dean Swearinge n's philosophy Law School from 19 l 1-1 929 being emulared to this day by Duquesne was the commirmem to the law srudenr. nivcrsiry's Chancellor and Professor of Evidenced by the continued success Tuition • Firsr tu ition fee in 19 11 was . I 00 L.aw, Dr. John E. Mur ray, Jr. - today's and accolades ex perienced by th e Law for rwo terms (rcgisrration and graclua ion vision ary of Duquesne University and in Schoo l sin ce DeanSwcaringen's renure. the fees were $ l 0 each) (continued on page 4)

.Jl HfS • SPRING 2002 • 3 COVER STORY pa rricular, rh e Law School. Dr. Murra/s se ri m1 \ doubr (Duqu1.: ·n · w:1.>a cru:1lly p11 r recent ex;1mple \.vas the addirion of the pan ­ enrry inro lcg:J educarion as a professor on prohario11); perari ons wert.: in rhe red ; rime day pro r·a m in rhe Fa ll of 1997. Dr. and cnrry inro academic life began ar a capital drive w :l\ beg 1111 bm had ro be l'vlurray belie ved rhac ch ere we1·e some very Duquesne when he was Acting Dean oF aborrccl, leaving rhe li11i 1·e1·.·i l:"\ wirh no way La l<.::nred people who wan red to be lawyers, rhe bw School from 1966 ro I %8. When of raising rhe fun ds nc LCS> :11 y for physi<: al bur who had famili es or ocher personal Dr. Murray rewrned as Prcsid enr of rhe plane repairs and upgrad ing; an d rh e loml tl eeds which rcsrricrecl cheir arr ending Universiry in 1988, ir ·was qucs rio ned press ndirnled rh e Univcrsir)·· \\/hen D r. even ing classes. Thcgoa.I was ro find a way wherher he would be a profess or of law Murray bccu11e Pr si cnr. chang ·:; began ro provide these ve ry ralenred people an during his presidency. Even rhough he had almosr immediarel:·-an I the rc't is hisrory." opporruniry that simply could nor be held orher rirl es suc h as Dean (of rhe Carl c; re1:-.:: nsrerr · rcferrt: d ro rh e rurn provided by any ocher law school. And Universiry of Pitcsburgh School of Law) around under Dr. /\·1mra y'~ kadlTship as Duquesne La w School provided rhar and Presidenr, Or. Murray rcll s everyone rhe "tv1.i raclc on rli e Blull " and beca use- of avenue in rh e form of a pn Llw chool one oCthe grear law home. even grea t r h e i g ht~ .. , ,dwols in rhc Uni red Stares. To accomp lish In a recenr inrerview wirh Dr. Murray, Recently, si g111rl c1 m renova tions we re rh ar he believes scholarship and publication he shared his vision and philosophy for rhe made ro th e Law '.:ichool and the genesis of books and articles by che Law Sc hoo l's Law School. His vision makes Duquesne for these ren (w:n io 11s may q1 1ire possibly fac ulty is viral. He believes chat the facu lry Law School one of ch e greac law sc hoo ls in be due in large pan r11 rhc leader.>h ip and need~ robe 0 11 rhe curring edse ro be ab le che Uniced Srares, enahling scudenrs ro Stewardship of Or. Murray. Pl.inn ing r(Jr co ed ucate and wri re. Therefore, rhe succeed, manifes ring scho larship and th e renovarions rook pl.tee over a period of addirio n of fa culty musr be a consisrem publicarion by ch e Faculry. and creanng rime, and the pl:ms 11 1cludcd rhe :ibsolu re goal of rhe administration, so char rhe " lawyers in rhe grand uadirion of neces iry oC e.·panJ.in g rhe schuul's physical burden can be taken from those who have lawyering." space. Thar was achicwd by adding a la rge so we ll s rvccl the law school for over 90 wing onto the exi5 ting bui ld i!lg. hile years. He co uld nor overemphasize rhe everyonc was awdrl of tl tc new wing, kw imporrancc sch olarship plays in th e knew ir wo ul d be named afi:er l k Murr:iy, ed11ca rion of rhe scudenr, in rerms of rhe including Dr. Murray him:.elf. T his jucli ci:.iry relying on rhar scholarship in rhe announcemcm W :l.5 evcmuaJ ly made pub Ii c co urts and society generally, and 111 rhe ac an cvc nr held br the sc hool, :it wh ich en hanced rep utacion rhe Law School Or. and Mrs. lVlu rt cLl' \\ t" re pr c::.,cnras usual. enj oys as a remlr. T he new wingwoulJ be ca.lied rh e 'Murray O ne of the great trad iri ons ar Pavilion.' Need Il's · ro ;ay, Dr. Murray was D uq t1es ne, Dr. Murray ci ted, is rhe surpnsed and gra tifi ed by rhis honor, and acccss ibiliry of the professor ro rhe srudenr. rhe thunderous apr1lause by rhe crowd He fee ls rh e Law School's facu lcy is D1: john E Murrt~) ', ./1:. Chm1l'cllnr 1111tl sicrnified everyont''; ovcrwhdmi ug approval commirred ro the chall enge co bring to rhe f>mjessor o/Lu11, D11q11t'S11 e { l11iirasi~) ' for rhe name of rhe L iw School's new s1 11denrs the mosr curren c law and trends When Dr. Murray was sci ·cred as rhe wing D r. Jo hn L Murray. Jr Pavilion. and ch e crici ca l and analytical rh inking in elevemh presidenr of Duquesne in l 988, Wi rh rhe addirion of <> pace for ch ose areas. Dr. Murray believes the he ca.lked abom making d ie Law School cb s~ro o m s, E1culty ofllces, srudcnr acriviry primary beneficiaries of legal scholarship more predominanr in rh e 21. r cenmry. rooms, and extended Iib rary spac , rhe nex r are che srudems. "If my scholarship does Carl G. Grefensrerte, a member of rhe quest ion was "Wh,1 r else do we do'" Dr. nor help my stud ents, rhen why am l doing Board of Trusrees ar rhar rime and Murray's answer, ul" course, was ro kee p ir' T har's a very important pare of my Chairperson of rhe commirree ro find a enhancing che qualiry of legal educario res ponsibillry, nor simply in the class room, new Presidenr, reca.l ls rhe sr;1te of ~ffo irs in rerms of course oHeriogs and enabling bur our of che classroom." r. Murray during chis critical rransirion period in ch e swdenrs ro su ·cct'd. "I have alwa ys co ntinues ro reach con trace law in the Law Duquesne's hisrory. "Ar the rime Dr. see n "J uquesne Law School as a place ' chool, and he _ays rhac his door is always Murray became Presidenr, Duquesne was where we ;He willing ro gt'n cra te open ro srudenrs. His office is situated in much in disrress . To name a few of rhe opportuniries for peo ple who simply th e new Murray Pavilion, among the Law problems: srudencs wer( unhappy; orherwise would no r ha ve it." ~ [ ·he school 's hool adminisrrari on and other faculry enrullrnem was declining; the fo culry was even ing di visio n is :1 perfcTr c: x.:imple of fficcs. underpaid; conrinued accredirarion was in providing rharopporrn nicy. Anorh r more Dr. 1\ilurray sees Duquesne Law School

4 • rt ·1us • SPRING 200 2 COVER STORY

l eft-Dean Nicho!m P Cifardi and Dr. John E. Murray. Jr. on the balcony of the M 11 rl'fl)' Pavilion, ouerlookmg the Grant Building and One Oxford Centre.

R1ght- Ear61co 11str11ctio 11 ofthe Lmu , choo! (Edwa rd / Httn!ey Hr1 //), 01wr/o()ki11g the Gram !Jui/ding rmrl ear~)' crm rr11ctio 11 ()/One O>.ftml C:m trc G'ro1111dbreaki11gfor the law School took pl11rr on June 12, 1981. as a value-adding law school. e 0~ 11 12 ing rs an openness to Note: Dedimtio11 o(tl1e /'vful'l'tlj Ptwifio11 is rhe impo rrance o f rhe ca no ns o f multidis iplinary .iched11/tdfo1· Mr1J12 002. professio nal erhics, which are rhe mini mal acti vities. Befo re standards, he bel ieves rhe lavv sd1uol musr Pre~i d e nt Murray, creare whar he cal l d "lawyers in rh c.: grand rhe w rd 'and' was Deans and Acting D eans rradicion of!awyering." 11 , ex plained rh ar suspecc ar rh e of the Law School rhese are rhe people who are genuinely School of Law. profi sional individuals upon whom ··lienrs c did not invite 1911-1929 :rnd sociery ca n rel y. Ii st: are people who srudenrs from Dean Jost:ph M. Swearingen ill make rhe difficulr erhical decision in ocher disciplines Kmneth /.. I firsrh 192 -1932 any sirnarion, while srill erving rhe clicnr into our classes. !'mfossor of!..aw D n John Egan a wel l as rhe cl iem can be . erved. This Courses with the Duq11cme Uniuersity high regard for ethical val u~ .mJ coi 1· ems dreaded 'and' w re 1932-1939 for prudence and jusrice is har the Law either barred or regarded as unwo rthy Dean John Laughlin School is all abour. " 1ly responsib il ity is srepchildren." As a r 5ulc of rh e~e h ~mg "S, 1939-1940 ro asccnain mar a srudenr walks uut of rhis Professor Hirsch believes the Law School Accing Dean Morris Zimm ecman Law School with a maximum rhr e-ye:.ir fac1dry and progr::i m in g" ncral have bee!l 1 40-1956 education, so rh ar he or she i> tl1e 11 cap:.i bk emiclted L> y all of rhe mulriJi,ciplinary D an C. Gerald Brophy of walking inro virtually any area of rhe experience;. 1956-1957 pracrice. You art' nor going LO be a polished D ea n afa rdi said ir wel l: ''John Acting Dean Elizabeth Scheib lawyer, obviously, but Duque ne srndcms Murray is a gianr in rhe fi eld of legal 1957-1 966 should com pere v ry effectively wirh education, and [am pe r~o nal h · rhrilleJ 1li ar Dean T homas F. Quinn graduares of a.ny orher l:iw ~c ho ol in the rhc new edicion w rh e Ouquesn - law U n ired Srares. And I like the idea du r we School is called rhc Murra )' P<1v il io 11 in his 1966-1968 are co mmiued ro chis conc pr. We are hono r. " As the Lt\ S hool anrici paLe' Acring Dean John E. M urray, Jr. con erned abour our students, we won y cdebrari11g iLs J OOd1 a11niversJ ry in 2011, 1968- 1970 abour rhem, we wam them to succ ed. We rhe vision ;ind rh cradirion of Duqu Sile Dean Louis Manderino are on rheir side." Unive rsiry School of aw co111 in res wirh 1970-198 1 The rrue impacr of D r. Murray's rhe fo resighr, dedication , and must Dean Ronald Davenport comributions lo D uq ue~ n e will be r :tlized in porranrly, rhe vision or D r. john E. 1981-1982 fo r years ro come. ProFessor Kenneth L Murra ~'· Jr. • H irsch, a mem ber of rhe Law cl ool Acting Dean John Gedid fa ul ry since J 97 , sums up Dr. /Vturray's Deborah L .Kutwvitch i; a fo 1nth-year evening 1982-1993 role accordingly. "Presidem Murray (now student~ Editor-in-Cine/ o/JL R!S, and Dean John J. Sciullo hancellor Murray) i> still among us as a cu1n'nt61 works fo1- The Hillman Compa1~)( 1993-Present vi bran t fo rce. T he fo remosr change char I /'v!elissa A . Wall; is rl (o11 rth-yertr e11ening D an Ni bolas P. Cafardi can amibute to Prc~ide m Mu rray'~ pr ·st·nce studew and F;:;:i'rntii1l' Editor oj }URJS.

JI . H I ~ • SPRING 2002 ° 5 Military Tribunals and the War on Terroris : Does Congress Matter?

• Greg Neugebauer

residenr Bus h, on N vember 13, In th e pre:imblc co hi\ m ilitary and 1·egubtio 11 s char Congress may adopr.10 200 l , ordered rne ecrerary of tribunal order. !'resident Rusl 1 cited his Addirionall y, the President's "unilateral" P Defense to derain and cry before consricULionaJ :iurhority a.s Commander in power grab was nor rhe on ly concern to military tribunals any non-citize n wnom Cnicf along wirli rhe laws of rhc Uni ted Congress. Some viewed rile order as having rhe President determines is engaged in Stares including. ··rhe Authorization for p rofound im pl icati ons fo r our civil internarionaJ terrorism char rhrearens rne Use of Mil ital) f·orcc Joim R 'solurion.'' liberries.11 Consequenrly, rhe call soon Uni ted Scares.' T his acrion provoked an and sec tions 82 1 .i nd 836 of- Tide 10." went to the Bush administration co clarify immediare respo nse fro m Congress, T he joint resolLuion, n.x.endy enaCled on irs undersranding ofirs purported aurhoricy questioning the aurho1·icy or the President September 18. aurhoriz · rhc Pr sidcnr "ro co Cl)' terrorises before mi lirary tribu nals and to bar acce. - to the civ il courts. use all nccc~,a r y '111 d appropriate fo rce .. . to assist Congress in crafring Jegislario n Representative Woolse;· of Californ ia to prevc11 t any furu re acrs ofinrernational ai med at safeguarding civil liberri .11 called military tribunals not only "an terrorism agai n. c rlw Ll ni ted Scares.'' Tile ln the ongressional hearings on the infringemem of our civil liberties," but a cited C od provision> govern rhe Bush d min isrrarion's policy on terrorism, threa t to "our system o f checks and ju risd ictional and proccdur:il aspccrs of a frequent focal point of rhe discussion is 2 balances. " "Tne military tribunals mil itary tribuna ls .l.\ comained 111 Ar ri ck> the World War II Supreme Courr decision circumvenr the role of oversight control 2 1 and 36 of rhe l lniform C ode of upholding warrimc military tribunals, Ex gra nted to ongress in the Co nstitution, lvlilirary Justice. /Jal'te Quirin." ln face, the C llairma n of and al low too much power to the Executive T he Bush Ad111in i~ 1 r; ni on advan cd rhc .Judicia ry Commitree, Senator Leahy, branch."3 Senator Leahy, Chai rman of the sevcr bem:r eq uipped rh an tri bunal;." While legal scholars debate rhe civil Ii berries.5 civi Iia 11 aurhorit ies ru gachcr evidence from consriru rional sound nc\s of Presiden r BU5h's This arri cle examines milirary foreign rerritory. d dit i o n~.dl y, mi litary o rder, Ex pane Quirin facro1·s in their tribunals t hro ugh rh e prism of an tribunals provid bc: rtn safeguards fo r reasoning as welJ. 1·· imporranr World Wa r II Supreme Court hand ling classifi d info rmation and T he Quirin decision involved the cdSe decisio t1 concerning rhe m il irary rri al of protecting ~o u rc es. I-I i t ri ml precedent of eight Nazi saboteurs wllo landed in two eight Nazi sa boteurs. In parricular, ir looks supports cheir me. f.inally, rhe popular qJarate gro ups on rhe F.asr Coast in June ar the relarive power of the President and view that mi litarv tribunals are inherenrly of 194 . ft:e r rhey came as hore, rhey rhe Congress to J ercrmine how rh ese unfoir is um uppo rred given char rile removed rheir naval unifo rms and buried tribunals wil I opera re. h reviews rhe present convicrion rate i:i no hi gher tha.n fdony chem along with a su pply of exp losives and srarutory landscape, and ir d iscusses some conviction ratc~ in f. d ral district courts.'' incendiaries. Weari ng civilian clo1hes, the possib le changes should Congress Aex irs . 'o r surprisinglv, .: o ngress took t"w o groups made rheir way to Nevv York legislative muscle. While Supreme Court irnmedi an.: note o F the comrirurio nal ;!Jld C hicago where they were evenrually unani mously approved Pres id e nt ramifl cuions of the Pre>idcnr's military arrest d by the f.B I. On July 2, l 942, Roosevelt's acrion , ir mayoffer urprisingly order. ·l(J many m ·mbers of ongrcss. President Roosevelt o rdered chat the li rrle support for Presidenr Bush, shou Id mili rary tribunal' ,1re c r.:aru re~ of '- tarute, 1; abore urs be tried before a mi litary Congress atrempr to reign in his authoricy. and as such, they are amcnal.il c ro the laws <.: mmissio n fo r "offenses aga inst rhe law

6 • .Jl .HJS • SPR I NG 200 2 1 oFwarand rhe AnidesoF\X!,u" - HabcJs prescn r Commission he has undcrr.J(en ro requ ircmenr. The Supr me Courr rejecred corpus chall enge· by Quirin and h is exercise rh e aurhoriry conferred upon him Lhis challenge ;is conflicri ngwirh rhe narurc con federares led co rhe comolidJrion of by Congress, and also such aurhoriry as Lhe o f d1C' jury riuhrs embodied in rhe rhei r cases before rhe Uni red SLlaw of war," and, rherefore, rheir rri bunal, che oun rejecLeJ rhe saboteurs' enemy aliens denied rhem access tu rhe case W<1 S nor properly before a milirary claim as con Flicting wirh rh e "long­ courrs. T he Courr opined, whi le 11orhi11g uibunal. ln rejecriug rhis chaLleng,e, the cominucd and consi tent inrerprerarion" precludes a co urr from determining rhe Quinn Courr drew the distinction beC\VCCll of ch Consrirurion. 21 The Quirin Cuurr sraLus of a dde ndanr wirh respecr ro a law rhe common law notion of lawful and concl uded by unanimously upholding or wherher a law is consr iru rionaL ir neeci unlaw ful belligcrerus. ' Prc.:s idenr Roosevelr's order LO rry rhe Nazi nur reach rhe governmenr's pos ition since C iring over a do,,en international saboteurs before a mili rary tribunal. 1 rhe milirary rribunal was consriru rional. R authoriti c·s on mili1ary law, rhe Quirin The hisrorical relarion of !:,X: parte T herefo re, rhe Quirin Courr proceeded Courr recognized rhat rhere is " un i vcr~al Quirin ro rhe co n>ti t: urional debare direcrly ro reviewing rhe consrirurional and agreemenr" among rhe nario ns wirh respeet surroundi ng rhc Bush adminisrrarion's sraru rory basis for a milirary rribunal. ro the "l.iw of war" and "lawful and :rnti-rc rrorism policy m:i.y be clea r, but its Chief Justice Stone's op in ion for rhe unlawful comba ranrs." The mosr releva11ce as legal aurhoriry is murkie r. unanimous co un began irs considerarion fu nJamenral distinccion is thar unlawful Throughout his opinion, C hief Jusrice of milirary rribunals by reaHl rmi ng a bas ic combatanrs, if caprured, are "subject ro l rial Sron ca refull y limited his decision to the principle rhar rhe governmenr may act only and punishmen by mil irary rribun:.i ls for ca~c before the court. Today, President rhrough a va lid granr of consrirmional acrs whi ch render rh cir bellige rency Bush views Publi c Law 107-40, aurhority T he courr found rha r Arricle l unlawfi.1l." As fo r determ ining wh;1r acts Aud1orizmion for Use of Milirary Force, powers of Congress co "provide for rhe give rise ro unlawfi.il beUigerency, rhe Courr and 10 S C.§§ 821, 836 as granting common defense ... co raise and :i upport reviewed rhc hi co ry of war daring fro m him rhe same sLarurory auchoriry as rhat armies . .. ro provid e and mainrain rhe the l 8rh cencmy a11J cited many fr1c1.ors. held by President Roosevelr during World navy ... ro make rules for rhe govcrnmenr enrra.l ro this thread was rhe com.mun law War II. Were Congress ro w[rhdraw rhar and regul arion of rh · land and naval crime of.s pying. "'Those who during 1.i me aurhoriry, would rhe Ev.: pane Quirin forces ... ro define and punish piracies and of war pass surrepritiously from enemy decision j us ti fy rhe Presiden r ro act fdonies commirred ou the high 5eas, ::ind territo ry imo our own, discarding rheir unilaret«tlly as Comm

.fl Hl."i • SPRING 2002 • 7 General Ashcroft, testifying before the rh ar the deraineo are in Cuba and no t nexr Lauren e Tribe of rhe Harvard Law Judiciary Committee, was not so retice nt. door in Florida. chool, for example, admoni shed lhe He noted tha( the S(aWro(y provisions, Despite the bluster, (he Bush Sena re Judiciary Com mit(ee nor ro which were (he linchpin of (h e Quirin adminisrr:t( ion ha> ye t to o fficiall y exchange (he tyranny of (erro rism for rhe decision, are presen( today in (he Uniform announce wherher a11yone will acwally face yo ke of government o ppressio n. Code of Mili(ary Justice. However, in his a mili tary tribunal. The so-called merican Hearkening back co forced inrernmenr of view, rhey are no( necessa ry. "Firsr of all , Tal iban, John Walker Lindh, is presendy I 00,000 Japanese and Americans of about che all(horiry of (he President of che awaiting rri al in a U. Dim icr Courr in Japanese an ·esrry d u(ing Wo rld Wa r [l, Unired Sraces to wage wa r under (he Virginia. i: The al-Q.tida leader. Zacharia:­ Professor Tribe declared (har "we are at (he Conscirn(ion and ro address war crimes in Moussaoui, who io clearl y subject co rhe Korcrn atsu crossroads.'"'" Wirh cha( (he process of waging war, I believe (ha r's military rribunaJ order, wi ll neverrhcless be inrroduction, he proposed a lis t of abom a 5 clearly (he power of (he President ro cried in civil coun ' \Vhile some members half-dozen safeguards for Congress ro undenake tha( unilaterally.":., While rhe of Congress have ex pressed reservations consider unplemen ring. Auorney General d id no r mention any regarding rhe Prt.>s ident'.· anri -rerrorism Tribe recom mends rha r Congress precedenr, his posi (ion is credible. policy, no one has . uggesred revoking rhe should grearly limir rhe persons subjecr co In the Civil \Xla r Prize Cases, (he Aurhoriza(ion For l.Jse of Military force military trial. Rather than si mply restrict Supreme Cour( addressed the power of (he resol urio n.·'• Su I in '._" as ti ar srarme jurisdiction co non-cirizens or unlawful Presid ent ro acr "unilaceral ly," absenr a remains on rhc bouk . wirh irs provision aliens, he suggests confining jurisdiction dedara(ion of war.!' "lf wa r be made by "ro u5e all n ce;.s:ir; and appropriate force," to a small, pre-determined group of invas ion of a fo reign na(ion, che Presidem rhe :1urhori ry ol the Presidenr seem;, ,ecure. terrorist lead c;; rs. He furrher recommends is not only amho rized but bound ro res ist The stawre's broad, S\\·eeping Luiguage calls char Congress establish a (ri bunal to force by force. He does no( iniriate (he ro mind (he remark> Lyndon Johnson rerform a jurisdicti o nal ga(e -keeping war, bu( is bound to accept rhe challenge made abour rh e Tonkin Gulf" Re:iolurion: Function and co ~Jlow for expcdi(cd habeas without wai(ing for any speciro fe sor Tri be also recommends thar Supreme Courr has cominued ro (ake an Congress, who were caughr !hrfoo red by Congress exerc ise ir -rick I, § 8 power ex(remely deferenrial view of die Presidenr's rhe Bmh admini srratio11, have proposed co "define and punish . .. offenses agai nsr power in die forei gn arena. As (he Coun legisl ation cha( 1s rnor concise. rhe l ~ w of narions," thereby rnore precisely decla red in United States v. Curtis-Wright Bills are curremly pending char will articulating elements of (he offenses triable Export Corp., iris rhe "plenary and exclusive expressly authorize mi Ii rary tribunals- ;uid before mili ra1y tribu nals. Once rhe offenses power of (he Presidenr as rhe sole orga n of also implemcnr a few 1·egulations. Chief arc codified, rite trib unal mighr dispense rhe federal government in rhe fi eld of among congressio 11:!1 conce rn ~ i · ~ 7(b)(2) uni form punishmenr by us ing rhe Federal inrernarional relations-a power which of rhe mil itary order, which appea1-s ro bar ,'eme nci ng G11ideli nes. Finally, Prorcsso r does nor require as a basis for i(S exercise habeas corpus rel ief: "cl 1e individ ta! shaJl not Tribe recom1m:nds die adoption of more an act of Congress.'"' Nor is rhe posture be privileged ro seek any remedy . . . in any rigorous proced ural safeguards designed co of detainees, as criminal defe ndanrs, a courr of rhe Un ired . ra res.""' W hile such prntecr due process, including unanimiry fa cror in rhe equation, as the Supreme an imerpre(ation is re:iso nabl ', it is for capit ~-J offenses. 11 Courr made clea r United States v. Verdugo­ probably inco rrecr '._' iven that Pres ident Professo ·1 r ibe's recommendarions a.re Urguidez.!'' ln ch ar case, rhe Supreme Roosevelt's \Xlo rld War 11 ord r had a clearly ai1m:d at preventing some of rhe Courr held char rhe search and seiwre of a simila 1· provision and fa: pane Quirin was governmental wa rtime excesses ch ar non-cirize n residenr of Mexico, who had a habeas corpus c1.,e. ~everth eless , rwo bi Us occurred in Wor!J Wa r II. T he President, no auachmenr ro rhe Un ired Srares did nor curre nrly pending in rhe H o use of on the ocher hand, may not wish co make 30 even implicate rhe Fourrh Amendrnenr. Repre,enta(ives oprcssly prore t habet1s a1i y changes ro his poli cy on anti-terroris m. T he Supreme Courr has been equally corpus relief. ,- NCJther bill would appear Howe\" ! unlikely a showdown scenario "emphatic" in rejecting " xtrarerri ro rial to encroac h .1 ig1 1ificanrly upo n rhe may be, co uld Congress force che President appl.icarion of rhe Fifth Amendmen t" wirh execuuve power. F r example:, (ri bunals ro change how m ili(ary tribunals deaJ wi th respec( ro non-citize ns, omside the Uni red may convene on!) on rorei gn soi l, there non-citizen, unlawful belligcrenrs, whom St.a(es31 Given precedent such as chis, the are roll(ine reporting provisions, and rhe mil itary seizes and cries on foreign soil' power of the President is fo rmidable, milirary rribunals nu ' nor t1: • CS cirizens On rh is poinr, Ex parte Quirin is provided he limits (ribunals co non-cirizens, or lawfi.d r idem ;1liens.-'H fr remains tO del iberarely si lent: "we need nor inqui re with no connection co the United Scares, be seen wherher some of rhe more sweeping whether Congress m ay rcsrrict rhe power who are seized and rned on foreign soil fo r changes suggested by consri rn rional of rhe Commander in Chief to deal wi th wa r crimes. Perhaps it is for this reason sc h olar~ are considered. "' c:nemy bell igercnrs."•l Today, as ir was in

B • Jl HIS • SPRING 2002 World War I!, the power oC the President On February 7, 2002, the President (Dec. J4,200l )(statement ofSen. Leahy). to impanel military tri bunals ove r the announced that rhe Un iced Stares will rrear 1 See, e.g. Heczring onAnti-Ierrorism Policy objections of Congress remains firmly che deta inees "humanely and, ro the extenr Before r.he Senate judiciary Committee, Dec. undecided. appro priate and consi:m'm wich military 6, 200 l. 200 I WL 1559002 (statement T he power of Congress to force its wi ll necessity, in a manner consisrenc wich the ofStaremenr of Senator Edward Kennedy); is even more unc ·rtain when one considers principle oF third Geneva Convencion of Hearing 011 the Defem Department and rhc realiry of rne present po li tical landscape. 1949." '' Howeve r, under rhe terms of Militmy Ti·ibunals Before the Senate Armed If Quirin ·errks it that rhe President has che convenrion, neither the al-Qaida nor Semim Committee, Dec. 12, 200 l. 200 I the srarutory power- to order military Ta liban detai nees are enrided ro POW WI. 1587683 (scatement of Senaror 11 tribunals, Congress wou ld have to muster status: • As such, they remain classified as Edw~1rd Kennedy). 1 the vores necessary to oven-ide a nearly unlawful beUigerenrs, subjecr ro rrial before -' 147 CoNC. R1.c. S 11,888-0 l (t ov. 15, cerrain veto. Aside from being evenly rnilirary tribunals. • 200 1) (sraremcnt of Sen . Speccer), 147 divided politically, Congress is unlikely to CoNc. RFC. S U ,275-0 I (Dec. l 4, 200 1) oppose a wartime Prcs iden r. Eve n rhe G'reg Neut ebauer is a fimrth-ymr evening (srarement of Sen. Leahy) . 1 Pre~i d c1u 's mosr reliable political student. Comments on this article are ' 3 17 .s. I (1942). 1 opponenrs, enarors C harles . ch um er and welcome at [email protected]. ·• I !earing on Anti-Terrorism Policy Before Hillary C linton, have to temper their thl' Sl'llatl' Judicia ry Committee, Dec. 6, opposilio n ro the wa r on rerro r, comidcring 2001. 2001Wl. 1559002 (statement of where rhe twin rowers of rhe World · 1rade ENDNOTES Senator Leahy) . Cemer once smod. " f!mring on the Defense Department and A congressional challenge in the courrs 1 Derencion, Treatmenr, and Trial of Militnry Tribunals Before the Senare Armed is nor likely ro go fa r eirher. For as wi rh C ertain Non-Citizens in the War Against Services Committee, Dec. 12, 200 l . 200 I the recently failed challenge ro rhe li ne item l errorism, 66 Fed. Reg. 57833 (November WL 1587683 (s ca remenr of Senator veto, individual members of 'ongress 13, 200 1). Levin) . 1 probably lack j uJicial standing ro challenge -~ 147 Cn'c. R1.c E2283-04 (200 I WL " Hettring on Anti-7errorism Policy Before the Presidenr in cnun . '-1 Courr chall enges 1589333) (statemcnr oF Rep. Lynn C. the Smate j udicit71J' Commim e, Dc::c. 6, to mili ta1y tribunals will have ro come from Woolsey) . 2001. 200 I W L 1559002 (scatcmcnc of the detai ue ._., themselves. .I Id. Arrorney General john A~h cro fr). See also 1-fa lf a year after rhe September • 147 Clr-.:c . RK. 5 13275-0 1 (2001 WL Review of Terrorism Suspect Policies Befort' terrorist artacks, membc:rs oF the raliban 15933 1 1) (s tatement of Senaror Leahy). the Senate judiciary C.ommittt:f, Dec. 4, govem ment anJ ~1 -Qa i cb rerrorists remain ' f lmri11g on l 1nti-7{,n-urisrn Policy Before 200 1. 200 l WL 26 t 88007 (sta1emenr of housed at Quanranamo Bay in Cub:1 as the Senttte judiciary Committee, Dec. 6, Lwrence H. 'fribe, Harvard Law School); "dc:u inc s." While jusc a few 1nile fro m 200 I . 200 I W L l 559002 (sra remcnr of Id. (s tatemenr of Karl N. Liewellyn, die shore. of rhc Uni ted .Sra res , ir might Senarn1· Dianne Feinstei n). Uni vc rsi cy of Ch ic1go Law School); ru rn our tu be Ji g.hr-years awa:1 a., fa r as ''Pub. L. No. I 07-40. l l 5 Sra r. 224 (200 I) He11ring on the Defi:n>e Department and 'ongress is concerned. For Lhc srark rrurh - Authorization for Use oF Military Force Military Tribunals Before the SenatF Armed remai ns rhar over .3,000 people di t:d 11 in § 2. Services Committee, Dec. 12, 200 I . 2001 a11 unprecedented atra l .tgainsr America, ~ Hearing on the Uefense Dep11 rt111cn1 and WL l '58 7683 (s tat' mcnr of Deputy one or the wrger. being rhe mili tary Military 7i-ilm 11r1!r Before tht Senate Annal Defrnse Secretary Paul Wolfowitz). 17 headquarrers of che ·nired Srates. If the Semices Gm1111i1tee, Dec. 12, 2001. 200 l (~u irin , 317 . at 20-2.J. presidential oath to "preserve. procccr and WI 1587683 (s ratemenr of Depury 18 Id. at 24-25. 1 J dend the Co u ~ t iru ti o n " 111 c;111s anything, Defense Sccrerary Pa ul Wolfowi tz). 'J Id. at 2 -26. 9 2 it musr mean rhar he 1 as a dury to act wirh Hearing on tht D~fo11se Depttrtrnent and " Compare Q11iri11, 317 U.S . at 27 and l 0 all the consri tucional power ac bis disposal Militmy Tribunr1!s &Jore the , enate Armr:d ·.sc. . 821. ro pr ve nc future arr:tcks. Wharcv r che Sal'ires Committee, Dec. l 2, 2001. 200 l 21 Quirin, 3 17 . ar 28. scope of tl 1e oversight aurhority ofCongr ss W L l 587683 (sutemenr of Deputy 22 Id. at 29-31. mighc be, the simple Fact r ·mairJs thac Defc1 1sc .Sen eta ry Pai il Wolfovvi u.). See 1d10 '' Id. at 29-37. protecting America fro m atrnck is the joh 147 C J>. l ;. Rr1;. S I 1,888-0 1 (Nov. 15, ll Id. ac 38-40. 2 of ch e milira ry and its Commander in 2001 ) (statement ol Jennifer Elsea, ' Id. ar 29. 21 C hi ef While Congress seeks ro establish America n Law Division). ' Hearing on Anti- !en·omm Policy Before the boundaries of its authorir:y, so too rhe ' See, c.g , 147 CoM;. ll.J l . 5 1 L888-0 l the Sen11te j udiciary Conunittee, Dec. 6, 13ush adminisrrarion is cla ri ~) ' i n g irs poliqr ( Nov. ]), 200 1) (stateme11r of Sen. regardi ng che war on terro ri m. Spcctcr), 14 7 ' o:-.:c . RFC S 13,275-0 l (co milmed on page 1 O)

Jl "H[S 0 SPRING 2 00 2 • 9 200 l. 200 I WL 1559002 (SLa remenr of Arromey GeneraJ Jolin Ash.crofr). 2 - 67 U.S. (6 Mem.) 635, 668 ( 1862) Tax Assessment Appeals: 28 299 U.S. 304 ( 1936). ·'·J 494 U.S. 259 ( l 990). The Procedure and History of Property -"' Verdugu-U1guidez, 494 U. ·. ar 275. 31 Id. ar 269 (ciringJohnson v. Eisenrrager, Tax Assessments in Allegheny County 339 U.S. 763, 770 ( 1950)). 32 Thomas Frank, US Indicts Li.ndh on • l~J. Reisdorf and Robin Maxwell New Chmges, ewsday, February 6, 2002 ar A4, available in LEXlS, . 'ews Libra1y. haos. T k n is rite word rh:1 c many Amidsr all of che conrroversy over .u The White House Office of Alltghc1 11· C:o un cy n:., idenrs which numbers should be used, rhe 200 I Communications: Press Briefl11g b)' Ari Cwould me ro desc ri be rhe 200 I or rhe 2002 properry assessment values, Fleischer, Jan 9, 2002. 2002 WL 22963. and 2002 propem• rax :l\ '.>e.. menrs. Many an imporra r decision was made by rhe 14 See genemLLy nores 12, 16. A.l leghcny County pro perry owners believe Honorable R. Sranron Werrick, Jr. Judge .1; STA~'l LEY K '\f(, 1ow, V rr· I'-·\ , -r: A H t:,JORY rh ar rheir property\ ass igned val ues fail ro Werrick has been overseeing the properry 374 (Viking Press 1983). accr1ra rely repre~e nr 1he fai r market value assessments since 1997. _1r, Oerenrion, Trearmenr, and Tri;il of of rheir pro perry, and cln:n rime' rhe va.l ues Judge W trick's opinion and order Ccrrain Non-Cirizens in rhe Wa r Againsr do no t. The propem· :i sscssmen c~ of2001 stared chat A.l legheny Counry "is permirred Terrorism, 66 Fed. Reg. J L 7835. came under scruti nv hsr r ear :iher tens of to implemcnr an assessmenLsysrem under .• - Fo reign Terrorisr Miliury Tribunal rhousands of A.lkgheny Counry rcs idenrs which there is a co unrywide reassessmcnr Amhori za rio n Acr of 2001, H.R. 3468, appe:i led rh eir prop rry rax assessmenrs. every threeycars."1 T he opinion and orscss ments were· srill being hc:i rd when rhe rea,ses menr every year. Judge Wertick " See generally no re 37. 2002 ass -.,~ mrnt val ues were issued. Ag,1i11 , aided in clearing up appeals by decid ing 51 ' See Tribe, supra no re l 6; Liewellyn, suprtt AJ!egheny Coun r,· p roperry owne rs rhar if a r so1neone who is living on fo rrh below in fi ling a real es1aLe assessmenr m Tribe, supra no re. reri re melll alo ne. lr is the group of ap peal. Fil ing an appeal fo r yo ur 1 ' Tribe, supra nore. residenrs living 0 11 ;1 fixed income thar .1ssessmen t ;ippea l v;ilues, rhe property "'Quirin, 317 U.S. ar 47. cannor generate enough iuc0me ro pay for owner and/or such person's represenrarive

•oi See Raines v. Byrd, 52 1 U.S. 8 l l ( 1997). rh e incrcas in their raxes caused by rhe must obrain an :ippcal for m fro m rhe 44 As of Fe bruary 15, 2002, officials properry asscssm nr's increased ''alue of All eghe11y Councy Board of Properry estimate rh at 3,062 people died in the rh eir propn ri ..,. The 200 1 and 2002 As essmenrs. Ap peal forms may be Septe mber 11, rerrorisr arrack. 2,69 l died ;isscssmenrs have c:1 u'ied some taxpaye rs in acquired :1r rhe Counry Office Bui lding on ac the Worl d Trade Center along wirh 147 A.ll egheny ro lo'c rhci1· home'> . the rhird floor or onli ne ar che Allegheny on rwo hijacked planes. 125 died ar rhe The imp;1cc rh:u rhe r;i. assessments C ounry W. b sire. 3 Afrer rhe properry Pentagon along wirh 59 o n a single had on the res idcm ofAJ legheny Counry owner and/or his represenracive complere hijacked plane. 40 people died on hijacked led co the wriring of this ;m icl ·. rh e appeal fo rm and retu rn the same ro plane in Wes rern PennsyJ,·a nia. These T he resident5 of Allegheny Councy the Counry, the Coun ry rhen assigns each row.ls do nor in cl ude the 19 hij;ickers. New and rhcir lawvc rs need to be aware of rhe property a rime, dare and place for rhe Yo rk Times, February 15, 2002 ar AIO way rhe cax appe<"!.i .· pro<..es::. works in order hearing. T he fo rm asks rhe properry owner (nari on;i.I edirion). ro make rh e , y ce m work fo r ch em . ro provide his opi nion as to what rhe .,; The White House Office of Alrhough rhe proce s i nor a difficult one correcr value shoul d be and reasons Communications. Fact Sheet: 'lfltus of ro understand, many rcsidenrs in rhis rherefore. Mor over, each pro perry owner Detainees at Quantanarno, Feb. 7, 2002. counry ;ire not cons<..io11s of how ro file an is pcrm irred ro posrpone rhe hearing one 2002 WL 19 1071. ;ippe:il and whnc the appe;il goc~ afrer iris lime. so long as wrircen norice is received I(· fd. fi led. Rcsidcnr' ,u1 d 11ra<.. ririoncrs :dike by rh c County ar leasr seven (7) days prio r musr he aware of their optiono;. ro rhe origin:illy scheduled hearing dare.

l 0 ° .Jl "J{lS 0 SPRI N G 2 00 2 Ar rh e assessmem appeal hearing, rhe or parrs oFrhe home ur property Lhar would Mo r pcople in t\Jlegheny Counry Counry a signs heari ng o fficers to need ro be rcplac d, or any orher problem arc u r1 aw;lre of the role of rhe Board of dererm ine rhe accurare va lues for rhe rhar wo uld need ro be replaced in die 11 ·ar Vie\ rs in the Asscss menr Appeal propercy. An assessor is also pre.senr ar rhe furu rc. Process. T h he t w:i.1 to fin d our whar hearing ro aid rh e hearing officer in The hearing officer then makt's a rh Board ofViewers Joes was ro ask the dctt rmining accurare a sscs~ ment appeal decision based upon the evidence provided Adminisrrative Chairman himself, values. The properry owner musr be by the propcrcy owner ar rhe hearing. As Michael McCmhy, Esq. prepared vv irh subsranri ve proof ro rhe Board of Propeny Assessment mu r r. McC, rrhy is a graduate of challenge the Counry's assigned v3lues. For cerrify each decision made by the hearing Duqucsne Law School'~ clJ.Ss of 1984 and c:xample, rhc proper[)' owner must prcsenr officers, any decision made by a hearing has been the Administrative k tirman any inaccuracies in rhe informarion used oftlcet is rev iewable by the Board of of rhc Board of Viewers since 1991 . Prior ro derermine rhe va lues in the Counry Property Assessmenr. Afrer ccnilicarion ro being ~1p po i11t e d ro rh ' Board of assessmcnrs such as in correcr square by rhe Board of Propercy Assessment, the View 'I'S, Mr. McCarthy serveJ in the loorage, number of rooms or ameniries of Counry then serves a disposi rion upo n -11ircd Scares avy during rhe Viernam rhe properry. Furrhermore, properry properry owners, reAecring rhc :issigned War as a Scabee, worked as an All ghcny owners present ' d appraisals that were value. T he original va lue: arc, rhcreror, Counry Dctecrive, and spen t performed so me'time wirhin rhe pasr few decreased, increased or sustained. aµprox ir ;;rely two years as an Assisca nr years, which reflect rhe desired marker v~J ue If a prnperry owne r rccei e' a Distric Arrorn y in Allegheny ounry. of rhe propercy. Additionally, the propercy disposition rhat chcy beli ·vc is :rill In addition to a ting as the Chairman of owner needs ro provide recenr comparative incorrect. the· propt:rLy owner may rhcn rhe Board of Viewers, M r. McCarthy ~ al sin rhe ar ·a, incl uding rhe sale oforher appeal the Board of Properry Assessmenr's owns ]115 own general practice fi rm. homes and/or properties rwar the subjecr decis ion ro rhe Courr of C mmon Picas. l a~ked Mr. McCarrhy whar e-xa.ctly properry reflecting the lower va lue sought The propercy owner rhcn::by heco mt's an che 13oard of Viewers has done, both in by the property owner. ]·or the 200 l appellanr and musr submit an appeal rhe pasr and currently. He cold me thar assess ment appeals, properry ow ne r~ also accompanied by a $63.00 flli ng Fee. The "hisrorirnll y, rhc Board of iewers is a showed any problems and/or Jefecrs All egheny County Board of Viewers panel of both l av.')'C I~ and Jay f.l rSOllS, cxistingwirhi n rhcsubj er µropeny, which oversees rhe appeals fi led by propcrty curr ntly sc n members, rhat wer would thereby reduce rhe va lu e of the owners ro the Cou1-r of Common Pk;1s (co ntln11cd on page 12) home and/or propercy. Such problems or level. defects included wa rer leaks, old appli::m es

!l1ustration by David Ktaz, Paralegal Studenr, D11queme University Paralegal Institute

Jl ' IU~ • S P R ING 200 2 • 1 1 rhe Board of Propen1· \ ~\t'\~me nr, an U'lhich appeals consume the most rimr, :ippeal ma)' he t.d.;en ro rhe .ourt of L"orm11errial or residewiaf? Common Pka' a11 d then a i~ned ro rh e • Ir. McC arrh y: "The Board of Roard of Viewer\ by the Ad ministrari ve Viewers k 1s bceu able ro pur residemi<1l Michael McCarthy. Judg-e ofrl1L' Civil [)[rn1011 . The dissa tisfied propt:rry on a 'fast tracl '. This is hecwse Administrative parry could be a 1:1. paH:r, school disr ricr, rh pr -hearing procedures fo r residential Chaimu111, Board of Allegheny C:o um" or a Mur1 i ipaliry." propeny are \e,s d e111<1 nding rhan rhc Viewers pmccclures r()r a commercial properry. " appoinred wirh rheir ch ief rc.'> pomibil iry How does a11 1111s({dljierl p1zrty appeal 10 being propenv va luarion in eminen r the Board ofVi eu ·er.i proc('(/11 mf{J1? IX/ha r dijjermces exist proced11mlly domain cases."• ,\!fr. McCarrh y ·~ sr.ttcniem Mr. 1\lcC1rrh:1: " r hc appellant must between a tax appeal ofre;-iden tial property made me wonder how tlie H1 arJ became ilk rhe :ippe;.i l \\ irh t li c l) ro rho nora ry and ti tt1x appeal ofcommercial properf)1> involved in Tax Ass e s~ rn ~· nt Appeals purSllam to Local Rule f\ 'i02. A pctirion ivfr. M Carrhy: "The diff renccs lie Process. W hen J asked rhc: chairman is fl ied as ir would be wirh the ' •JUrt of rn:iinly with the pr -rrial requirements. exactly how the Board lx:camc in vo lved Common [Jk:.i ; wirh a cover sheer, Tlie cor n1m:r ·ial piopeny appeals require wirh Tax Assess menr Appea ls . he saiJ . Cerrifrc:ite of. en i · , < 1d Veri f-lc:1rion. The a pre-trial s r~Hemem to be ti led with rhe "Umil l 987, appeJ..b r:i.ke11 from decisions procedure · arc -.i milar to rha r of a Bo;ird of Viev ers not larer tha n 60 mcnr proceeding 111 rh t: C es~ m e nr ofVirn 11'l"i; rhc orh ·r hand, a re ~id en tia l pro perry ppeals. To r<:' medy the matter. Jusric Mr. i'vkC.trrhy: ···1 he ru b arc A 'i02- .1 ppeal mav, hm lo ~ nor require, an :appy (rhe n Adm inisrrative J udge) A 504 under Allegheny Cou111y T itle 252. ;i ppraisal . Addirio nal ly, a pre-rriaJ assigned 490 Tax A>sess rnem Ap pe, tl s that T he rnk · have bem changed re-enrl and Hatement docs not need ro be filed with were awaiting rrial to t he Board of wenr i nro eff~cr De'- 1ber 25, 2001. Any tb e board o f viewers prior to the Viewers." T his provedrobev rysucces ful appc.:;1 \s re eived afrer Dec -mher 25 , 2001 c.nn ' ili ation/ heari11g. The property is :is the ases were heard by the board in are governed by rl 1e ntw rule ." allowed ro re rify Jt rhe he;iring ;i .~ m the '"record rime. " va lue of the courrs." To whJt extent arc d <:'cisiom n1ade by V<'hm a propert_r mimer rip peals. do th0 1 rhe Board of Viewers f-ina l and what kind hmie w pr~) ' their !tlXI'.' prior to the ('lltro111t 1..Ylht1t occun 11/ a conciliLllion? of aurhoriry does rhe board pos\cS\? Mr. ofrlf rfrcisio11 VI' r!ll' J11Jt11d o/Vieu•ers? Mr. McCan hy: ·· onciliations are in McCarthy exp l ~1ined that '\he Board of \t\ r. McCtrr\11": "Yes. Tlic pro perry fronr ofa court-appointed Sp cial Masrcr.'' Viewers' jurisJicri on is thJt of rhe C:oun t;ixes must be paid. Addition:i.lly, rhe Board I-he concili ations give rhc parties m the of Commo n Pleas." Moreo\·n, rh e has Jurisdicrion o,· rev ·ry ye;1r of ra,xation appe;1\ an opponunity to ra i~e any concerns C hairman also stated rhat rhe Board of .11 hscquent to the fi lin~>of d1 ctpp e.1\. This rhat rhey may have. Usually a conciliation Vie-vvers is an arm of the 'oun oFC:on unon is pursuan r ro 72 rs.§ 5452.11."' is for erdement ncgoriarions, discussion Pleas. ol'evidence availabiliry, or any other matters T he inten r of this a ni le wa; ro Whm l)~JC; o(proper111 are you dealing th.at may come up ar rrial. " provide information that will aJl ow us (l,iw 111ith? '\Wd enrs and alumni ) to bem·r understand Mr. McCanlw: ''Dorh commerc1al What happens ifth e pflrties settle at the rhe tax assessmem appeals process. In order and residenrial. Commercial propcrry , oncili1rtio11? to accompli sh this go::d I asked Mr. consisrs of prope1-ry rh ar hou es office Mr. McCarthy: "If a sen lement is McCarrhy to ourline rhe procedure by spa'-c, a parking lot, ap;:irtmcm buil ding, reached, a Sti pulation sett ing forth the ,111 swering the following que,tions: rrip\e:-; (ownn r .,ides in one unit; one unit r rms of the settlement is prepared by the unoccupied; one unir r ·nred by te nant), ~Lister and signed by all parties that are How dot:.i 11 r11sc make its w1~ y to the or a si ngle-r:1111 il v dwelling whcr · rh tenam rr ,senr at rh c: conference. T he Stipulation /Jomd 1if Vie1uer;; rents fron1 landlord. On rhc other hand, i ti en fo rwarded ro the Ad ministrative Mr. ivlcCarrby: "\'

,1 ppe:.i ls a tax as;es. ment. rhcy have ;i T he res t w determine wherher a property >1gnarnre. " h earing wirh the Board of Property is residem ial or '-nmmercial c. in be done " e;,,11 1e11t. If a p;1 rty w the cas is not by .t\king rhc que\tio1i, ·Do ., the pro perry \'(l'/it1t ht1ppcw ifth e p11rt1es are unable

'\3ti .> rl ed \\'irh rhe re-,u lr ofdic- ht::uing wirh ~c n eratc 111 comc: to rearh an 1zgreemmt at 1/ie roncili1llion?

1 2 • .J{ "l{l.'i • S PRING 2 00 2 Mr. M Carrhy: "ln a residenrial case, piece of propcrry is worrh more rhan TJ Rei do dis a second~year day student, and if <111 agn..:cment is nor reached, rhen rhe someo ne lse." Robin Ma.xweff is a third-year day student. panics immediacely move inro a he;Jring.

Ifa commercial case docs nor sctrk, then a Ho w llllln)' appmls does the Board of ENDNOTES hearing is usually scheduled. Howevn, if Viewas currently have pmdl11gandfor 111hat rhe parries wam ro onLinue immediately years? ' Miller v. Board of Pro perry Assessmern, wirh a hearin g, rhe pecia.l Masrer has rhe Mr. M Canhy: "Currenrly we have Appeals and Review of Allegheny Counry authoriry ro allow that ro happen ." approx1111aLely 3,000 cases that need robe (Allegheny C.P f cb. 8, 2002) No. 96- resolved. Those 3,000 ·ases are for rhe 7312. What is the difference between th(' Board years 200 1-2002." ·' Millet v. Goard of Propeny A~sessmenr, ofPropat y Assessment, Appeali and Review Appeals and Review ofAl legheny Counry of Allegheny County and 1hC' Board of Will the Februt11y 8, 2002 order by (Alkgheny C. P. Feb. 8, 2002) o. 96- Viewers '? judge Wettick haue a substantial impact on 73 12. M r. McCarthy: '"The Board of the number of appeals that the Board of 1 The forms for an appeal of a cax iewers is an arm of rhe Judicial Branch Viewers will have to hear? ass ssm nr may he obrained ar rhe Ciry­ oC governmem whereas rhe Board of Mr. McCarthy: "[ don'r believe rhar Counry office building, Municipal Offices, Pro perry Asscssmenr, ppeals and Review Judge Wenick\ oruccessfu l resulr. The W illiam B. McGrady; Ba rbaa R. Judgt'. of Allegheny Counry or can be informarion and incerview herein secs forth Utterback. appoimcd by rhe Adminisrrarive Judge of rhe bas ic in fo rm arion and guidelines ' 72 P.S ..· 54~2. l l the Civil Division. AJ I member. of the property owners need co be aware of <, R L\n: · ~ L.\\\' D1::n ONAHY defines a Special Board of Vi w rs' are appoinred by che regarding rhe as~<:.> s rn enr appeals process. Master as "A master appoinced ro ass ist rhe juLlgL· of rhe Courr of ~o mmon Pleas for Beint; prepared with ch e corrc::cr co11rt wirh a p;'.lrticular marcer or case." a six-year rerm. Ar rhe concl usion of a documentation and evidence to prov rhe Gu\C.1'.\ L.A\X' D ie 1·10 NARY 408 (Pocket ed. Board oF Viewers' hearing at which a value of a propcrry composes ch e _,econd 1996). Spe i:il M srcr was overs eing. he or she necessary element co winning an ~ B L~ C: K \ I . w DICTION ARY defines a muse then submir a wrirren report co che assessmenc appeal. Jf a taxpayer and/or hean ng dC' novo as "a new hearing of a coun . practitioner und rsrn nds che assessmenr marter, conducred as if che original hearing appeals process combined wi th rhc correct had 1 or raken place." BLACK'S L AW What approach is used b)' the HoLtrd of proof of the lower value sought, su -h D c llO NARY 287 (Packer ed. 1996). VieweFS' when they are deciding the Mlut's of person has a much b rter cl an e of 8 Bi.1\CK's D1 ION ARY defines fair th<' property? ohraining dieir desired rDulr. marker value as 'The price ac which a seller M r. Mc arrhy: "The Boar

Tl 'RIS • SPR ING 200 2 • 1 3 Duquesne University School of Law Civil Rights Law Clinic Goes Up Against Small-Town Government in Free Speech Case-Again

• Kevin D. Coleman

c following is an exccrpr from rhe of La w Civil Riglm Law Cl inic, rh is meetings to only th ose subjects rhar were film The Big lebow.il?i, \ rirren by passion rh ~ 1r Ame ri <... have for rhe f irst on i he Commissioner-prepal·ed agenda. Joel and Erhan Coen. Th scene Amend ienr in clud es an uncanny gut To anyo ne who has been ro a local depi((S rhe respo nse a waitress receives afi:e r reel ing rhar sends nff:i warn ing >tgn [O even governrnem public meetin g ~ rnd has heard she re l.l s rwo patrons, Walter and The those uneducated in rite inrric:icies o[ Fi rsr a fellow resident ramble on and on about Dude, rhar rhey are being roo loud and Amend men r Jurisprudence rh. r somerh ing sc ··m in gl ' irrele va nt ropics , such a using inappropriate l~rngua ge: IS unjust. Jr is rh i~ gut re lin g, (some may regul;uion may seem reaso nable and cdl ir par;U1oi a) rhar mericans h:ive when co1H ent-n ur ral. However, ro Plum WAlTFR: T he Supreme Court has their fi1st Arnendmem ri ghls are placed Borough res idents Harry Schlegel, Eleanor roundly rejected pnor restrclinr1 in jeo pard y rh:H ke eps the Duquesne DeM ich iei, C 1rmella "Boors" Liberto and THE DCDE: This is nor a First Uni ve rsity Civil Right' Law C linic in Chris McMeekin, something in rheir gur Amendmem thing, man. opcr:u ion. rold diem char th.is regulation was WAITRESS: Sir, if you don'r calm The Duqu e~ n c Un i 'ersiry Civil Rights abridging th ir First Amendment rights. down, I'm going rn have to ask yo u ro Law Clinic o ffi:: r; pro bo110 rep resemarion In def -n e of rhe regulation's leave. for clients who have legal problems co nsriru rio nality, Bruce Dice, Plum WALTER: Lidy, Igor buddies who regarding their civil rights . Probsor David Borough's Sol ici ror, argued rh a r the died foce down in rhe muck . rh ar .\!t illsrei11 hel ped ~(l!11 1d and stil l direct) die res idetll.\ we1·e we lcome ro come and yo u and l could enjoy rhi:, fam ll y Civil Riglm Law U in i - l l over<;ees participate in "wo rk sessions" where rhe rcsra u ranr 1 several law srudenc: \\ ho rec ive das~ credit 'ommis. io11e rs determined what issues TH E D DE: Alright, J'm ourra for their work by perfo rming the necessary vvo uld be on the agenda at rhe upcoming here. legal rnearch, ,,·ri cing and clie nt men in gs. 1: lowever, rhe res idents did nor ALTER: Dude, don'r go away commun1c1uo1h. feel 1h:111 liis s:1 fcguard measure was enough man. Come on rhi s affects all of us, I asked Milbrei11 if he rho ughr the and rh:ir rh eir speech was still being man! Our basic freedoms! I'm srayin'. Clinic's work relati ng to free speech is improperly restrai ned. I'm fini sh in' my coffee . .. . t: nj oyi n' imporranr. Sp itl ca ll y. I asked him how According ro Schl egel, the Borough my coffee. [exJu.les loudly] he would re ~po nd ru tho\c cyn i c~ who say Commissioners announced ar rhe public rhar free spct.·ch i'> \\ idely a ' uperflcial right, meeti ng on Ja nuary 14, 2002 rhar rhe Wa lrcr's character in The Big Lebowsk1 only role ra red by the gov "rnrncnt ~ o as to publi commentary regulati on was going porrrays a rrair rhar is prevalen t in America mask th e reali ty rh.ir rhe average Amcri c1 n ro rake effect. Schlegel srood up at rhe LOday: The average American is quick ro has very link \'Oic~· in Lh e ru nnin g oP the mccringand :in11ounced: "Thi s regulati n ferociously defend hi s or her first cmmrry. He no ted in his res pon. e thar die vin lares my First Am endment rights." Amend ment rights whether he or she is public commenran of average Americans However, Schlegel alleges that he was nor justi fied or nor. can, in fac t, hav ' an c: norrn ous im pact on r rm irt J LO discuss the matter any further As I learned during m y ex perience as rhe entire co untry. He ired horh Lyndon si n.._e it was not on the agenda. p:in of rhe Duqu e~ ne University School Johnso n\ and Ri chard Nixon's presidencies DeMichiei and McMeckin, who were as exam pies of pr ' sid ~ n ci es dur were be lh in attendance at the January 14, 2002 roppled b, 1orren r1i of nega ti e public nieerino·, noted rhar rtny commenr by Ctl tlCISll1. residcnr:s regarding rhe discussion of the While rh e _[i11 ic has had lirrlc or no new rcgularion was nor permitted. Liberto effecr on recent presiden<. ics, lhe linic is ltad watched the meeri ng when i r was having qui re an efft'ct on a few local small­ locally tel evised and had noticed that rown govern ment;. rcla cinn s h ip~ wich th ei r during Schkgd's declaration the camera residents. Among the Clinic's reccm clienrs wa~ runwd away from him and the audio are four residenrs of Plum Bo rough who was muffled and/or muted. had co ncern s about a regula tio n the Plum According to Pro fesso r Davi d Borough Commiss io11 c1> had pas cl that illsrein, these unhappy Plum Borough limited the rcs id enrs' speech ar puhl ic residcnrs' gms were right: "Li miting public

1 4 • Jl JU.') 0 SPRING 2002 comment ro those subjecrs rhar the meetings, which had bccumc an open in Lhis ca e , the Plum Borough C o mmissio ners decide will be on the forum for residents to launch personal Commissioners. wil l mu:illy m ake rhe meeting agenda is clearl y an im permissible attacks u pon each ocher a n d /or di neces. ,1ry changes to the rc:gLJarion but will content-based r striction on speech." With Supervisors. rl1en m ake the argument that they should the help of Wirold Walczak, execurive After a heari ng o n the resid ncs not have to pay Lhe residents' atrorncy's fees di rccro r o f the ACL 's Greater Pimburgh morion for a preli minary injunction where - which is exacdy wlur happened lase year C hapter, Millstein and his clinic swdcnrs, the re ·idenrs, a 'fownsbip Supervisor and in the Clini ·~ nt~!.' ag;1insr rhe All egheny Sergio Amatangelo, Lien D uong, Justin chc ' fownship's se rctary al l Lcstifled, Judge Town. hip Supervisors. In las t year's case, L w is and Jennife r Ludovici, filed a Gary Caruso ofd e Wc:srmoreland .oumy rhe court found rhe llegheny Township complaint in federal coun against rhc Plum Court of Common P lea ~ ad vised di e.: resints fro m relationship of parries 1 Millstein Fea.rs chat minutes. M illstein explained tO them rhat posting any poli Lic:il signs in tl1 e1 r yards Buckhmnzon Bd. may p revent rhe Clinic three minUL..:s is a reasonable ri me and after au electio n. As Milbrein nores wirh :i. fro m obrain ing :i resulr similar to th e manner restricti on which would li kely be proud smile, "When rhe consrirntio nali ty Allegheny· fownship ca.5e. Accordingly, the upheld by a courr as being perrnirred by of this o rdinance was brought to rhe negoria tio ns between rhc parries are li kel y rh e Constirntio n. Resident DeMichiei artenrion of the ·1ownship's soliciror, the: co hin ge o n each party's attem pL to grudgingly accepted her new conception ordinance was quickly repec1lc:d." c ha racterize rhe settlement as being of her First Amend mem rights, saying, "1 T he Plum Borough residcm r' endy volu ntary or involuntary so as ro avoid o r gues I'll have ro learn tO t:ilk a linle fa ter." had similar sue e~s in front of Jud ge obtain artorn y's tees, respecrively. T he Plum Borough rcsidenrs' gripe A m brose in Lhe U n ited Srares D isnict SodocHh Clinichavea scoreros tde wi rh regards ro the content re~rr iction of Court fo r rhc \Xfes tern District of with small-town governments or what? the regularion was similar ro rhe case that Pennsylva nia. Judge m b rose g-mntt:d the M illsr in explain, char the face rhat chc lasr the C linic took on last Spring. The linic, res idenrs' motio n for a r'lrdi mi nary rwn La~es rhar the C linic has taken o n wirh the help of Walczak and rhe AC! U, inj unc1io11 to enjo in rhe r gulation from involved small-town I local-governmenc is filed a complaint seeking a preliminary being enforced at fu ture public meetings. nor nccc.~sar i ly a surpri,e to h im: "All small injunction and declaratory judgmem on A ccor ing to C linic student, S ·rgio rowns ha rhe propensity ro abuse behalf of Al legheny Township residents Amatangclo, Judge Ambmse made it clear students' ri ghts, citizens' rights, voters' against rh e Allegh eny Townsh ip in her ruli ng char the regulation a wrirten righrs ... ic comes from a lack of sensitivity, Su pe rvisors for simila r res rrictive was an unlawful ·ontent-based restriction ignoranc , and abuse of pow r." regulations. Jn that c1.se, the .Allegheny on Fi rst Amendment rights. Amarangelo nyonc in any size town whose gur­ Township residenrs' sought the aid oF the said that the Borough Co mmi s~io n c rs were feeling is relling rhem that they are at the C lin ic afrer their gut-feelings told them chat li kely co scrdc the case with rhe residenrs receiving end of such an abuse of power is recent regulations that prohibited any our of courc by om irting rhe comem-based welcome ro contact the D uqu sn comments c ritical of rhe Townsh ip restricrions of the regulation. ntverstty chnol of Law ( ~ivi l R ights Law Supervisors at public m eetings were in At the time of the publicarion of this Clinic. violatio n of their First Amendmcm rights. article, the parties were sti ll ne Q[iating a T he Supervisors argued that the regLJations senlemcnL In light of Jnclge Ambrose's were necessary to regain order at the public ruling, ill. tein ~a id thar the losing pa rry, (conti11ued on page 16)

.ll'IUS • SPRING 2 0 0 2 • 1 s Duques ne Universiry School of Law C ivil Righrs Law C linic 632 Fisher Hal l Constitutional Options GOO Forbes Avenue Pimburgh, PA 15282 (4 12) 3%-4704 for a Heated, Fast,

Kevin Coleman is a third-year drr_J' student Gerntan Unification who will graduatefom law school this year and plans to take the bar exam this summa • Jennifer Czernecki, Lori Edwards, Stephan Hobe and lGrk W. Junker

ENDNQTES -1en l.J .S. Prc~ i drnr Ronald From the Holy Roman Empire to a Rcag:tn visired Berli n in 1987, "Democratic and Social Federal State" 1 Pennsylva nia's Su11Sliir1e ACl prnvides, in W:1e m:1 de· the polirical gc:~ rure " nificarion" is a word that mosr of perrin enr pan, char of staring, 'Mr. Gorbachev, te::ir clown chis us can eas ily associare wirh modern day wa ll.' 1 No one would hal'I: guessed then, Germany.' However, unificari on is a rhe board or counci.I of a polirical char jusr rhree years lac r, ( ;orba hev would common thread rhar has run rhroughour subdivision shaffp rovide a reasonable indeed tear down the \\·all and that the rh c hisrn ry of Cerm::i11y and irs opportunit;1 ac each advemsed regular Federal Republic or'Cerm:rny (commonly Consti rmion. To son1e, modern Ccrmany meerin g and adve rrised special known a.s Wesr German;) and the Cerman beg::in wirh the end of the Holy Roman meering for res id en rs of the polirical Democr:uic Rt'public (commonly known Empire. T he reace ofWcsrphalia, signed subdivision or of rhe aurhoriry creared as -..1sr Gcnnany) \\ uulJ be united. ln face, in lG48, rnded the T hirty Years' War and by a polirica l subdivisi on . . to a~ la r · ;t) 1989, article' were ;i f>peari ng in alsll the func rional role of the emperor. To comment on matters of concern, rhe 111tfmt1rional Haafrl Trilm11e suggesring orhers, modern Gl'.rmany only began in official acrion or deliberation which char rhouglm of Ccrman uni ficati on be the early ni nerecnrh cemury, however, Fro m are or may be before rh e board or forgo((ell.! Ho\\ e\·er, when rhe move a very liberally-knit melange of kingdoms council prior rn raking official acrion . rowar in public law· live. The focus imerprerarion is based upon the norion rhar Any person has rh e right w raise an was irnm ed iare ly J ra\.v n rn rhe rhe Empire was far fro m being a nation a. objecrion at any time rn a perceived foundarional doc11 1netH of rhc· (;crmany we legally defin e it roday. 5 nor did it have violarion of chi s chaprer ar any rhar would rcnuin---1he 8,1,ic Lnv. anyrhing ''remotely resembling a modern meering of a board or council of a co11sriwrion. "(, political subdivision or an authoriry created by a poli rical subdivision.

65 Pa .CSA § 71 O. l (a), le) (emphasis added).

2 See 42 U.S.C. § 1988 and 65 Pa.CS.A. §714 l. ' 532 U.S. 598 (200 l). T he Courr's holding in was a 5-4 decision with Chief Jusrice Rehnquist delivering the opinion of rh e Courr, whi ch Ju srices O'Connor, Scalia, Kennedy and Thomas jo ined in .

Prml'.r 0111rc/,, Fl'twkfim. 1990--Sitf ofthe signing o(the 1818 Constitution

l 6 • .Jl ' J{](i • SPR IN G 2002 part of Poland.11 A new ederal srare and a new consrirurion were pur into place und rd e ' ci mar Republ ic. 1 ~ T he Weimar Republic consisted of a popularly-elected assembly rhar creaLed and functioned under a liberal consrirurion-25

::. 11 L t... ti O T he Weimar consrirurion expanded cenrral legislative powers, contained an extensive Bill of Rights, and provided fo r a general '-;••· ~ federal court, as well as a revolutionary _ _ .., .. ~_) s p ecial tribunal to resolve 14 1:. - ,: ,').S,• v inrergovernmenr

- .... <"\ .. i...... i.-. t., ~ come wirh cond itions. The cond itions of the Treaty of Versailles, a treaty formed .·. ~ -.... , among the United Stares, its allies (rhe """ ' ... .111 • ....., .... 1 r ·" °1" ' 1 "Triple Entente"), and Germany at the end .. -. of the war, provi ded "if rhe Germans

Po~ t-w~r GPrmany refused any part o f the unconditional surrender, the E n renre would occupy The Empire me to an end in 1806, came into eflecr and the former structure Germ any and end its newly-found when ·apoleon , who rook over rhe ~irea . re-e111ergcd. 11 sratehood . " 2 ~ G ermany was n or wi lli ng called for a Jissolurion of rhc Empire and Unity and a consri rurion for Germany ro abide, rcsulring in "a number of harsh, , n abdication of rhe Emperors. H owever, finally came in 187 J. Bism arck, who v as infuriaring d mands, which led to crippling nine years later, in 18 l 5, Napoleon was b iding his Prussian forces to viccory over economic repercussions and burdensom e ousted, his arr;111,..,erncm titution of 1849," 1" bur divided G er ma n tnro zones of C o 11leJ erarion did create J ~e n ·ral body o thers have described ir simply as much occupation- in rhe ast, a Soviet zone, in consisring of represell(arives From a ll Jess progressive. Bism arck's consriturion rhe West, an Americ:Ln and a British zone member states, it still consisted of several "contained no Bill of Righrs nor was rhnc which was further divided ro give France a 1 autonomous en rities and never quite a p rovision fo r jud ic ial review of sh are. R Ir was agreed thar rhe four 1 reached the level of a single nanon under legisbrion." • H owever, a distinctive nccupat ion al zones would be "aJmiu is re red 10 on '. consrirution. feature of the 187 l consrirurion was a iu a cooperati e mann T a11 T he beginning of the a resul r ol'rhe Revolution ofl848. 11 T he parliamentary, and fcdera rive principles, in old War and increasing adversity between P1m lsl~irch enul'i'fasm ng (" l\ iul's C hurch. order ro prevent the con entrarion of the Sovier Union and th West haJred the C onsrirutio n") set fonh provisions that power in any sing le body. "IN This cooperative goal of becoming a "single wo11 l

.Jl HIS • SPRING 2002 • l 7 f:.ast Ce1ma11 border gutlrds ar Eichholz. nmr liibrck. I 981 Mikhail Gorbachev, namely reconstruction and co-operation with rh e Wes t. H onec ker's resista nce, however, was confronred by ~ ome of the GDR's besr­ known inrcllccruals, arrisrs, and church representatives.•: Ac the same rime, th Berli n wal l had begu n fa il ing ro serve its purpose in halting emigration to the West, as the nu mber of app li catio ns fo r permanent emigration increased sreadily. 4" In rh e aurnmn of 1989, hundreds of thou ands of GDR citizens had made it known rhey were unhappy wirh the current systu11 through emigrarion applications or. ifirwas impossible ro flee ro rhe West, by "calling fo r fundamental political changes 41 from witl1ill." · Things were changing, and they were changing quickly. By rhe !are 1980s Soviet relations with almost eliminated any hope rhe West had acces ion, Lt.lti marcl1· led ro d bate about rhc West rook a d ramatic ch ange as of a unified s tate. 1 ~ The wesrern half the way in which 'erman unirlcari on Gorbachev :i n nounced his policies of became rhe Fed ral Republic of Germany, would occur, as we ~hall see. Amcle 23, glflsnost ("openness") and perestro ika as rhe rhree wes tern spheres merged under which deli neate. rhe territorial jurisdiction ("n:.srrucrnring"). " T he eased tensions and the Basic Law, which was adopted in May of rhe Basic Lai . hegi ns with the phrase· new policie · or co-operation contributed of 1949. " The fram ers of the Basic Law "For rhe rime being. r h i ~ 8:-t.,ic Law shall to rhe d emise o f rhe H onecker developed a document rhar w:i.s ro serve apply in .. . " ad mi nisLration.16 The GDR and irs al lies 1 for a "transitional period.'' · T he Prea mb.le By co nuasr, the post-war Sovin­ had agreed to maintain GDR citize ns stated that rhe law was enacted "on behalf occupied zo ne 1 a~ estab lis hed and ll'itb in rhe Eastern bloc; however, wi th of those Germans ro whom p.i niciparion regular"d ullder irs own constirntion a~ the Gorbachev's policies, Lhe Wa rsaw Pact 1 was denied," ' and rhat "the enri re German German Democraric l epubli c (C DR). " n a ti on~ and rh e Soviet Unio n were no people are called upon ro achieve in free Difficulties, brewi ng -; in ·e d1e begi nning longer "rel iable guarantors of borders of rhc self-dererminario n rhe unity and freedom of Soviet occupation, ca rne for the GDR GDR, and the power of the regime over of Germany "56 \'V'esr Gerrn:rny always when masses of it'> iri1.cm em igrated ro its cirizens quickly disinregrnred. "47 held ro the principle rhar bsr and Wes t rhe e; c, now the Fed ' ra l Republi c of These pr'ssures fin ally culminated in \.vo uld be united and char the laws and C crmany (fRC). ro escape d windling rhe symbolic and celebratory crash of rhe democratic forum avai lable to rhe ci rizens eco nomic rnnditiu m and "diminis hing Berlin wall on November 9, 1989. The of rhe wesr were robe open to rhc citizens prosperity" in rhe GDR.''' The increasing removal of the wall and the many other of rhe east. 1r is for rhar reason as well thar flu x of people o u r of rh e country physical barriers and check poin rs rhe document was enrirled a "Basic Law" determined rhc c_; DR guvemmenr m close separating c.:as r and wesr along rhe German­ rather than a "Consriturion. " We should the border into rh FRG. Ir was rhcn, m Cennan border allowed all of Germany ro note, however. thar rhe Basic Law funcri ons 196 1, that the w;:ill ,eparari ng East and uni re as rhe Federal Republic of Germany'H in practi ce in all manners as a cornrirurion, West Berlin wa builr, 1u wirh East Berli n, on O crober 3, 1990. T he process toward and tr evell specirles the powe rs given ro li ke eas tern Gcrn1 ;111y, occupied by rhe uniFlcation brought nor only political, the G<.:rman "Constitutional" Court. Soviets, and Wes t Berlin, like wes tern economic, and social debate, but also A constitution was ro be drafted at the Germany, occupied bv the orher three dt:bate concerning rhe appropriate tools ro rime rhar al l German stares were united. powers. (Sec rhe map on page 17. ) b used fro m the Basic Law and rhe exisci ng The Preamble ro rhe Basi c l.Jw notes rhar Eric Ho necker (Coru munist Parry constitutio n of tli t'. GDR. "The German People . . . H:i.ve enacted , chiel- from 197 1- 1989) ; cured the by virrue of their constituent power, this government of tht' -; oH.. wi rh physi cal Constirut.ional Options for Unification Basic Law for the federal Republic of barnen and by an cbhorare system of \Xlhile a number of options mighr Germany."P In addition, rhe face that rhe internal security m 'asttres. 11 H onecker have be n possible, two main options Basic Law co ntained rvvo arricles- - 23 and resisted wltac >e"med to be rhe e. tr'mdy preciriured from rhe consrirutional l 46-concerning rhe mcch:inisms of liberal policies of Soviet General S m:rary discussion rhar ensued. The fi rst of these

1 B • j{'HJS • SPRI N G 20 0 2 cwo oprions called for access ion of new constiturion should co me inro force wh en co untries invol eJ, rhe chan g(;: s in rerrito ries under Article YI of rhe Basic uniflcnion occ urs , on e co uld argue rh::t r c;ermany were hor :i nd fast, and rh e Law. (See rhe Arricles on page 2/i .) As 1989 was preL:isely rht· moment the original constirutiona.I option chosen wou ld need pan of rhe 1949 documenr rh ar gave birrh drafrcrs had in mind. Even the supporters to a co rnm odarc this heat: an d S[ eed. ro rh e Federal Republic from rhe rema ins of rhe Ar ricle 23 me rhod or un ificarion Among rhe proponcnrs of using ·ri d e 23 of rhe Third Reich , Arricle 23 li sred rh e could nor io11o re rhe fact rh at the Basic Law as the mol for unificatio n was \':Q°oJfga ng rerrirories ro which rh e Bas ic I .aw applied. did conrain rhis second possibi li ry. Arri le Schau ble, who at rh e ri me of unification Bur ir wem further rhan rh ar and accounred 146, in irs entirery, srated rh ar "This Basic was th e Interior M inister in rhe FRG . He fo r orh er remnanrs by sraring, "In orber Law shall cease ro be in force on rhe day argued rh:u rhe ". Ti le 23 procedure was pans of Germany ir [rhe Basic Law] shall on which a co nsrirurion adopted by a free rhe only pracrica.1 one, si nce rh drafong be pur imo force on rheir [rhe orher pam '] decision of rhe German people co mes imo of a new co nsrirution cou ld nor be accession. "49 Alrhough th is refe rence forc e ." ~ completed wirh in the hisro ric: I window of might have included implica tions fo r 10 co mplement tide 146, "German opporruniry, and since, a cording to him, several di ffcrem geographic regions, one people" was d ·hned in Article 11 6 of the neit her the We. t nor rb e East German rhi ng was cerrain- ir included the Soviet­ Basic L1w to incl ude perso ns li ving in rhe p eop le fav or·ed rh c ado ption of a occupied area of rhe eas t. In acru,tl practice, GDR.'' Similarl y, befo re rhe changes co n~t i r uri o n . "" T he overwhelm ing irincludedoneo r.henracr :.is well. ln 1957 ari sin our of rhe Good Friday Agreemem, rnaj ori ry of West Germa n consti tutional rhe Saa rland, after a plebiscire, was re li eved Aniclc 2 of rhe Consriru rion of the lawvers regarded rhe Arricle 23 oprion as of French rule and alloweJ. to Join th e Republi of Ireland claimed for irs na rional rhe only way fo r a qui ck so lurion. mong Federal Repub li c.' 11 In th at c 1se, die legal territory "rh e whole island of Ire lan d," a orher problem s, rhe Arricl e 146 opri on too l of Article 23 was u-ed in conjunction phrase which in cluded rh e U.K. province simply raised roo many quesri ons as ro wi th paragraph ( l) of section I of rhe of I orthern Ircl ::md. By virrue of rh e Good whar parts of the existi ng Basic L:tw need d federal law of 23 December l 956 (Federal Friday Agreement, Jr ish Constitutiona l to be cha nged . Law Gazette I p. 101 l ) , by virtue oh hi ch Arricle 2 unde rwenr rw o signific111 t Undoubted ly, many would argu rhe Basi La w becrn1 e effective in rh e chan, c~ . Fir~ t, ir cha.nged its jurisdi -rio naJ agaimr Schauhle's poinr, incl uding crirics Saa rbnd. T he Saarland's accession was the chim frorn a jurisdicrion over la nd, ro one such as Peter Quit 1L, aml 10r of The fmpnfecr only use of Article 25 unri! th e collapse of over people. Second, ir provided for rhe Union.' Professor Quint considered the rhe G DR. opri on, rather than implied a mm la re, rha t choice or unifi ation 11 nder Arri cle 3 a T he second tool arisi ng out of the rhe people of Northern Ire land coul d be co nsti ru rio llal m i~ ta k in which i r ~ Basic Law came from Arricle 146, which under the jurisdiction of the Republic. In ad vane rs soughr a quick and easy solu tion ailed fo r a "free decisio n by the German the post- ;ood f. riday Arricle 2, "Ir is rhe rarhcr rh an raki ng the longer ro ute of people" to bring a constirurion into fo rce. enrirlemem and bi n brighr of every person developing a onsri tmion rhar envelop keep in rn in d rhe tht: Irish natio n. "'; German peopl . ;- By co mpari son, th disrinc ri on between rhe nmion of rhe Ras ic By com1 ariso11 wirh che ''slow dnw" s u p pu n e r~ of access ion under Arriclc 23 Law and rhc Consrirurion, as menrio ned of thclrish sirnario n,'' when rhc I cpublic f(xused nn conse rving 1he ;rabiliry of the above.) .iven rh ar rh c orher releva nr of lreland ch anged irs Consti rmion ah-er FRG"s gov rnmem :rnd the FRG's politi c..1.I arricles of rhe Basic Law implied thar a debate and r .fcrcndun1 in rhe two (continued on page 22)

Before and After-Brandenburg Grue, Berlin, I 987 (left) and I 99') (r~'l;ht), both uiewedfrom rht' U:>esr

.ll ms • S PRING 2002 • 1 9 Watching the Wahl and the Wall Fall • Kirk W. Junker

Oh, East is East and west is west. and never was neither democratic nor a r public.) Since we didn't have German the twain shall meet, Between the opening of the \'Y'all in passports, we couldn't waive German Tiff Earth and Sky stand present61,it God's October of 1989 and the first Wahl passporrs out d1e window. Thus the guard great judgement Seat; (elections) in March of 1990, it was not 1.vas forced to lower b.is laughter, the phone, But there is neither East nor west, Borde1; clear to anyone what the state of the state his feet and the gate, and it looked as nor Breed, nor Birth, was, nor what the state of the law was. The though the old East Germany had been When two strong men stand face to face, embassies of the United States, th e Federal awakened. When he asked our destination, tho' they come fi"om the ends ofthe earth! Republic of Germany, and the erman I said "Dresden" because I had a letter, Democratic Republic, as well as the official organized very indirectly by a colleague -Rudyard Kipling, from The Ballad of travel agent for travel in the erman from Bonn, inviting me ro Dresden. The East and west Democratic Republic each provided guard provided us each with a "Transit­ different answers on whether travel strecke" visa (good for driving on one of The headlines of the New York Times restrictions were still being enforced, the transit r ads to and from specified on October 3, l989 read: "TWO whether the borders were open, whether major cities only) to Dresden , exacted GERMANYS UNITE AFTER 45 currency exchanges were still being thirty-five marks from each of us and raised YEARS WITH JUBILATION AND A enforced, and any other practical question. the gate. So it had not been the old East VOW OF PEACE." The story was Delayed by this conflicting inform­ Germany at the border after all, but it accompanied by photographs and the news ation, it was not until March of 1990 chat wasn't the west either. Ir was a mixture, a char an estimated million people were a colleague from student days and I flew hyb rid, a sort of"third way." Off we went. celebrating in Berlin. Until the previous to Frankfurt and rented a ca r without \Xie kn c_>w there were not many hotels autumn, the world media had remained saying (or knowing) where we were going. in East Germany, and we had been told it quite sure chat we should stop bothering When we reach d the erman/ erman would be easier anyway just co find to ask whether Germany would ever be border at Herleshausen/\'V'artha, near someone looking to earn some Westmark~ united. It was easy to be convinced chat Erfi.m, it was already 8:00 p.m. Ail of che and willing to rent us a room. So we the further in rime chat we moved from many border gates were raised, except for stopped in the first city we came to, Erfurt, 1945, and the more generations chat were the last one at the customs booth, and the and went to the first pub we could find. It born in the separated countries, che less chicane was not guar ed. In fact, the only was crowded, but the proprietor was kind likely it would be chat they would ever be person in sight, who was not in a car, was to our cause, rook us in the back room, united. Bue in the end the symbolic and the guard in the booth. He was leaning and began phoning aU of his friends and physical divisions char had taken decades back in his chair with his feet up, laughing relatives to find us a room. Unfortunately, ro build, rook only months ro dismantle. through a telepho ne conversation, r.hey all had already let all of their spare So it seemed. extending only so much energy to his job rooms to other rravellers and friends. We This was an exciting time for as was necessary to waive every car in line contemplated sleeping in the car, but were Germany and perhaps a lase opportunity through the gate, so long as they could hold afraid to test the napping of old East ro see the public face of what would soon a German passport our the window. This Germany with snch brazenness. be the former German Democratic was a drastic change from the past practices Erfun turned out to be a beautiful city, Republic of the east. (Inhabitants of the oflong lines; armed, grave, and thorough although the air was so thic ' with brown Federal Republic of Germany, known as searches of cars, people and documents; coal smoke that you could caste and see it the "Wessies," had joked chat the land and limited access based solely upon pouring from chimneys as though it were inhabited by their eastern cousins, the inviration or arranged toms through the water overflowing. With nowhere to go "Ossies", was perhaps German, bur clearly official tourist agency, In rourisr. umil morning, we just kept walking around. The third time we passed the same man in a trench coat, who also seemed ro Nation..! Cdl'tici n " A U 1hc N~w • ::-t.:::·:- -::..::·.~~~~ be walking around without destination, we Tha t·, f-'11 10 Pf1r.t " .. -.i.,.•-r• N •• ~lJc Nc\tr Bork.t!! itllCS _....__ ..,,..-ir- .. - ...... oioi--•,,_ ,,...i decided he was either Stasi (East German state security police) or was in a similar TWO GERMANYS UNITE AFTER 45 YEARS plight ro ours. After risking pleasantries, e all had a drink in what appea red to be WITH JUBILATION AND A VOW OF PEACE the only open building in town-a disco--

20 • .fl ·ms • SPRING 2002 and exchanged tales. We found out that warmly and welcomed me co their hor e. assemblies were to be church-related . Horst had missed the last rrain to his village [ dutifully, if embarrassedly, gave them Church ervices became political planning ofSommerda, about forry miles away, and some oranges and wine, which 1 had been and rallying ervices. W ith this much intended to wander the streets umil 5:30 insrrucred ro do. Barbara called rhe action in Dresden, I imagin d that Berli n, a.m., as he had done before when he missed children for the oranges-they hadn't been just rwo h un. a\ ay, co Id only be bigger. his era.in, waiting until rh next day's first available sine Christmas. Their warmth Back i1 the car. rrain. With some hesitation on aU sides, and g nerosity were ast uncling. I East Berlin was disappointingly qui t Horse had a lih and we had a floor on wondered if they had a received a different when r arrived. The p Us had closed, th which co crash. letter rhan I had. Over the next several CD had reportedly won, and parties rere Before leaving Sommerda, we were days, Dierhard and his family showed me indoors n w. Lik the Old Marker Place rreated to breakfast and met H orse's a vibrant a nd lively Ores en- nor in Dre. den, Berlin's Alexanderplarz also parents. His father, a fan of Ronald Reagan, Vonnegm's charred rubble. Graffiti that had had a stage apparently, but irwas gone had praC[iced pharmacy our of the house' demanded the release of civilian files now. So l decided lo see iP ther v a. storefront. From the looks of the bortles covered the walls of che Srasi hea quarters, anything more ex iting happ ni gin West and hdves inside, that had been some time the magnificen e of the Semper Opera Berlin. I had never had a choi e where m ago. Or perhaps nor- Lierle had changed House sang on rhe Elbe, and th Zwinger cro s before, but familiarity called and I in much of Ease Germany since the war. Palace fabulously preserved the B::troque. val ed ro Checkpoint C harlie ar Now on rhe street in daylight, we realized Thar Sunday, electi n day, Oied1ard Friedrichm s e. The warmth of cha s that we had the only car in the village. T he took me to his local polling place while he welcomed me. T he guard asked what I circle of people around the rented cast the first vote of his lifetime oursi le of was doing in Berlin on a rransit visa fro m Mercedes 190 had apparently noticed that rhe D R system. H e himself was an Erfurc t D r den. I pleaded ignorance in roo. 1fone had sufficient disposable money, election official, nd when we arriv d at German more broken than usual, and after one could have purchased a car- a two­ the poll, he introduced me as an American he dj appeared wirh my assporr behi nd a stroke engine Trabant- bur rhe wai ting list colleague there to "obsc::rve." Ofc ourse he mirrored hue n hav s m di cussion wi th was ten years. My schoolmate and I parted and I knew that he meant "have a look," his 5up rio , they decided to let me go ways ar Erfurc-he was off co see an old but apparently rhe others thought I was a through (fi r another rhirry-five marks), flame in the West, and I did nor want to little more official than rhar- they since they did nor know what the p nalry leave the East. applauded. T har evening we drove inro would be, nor why ch ' should enforce ir. True co my word ro the guard near the ciry, and th re on the Old Market Place, T hen l told him about the rnr that l had Erfun, [ drove to the address in D resden SAT I, one of the West's television parked at Ale anderplarz. Now invested which I had been given on my lc:rrer of networks, had erected a stadium-size stage in his decision ro let me go thr ugh, rhe invicacion. l was greeted ar rhe door by and was broadcasting the ele cion live back ratchet teeth would nor allow him co turn people whom I'd never met before­ ro the West. Ju t behind the stage was the me other way. With obvious frusrrarion Dierhard, a civil engineer whom f Church of the C ross, where, as D iethard he explained rhar ifI fetched the car, I could esrimated to be in his forties, his wife, explained, some of rhe first meeting~ of this still cross under his waLch. Ir was 10 .m.; Barbara, the curator :i.t the local Richard revolution h d occurred . The his watch en 22)

l( "({(S • SPRING 2002 • 2 1 The Ironic Curtain: Kirk W junker and By the time th last remnants of the ideas rhat were already in p.la ce. East German border guard on his rounds wall were pulled out fro m under these evd oping a constitution would not only during uncertain political times near fence-sirrers, rhe po sibiliry of a political rake time bur would risk inregrating Potsdamer Platz, Berlin, March 1990. rhird way had been lost. The word " Wtiht' political and social values from rhe easr inro means nor only "election" in me political rhe sy tern :1 lready in place in the west. sense, but also in the more general sense of choice." Wtiht' can also mean "alternative." The pace of eastern d iscussion could not keep up wim me pace of western business politics. Consequendy, when the third way fell, the border was open and nothing could hold back rhe western wave. In the end, what the Wi ( had always called me propaganda of rhe Easr- ma( the wall was built to keep the cs( out, not the Easr in-turned our to be remarkably true, if because l was afraid of how much Budger 1ro111c. would charge me for a confiscated Since unifica tion, both work and fun Mercedes 190. So my lasr rime ever have ta.ken me back ro the former GDR. crossing Checkpoint Charlie was the firsr Berlin remains fabulous, bur it has lost its time that l had crossed on a ne-way exit unique atmosphere and political inrrigue. visa-heading west. he western meuopolis feel of unired The next

22 ° Jl ' !{(.') 0 SPRI N G 2002 unlikely that f1J-lefr socialism would have amendments would be made ro the existing percent of the votes were cast For parties receivedpopularsupporr. More likelywas Basic Law in accordance ' ith the tbat favored Gcrrnan unif'1ca rion.<''1 !nth chat a consri rutional convention might amenJ111 en t provis ions of Artic le 79 end, wherher desi able or not to rhe people, have had to include positions from more ThL·s c a m endments, consriruti ng the the GDR ceased t exist on Octob r 3, m odera re liberal rou ps. arguing for rhirry-sixrh amendment to the Basic Law,<.i L990, and its territory became part of the constiturional provisions in favor of the dealt with issues such as rhe former GO R's Federal Republic of Germany. 70 environmenr,asylum-seekers,women and debt,64 the "transition period for While there could he n umewus social welfare. Peter Quint concludes rhar discrepancies between old East German debates about whether accession under it was "probably the democratic advantages Law and the Basic Law,"65 the updating of Artic le 23 was proper o r whether a of chis process [Article 146 constitutional Article 146 and the repeal of Ankle 23 constirurion under Article 146 should have convenrion] - the possibility of a cross- which h ad allowec! "othe r parrs of been developed, it cannot be ignored, fertilization of ideas from easr and west - G enna ny to acced e ro the Fed eral ulrruistic though it may be, that Germany 16 that assured its demise."'i" in addition, Republic." ' Anide 146 now in ludeJ still has the possibility under Anicle 146 whil e accession could have been languagesignifying thatthe Basic Laww of rhe Basic Law ro d evelop its own accomplished under Article 146, it would. valid for th'e "en tir Geona n ' nation consritution. In this way, not only could h ave ta ken much longer to ratify a following theachievemenrof the w1ityand it be said ch at the aim of achievi ng constitution rhar represented the interests freedom of ermany"67 and rill p rmits un: ifi ation was accomplished quickly of both the people of the FR and the the ado ption o r cfs1'1.iTcJfi\£uao"Ji1 fii?o"JC1'li71. ''J~10 rmaJ to me, growing up on one side of governmental mucrures while g r adu a l! MJil!lht'oi+a~WgM ~ .ftlpt!trfi~Mhe lron C umi11, m ust have seemed equally merging rhe functions of che rwo.w Ko hl fliri talitn&uidrf@ [riiitlPM¢Jt"\

Jl'HJS • SPRIN G 2 00 2 • 23 lnternrttiona! Law, Eumperzn l t1ll', fi1ropmn ENDNOTES "unifl carion," rad1cr th:in "n:-uniflcation" and lnternatio1111! Economic l.a111 a1 the where our own bbdi11g w:ts possible. U11i1H1 rsity ofC ologne, c ;l'/"l!lt/1/)( As pan of 1 ] U ( Ill ' r\ n1c I le1•e/op111mt. F" l?umi/im1io11 rij'(rc'imtll~J'. o( 1<''171/all Unification. 50 M I>. L. R v . 475, Uniz;ersit School of l t1 w, Pmf(.ssor Hobe SG A.).l.L. 152 ( ilS n IL I It)"\ ()J 1111 r 1 L>l-Y;\I R I Pl 'Fii f( t/,e School oflr1w Kirk Wj1111ker is a Visiti11g ' N ot (111 h · \\.t< ch· cnnrrtl\ •r:y o ver OF G FR.\I \ N\' (1994). The t mperors in Professor in lnrematio11al Lau1 at 011q11es111' t h i.'> ollec ri o n of a u LOcra ric srarcs \\ hclher ~\ rri-le _' 1ir rc icl · 146 nfrh UniverJity Schon! ofLaw a11d is the Aduisor Bas ic I .n'r\} o\·L·r whether ' A nt11io11 is defined as "a people, or appoinnne11 t at The Qucmj· Univer.iifJ' uf' tl1 i. ., .iu c. omtituLed re-u niliLJtion u r ;i g~' rcgal i o n of men. existing in rhe form Cit)' IB elfast and Dublin U11iz1Nsiry. Hr: unificariun or even .m n ~x . it i n 11. B'cau t.: nf an orga1 11ed j11ra l sociery, usually wou!.d like ro 1h1111k the Gem1tfli Academic rhese rwo counrries (the FRC and rl1e inhabiring a d isri nn flOrlion of' rhe e;1rrh, £,change Scn1irc ([)AAD) for itJ ge11emus G D R) had never ht:cn one narion ~ l at" ~ pea ki ng: rhe -.ame l.1 nguagc, ttsit\ the same supporr rl11ri11,'.!. his >11id_J• a 11rl re earch in and licL,IU\e the.: I 1111rlahw.t ·.,) wirh111 rhcse customs, poss ·s,,i no hisroric concinuiry, :ind ,ermrmy cou11 rries h.td 11e1e1 e\isr ·d rogetlier in thei r di~r i ngui\h t:d from ocher like groups by current furrn under one nation srarc, we rl 1eir racial origin and cl1JrJCLerisrics. ;u1d Photographs provided by Kirlt W }1111ker. h:wc c li o ~c:n rn L,tll the prou:'~' generally, hut nol necc ari ly, living under rite s;mw n-uv·rnmcnr and ;overeignry." BL\1 i-;\ [ .\\\' D 1t 11 " \RY 7 l 0 (Abridged THE BASIC LAW OF THE FEDERAL REPUBLIC OF GERMANY ( j'1 ed. I')') l) '' C L RIUJ , SllJ'lil note I, al l . Article 79 (Amendmems ro the Basic Law): (I) This Basic La> m y be amended - Id. ln:iddirio ntotaking o 'erGermany, only by a law expressly modif),ingor supplementing its rexr. In respect of inrernacional I apnl ·on annexed th« Rhineland and .ilso uearies concerning a peace sertlem nr, the preparation of a p :ic settlem n r, or the tou k over surrou11ding areas rhrough a phasing o ur of an occupation regime, or serving the def, nc of th F d ral R public, leagu u( puppet stares known as rhe it shall be suftlcienr, in order ro make cl ear rhar the p rovisions o tlii Basic Law do Rli einbunJ (Conf•dcrarion ofche PJ1ine). not preclude the conclusion and en try inro force of such u·earies, ro upplement the K frl rexr of mis Basic L1W and ro confine the supplement to such clarification. " Id. 1 '·' Id. Jl 1-2. *** 11 CL·R1m , mpm nore 1. at 2. 12 Id.; c' alsoQ.ur r...iT,supmnore l. at 478 . OLD: I · ,o m rirurio n was named after rhe ch t1rch in w i ich d ie a~ ~em b l y 111cl. Article 23 Ourisdiction of the Basic L1w) : For the tirn being, this Basic Law shall CLIHRll-, supm norc 1. ar 2. apply in rhe rerritory of the Laender of Baden, Bavaria, Bremen, G reater B rlin, 11 CL Jtl\11 , .r11pm norc: I, ar 2-3 . 1 Hamburg, Hesse, Lower axony, North Rhinc-\'V'esrpbalia, Rhin I· nd-Palarinare, ' Ir!. :tr .?. Schleswig-Holstein, Wuemernberg-Baden, and 'Xfuem mbcrg-Hohenzollern. In " !d. a4. orher parrs of Germany ir shall be put into force on their accessi n. i r. Ir/ 1 - !rl. ar/i. Article 146 (Duration ofval idity of the Basic Law): T his Basic faw ·hall cease robe in 1' C t lRRJI , supra nore 1, :ir 4-5 . force on tlie day on which a constitution adopted by a free de i. ion of rhe German '' !d. al')_ people comes into force. -'" QL11 I . supra nore I, ac 478. ~ 1 Id. ar 4 8-t. NEW: CL·R1or . mpm nott: I, al 'i. Id. Article 23 (repealed and replaced witli an Arricle concerning T he European U nion) ,, Ir/. ,. D::I\ id Dinkins, J/;c Treaty o{Versrrilles Article 146 (Duration of validity of rhe Basic Law): T hi · Basic Law, wh.ich is valid for a t hrrp://momo.essortmenr.co I rhe entire German nation following the achievement f the unity and freedom f 1·c rsaillesrrea reifhtm> ( ·isic d l / J ')/02). Germany, shall cease to have effect on rbe day on which a consrim tion adopted by a ., Ct 'Rllll ., mpm 1 or l , ar (1. Due ro rhe free decision of the German people enters into force. "crip11li 11g" c

24 • . Jl ·ms • SPRI NG 2 02 Republic lasted only fo1lrreen ;'e.u . 1.• Id. ar 176. 8 id. ar J 6. 2 - Q L'll\ I , supm norc I, at 479. "Th · Red ... rd -1·b c J::a,l C-errnan citizens' re.>ponses '" id. at 7 . ·my also annexed a portion of l'ohnd. shocked \Vc:s t Gernunr-ir wJs a n ''" M \I 1"111·\X. W. Pu.£, f en Years 0JB11sic Law In rJ r ro cumpensare Pola nd For ir, losses, unex pecred w.l l torch:rngc, "wh ich would Amendments: n eu loping a Constitutional rhe Soviet Un ion pro~1 0 5 e d rh ar w me Lr.> had .> lowly abandoned 011 c: or (,J /ti. fe r of Respom.i bil ity L ·g<1l J. 971 ('.:i ummcr 2000), at Lexis 7. of the B:isic Lm ro F.ngl i' h hav l een ews fo r lrcla n cstimat d rhat in rhe " Ch ristopher B. Kun er, Rvok Review: whi h wa · . igned u S!;'ptember 12, J 990 time from 1949- 196 l, "over two-and-onc­ "Der \lcrtlitg: 111ie ich uber die dn.wclw and whi h enrered into force on March hal mill ion people lkJ the comn11111 ist f /11 /irit 11ed1t1i1 d d1 e By \X/olfg:ing 15, 1991, ''che fou r powers terminated thei r ~ rat e . .. A. J A,\ll~ McAI i.\i\l', C i· ~ t \NI Schauble::," 87 AJ l. L. 188 ( J 903), ar Lex is 1·iglm and respomibiliries r lacing LO Berlin Dr\ llil n, FRll\t 111 r \I I rn 2. anJ ro C rmanv as a whole. ni red R 11 :-e !111pe1fi.-r1 L'11ion: Germany is w have full sovereignty over » Qt.'1 1\'l , i11p m nore l, ;1r 483-4 . Co 11.iti1t11ional Str11rt111·e.• of (;en n,111 its inrernal and external If-air~ . " FRO\\'l.l'­ 1 ' ld. ar LtSli . l l11ijim11u11 ( I 91) 7). :u Lexi' 2. •- M( l..\~JS, mpm no H: 32, :n 171. ,- M .\Jn-..o,·11 ' al 1. l \llf;O\ IT ~ ar .Lex i ~ I I.

ll IUS • S P Ir-JG 200 2 • 25 The Fight of Southern Attorney P. Walter Jones: Overturning "Yellow Paper-Black Man" Discrimination in the Georgia Jury System and Desegregating the Georgia Prison System

• Mariah Snoddy

Editor ~· Note: iYftlriah Snoddy 's sror)' wm r!'prc •;eJ1t11rio 11 of ti blnch ma11 cht11ged wcm in ·ide and re rrieved his rifl e. An origina/61 wrium for (u ris Magazine a11d was as 11 part iripm11i1 1tht•11111rden{rr white ci lre;: rcariou between rhe farmer and Dav is picked up ~)' the A!bany-Hemhi as a Black ;;1rmer nm r~J ' c/e;troyed his legpf rllrce1: led ro Davis striking him in ch e head wirh History Month j ;ature. Portion.• of ihi,· article 8)' Im ejfims he Hll'ed the /~(e o(llyoung rhe b urr of hi s ri fl e, rendering h im were published in the A!br111)1- Hi:r11ld in h!ack ma11, forevtr cht1 11ged the Georgia unco n~c1o u ~ . Davis rewrned ro rhe March2002. jun• seLcrriu11 -~VS/1:'111, ,111d dimiilated backyard, call ing rhe black men ro come _•egngmiun 111 che ( '~'o rgJ<1 p1'1/!7/ J)'Jton, "irh him, scaring, 'T m going back ro ki ll While visiri11g our Ce01gi11 home this t1f! beca11se the cu/or ofpaper 11 1as 11sed th('. son oF a bitch now ro keep him fro m pt Li t sw11111e1; [spent a grmt dral oftime to s1:'(na! 1he color ufa mnn;· .ikin. ralking, 'cause it- he ralks he could have all with my CrMI Au11t, Eiln,11 Jo nes. I of us hanged and ht>' ll be walking around always knew my fate' Grau Uncle Introduction a frc:e m an ." Wafter was an r11tori7('.J" Her t1pf/rl711c11t O n l\cwe1n ber 15, 1959, ~ho nly a li:e r Davis ordered Whitus and rhe rwo is covered wrrlf-to-wa!L wit/ 1legc t! books midnighr, a whic· ra rmcr heard a orh er black men roger in his car and push ti nd is also the place u:here [ b!'gan ii~) ' dim1rban e ourside h i ~ home in MircheJl rhe farmer's car, which he would sreer, unril early Le;.;af cr1recrplayi11g "Peny Mason " Counry, Ceorg1.i. He we1H o ur to he;: signaled rbem m srop. 'l 'he farmer's car with my »ib!mgs. Aum fileen /old me inve, ri nare a nd cli,covered rhar ,rn w;1s p11shed ::ibour fo ur mile>, afi:er which that Uncle W'after went before rhe auwm biJe had run off rhc: road and inro Davis fired one;: ~ hor into rhe farmer's head. United States Supreme Court deft11di11g a di rch.' T he ve hi cle was driven and His body rhen tel l out of rhe car :.i nd Davis r1 black man, and partirnf11r{y about belonged w Leo n Lhvis :in d conr:.iined fi red rhree more sho rs inro his head . how surprised she was when t? lll' ofthe rhrcc passengers. One p ::i~s c n g r was Phil W hitus was ordered ar gunpoinr w race justices asked the anorn e_ J"' ll'h )' tlxre W hi rus. All fo ur of rhe mL·n were black, rhe engine of rhe Dav is car ro muffle rhe were dornm e11 ts on both yd/ow a11d and intoxicated. sounds whil O;ivi fired rhe fora! shors white paper: Having !iued '11 the South Whiws kne · che fa rmer d1 1J as ed ki ll ing rhe farmer. The four black men for a while, she found thi.i question him fo r assistanc · in gcrring the cir om of were quickly apprehended because rhe arnusing, as e11e1yone lmtu' that the rh c: ditch. The fa rmer agreed and rt'rurned fo rm e;:r had identified rhe men ro his wife yeffow paper was u;ed to distii1gu ish w his home where he.: rerrieved Ii is . 22 lxforc: I aving his house rhat nighr. black peop!efrom white peopk. I didn't caliber pisrol before gerring his vehicle. By P. \Xl::il rer Jones, my nlJrernal uncle know exact61what she meant 17! the time. rh e rime rhe farmer rcrurned, rh e rn n had from I ougheri:y Coum y, Georgia, was The answe» 1uere m wfi1ll)I pre ·erved in s ucce.~s full y removed rhc car from the dirch c1 Jl ed upon by a local judge ro represenr her Hopf Chnt, which I anxiously and proceeded w lca1·e. lnst ;td o( go mg Phil Whirus, who along wirh rhe orher wished to "·ee. Unfortumtte61 we were home, the fa rmer fo llow d rh e hbck men bh ck men were charged wilh capital unable to open the chest. fl jeu• months and Dwis hir hi ~ b r a k e~ . causing the murder. As reported by TIME Magazine: later, she rememb1•red the "setrer" to farrm.: r\ vel 1 id to h ir the b l k of his car. "Walrer Jon es, 5 1, used ro be a opening thttt rhest and immediate61,· cm I avis co1Hinued drivi11g hollJ e and rhe rhriving rax lawyer wirh a big office, al! ofthe materials to me. Fro m rhese far mer conrinm:d pursuir 1g hi m. Upon an Engli sh secretary and a new ma1aia!s I have been ahlc to piece arrival ar the Davis lio111e, rhe od1er black suhurban house. H is Albany forebears tognher 11111 [ nclc's sco;y 1/1/d how his men wenr ro die bad

28 • .Jl"JUS • SPR IN G 2 002 !'· ~ ,'< ~· Jones Saves Negro THE LBfJNY. JOlJRNfll·- '~• I. From Death Chair A Paper For People Who Want The Truth ~~... ,.

VOt..UME 23 NUMBER 11

local judge asked Jones ro ealed ro the Ir this deci ion fixes the law, rhen very l;m ed many years,. nd involved two trials, C eorgia Court of Appc:Js seeking a Writ person stands in danger of being ;:ippe ~irances befo re the Georgia Supreme of Frror. fo ncs then appealed rn the d cL trocuted i ·a mur ler i~ co111m irred Court, federal Habeas Corpus proceedings, Geo rgia S111 r ·m Coun . wliid 1 affi rmed by rnmeone of his associates even and, in rhe enJ , an app '~1rnnce before rhc: the trial ve rdicr, wirh due jmriccs rhough h' h:id no kn wledge that ir 11 1 nired Stares Supreme ourt. His effort disse ming. In a bli re ring d is~e nt, Chief was goi ng ro be done. " " saved rhe life of Phil Whiru " rMamped Justice Duckworth condemned rhcCoun's rhe enrire .eorgia perit and grand jury holding stating tkll: D n i larch 1-, 1961 , Phil \;''hirus wa.' selection syste m, and fo rced the "T he r is positively a com plere >chcdul 'd ro be decrrncurecl at die desegregation of Georgia's jails.· abse nce of even a ·uspici< n of a ll} Re i d~ville State Penitentiary. fn rnoti l'e. !'he sl:iyer committed ev ry \ ashingron. D.C., jlln ·s was quot d a,­ History of d1c Case crirnin;i l act that cau:.ed the death. He sa, ing "Phil I \Xfhill.L~ J w:1~ s heduled to di , As of rhe ti1·ne Whims was mdicted, ne ·cleJ no help front r h i ~ ac ·use I rhe next Friday - they always ·xccurc on no black man had ever served on a grand other than pushing rhc car :ind r:1 ·i11g Friday in "'corgia - so l gor rhe help of a jury or a perir jury in l fitchell County. '' th(.: motor, borh or wl1i d 1 were bv. the ki lle r. To s:i -' rhat The lo ·:ii ncwsp, per reported the prejudice, my uncle and his client had wh,ll rh is was n r enough rn L:lll'~· a evenr as "Jone~ Saves Nt·gro From Death was ], ter descri bed a · "a choice of evils." 8 re:1sonahlc per,on ro ~»a r d1Jr a r-dusal 'hair."· 1 Jones ro ld the press rhar "the Ht: could engender hos ti Ii ry to hi111 :·clf: 111d ro obey would endanger his lite, 1 ~ to m uns h:we nm· giv n I me] rhe ti rne 'ro his ·liem by arracking an. :JI white j11ry ignore n.:alitie' and humm n;iturc. , 'o ·xh;lll\[ all reJer:tl remedies' on behalf of sysrcm, or be prejudiced by foregoing such acr of his harmed a hair of rhe [my] lienc." ' Orherwisc, as one paper an arrack ;111d having hi. clienr denied a deceased. Fven if he w:1~ cowardly and reported. "IfJone ~ had foiled ro reach the trial by a jury of hi. peer -" Reli r.:v ing rhar foolish in ol eying die murderer who circuit judge, hi-; Negro clirnt ·would have he had a chance ar acquirral bccaw,e held a gun, this wuuld nor ~h ow hi ' h 't'n pronounc d cad ar 9: l "> this 11 \X/hirus had not kjl lcd rh.e far mer, and had g11 ilr or uiminal d · ~ ire or inn:m . 1nnn1inu.\, • perform d an~ in furrher:tn e u f rhe Human life should nor he rakcn by lon e~ then arpliecl tu the St

J\ 'H(\ • S P RING 2002 ° 29 Supreme Court To Hear Plea For Negroe's Life Attorney Walter Jones To Challenge G~orgi~J~ry~ System In Washington

27 10~ ' ·0~~7~y p; 1 ~a l t;0' J~ !' es•d!< io n °~ W h1tu o;: , twice convicted by Mitchell on:h ~ "l intb ';:.' ie: , /fkus:se d County 1u ,.ie1 for murder of o wh iti? The OU I ;;~e nf~:::his:~·: r lt ~I o~~e ~" : ill o~" e former, ond twice sentenced to death. Alb an rna 1 ' c W hitus hos spent the la st seven years ~~ I 0 9a1n become the storm center of con- in the deo th cell of the Re idsville State A G£QOGJ>. ;:iP.E ~:i t'W.A. R •.111·NIN(; ~>P£P _ I troven:y Penite ntia ry . ALBANY. GEORG1A~~AY, NOVE~BER 1S, 1966____ VOLUM E 19 NUMBElll u M r. Jones represenh, Negro Phil Mirr• On P•9I 2

the elecrric chair. ' · O n June 11. J 9G5 , ba, ed on rh grounJ , that \X1hitus could was denied.;- He then initiated a fed eral TIM E Magazine reported the st0ry of not get a fa ir trial in Mitchell County and Habeas Corpus proceeJing, :Jkging for the Jones' struggle ro defend Phi l Whiws."' because Jones h::id received numerous death first rime rhar rhe ju1y ~cl e lt ion process The magazine re-oumed: rhre:.1r<;, The: tri al court denied the motio ns deprived Whiws ot hi s Consrirnrio nal "Las t winrn , on h i ~ \econ ro ri ght on - ro deny the d 1<1nge of venue came exactly Evemually, Jones prevailed in obtaining a dc-,p ire ~uch wh it· hmrili v that he ha) fo ur d:.1ys aft.er the T IME Magazine article. heari.ng on his discrimination charge when lost 'i0% of his p1xrice, hi s house, his The American ivil Libenies Union the United Stares Supreme Court, per office and his sccrcra1-y, whose .dary had >reppe I in at this poinr rn provi de curium, vacated judgment and remanded he could no longer pa;-. So for, the assistance wi th legal expenses, bu r nor for 2 the case fo r a hearing on the merit;. ' \\ fhirus case ha.\ LOSt Jone. : 8.000 o f" Jones' legal ft:es.''' Jones said all "I wa m is On remand, the Disuicr Court again his own moll '.", ,t11d is rh re:llen ·J by :i fa ir and impa rtial tria l Fo r Phil affirm ed the trial co un, holding, among anonymous plwne call e rs ("' You [ h.i rus] .. . I :u11 du ermined to save this orlier things, that rhere w:lS no evidence of godd1111m nigger-!01•ing s/~y;· tc;: Wi,'11 get boy's li fr. fl]f I shoul d die before Phil discrimination in jury selecrin n. The Fifi:h ) 10u .")" Whi rus is fr ·ed, the case will be willed to Circuit reversed, stating that rh , existence another auorney." l 11 of the cusrom of sr rem. tic exclusion of In 1·eality, my uncle wa~ ex pe1·iencing Ha\·ing been denied a change of blacks wasn't even an issue. fn sread, the that branch of the "choiet: or evil," v ·n ue, my uncle did not back down. Once question was whether rhat issue had been incidenral ro h:1v in" expo,cd, and again, he a tracked rhe merhod o[ selecrion waived by nor bei11g r;ii sed prio r w trial. 21 successfull, ch ~il le n oed , the sysrem:.1 tic nfl otli grand and petit juries in Mitchell The Court ruled no waiver h;:id occurred exclusion of"black: from rhe jury. In ,d elr r C ounty, which had been "revised" due to rhe "choice ot evils" facing black sent to him by Howell Cobli, ,m attorney fo llm ing rhe prior denouncement of the defendants represented by whi te counsel and former Georgi an in response: to rhe ~el e rio n process by the Fifth Circuit. ll He an d held that ·'rhe State coul d nor T IME Anick Cobb wro te: b~15eJ his ar~ umenr on rhe 1960 census consrirurionally require the peririoners m "To be so rreateJ by o ne's own rhat demom trated thar MircheJJ Counry's make a guess and a gamble between rwo townsmen fo r rhe diligent lliscl1 t:tnd rhar a lawyer's m rhc Suprerne Court ot Georgia, which Lo ng Legal Barri e Fighrs fo r Death Row clury is as much w th e l

30 • .n .·ms • SPRING 2002 only seven of whom were blacks and none of displlted fa ct~ .' ' '•1 T he resulr of rhis E NDNOTES of wh om were evenrually accerted on rhe "revised" ~ys rem did nor pass rnch musu:;r, petil jury. ' ' His challenges were all denied, since as nored by rhe Courr, "even 1 P. \'\'alter Jones died on September 1, and Whirus was once :iga in convicred by assuming rhar 27% of rbe list was made 1977 2 an all whire jury and sencenced ro dearh up of qualified 1 'egroes, rhe rn arh emarica l V fd. 19 rhineen years earlier in an unrelated case. Albany, Georgia afte r rhe C ivil \Var wJs i - Whittts v. R11 fkcom, 299 F2d 844 (5'h The court nored rhe Georgia prBattle: Fightsfar Death Rozu Negro, ' sra nd if. egroes were excluded because of sysrem. • Alb:my Journal ,J::mwuy 29, 1965, Vol. 28, rheir race. "•n T hC' Court nored char ir was I o. 4. the judiciary\ "so lemn duty ro m:i kc Mariah Snodc(J' will graduate in Decemhf'r ! ,; 1d. independent inquiry and deter111i narions 2002 (mminued on page 32)

.l l RI~ • SPRING 2002 • 3 1 2 ' T IME Mag:rzine, The l t111', I rnuyas: r:ol!eagne.1 in Conscience, Jurn: I 1, l 9G 5. An Environmental 'Problem' Vol. 85 'o. 24, ar 60. •r, T he reporrer rererence ro rhe Sup r~ me With Constitutional Courr seems ro be in error :ts ir was rhe Fifr h C ircuir C ourr of i\ ppeal wh o reversed the death scnrcncc. Ramifications ' Letter toJ ones, Howdl Cobb. Beaumonr. Texas, 1% 5. 28 Whitus v. Stare, 145 '. E.2d 8.1( 1965) 2'1 fd. '" Robert Shervell. "The 'Foo/,· Who Rush in Where Most Lawyers Fear to head," November l 969, 20. 27-28.

1 ·' W lii tus v. State. 112 C a.App. 11 G the L'l1Virn1t111 Cnt:d la w (~) o r another Sta re. ( 1% 5) rehearing denied. Th · fo llowingsummary provides a gl impse ,_ !d. or rhe appli c;1biliry or co nsriruriunal b w, ' Whitits u. State, 222 Ga I 03; Wliitw 11. f ·d..:ral Sf;ltllt S, ru le;, or civil procedure, Srate, 112 C a. App. 328 (1965) 'nired Scares Supreme C:o urr 1 cases and '• V(!'hit11.r 11. Georgia, 385 US 8 1-1 ( 1% 6) orl tt'I' r ' lerence.~ fo r dctermi n;1cio n or rhe I ,, Id. • Mar y Smorey-Giger proper jurisd ictio n for a srare challenge •c Whitus v. . t,lfe. 222 Ga. 116 ( 1% 6 ) gai1tSl .tnorht:r ~ra r e . Afre r weeks or .i - Whiu1; u. Ceo1gia, 385 US 813 ( 1966) .1 tudem i 11 my Ji na! ~e 11 1c\tC r at re. ar hand inves riga rion, rite foll owing i ~ " "Supreme Co11rt to Hear Pli•r1.fur egroes L uyu e\1 1e l niH:r\it y School ()F ~\h at [ l1:1vt: derern tined rhus fa r: Life: Attorney Walter Jones to Challenge A Liw. in rdlecring on mv lega l s we know, jurisdiction is rhe power GeorgiaJ1tl)' SyJ"tem iii Warhingto11," Alb.my c !ucarion, I h:1,· found the interns! ip of .1 cou rr ro he;ir a case. Cerrai n ru !es and Journal, I ov. 25 , 1988, Vol. 29, o. 47. progr;1n 1 LP l>L' 11111,t Je\\ arJing. I r ·c nrly dourinc 111,1y l irn i r deci~i ons on rhe mcrirs. "' Ave1y 1'. 'ittllf o/Gemgia, Jft5 l 1.S. 5"\9 coni pl ' [t·d .t rive-month i1tte 'lioltip wi th rr juriv lic1i o11 j_, r r,·scnr a nd rhe plai riff (1953) rhc: Com ITIOl l\\ e;il rh or i>t:n nsylvan ia U\t'.rcome;, the prin.cipl s which may limit 111 Id. Court refrrs to S1m11der t '. \¥/est Fnvironmcnral Hearing Board whi h w as decisions o n rh' merit ·- a;, ddlned anJ Virginia, 100 L'.S. 303 (1 880) an cxcelknr ( pponu11i1.1 co p:1rr i -ip;tre in di,cmscd larcr-Lhcn courrs exercise rhe 1 ' V'hitw v. Ceorgi11, 38'i l l.S. at 5'i1 va riO Ll\ :1c t1 v1r1e ol t h i-, trihunal. powt'r of" udi ial review. Judicial review i> ( 1967) ciring 1 /11e1;1 1'. Stt711' of Cnngin. .H 5 Currc m l;. . [ .mt enµ.agcd in ;tn invaluable rhc dourin · dc><.:r ibing rhe couns' power U.S. 559 (1953 ) inrerm hil' wiil1 1h e )ffiL' of C hi .f ro in :1lidate g >vern rncnral acrinn whi ch is " fr/ ar G4S. Cou n,cl Fo r di· Co111m n nwcalrh o F repui;nant ro rh c Consriruri on. 2 l~cdcra l ' Whitus' incarcerarion ended u1t O u\1b ·r !>c: nn.J h·:tnia Lh-p.Hlll1L' Jlt or C t lll rts h:t vc rhe tiower ro review and 2, l 975. , eo rgia D ep:irrmen r of tnvirnnmc·n1:d 1'101 eu io n. '.'>ou r hwl~s r i1 w;tlid ::i tL' lc:gi la rivc acts wh ich are conrrary .orrecnons. Regio n. D1 1ri11g ch i' i1 H ' 1m h ip to the Co1v,riru rion. The holding in 11 Wilso 11 v. Asa f...'elle;: Jr.; 3 J.1 l '.S 266 exp rienc ·, r lt:i,·e been ;t\ igill:d a pro jeer , 111rblll)' u. lnrli•on d fin e il 1at die ed ral (l 968) wirh \crious c1 tviro nrncnral implicariom, judiciary is supreme in the inrerprcrarion '' Id. n orwi rh ~ta n di11 g irs inrcn e mi lieu oF ohhc Cnns1iw ri on.' 'uch judicial power '" Rohcrr Shervell, "Thr 'h>ol. · l'C'ho R11sh con. ritur i o n ~ l law. Xfhi lc l com pl ·red mv '18 ' been i1m·rprered ro include rhe power ;,, Whrre J\1os: L rm:J'eJ ~( Fnir to h ead'', co u r~c 1n o n\l1tU t in1t;tl l.tw . ever.ti w rev iew and in va li da te, based o n cwember, I % 9. 20, 27-28. ~e mes tc rs ago. thi ;, environn1cnral projc;: c unrnmriruri onality, both federal and sr;m: ,- Id. it ;Ls given me rrl'll\ ndo u ~ oppornmiry ro a1..nons. revi. ic rlt:u ;ir .1 of a\\ \\ ltid1 -ck~ i rly. now - i' C\'t:JYwhere. Constitutional Law O ne or t hL' pmfnund com rit urion;tl The rn irn l Sr:1res Consriruri o n, quesrions ,It i'~ llt: in some cn,ironrnental Arri le 111, S 'crion l provide;, in relevant probl 111\, j, th · llL'<-d ro detl'rmin, th · p.m : "[rJhe judicial Power of rhe nired juri di Ltion in 'hiL h .t \t.llt: ltoul I )r.tr .,, ·d1all be \ CS ted in one Suprc11tc liri ng a Li\ ii .\LtlOll rh

32 •.n ·nrs • SPRIN G 2 0 0 2 es cablish. "• In accordance wi[h the Federal Statute di rected ro submit suc h reports ro the 'junsdiccion of Courts' as defi ned in Anicle In furrh er support of C:ons titurional Su preme: -ourr as he or ~ b e may consider lll, SecLion 2, clause l, the judicial Power Anicle [JI, T ick 8 Jud iciary .tnd Judiwl af propriaie. r·he compensarion of rhc of di e Supreme Court sh:.1ll e,'re11d co all Proced ure, Pan IV - Jurisd icr ion ." " dgct imt and sh.tll l borne by rh e parries in 1 C tses ... in which a Sta le shal l be Party, In a 1992 opin ion by C hi ef ,ILJs rice such proportion as the Cou rr may direcr. ' rhe Su preme Courc shall have O rigi nal RehnquiS( regarding a boundar ' dis pme Ju ri sdiccion. "" By assi gning original berwccn Mississ ip pi and Louisian a, lie Applicability ofSupreme Court Original ju1isdicrion, iris rn e rnt thac such cast:s shall expres>eJ rh e unanimous view of the Court Jurisdiction commence in the Supreme Coun. which held that 28 CS § 125 1(a ) faen if a c a~e appears to be within che T he follo wing is an imcrcs [i ng quote deprived a Disll iCl Court of jurisdiction descri ptive jurisdiction of the Supreme from Charles Warren, rb e A' 'iis rant over a dispure bctv.;ecn rwo srates. 11 In Courr under Arri le II I, one muse evaluate rrorney General of the 'nited 't at ~ fio m Missi.i.1ippz v. Lu11ijit1t11/, the )uµrcmc Court wht:th t: r a parry i ~ r quired toe hausr cheir 191 4 rn 1918, found in his book The held thar unt!cr 28 'SCS § l 2 51 (a) administrative remed ies . And even if ' upreme Co u rt anrl Sovereigil trites, whi ch giv ·s rhe nired Slate~ Su preme Ad m in isrracive remedies arc nor applicable, publ ished in l 924: Court origin al and excl us ive ju risd icrion rh re is no assurance rhat che Sup reme over all co 11troversies b [\ een tw or mor Cou1T will reach a de ision on rhe merits. , 1t: ve r before in histo ry had rhere states- a federal Dis rr icr :o urr doc., rn1t Ther · a1·c a number of doctrines which ex is ted a Court wid 1che powers wh ich have jurisdiu iun over a thid-pany e n ~1b le rhc: Sup re me C ourt to avoid a ch is [new] cribunal wa ~ to exercise. For comp la int brought by a stare, as an decisio n on rh e merits, including bur noc rh e first uine, there 11 ow came in to intervener in the Dis tri ct Court a ti on, limited ro the Eleve nth Arn ndmem and existence a pennanenc Comt. which again sr anochcr sca re rn determine di e 'GLS and conrro ersy'. T he Supreme Coun should have the power w sum mun boundary betw n 1he two ~ r;n s in the \eeb only to exe rcise its o riginal before ic sovereign Stat 'S in disput e viciniry of ch e disputed lwd. ' ~ juri>dicrion sparingly and lhe Court is and to determine rh eir r ·spc: ri ve particularly rcluuanr m implicat original rights by a judgmenrwhi ch should be Rules of Civil Procedure jurisdicriun fo r a suir where the plainriff(s) enforceable aga inst rh em. Such a N xt in rh hierarchy < law ar rhe has ;1nod1 er ;tdeq uare forum in which ro Court, wich such funcrio ns, is rh c Rules of rhe Sllpremc Cou rr. 11 P:irt IV - resol ve the: claim." mosr otiginal, the most distinccively O rhcr Jurisd ietion, R.ttl e 17 Proced ure in \Xl irh respecr co the Supreme Court's Ameri can conu-ihution ro polirical an Ori 111al Action. provi i>;ip propriar : fir r, the Court looks pracricingarrorneys Rob n St ·rn , ·ugene :rnd .S. Cons r., Amd r. IT. " ro the nature of rh e interest of the Gressman , Sr phcn hapiro and Kenn rh For martcrs whi ch are adjudicated com plaining sta te, foc using on ch e Celler ernided Supre111e Cot.fl'/ P1iWit'e: For under the o ri ginal a nd exclu~ i e ~e riou .m es s an d digni ty rhc cl aim -- wi th Practiff in the . uprnne l.01trt nfthe [ !11ited jurisdicrion of the '\up remc ourr, rhe rh e model ase for incorpo ra tion of che Stater describes their e_xperi nces before rhe Courc will li kdy appo in r a , pecial Master upreme :oun's original jurisdiction being Sup reme Court. T he au rho rs co nvey rhac, to ha ndle the case. An appointed Special a dispute berween sca rl'..'I of such s riousness while rhe Supreme Com[ cannot possibly Mas ier generally hrt., the authot·iry co ll · tha t it wuuld be a cause fo r war if the st;:ites hear argumem in and decide mu re Lhall a the rime and cu ndi1 inm lor rh e fili ng of wcrt: Fully sove re ign - - and ec nd, the small portion ol-rh · cases in rhe d }iig11a1ed additional p leading; and to direcr ·ourr ex plores the availabili ty of an cl ;i:, es which tht' panics would like ro bring subsequent proceeJings ;rnd h:is additional alternaLi ve fo rum in which the issue before ir, rh 0 co urr "si frs' ' the cJses, thus auchoriry rn su rn111on wi m s ' S, issue cendered can bt: reco nci led. " on ly those cases which the Court J m~ subpoenas , :.ind take such evidenc as ma , In Missis;ippi v. Louisiflna, hief wfli iendy imporrant or merirorious to be inlroduced and wch a:, he or she may Ju)rice R· hm1u is1 stared: arrant furrher review remain.'' deem n · es. ary. T he pccial M a~ t e r is (continued 011 page 34)

fl HIS • S PR ING 2 00 2 • 33 T he uncompromising language of 28 sra[c., 011ly vio ldtes [he Elcven[h 1\llexico. <1 Moreover, "when ;i Sra[e USC §J251(a), which givl's m [his Amendmem if [he pLii nriff srare is a cm~d l y properly in vokes o ur [Supreme Court) Coun 'original and exclusive sulllg w recove r fo r inj uries m spe,Alc jurisdicrion rn seek redress fo r a wro ng jurisdic[io n of a ll connoversies ci[izens.2; perpeuared agains[ ir by a sister S[a te, berween [WO or more Sracc:-,' deprived In Kansas v. <.oiorar/o, wherein [h e neid1 er the measure of damages rha[ we the Dis[[ict Cou n of ju [isd iction ove[ Sup[eme Courr gramcd Ka nsa! leave to file ulrimatelv derermine to be proper nor our Louisiana's third-parry complaint a complaim alleging Colorado viola ted rhe me[hod for calculating rhose damages can aga.ins[ Mississippi. T hough§ l 25 l (a) Arkansas River Compacr which precl udes retrospectivel y nega[c our jur isdic[ion. "·12 is phrased in [erms of a gra nt of ma[erial depln io n of usa ble w;J[er flows, The Eleventh Amendrnem does nor jurisdiction m [his Cour[, the plai11 die Sup1·e me Cour[ h 'iJ that Kansas may comprehend controversie.s berween [WO or mea ning of 'excl usive' 11ccessatily recover monetary dJmages from Colorado more stat , or be[\vccn a stale and a foreign denie.s jurisdicrion of such. cases to any in an original au io n, wiJ1our running ,Jou! stare. 15 Chief Justice Marsha ll in [he c::tse 1 2 oth. e[ federal court. - of Elcvemh ArnendmenL ' Such damage of Cohens v. Virginici, said: recovery did not viola[e die Flt'.vemh T he Constirn rion gives rhe Supreme The Supreme Court has S[ated on Arnendmem regardk·,, if [he amoum of Court origi1d ju risdicrio n 111 cer[ai n numerous occasions tha[ i[s original 1·ecovery w ;1s h d~ed in parr on losse.) enumera[ed cases, and gives i[ jurisdic[ion should be exercised only SU>tained by ind ividual warer users in appellate jurisd ic[ion in all others. spari ngly. 18 In facr, Chief Justice Fuller Kansas. '' The Stare of Ka n,as was a real Among those in which jurisdic[ion wrote over a cenw ry ago d1at [he Sup reme parry in in terest. suing m proc ecr i[S own mus[ be exercised in the appe ll a[e form Coun's o ri ginal jurisdic[i on is "of so interest in preveming upstream diversions a[e cases arcs rng under rhe deli ca[e and grave a charac[er [ha[ i[ was from rh.e Arkans;i, Ri ver. Fur[hermore, Consriturion and laws of [he United no[ contempla[ed [ha[ ir would be Kdnsas' ri ghr ro control [he disposi tion of Srat 's. T hese provisions of the exercised save when [he nccess i[y was any recovery was cmirdy unencumbered. 2r' Consriwrion are equally obligamry, 1 abso lu [e. " 1' In /vlississippi 1>. Louisiantt, Similarly, the Supreme Cour[ in and are w be equally respected. If a Chief Jus[ice Reh.nquis[ recognized [his: Hawaii v. Standard 01! Co. opined [ha[ irs Seate be a parry, the jurisdicrion of [his "[[h.e]'delica[e and grave' ch.arac[er of our origin l jurisdietio1 i~ nor affeued by rhe coun is o[iginaJ; if [he case arise under origin al jurisdic[ion, we have interpre[ed provisions of the C:ievcnth Ame·nd rn ent acomtit u[ion ora law, [he ju risdiction [he Consrirn[ion and 28 US. C § 125 J(a) which onl y wi[h holds Federal judicial is appellate. But a case m which a Stare as making our original j urisdic[ion power in su its againsr a State "by Ci[izens is a parry may a rise under [he 'obligamry only in appropri a[e cases. "'211 of ano[her S[a[e, or by Ci[izens or Subje rs Constiwtio n or a law of rh.e Uni[ed Accordingly, [he Coun is provided wi[h of any Foreign Sta[c. "~ - Thn efore, S[ates. . . . We must endeavor so rn ma[erial discre[io n m make 11ccessary casc­ re;:iftlrming [ha[ an original a rion berween construe rhem as m preserve [he [rue by-case judgments as rn [he prac[ical [WO Srares only viola[es [he Ucven[h 1n cen [ and meanrng of rhe necessi[y of an origin al fo wrn in [he AmenJmem ifrhe plain riff Srare is ac[ually insrrument. ~, Supreme Coun.21 suing ro recover for i111uries rn specifi c T he Supreme Court's original individual citizen . . '' jurisdicrion rn hear ac[ion brought berween !nappficabi!ity ofth e Eleventh Amendment In Texas u. few 1\1exico the Supreme swt s is nor affected by provision of [he AJ[hough. a sra[e is no[ permiued m Cou rt held [h;:H enforcemen[ of an Elcven[h AmendmerH w hich on ly t!l[er a controversy as an uninreres[ed or inrersrarc water -ompacr by means of a wi[hholds federal judicial power in suits nomin al pa rry in order rn forward [he c·ecovery of money damages is wi rhin a agains[ a S[a[e by ci [izens of ano[her sta[e claims of individual citizens, a S[a [e may Sra[e·s proper pw·sui [of [he "general public or by cirizc 11 s or subjec[s of any foreign 9 1 acr as [he represenra[ive of i[s ci[izens in in[cresr" in an original ac[io n.' srate. ' original acrions before [he Supreme Court Addi[ionally, rhe Supreme Court in this where [he injury alleged affecs [he grncral case derermined [hat rh e ~oun was no[ Casr: and Controversy popul ation of a S[a[e in a subs[anria.I way li mited [0 ordering only prospective relief The fode ra.I judicial power gramecl in such as envirnn mental concerns. The of requiring Fu wre perfcirmance of iew Article Ill is Ii mired m certain defined 'cases Supreme Courr's original jurisd iC[ion is no[ Mexico's obligJ tion to deliver alloca tions and comrover,-,ies' wh ich req uire rha[ a case affected by the provisions of [he Eleventh. of warc1· to Te.xas under [he Pecos River be in an adversary fo rm and co nrex[ [hat is 0 Amendment. The Amendment only CompaC[-' ][ wa.> flu[her Jer Tlllined [hal capable of judicial resolu[ion. A.nicle III wid1holds federal judicial power in sui[S [he Supreme -,our[';, complete judicial requtrc.\ rha [ 'case or comroversy' must be against [Oe S[a[e by ci[izens of dl\O[her sta[e, power m adj ucl icmc dispmes among Sta[es present for an Article Ill co urt rn have or by ci[izens or subjec[S of any foreign included capaci[y to provide Tcx:cs with jurisdiction. 2 S[a[e.2 An original acrion between rwo sui[able remedy for die bre:ich by New In State of Wyom ing v. State of

34 • Jl .lUS 0 SPRIN G 2002 Oklahoma, che court held 1ha r "the -asc state vnsus stare dispute. som d1ircl party nor lwfore rhc [Suprern '] set forrh a prope r co11troversy under iL> There are sevcr:tl :ipeciflc doctrines, C ourt." ' original jurisdiction because ir involved a based on the 'case a nd controversy' Correspondingly. in Nebmskc1 v. wrong suffered by o ne stare at rhe hands requiremem and policy consider;irions, Wyomi11g, rh Supreme Court held that of another.".\!' More specifically, in order rhrough which rhe federal courrs avoid ;i p;u·r i c.~ "m ust make a howing ofs ubsranrial 1 for an action between sca res ro consrirnte a decision on the merits. T hey relate ro: who injury ro be enrided to rel icf" R In this proper 'comroversy' under the o riginal may litigate :i cunsritutiunal question. 10/Jm case, rhe oun held that the issues at bar jurisdiction of the Supreme Courr, "it must may a consriwrional issue be litigared and must Jcscribe a "change in condirions 1 appear that the complainin" Srate has whflt consrirurional questi ons may be posinu a drn.:ar ofsignitic;Jnt injury."·'' T he suffered a wrong through rhe action oF the li rigared. Accordingly, in fi.mher valuatio n C ourt further held char the change rnusr orher Srare .. . o r is asserri ng a right againsr of incorporating original jurisdi tio n , t!w cause or permit signiGca nt injury to the rhe other Stare which is su::.c pribk of . upreme Court specifical ly rn11 si d e r~ ( 1) opposing srar 's interest a nd must express judicial enforcement according to the plaintiffs' sranding, (1) riming o[ the suit, a seri ous cbim thacoughr ro go forward.' 0 accepred principles of the common law or a nd (3) whether the plaintiff has b en !1 rhe 'upreme C ourt's opinion fo r equity systems of jurisprudence."' T he affected 111 a 'substantial and real' way. Each • tate of\Xlyoming v. State ofOklahoma, the parries must have a dit·ecr ~ra ke in rhe of these pararnerns are discussed below. coun referenc ' prior rulings regardin g controversy at issue and in the inn.:resr ofa standing in which the case musr be "subject fi..11l exposition of the issues58 S1a11di11g ro rhc gencr:il principles of finality and · f'he issue of the appropriatcne s uf the The Article Ill 'case and controversy' repooc:, absent changed circumstances of Supreme Court's exercise o fjurisdicrion in element mandates that rhe party secki ng unforset:n issues not previously li rigared."51 an original action between sr::ires must be to litigare a con sLituLio nal queotion The aforementioned Wyoming decisio n determined on a case-by-case basis. "' . rhc demonstrate a personal . rake in t he defines the test for stand ing as one state's S upre m e Court has consrrue

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Jl 'HIS • SPR I N G 2002 • 35 a11d rea l' way in ord c.- ro jusr ify rh c ..:, ercisc ro hi >torical mulri- t:w: ~ .J~ · • the a ~s c n i n g ENDNOTES of rhe Supi·eme Cou n 's original <;r;rn.: must de rerm in..: if it~ 1. hallenge wi ll jurisdicrion.'3 In rhe Supreme Coun's be deemed a serious . appro pri ate and 1 Herei n referenced as "Supreme Courr," holding in Stri te of Wyo ming u. State of timely acrion wi thin rh e .S upn.: mc Court's or "Courr." Oklahoma. ir subsranrially exrended ro origi nal jumdicri o 11 . The elem ent o 'case Marb111 y i Madison, 5 U.S l37 (1803). include a11 eva luarion of rhe effecr of a and conrrover,y' 'hall he es ta bli shed 'Id sr ~ne's leg islario n (o r irs co nduct) where in rh challt:nging <>rate has suffe1·eJ ' U ..Cor-;q . <11-r III § l. considering rhe co11sequences of rh ar a wrong ar rh e hands of rhe orher state's ' U.S.Co1 I. arr.III§ 2,cL l. enacrmem, nor onl y by irself; bur also by regula rion(s). tly. rhe plainriff sra re 's I Id consid eri ng wbar dlccr would arise if man y claim musr be de rnmined ro he ' uh <>Tanrial - U.S.Co:--h I . arr. III § 2, cl. 2. srares- or eve ry srare- adopred simil ar and real' in co midera l ion ord ie d fe t of "Warren, C ha rles, The Supreme Court And legisbrion." such unconsriruc ional a rivi ry bv many overeig11 Stall's Princeton Uni versity Press, As eloq ue nrly scared in the early 1900's sra res for various ana logous reasons, ro 1924. by Charl es Warren. for m T Assi sra nr which envirn 11 me:: 11 c.d c ncerns em1 ci,·c. I'rartice: For Pranlcr in thr Supreme Court W hen dispures ::iris e, however, As Chief f u~cicc :vhr:; h:il l said, long ~(th e United Stc1tes. Sevemh l:dition The berween sove reign Srares, rhere a1·e ago, if rh e States rirnr ional law 12 Jd Srares should relinquish rhe exe rcise cxccurcd b\' d1L S1lprcm · Coun's decision 11 Pan fX Defl nicions and Efrecrive Dace of rwo powers of so vereign()', namely in Ji ·si sipp i 1 ~ l o11iii.111111 e>r:iblishes cha r of rhe Rul e.-. of che Supreme Courr of rh e rhar ofmakmgwar and rh ar oh11aking rh e Supreme Courr has original and nired ~t ar es, Rule 48 Effecrive Dare ol compacrs, Lhere was bur one eFfocwal excl w.ive jur isd icciun of all co m rov e r ~i e.> Rules d c~c rib es ch ar these Rules, adopced merhod of serrlemenr of co ntrovers[es be::rvvcen rwo stare .1 . Once an . (1992). a civil acoo n co c hal lenge rh e Id. ( mphasis included in quore), see also, consrirurionaliry of ano the 1· srare's Conclusion ., difornia u. Arizona, 99 S. C r. 919 ( 1979). regularion. rhe lJnired Srn ccs Supreme This revi ew of comrirntionJl law, 1 ~ Sec Wyo111 i11g v. Oklahoma, 112 S. Cr. Court clearly has exclusive ju risdicrion fo r Supreme Court cases. ere. and the impacr 789 (1992); !'vfmyland v. Louisiana, 10 l rhi s acrio n. Such ju ri sdiction is of e

36 • [l ' l{lS • SPRING 2 002 · ~ Id !•I l 07 S. Cr. 2279, 2285, n. 7. ( 1987) Adult Protective Service Statutes: IO fd ·31 Id. (opinion afrer remand on orher Are the States Doing Enough to gro unds 108 S C L. 1201) 2 ' 107 :::>.Cr 2279, 228'i. n. 7. (1987) 1 1 Cohens v. State ofl/irginia. 19 U.S. 264. Protect Their Elderly? 6 Whear. 264 (1821). .H Id. • Wendy Smith 3' Maryland v. Louisiana, l 0 I :r. 2 11 4 (1981). Acco rd in g to rh 2000 US Ceus us S1 1rpri ·ingly, most elder abu e and "' l 12 S. Cr. 789 (1992). Bu reau, 35 mi llio n people 6') years oCage ocglcu takes place ar home. Family, other ~'.' Niassachusetts v. Missouri, 60 S. Cr. 39 and over we re counred in rhe nired hou ehold memb rs and paid caregivers (I 939), See also Mmyland v. Louisiana, 10 1 Scares. 1 In facr. rhe numb -r ll f o lder rum our to be the ab use rs in rh ose S. C r. 2 11 4 (1981), State 0J V?7)1o ming v. Americans in creased by 3.3 mill ion or l 0.6 situaliom. ; Ider abuse can b quite severe, Strrte ofOkfahoma, I I 2 S. C.:r. 789 ( 1992). percenr si n e 1990." fn crcdibly, rh e '.S. bm u ~ua ll y it is more ~u b d e, making rhe JN 101 S. C r. 2114. C"nsus Bureau is prcdicri 11 g rh::i r older disrincrion between norm,il inrerpe rsonal 1 9 ' ' Maryland v. Louisiana, l 01 S. Cr. 21 l 4 ind ividuals will :i.c ounr fo r 39.7 pen:enr srress and ahuse diffi · rlr ro discern. Eve n (1981). of rhc roral population in 2010, 53.7 more surpris ing is rhm sclf-negl.ecr may be iu !!Li11ois v. City of J\llifwaukee. 92 S. Cr. percenr in 2020 and 70.3 perccnr in 2030.-' rhe mosr om mon Fo rm of ab use.1 " T he 1385 (1972) . W ith the incrca. c in ch is popularion. most ry pi c.11 s cen ~1 rio is when an ol leradLLlr '" 93 S. C r. 2763 (1 973) ac ording ro a repon by rhe nitcd Srarcs li ve' alone, has a poor diet a11d needs •Z New York v. New }crse_Ji, 41 S. .r. 492 J louse of Rep res entat i ve~ Comminee on ass i ~r; 111 c e with homemaki ng and per50 nal (192 1) Agi ng, live percc nr of all Americans aged care. Sometimes concerned home he;J th '·' 92 '. ' r. 1385 (1972) . 65 or older are vi ri ms of elder abuse.' ane n ies, or even a grown child of d1e older 14 11 3 S. Cr. 549 (1992) representing only a po rrio n o f older ad ult who liv s fur, way, report rhc abuse. ' Id Ame ricans whose ::il ntse is a ' l ltall y fu rr he rmon:. contrary to har people 11 • • 101 S. Cr. 2114 (1981). repo rrcd ." In facr, on ly 12 perccm nl' elder think ahllll l elder abuse, ir does not ,-Simon v. 1:.asrern Kentucky \-'0:!/fl1re Rights J. buse is acrually repor-red, indic:u ing rh:ll discrimi nate. It occurs among al l races, 1gcmization, 96 S. Cr. J 917 (l 976), Sec one-rlmd o all old er Americws are vicrims erhnicirics :ind eco nomiL classe." 11 These al so Afmyland v. Lou fri11na, l 0 I S. C r. 2114 of elder abuse. <· mist once prinns, along wilh inadequ:.lte (1981 ). 'V<-1hen people hear rhe words ''elder fu nding for prope1· ervices , h ~Vt' led to 1 ~ 11 5 5 . Cr.19 33(19 95). abuse and neglec r," ir is nor ar all problems in idcmifying;rn d pro tecLi ng rhe '" Id. uncommo n for rhem ro vi,ualize a n elderly against the heinous crime or eld r 'rid cxu c:mely el derl y pers o11 , who is com pier -ly 111alrream1em 1 ' 1 12 S. Cr. 789 (19 92), see also Arizona dependenr on orhcrs for hi . dail y cue, [n 1h pasr, to :idd r rhe problems, v. California, 103 S. C r. 1382 ( 1983) spendi ng rhe re 1n ain d t'rofh i ~ life in snme some Hates have attemp re d to draft 2 ' 11 2 S.Cr. 789 (1 992). type of nu rsing facili ty. However, ma ny efficien t protective measures in identifyin g '' 1015. r.21 14(1981 ). arc surprised to lea rn that most elder ahuse ~rn d combaring ddcr n 1i ~t r ·armcnr. So me ;.j Id. or negl ecr docs nor oc ·u1 in 11ursi1 1g state' have ' nacred stat ures requiri11 g " W:i.rren, Charles, The Supreme Court And fa cilities. Alt hough such ab use docs o · ur, mandaro1y r poning, ivil and criminal Sovereign States. Princeron Universir:y P1-c- . 01ily abour f;> ur perccm ofolder adults Ii e penalties anJ eme rgency inrervemions. 1924. in nur,i11g ho mes, and Lh e vas t majority of 1 !owever, despite 20 yea rs of tradi tional ir. Id. nursing home residents have their physical effo m , tne proporrion of the poµ ul arion \ · 1d. needs mer without experi encing :1l u ~e or ;:ir ri k conrinues ro rise and rhe numl>er of 8 ' Cohens v. Viry;initt, I 9 U.S. 264 ( 182 1) . negle ·t. ' elder abu-e vi rims co mi nu es to incn:'.ase.10 Om- 1ea:,,011 fo r the increasi ng number of reporrs made each ye r is rhat the methods '~ .. one-third ofaU older or discoverin r and reporting such abuse Americam are victims l1ave he ·-omc:: mu h more effi nive.1 Hu t arc rhey eAt:c ri ve enoug h ~ ofelder abuse." (continued on page 3 8)

.J I RlS • SPRING 2 0 0 2 • 37 Mandatory Reporting Ir ts unclea r wherh et· mandatory ex isred, and rhar case did nor directly Mandatory reporring of suspected reporting is finding more cases or is just involve a failure to repo rr. 27 Anorl-ter eld er rnisrrearment has bee n a signif1 rn nr reo rgan1z1ng the reporn ng and problem is rhar "a mandatory reporting legislative response co rhe problem of administrat ion or rhe sys teJn. 21 In fact, rarure, to be jusrif1 ed, should a.I.so, beyond elderly misrrearmenr. ' Ir makes sense char some swd ies have indicated rh:u concerned G1se idemif1ca rion , hold our a promise of even a smaJ I increase in reporring due to citizens, nor rho ~e who an.: mandated to sol uti on. " 2 ~ There have been many mandarory reporring sra rures helps report, make the 1mjority or· re ports bein g problems in provid ing adequate in-home decrease rh e overwhelming problem of rco.:ivcd.22 Howev r th ere are orhcr studies services ro elderly individuals over rh e past 11 underreporting." C urrentl y-, 44 srares ' th at ha c cs ri nun.:d an in crea ~e in reports few years. T his includes a sho rtage of and rh e Di srricr o f Columbia1- have of at le:-tsr l 0 pc-rcenr when mandated ava ilable providers and home-care workers, en

38 • .Jl HIS. SPRING 2002 lack of incentive ro prosecuce rh ese kinds in cnminaJ law in addressing che problems community as a whole." On che ocher side ofsui .-~' A5 a limiced response, Cali fo rnia of elder abuse because only the mosr serious of the ~pec [ ru m , 'upporring the family may enacred a civil scaru ce permiccing damages physical elder abuse aces are covered by the lead to a loss of che lderly victim's for che elderly viccim; however, ch cn: is a modern approach of criminal ba u ery, autonomy.'' Sometimes community requirement of clear and co nvi nci11g proof because most emotional abuse an s do noc expeccarions ofi:en exceed whac is possi ble thac a defenda m is liable for p h y~ ical abuse, consti tute criminal assau lt, and because due m preserving an elderly cl ient's right neglecc or fiduciary abuse:h These new crimi nal law does nor sa nction i11fl iccion ro self-keeps rhme prone to elder abus out of berween the desire to aid individuals a11d care-giving siwario ns.''2 the desire ro protect their civil liberri e.~ . ' 11 Additional ly, some stares have taken Supporting rhe clime's right co sclf­ their fight againsc elder ab use rn new levels d ererm ination may place the adul r by providing for enhanced penal cies for protecti ve serv ice workc·r 111 a n crimes aga i ns r rhe elderly.' 1 uncomforc able situation by opposmg the However, there are 11ored inadequacies wishes of the Family, neig hbors, or

.IL HIS • SPRING 200 2 • 39 Imal. '' See CAL. WELF & INST CODE acruaJ ly increasing? Wh arever rhe answer, ~ id l 5600- l 'i675 (\Xlcsr 199 l & Supp. l 998). adulr prorecri ve servi ce sraru res, even wi rh ., fd. ·16 Po lisky, supra nore 49, ar 387 5 currenr limirarions and problems rh ar are '" Ko rpu: . Kymbcrleigh .J., - ld beyond rheir reach, have been a necessary fa·t i11g11ishi11g l11hcri11mce Rights: ~afifornia 18 Moskowitz, supra nore 17, ar 55- means ro raising awareness ro elirninare BrMks New Grouw-1 i11 the Fight Agai11st 56. 1 elder m 1srrearm en r. Moreove r, L!dcr Ahu

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Non-Profit Org. l ~ l{IS U.S. Postage PAID Pi ttsburgh, PA SC H OOL OF LAW • OU [\JU ESNE UN I VERS I TY Permit No. 390 600 FORBE S A V ENU E • PITTS B URGH , P A 1 5 2 8 2 Let's See-Cell Phone, Pager... Are You Dealing?

• John E. Egers. Jr.

a res ulr of District Attorneys' oc her drug distributing paraphernalia money. $ 10,700.00at 226- 233. The rwo irect examinations o f police including a cellubr phone or a pager. cl;iimam s were subjects of a traffic stop o f fficers, resrimony elici red to rhe In another ins ranee ofa eel I phone and J rencal car on lnterswre 295 in Delaware. fac t rhar cellular phones and pagers were a pager being used in drug trafficking, Shaw Id. at 2 19. Afi er con ·enring to a search of recovered from defendants is used to v. Pennsylvania Board of Prohation a11d rhei r p er~ on a l bags, rhe police officer support charges of Posse.5s ion wirh Intent Parole, 7 44 A .2d 382 (2000), rhe di ~co vered rhe w inced currency and to Deliver Controlled Substances (P\X/JD) Commonweal th Coun upheld a search of subsequ en tly d isco vered even more such as c rack cocaine a nd heroin. a parol!ee. Among che condirions to Shaw's rnrrency wh ile searching the claimanrs ar Obviously, the vice officers working rhe conrinued sratus a. a parollee was rhe che police srarion. Id at 219-220. streets may have o h ~erved rhe d ealer's restriction ;ig::iinsr him posses ing "d rug Ah hough n contraband was found operatio ns ftrschand and such xperience paraphernalia' and "any cdlular ph ne or in rhc vehicle or or the occup::tnrs, rhe may be considered when undercover buys bc:eper." Shaw at .?82. Alrhough Sliaw officer no red a heavy odor of air fres hener, occur duo ugh the use o f these was on parole from a semence for robbery two eJl u lar phones, t he claimanrs relecommunicarion devices. Bur where and criminal conspiracy, rherc is nothing nervousness in speaking wirh police, a does tlie prevalence of society's simple use revealed in rhe C o mmonwe:i lrh Courc violari n oCtheir rcnral car agreemem and of digital communication devices end and o pinion indi.cating Shaw's p rev io us the fact rhat the claimam s were from a rhe use of such devices becoming drug narcotics dealings ;ind/or usage. Id Shaw d rug-relatt:d area of Wilmington, North discrihuring parapherna li a begin? T his was subsequencly rc-commin ed to prison C arolina and other facrs in rhe subsequent article will survey rhe ro le ellular phones for technical vio la ri ons of h is parole statemc:nt of probabl cause. Id ar 2 19- and pagers play in es tablishing a PWID scemming from his possession of. among 22 l. The Third ,ircuir ev ntua ll charge in Pennsylvania. A brief review of o ch er things , a cllula r pho ne, pager, overruled the rrial courr fo r lack of probable relevant case law on this issue is therefore narcorics, drug paraphernalia and weapons. cause, but in doing so only dealt wirh rhe appropriare to undersr:ind the status of Id. ar 383. i:sue nf the cdlular phones as cviden e in such devices in PWID cases. T he combinarion of cellula r phones, foomote nine which srared rhat rhe Cour T he nde oflaw in Pennsylvania, as ser pagers and drug ffaftl king w:i.s also pre.< ·nr did nor fi nd the µresence of cell phones, forrh in Commonwealth v. Williams, llie

26 • .J {'H!S • SPRIN G 200 2 Republic lasted only fourteen year:,. '' Id. :n I 76. is Id. ar I G. -' Q L' l0: I , supra nore l , ar 479. "'T he Red ' " Id The l-.,1 r ·;c1 ma11 tirizen.,' responses ;~, Id. ar 7. ·my also annexed a porrion of Poland. shocked \X'est Ccrmany- it was a n ''" M 11111:\X' W P 11.E, 7en Yearso/Basic Law In ord rm compcnsare Poland fo r irs losses, unexpected <..:al l lor change, '\ hich would Amendmmts· Developing a Constitutional rhe Soviet Union propo:-ed rhar some ra ke mrnnhs bdore tlw polic:makcrs in /Vlodcl of Gm nan Unification, 34 VANL>. J. German rerrirory should be Lran forred ro [rhe '\' esr] 1w 1«: :1blc m n;rn rn m rhc all­ T R:\ ~' 1'L L. 6.'3.1(May2001), ar 1.xxis Poland. Tl1e ni red Srares and J::n~IJnd German rhc·mo thar rh ey a nd their .) . were unwiLiing ro agrt:<: m rhis bur did agree prtdeceosor ~ h,1J slowly abanclrn1ed one o r c>1 Id. ar 4. rhar rhe land wo ul d remain under Po li :-. b more d , ,1de, c;.1rli i..: 1. " "~ I< ad Kaiser, D l:.L r :,CHl.A NDS adminisrrarion pending a fin al resolution '' Id. Jc l7':J I EIU-. 1:\J(,L' NC: 0 11 J:-.; 11-. IC-·"AI IU 'Al Ei' m be adopted in a peace conh::rence, which ''' Q t I:\ I , mpm nore l, ;ir 4 8.:1 . WFK IT (Ber isch C laclbach, Germany: never c:nne aliouL Soon, rhe rerrirory was - !cf fhm·i I .uchhe) 1991 . rrea r..:d :is part of Poland. " '' 0.1< n 1\I-, mpnt nore 32. :ir 3, 21 5. '"Id. ar 7.

0 -~ (~ L ' l>:-1 , supra note 1, J t 479. ' I Bi\\(( L \\. A1l <..:k 2 ) , 194 <.J . ,,., Id., ciring Arricle 1::>5(a)(2) ofrhe.5 \ IC ~· 1 Id. at 480. ' " h t;\ I 1 IRl\.O\ 1 1 - ~ . Review Ess ay: LN:. '' Id "kecn 11 cilable D iffc: n.: nce-; : O n [Jcrc r '" Id. J t 4 Liting Arrick 143 of rhe BASIC .>l id. Q uint 's The h 11p erfctt U11i o11 ," 4 7 LI\\ . ~ ~ Id. \1.J .< :u\ll'-L. 189 (Wimer 1999), Jt Lex is Q LIN I ar Lexis 27 ( 1991 ). -'' Q \ 1'- 1, mpra nore 1, at 4 0. 3. '' 13.\ \11 · 1..1\\', as amended, Article 146, 11 1 BA\ IC L \\\ , Preaml.ilt'. 1949 " 13 . \~I<: 1 \\\ , 1\1 tick 146, I 9<1<.J. 199.? ,, Id. 'c (..__t I:\ r at Lexi -, 4. i,s A RJ H LIR B. G t i0/l IC. KS, State (Land) «. Id. '-' e<' Jen n i ~er C1.n ne ki , -r al., "ls an Con.tituriom i11 German)', 3 1 RLrrc,t-:r(\ L F Un less orherwise norecl . :il l rranslations Orderly "lranst\:- r of Rcspomibili ry L»gal J. 97 1 (Su mm r 2000), ar Lexis 7. of rhe Basic Law to Engli sh have been I e\ ~ for Ir eLtn J ;," Juris, Yi: I, Wimer t•q FR )\Vl-IN ar Lexis 2. published :rnd provided br rhc- Pr ss and 200 l , rP· 24-:H . " >!o r onlv was rhc nificarion Tr1:ary Informario n Office uf t he Federal ' . .\ I\, t\.\lr\i\'\ ."chauGl ·," 87 r\. J. l.L. 188 ( 1')93 ), at Lex i ~ rights and r· ponsibilicics relaring ro Berlin

D t\llHI!, fRO.\I l ll l X/\11 "(<) ...>.. and rn .crmany as a whole. United l <"l l-IU'"I<>, (199 1). '' l 't 11 R E. I , The lmf'er{ect Union: ( .erm ny is m have full sovereigncy over "" Q L1'- -1, supm nore 1, ar A8.1-4. <:0;1;///11tio111tl Srnn1ure.1 of Cer111rr11 i rs int crnal ,md external af airs. " fROWLl:--J .i ld. ar 484. I !11ijic11tiu11 ( l ').\\!\, s11prr1 nore 32, ar 17 5. \II \1.:.1'.< l\ I 1' .H 5. ' iVI Al 1'.rn II :-. ar l.i..: xis 1 l.

-" HIS • SPRI N G 2002 • 25 communicarions devices was nm used to phone or p.tger doe. nor add a11y necessary of comrnlled subsr:i nces and evidence of supporr che search warrancs in Torre, chcy e vidence fo r a c h.irge of PW! 0 . sales, especially cash. T he presence of were found along wirh drug paraphernal ia everrh ·lc~s . ~ho ul d a ~iruarion arise lh.u c ·ll ub r p hones and pag rs possibly after execution of rhe ~ ·arch W wid ly use rhem . As communications devices as a fa cror in Police officers are never fooled by this o p po ~ed ro ten years ago, rhe novelty and d e rermining what evidence supports sraremen, and they should not be. the prices of 0\ ning thes devices are no PWID, in Pennsylvania it would be T herefore, PWlD is still charged in longer rh:ir high. As a result, when a police relati vely easier ro make an argument such a siruarion. officer states rhar an accused drug dealer regarding cellular phones and pagers being Cash is alsu a prime indicaror of had in bi!, o r her posse sion a c II phone fo r personal use. The difficulty is in m a.king P\Xll.D: and jusr a. w irh rhe conrrolleJ and a pager, the minds or rh atrorn ys, an argument and proving solely personal suhsrance irsc!F, the mo re you have, rhc and the judge, should question whether rarl1 er than "business" use of such devices ~tro n ge r the case Fo1 PWJO. Yer, rhe h ck rh · accused owm those devices because he o n limited evidence. of cash, or a limited amounr of it, fa ils rn is a drug dealer or because he or she is a Cellular phones and pager certainly n egare a ny PW l D charge when the pe1. on living in the C\venty-flrsr century. • have uses other chan or herd rug trafficking amount of a conrrol.l ed subst:in ·e is too paraphernalia such as seal s, "owe sheers," h igh for p -rso nal use. Quantity ofa j ohn .tgcrs i · a graduating third-year day baggies, "stamp bags" and "diaper. ,. which controlled substance and possession of ·Hh swdmt. He is mrrentLy participating in the have m ore limited uses rhar exclusively are key facrors in pressing forward with a Duquesne Uni;1ersity School ofL aw Ci·irni11aL facilitate drug trafficking. Yer, the presence PWID charge. C ommunications devices Advocaq Clinic. fn conjunction with the ofa cell phone and/or pciger is always m :1 de bolster and rardy unJ ,rcur rho,\e strong CliniL;john is 11 certified legal intern working ki1owu to rhe courr by rhe resrifying officer. fiicrors w hen p resenr. fo r the Alfegha1J1 Counf)' Office oft he Public 1s rbis fact necessary to supporr a PWlD In co ncl11sion , PWfD ch arges rcsr D£je11der harge when the accused has bc.:cn found srro ngly o n eviclcnce oC excessive quant ity in possc"sion of forty seven individ ually wrapped pieces of crack cocaine' The quantity ofrhc com rolJed substance found 0 11 rhe accused h as alway .~ bee11 rh e conrrolling facror ind rermining whether to charge PWID in addition ro a charge of possession of a controlled subsL:incc. O bviously, the smaller amount of drugs possessed, the more likely his or he r possession is for per onal use. In sirnarions li ke the possessio n of forty-seven pieces of crack cocaine, being in posse- ion ofa cell lLlustration by David Katz, Paraleg11! Student, Duquesne I lni11ersit)' f'amlegal fnstit11tc -~ <><>

Jl 'HIS • S PRIN C3 2 002 • 27 The Fight of Southern Attorney P. Walter Jones: Overturning "Yellow Paper-Black Man" Discrimination in the Georgia Jury System and Desegregating the Georgia Prison System

• Mariah Snoddy

Editor .( Note: Mariah S1101/dy's story was represe111mi1m rf11 hlr1ch 1111m charged wem in. i

1 with rfl)' siblings. Awu Eilel'n told me investi ga rc Jnd d isco\· ·rn l rhat an \ as pushed about four mil es, aFcer wh ich that Uncle Walter w1:11 t heffne the ;iuromobile liaJ run off rhc ro ::J.d and into Davis fired one shot inm rhe farmer's head. United States Supre11te Court tlefe11ding a dir -h.- T he v hick wa~ dri ve n and His body then fell our of rhc car and Davis a black man, and particularfy about belonged ro Leun Davi~ and conrained fired three more shots imo his head. how surprised she was when one ofthe rl1ree p;1~~cn gers . One p a;~cnge r was Phil Whitus was ordered ar gu npoint tO race justices asked the attorlH'.J'S why there Whirus. II four oF rhe men were black, the engine of rhe Davis car ro muffle rhe were doc1mr.ents on both yellow and and i11 1ox.iCJre

28 • .J("JUS • 5 P R ING 2 00 2