Allegheny County Bar Association 400 Koppers Building, 436 Seventh Avenue Pittsburgh, PA 15219-1818 Address Service Requested Non-Profit Org. U.S. Postage PAID Pittsburgh, PA Permit #130 Vol. 18 No. 18 September 2, 2016 The Journal of the Allegheny County Bar Association Meehan Citizenship Institute helps immigrants become active citizens By Mark Higgs When the John A. Meehan Citizenship Institute launched its inaugural program last month, it continued its namesake’s legacy of welcoming immigrants to America and encouraging them to become active members of society. Created by a generous donation from ACBA member Attorney Jacqueline Martinez to honor the memory of her late husband, the named fund was established to help low-income immigrants apply for citizenship and to inspire them to become active and knowledgeable participants in the American political process. More than mere preparation for a citizenship exam, the institute empowers new U.S. citizens and those seeking citizenship by exposing them to a comprehensive curriculum that incorporates practical exercises and skills into a civic education. Martinez, a naturalized U.S. citizen, immigrated to the U.S. from El Salvador when she was 6. She said her parents were lucky in that they were able to find jobs and bring all six of their children here legally. An attorney who practices immigration law, she notes that what her parents accomplished is no longer possible, thanks to current immigration laws. The reasons why Martinez created the fund go much deeper than her route to citizenship. By establishing the fund, she is fulfilling her late husband’s desire to see more immigrants become U.S. citizens and ensure they stay involved in their communities and government. “My husband was an advocate of education and felt that it was our responsibility to educate people and keep them engaged in the political process,” Martinez said. Meehan was a 20-year veteran of the Coast Guard. After he retired, Martinez encouraged him to apply for a position as an immigration officer. She said he loved working for the INS and later the USCIS, and she recalls how he would come home from work and tell her about new citizens, where they came from and their path to immigration. “He enjoyed meeting immigrants and talking to immigrants, especially when applying for naturalization,” Martinez said. “We often talked about how many immigrants needed legal counsel but were not able to hire an attorney; how they were often taken advantage of and that to become a fully-engaged, educated new citizen was the catalyst for change.” “He believed in the ‘American immigrant dream.’ He also believed that people were good, and he treated everyone with respect and dignity.” Meehan was diagnosed with stage-4 cancer in 2011 and died in August 2015. “John literally worked until the day he died,” Martinez said. “He was a dedicated man to his family, work and friends. We chose to set up the named fund because we wanted to honor him in a way that the funds could reach the most people and help those in need.” Anthony Kuzma, Allegheny County Bar Foundation development assistant, developed the institute’s curriculum. Having taught courses on U.S. civics and government for two semesters in Bulgaria last year, Kuzma was able to identify essential lessons for foreign-born students. The curriculum is so comprehensive it could even benefit native citizens. Some of its practical aspects include teaching people seeking citizenship how to renew their driver’s license, get a flu shot for a child, register to vote, obtain a birth certificate, pay a A LOT TO TALK ABOUT Zittrain Forums welcomes Frum, Wagner to talk politics By Brian Estadt With polls showing historically low favorability ratings for both the Democratic and Republican presidential nominees, it’s no surprise that many Americans worry about the future of the country. But political analysts David Frum and Alex Wagner say it’s the political parties themselves that are in trouble. Though they come from opposite ends of the political spectrum – Frum was a speechwriter for President George W. Bush and Wagner was a familiar face to MSNBC viewers – the two senior editors for The Atlantic agree that this presidential election is unprecedented. They’ll dissect the issues at play when the Zittrain Forums on Law & Public Policy brings them to town to talk politics on Sept. 22. Organized by the Allegheny County Bar Foundation, the Zittrain Forums on Law & Public Policy is made possible by a $150,000 bequest by Lester and Ruth Zittrain. The forums provide educational and topical programs to lead to a better understanding of the complex issues confronting our government and legal systems. Frum and Wagner spoke to the Lawyers Journal on July 26. Although this campaign seemingly has produced a new issue each day, the conversation focused on its overall themes how this election could impact politics in the future. On the parties’ futures Frum – who has penned eight books, including “Why Romney Lost” and his memoir of the Bush administration, “The Right Man” – worries that during this election the world is hearing a message that is different than the one he says America actually is sending. The conservative commentator is disheartened that it’s the Republican candidate misrepresenting American sentiment. “The message that the world will hear is that there is a large part of American society that wants to resign from American (global) leadership, that wants to turn America into a PHOTO BY MARK HIGGS Anthony Kuzma, ACBF development assistant; Barbara Griffin, ACBF Pro Bono director; and Jacqueline Martinez, owner of JBM Legal; represent the John A. Meehan Citizenship Institute – a program designed to teach immigrants how to be active U.S. citizens. Kuzma developed the program’s curriculum, Griffin handles its legal aspects, while Martinez donated the funds to make it all possible. Continued on page 4 Continued on page 12 If you’re going Frum and Wagner will discuss the 2016 election on Thursday, Sept. 22, during a Zittrain Forums event at the Omni William Penn Hotel. Registration and lunch starts at 11:30 a.m., and the program starts at 12:15 p.m. A question-and-answer session will begin at 1:15 p.m. Cost is $50 for ACBA members and $65 for nonmembers. To register, see www.acbf.org.
Transcript
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Vol. 18 No. 18 September 2, 2016The Journal of the Allegheny County Bar Association
Meehan Citizenship Institute helpsimmigrants become active citizensBy Mark Higgs
When the John A. Meehan CitizenshipInstitute launched its inaugural programlast month, it continued its namesake’slegacy of welcoming immigrants toAmerica and encouraging them tobecome active members of society.Created by a generous donation from
ACBA member Attorney JacquelineMartinez to honor the memory of herlate husband, the named fund wasestablished to help low-incomeimmigrants apply for citizenship andto inspire them to become active andknowledgeable participants in theAmerican political process. More thanmere preparation for a citizenship exam,the institute empowers new U.S. citizensand those seeking citizenship by exposingthem to a comprehensive curriculumthat incorporates practical exercisesand skills into a civic education. Martinez, a naturalized U.S. citizen,
immigrated to the U.S. from ElSalvador when she was 6. She said herparents were lucky in that they wereable to find jobs and bring all six oftheir children here legally. An attorneywho practices immigration law, shenotes that what her parentsaccomplished is no longer possible,thanks to current immigration laws.The reasons why Martinez created
the fund go much deeper than herroute to citizenship. By establishingthe fund, she is fulfilling her latehusband’s desire to see more immigrantsbecome U.S. citizens and ensure theystay involved in their communitiesand government.“My husband was an advocate of
education and felt that it was our
responsibility to educate people andkeep them engaged in the politicalprocess,” Martinez said.Meehan was a 20-year veteran of
the Coast Guard. After he retired,
Martinez encouraged him to apply fora position as an immigration officer.She said he loved working for the INSand later the USCIS, and she recallshow he would come home from work
and tell her about new citizens,where they came from and their pathto immigration. “He enjoyed meeting immigrants
and talking to immigrants, especiallywhen applying for naturalization,”Martinez said. “We often talked abouthow many immigrants needed legalcounsel but were not able to hire anattorney; how they were often takenadvantage of and that to become afully-engaged, educated new citizenwas the catalyst for change.”“He believed in the ‘American
immigrant dream.’ He also believedthat people were good, and he treatedeveryone with respect and dignity.”Meehan was diagnosed with stage-4
cancer in 2011 and died in August 2015.“John literally worked until the day
he died,” Martinez said. “He was adedicated man to his family, work andfriends. We chose to set up the namedfund because we wanted to honor himin a way that the funds could reach themost people and help those in need.”Anthony Kuzma, Allegheny County
Bar Foundation development assistant,developed the institute’s curriculum.Having taught courses on U.S. civicsand government for two semesters inBulgaria last year, Kuzma was ableto identify essential lessons forforeign-born students.The curriculum is so comprehensive
it could even benefit native citizens.Some of its practical aspects includeteaching people seeking citizenshiphow to renew their driver’s license,get a flu shot for a child, register tovote, obtain a birth certificate, pay a
A LOT TO TALK ABOUTZittrain Forums welcomes Frum, Wagner to talk politics
By Brian Estadt
With polls showing historically lowfavorability ratings for both theDemocratic and Republican presidentialnominees, it’s no surprise that manyAmericans worry about the future ofthe country. But political analystsDavid Frum and Alex Wagner say it’sthe political parties themselves thatare in trouble.Though they come from opposite
ends of the political spectrum – Frumwas a speechwriter for PresidentGeorge W. Bush and Wagner was afamiliar face to MSNBC viewers – thetwo senior editors for The Atlanticagree that this presidential election isunprecedented. They’ll dissect theissues at play when the Zittrain Forumson Law & Public Policy brings them totown to talk politics on Sept. 22.Organized by the Allegheny County
Bar Foundation, the Zittrain Forumson Law & Public Policy is madepossible by a $150,000 bequest byLester and Ruth Zittrain. The forums
provide educational and topical programsto lead to a better understanding ofthe complex issues confronting ourgovernment and legal systems.Frum and Wagner spoke to the
Lawyers Journal on July 26. Althoughthis campaign seemingly has produceda new issue each day, the conversationfocused on its overall themes howthis election could impact politics inthe future.
On the parties’ futures
Frum – who has penned eightbooks, including “Why Romney Lost”
and his memoir of the Bushadministration, “The Right Man” –worries that during this election theworld is hearing a message that isdifferent than the one he says Americaactually is sending. The conservativecommentator is disheartened that it’sthe Republican candidate misrepresentingAmerican sentiment.“The message that the world will
hear is that there is a large part ofAmerican society that wants to resignfrom American (global) leadership,that wants to turn America into a
PHOTO BY MARK HIGGS
Anthony Kuzma, ACBF development assistant; Barbara Griffin, ACBFPro Bono director; and Jacqueline Martinez, owner of JBM Legal;represent the John A. Meehan Citizenship Institute – a programdesigned to teach immigrants how to be active U.S. citizens. Kuzmadeveloped the program’s curriculum, Griffin handles its legal aspects,while Martinez donated the funds to make it all possible.
Continued on page 4
Continued on page 12
If you’re goingFrum and Wagner will discuss the 2016 election on Thursday, Sept. 22,during a Zittrain Forums event at the Omni William Penn Hotel.Registration and lunch starts at 11:30 a.m., and the program starts at12:15 p.m. A question-and-answer session will begin at 1:15 p.m.Cost is $50 for ACBA members and $65 for nonmembers. To register, see www.acbf.org.
Page 2 / September 2, 2016
l a w y e r sJ o u r n a l
Gender Bias Duty OfficersIf you (attorneys or law students) haveobserved or experienced any form of genderbias in your role as an attorney or lawstudent intern, you may contact any one ofthe following members of the Gender BiasSubcommittee of the Women in the LawDivision on a daily basis. The duty officerswill keep your report confidential and willdiscuss with you actions available throughthe subcommittee.
Kimberly Brown......................412-394-7995
Rhoda Neft ..............................412-406-5434
Jill M. Weimer ........................412-201-7632
Ethics HotlineThe ACBA Professional Ethics Committee“Ethics Hotline” makes available CommitteeMembers to answer ethical questions bytelephone on a daily basis.
SeptemberJohn F. Becker ........................412-921-1605
James G. Gordon ....................412-232-0333
Cathy Martin ..........................412-586-6118
OctoberNancy L. Heilman ..................412-297-4900
Romel L. Nicholas ..................412-391-6920
Mark Vuono ............................412-471-1800
THE FULL TEXT AND/OR HEADNOTES FOR THE CASES BELOW APPEAR INTHE ONLINE, SEARCHABLE PLJ OPINIONS LOCATED AT WWW.ACBA.ORG.
Cynthia A. Patterson, Robert C. Swartzwelder, and Lynne A. Swartzwelder v.Fidelity National Title Insurance Company and Fidelity National Title Insurance Company of New York
Shariee L. DeCooman v. Lawyers Title Insurance Corporation, Wettick, Jr., J. ......................................................................................Page 229Class Action—Unfair Trade Practices—Title Insurance Rates
Court, at this juncture of the proceedings, granted motion to certify class, based upon failure of Title Insurance Companiesto provide “re-issue” discounts when applicable under TIRBOP Manual under UTPCPL issues.
Commonwealth of Pennsylvania v. Rayshawn Williams, Lazzara, J. .........................................................................................................Page 240Criminal Appeal—Homicide (1st Degree)—VUFA—Suppression—Weight of the Evidence—Hearsay—Right to Remain Silent—Suggestive Identification—Gang Book—Harmless Error
Suppression is not required when a defendant who had invoked his right to remain silent re-initiates a conversation by asking“What’s this about?”
Commonwealth of Pennsylvania v. Donnell Shields, Jr., McDaniel, J. ......................................................................................................Page 249Criminal Appeal—SORNA—Motion to Enforce Plea Agreement—No Proof of Negotiated Term
Where the record does not support claim that no Megan’s Law registration was a part of the plea, defendant cannot avoidregistration requirements.
Commonwealth of Pennsylvania v. Davon James a/k/a Davon Jones, McDaniel, J. ...............................................................................Page 250Commonwealth Appeal—Suppression—Search of Parolee’s Residence—Reasonable Suspicion
Parolee obtained a traffic citation and reported a day late because of hospitalization; parole officer had no reason to searchunder couch cushions.
PHOTOS BY JOCELIN HERSTEK
Attorney Ashley Rai-mondo, above, organizesbinders that were pairedwith backpacks full ofschool supplies beforethe Lincoln Park Commu-nity Center Food Pantryopened on Aug. 13. ThePenn Hills giveaway waspart of the ACBA/ACBFBackpack Project.
Joi Lavender of Penn Hillsreceives her backpack fromvolunteers. Joi noted she wasexcited to start school in just afew short weeks.
Raimondo, Megan Sleiba and JoshSellman listen as Jane Carpenterdiscusses how previous food bankswere organized. Carpenter hasattended three of the food banksprevious to the Backpack Project.
BackpackProject
September 2, 2016 / Page 3
“Lorrie is a great people person, soI’m confident that she’ll excel in herrole,” Pataki said. “And her greatsense of humor will guarantee thateveryone has a good time getting thenecessary work done.”Albert is honored to lead the
national organization.“I want to continue to bring in first-
rate speakers for our programs andstrengthen our membership and ourrelationship with our bar associationsand communities,” she said. “Ourprogramming is a top priority.”She anticipates that the biggest chal-
lenge will be securing the best speakersthrough sponsorships and innovative ideaswithout relying solely on an increase indues and program registration fees.“The rewards of excellent program-
ming are that I will obtain practicalinformation that I can bring back tomy staff and implement at our
foundation,” Albert said. “I am proudto represent our local foundation on anational level.”The NCBF furthers the work of bar
foundations by promoting their role inadvancing law-related philanthropyand by serving as a resource to assistthem in carrying out their charitablemissions. As president, Albert willhelp set priorities for the board,identify speakers for programs, beengaged with conference committeesand lead the annual retreat where astrategic plan is developed.ACBF President Richard Wiedman
said Albert’s election to this nationalposition is a testament to her commitmentto the success of the local foundation.“Her accomplishments at the ACBF
have been astounding. As she takes herknowledge of legal-related charitablepursuits to the national stage, it willreinforce the reputation that theACBF currently enjoys in no smallpart as a result of her ongoing effortshere in Pittsburgh,” Wiedman said.“Everyone involved with the ACBF –our staff, volunteer attorneys, trusteesand the individuals we serve – can
take pride in Lorrie’s election to thisimportant position.”ACBA Executive Director David A.
Blaner has seen Albert’s first-ratework at guiding the local foundationand believes she will be an asset at thenational level, as well.“I have the pleasure of watching
Lorrie perform her work every day,and she truly has the passion andunique skills necessary to excel in thebar foundation environment,” Blanersaid. “She has taken our foundation tonew heights, and I am confident shewill do the same for the NCBF.”Albert joined the ACBF in 2005 as
its pro bono coordinator and quicklygained a reputation as a go-getter. Shewas named foundation director in2007 and became associate executivedirector in 2014. As a direct result of Albert’s
leadership, the foundation has expandedits programs and attracted significantfinancial support from law firms andmembers of the bar association. Shehas created more than 20 new pro bonoprograms and fundraising initiatives.Today, the foundation oversees 50charitable and pro bono programs, alongwith 16 named charitable funds. She alsohas worked hard to grow the endowment,which is used to support legal servicesorganizations through grants.“We are a very busy foundation
with great, cutting-edge programs andservices,” Albert said. “Serving aspresident will allow me to direct thefuture of the NCBF and the ACBF innew and innovative ways. This newposition gives me the opportunity tobecome a more resilient leader.” n
ACBF’s Lorrie Albert elected to lead NCBFBy Tracy Carbasho
Lorrie Albert’s achievements withthe Allegheny County Bar Foundationhave transcended expectations andnow colleagues are anxious to seewhat she will accomplish as presidentof the National Conference of Bar Foundations.“I’m looking forward to working with
her in the coming year, and I can’twait to see what great things she hasin mind for the NCBF during her yearas president,” said Leonard Pataki,immediate past president of theNCBF’s Board of Trustees. “She hasbeen such a great part of our boardand has contributed in so many waysthat it’s hard to list them all.”Albert, who will continue to serve
as associate executive director of theACBF, has been involved with theChicago-based conference in variouscapacities since 2007. She acceptedthe ceremonial gavel to begin herone-year presidency during theorganization’s annual meeting inSan Francisco on Aug. 6.Pataki said one of Albert’s biggest
contributions to the national organi-zation so far was the work she didchairing its programming committeeover the past year. He recalls howtirelessly she worked to get some ofthe best speakers the organizationhas ever had at its mid-year andannual meetings.He jokes about her unparalleled
ability to dunk a basketball andstresses that her high energy leveland tenacity will ensure a productiveyear as president.
Lorrie Albert
412-281-2200www.gislaw.com 310 Grant St., Ste. 700, Grant Bldg., Pgh., PA 15219
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Her accomplishments at the ACBF“
”
have been astounding. As she takes herknowledge of legal-related charitablepursuits to the national stage, it willreinforce the reputation that theACBF currently enjoys in no smallpart as a result of her ongoingefforts here in Pittsburgh.
– Richard Wiedman, ACBF president
Page 4 / September 2, 2016
traffic ticket and talk to a police officer.One particular lesson requires studentsto identify an issue in the local communityand an appropriate representative tocontact. They then practice writing abrief letter that explains the problemand offers a solution.“The institute is not only a preparation
course to pass the citizenship exam,but also preparation for life as a U.S.citizen,” Kuzma said. “The course isintended to teach an understanding ofthe United States government throughpractice rather than memorization offacts. We want new citizens to volunteerin their communities, attend their localschool board meetings, engage with localrepresentatives and run for office.”Sixteen students were invited to
attend the first class at the GreaterPittsburgh Literacy Council’s Familiesfor Learning Center in Baldwin Borough.After the pilot program concludes inOctober, the GPLC could begin offeringregistration for additional classesbeginning in January. During the pilotprogram, there are two two-hour classeseach week.There are plenty of programs that
prepare immigrants for the citizenshiptest by focusing primarily on English-as-a-second-language skills. What setsthe Meehan Citizenship Instituteapart is an emphasis on encouragingparticipants to become active citizens.“There are no other programs like
our program,” Kuzma said. “Ours is suitedfor immigrants who have developedtheir English-speaking skills and whoare able to comprehend and understandmore difficult concepts. The program’svalue is largely centered on how to bean active citizen in other ways besidessimply voting. We don’t want citizens to
blend into their communities orexclusively interact with only those ofthe same ethnicity.”Immigrants who want to become
American citizens often need help withthe naturalization application and mayface other legal issues without theability to afford an attorney. That’s whyit’s vital to have attorneys such asACBF Pro Bono Center DirectorBarbara Griffin and other ACBAmembers lending their expertise to theInstitute. Griffin will recruit and trainvolunteer lawyers to represent low-income immigrants and refugees who
are applying to become naturalizedU.S. citizens.With Pittsburgh’s immigrant
population increasing, Kuzma said it’scritical to offer such classes to as manypeople as possible to ensure they areinformed on how to become active andengaged citizens. He stresses that theInstitute will help people becomecitizens, but that it will, in turn, benefitthe nation as a whole.“Immigrants have and always will
make this country great,” he said. “Wewant to encourage them to be leadersin the community and take an active
role in showing what it means to be anAmerican, no matter who you are orwhat you look like or where youcame from.”Martinez brought her idea for the
named fund to the bar foundationbecause of its track record of productivework in the local community, particularlylegal assistance for low-income residents.After researching other foundationsand organizations, Martinez chose theACBF to receive her donation. “As anattorney, I believe we all have anobligation to provide pro bono legalservices to those who need it.” n
T A C
�e Inauguration � Kenneth G. Gormley, J.D.
13 P D U
THURSDAY, THE TWENTY-SECOND OF SEPTEMBER
T
A ’
I D U' A. J. P C
1304 Forbes Avenue | Pittsburgh, Pennsylvania
For more information, visit duq.edu/inauguration.
MEEHAN CITIZENSHIP INSTITUTE continued from front cover
PHOTO BY KRYSTINA WINTERMYER
Students at the John A. Meehan Institute pilot class included — front, from left — Cherry Sung and Kyaw NyutTharsein and, in back, Hari Prasad Sharma and Ma Myint. Classes are held twice a week in Baldwin atGreater Pittsburgh Literacy Council’s Families for Learning Center.
September 2, 2016 / Page 5
Mediation and Arbitration/Civil Litigation
• Resolved over 1,500 cases through Mediationand Arbitration (UM/UIM)
• Practicing Civil Trial Lawyer with over 35 years experience representing plainti�s and defendants (auto, premises, products liability, medical malpractice, bad faith,workers comp)
• Knowledge of insurance coverage disputes and primary/excess insurance coverages
• Member - Academy of Trial Lawyers of Allegheny County
• Approved Mediator - U.S. District Court, Western Districtof PA
• Invited Member - The National Academy of Distinguished Neutrals (NADN)
HARRY M. PARASAttorney at Law
428 Boulevard of the AlliesSuite 300Pittsburgh, PA 15219
Birchfield ruling disrupts longstanding DUI proceduresBy David J. Shrager
On June 3, the Supreme Courtdecided the case of Birchfield v. NorthDakota, and in so doing, the justicesheld that a blood draw, incident to aDUI arrest, is a constitutionallyprotected search that is subject to thewarrant requirements of the FourthAmendment. Laws that provide for anincreased criminal penalty for refusingto provide a blood sample weresimilarly held unconstitutional. As aresult, Pennsylvania DUI law hasbeen disrupted, and the fallout isbeing felt throughout the Commonwealthas defense attorneys attempt to exploitnewfound loopholes, and individualcounty prosecutors and police agenciesstruggle to determine how to properlyprosecute the nearly 50,000 annualDUI arrests. The Birchfield Court determined
blood testing to be an invasive procedurethat provides law enforcement withmuch more personal information thanmerely a blood-alcohol reading. Thejustices decided the Constitutionrequires a warrant for blood, partiallybecause a breath test remainsavailable as a less-invasive means ofobtaining this evidence. Warrantlessbreath tests remain permissible as asearch accompanying a lawful arrest. The Pennsylvania DUI statute
establishes a tiered system in whichthe penalties for driving under theinfluence increase depending on thelevel of alcohol in the defendant’sblood and the number of previous DUIconvictions the defendant hasreceived. People who are arrested onsuspicion of DUI are required by law
to provide either a breath or bloodsample to law enforcement. UnderPennsylvania law, which test to requestis in the officer’s discretion, andrefusal to provide the requested sampleresults in defendants being regarded –for purposes of sentencing – as thoughtheir blood-alcohol levels were in thehighest tier. Prior to requesting thetest, the arresting officers read to thedefendant a warning concerning theincreased penalty for refusal. Since 2013,the Pennsylvania State Police, as well asmany municipal police departments,have relied solely on blood testingbecause the breath machines theypreviously used were expensive andtheir reliability was under scrutiny.Higher criminal penalties for
refusing to participate in a warrantlessblood draw now are clearly in violationof Birchfield. Defendants who refuseda blood test now have the benefit ofbeing charged and sentenced in the
lowest tier, which indicates generalimpairment but not a specific blood-alcohol amount. For those accused of afirst-time offense, this has the practicaleffect of eliminating what otherwisewould have been a mandatory 72hours of incarceration. For those facingat least their third DUI offense, thisreduces the minimum length oftheir sentence from a mandatory yearof state prison to just 10 days ofincarceration. The maximum penaltiesalso would decrease – in someinstances, by as much as three years.Beyond refusals, those defendants
who consented to a blood draw arelikely also in luck. For a consentsearch to be valid, it has to be voluntaryand free from undue coercion. Ifconsent was given only after beingadvised that refusal to comply wouldresult in increased penalties, it is likelythat a court would find that consentinvoluntary. The result would be thesuppression of the blood evidence.The consequences of this likelywould be the same as above – thecommonwealth would have to makeits case solely on the officer’sobservation and proceed on the lowesttier, general impairment.
There still are options for policeofficers attempting to get a blood-alcohol content reading to use asevidence. Municipalities can worktogether to provide breath-testingsites despite fewer machines.The warning that local officers
read to suspects has been amended sothat it does not include the coercivelanguage concerning harsher punish-ment, but it does warn that a refusalstill will result in an additional year-long license suspension. Birchfield doesnot seem to apply to civil penalties,making the additional license suspensionvalid. Officers still can seek consentfor blood draws by reading theamended warnings, and if a suspectrefuses consent, a night court judgecould be made available so that anofficer could seek a search warrant.Until the legislature changes the
law to comply with Birchfield, lawyers,police and courts will have to continuecrafting new arguments and navigatethe new landscape. n
David J. Shrager is the CEO and managingpartner at David J. Shrager andAssociates, and he serves as a judge onthe Court of Judicial Discipline.
David J. Shrager
For those accused of a first-time offense, this has the practical effect“
”
of eliminating what otherwise would have been a mandatory 72hours of incarceration. For those facing at least their third DUIoffense, this reduces the minimum length of their sentence from amandatory year of state prison to just 10 days of incarceration. Themaximum penalties also would decrease – in some instances, by asmuch as three years.
Page 6 / September 2, 2016
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FromConflicttoResolution.
Cooperative Justice: Proportionality andcooperation under the new Rule 26(b)(1)By Jaclyn Faulds and
Rhonda Wasserman
As most of us are well aware,significant amendments to the FederalRules of Civil Procedure becameeffective Dec. 1, 2015. So now that thedust has settled, what impact have thechanges had on litigating discoveryand e-discovery disputes in particular?When asked that very question,
judges in our district have stated thatnow that proportionality is central tothe discovery analysis, cooperationbetween counsel both inside andoutside the courtroom is moreimportant than ever. As recently asApril 11, in the case of Vay v. Huston,Judge Nora Barry Fischer stated thatthe court was “chagrined to see theextent to which the parties have litigatedtheir disputes, despite myriad oppor-tunities provided by the Court for theparties to meet and confer and resolvethem amicably, inexpensively, andquickly.”1 Although Fischer ultimatelyfound that the extensive discoverytaken in Vay was proportional to theneeds of the case, her frustration withover-litigated discovery disputes reflectedthe sincere hope and expectation thatlawyers will “wor[k] together to cometo a resolution”2 before seekingjudicial intervention. Fischer’s hope isshared by four district and magistratejudges serving on the U.S. DistrictCourt for the Western District of Penn-sylvania – Judges Donetta W. Ambrose,Joy Flowers Conti, Cynthia Reed Eddyand Lisa P. Lenihan – who have signedthe Sedona Conference’s CooperationProclamation. The proclamation callsfor a “paradigm shift” in discovery toeffectuate Rule 1’s commitment toa “just, speedy, and inexpensivedetermination of every action.”Like the cooperation proclamation,
the December 2015 amendment to Rule26, which brings the proportionalityanalysis front and center, is designed
to advance Rule 1’s ultimate objective.As amended, Rule 26(b)(1) states that“[p]arties may obtain discoveryregarding any nonprivileged matterthat is relevant to any party’s claim ordefense and proportional to the needsof the case....” Acknowledging thatdiscovery, and particularly e-discovery,can be costly, the revised rule lists anumber of factors to consider in gaugingthe proportionality of discovery,including “the importance of theissues at stake in the action, theamount in controversy, the parties’relative access to relevant information,the parties’ resources, the importanceof the discovery in resolving theissues, and whether the burden orexpense of the proposed discovery out-weighs its likely benefit.” Courts havemade clear that “‘no single factor isdesigned to outweigh the other factorsin determining whether the discoverysought is proportional.’”3 A recentdecision by an Eastern District judgeemphasized the “collective responsi-bility” shared by the parties and thecourt in considering proportionality inthat the party seeking discovery doesnot have “the burden of addressing allof proportionality considerations.”4
In addition to the renewed emphasison proportionality in Rule 26(b)(1),the December 2015 amendments elim-inated language that had previouslypermitted discovery of relevant butinadmissible information that appeared“reasonably calculated to lead to thediscovery of admissible evidence.”The advisory committee noteaccompanying the December 2015amendments explained that thephrase had been incorrectly used todefine the scope of discovery. Toprevent its misuse, the “reasonablycalculated” language was deleted andreplaced with a direct statement that,“[i]nformation within this scope ofdiscovery need not be admissible inevidence to be discoverable.” Yet,despite the deletion of the “reasonablycalculated” language, some courtsstill refer to the phrase. In an opinion issued on Feb. 29, Magistrate Judge Joseph F. Saporitoof the Middle District of Pennsylvania stated that “discoveryneed not be confined to items ofadmissible evidence but may encom-pass that which appears reasonablycalculated to lead to the discovery ofadmissible evidence.”5So, with the “reasonably calculated”
language hanging around like a house-guest after three days, what can werealistically expect from the recentamendments to the federal rules? Inhis 2015 year-end report, Chief JusticeRoberts of the U.S. Supreme Courtstated that he was “motivated to addressthe subject [of our legal culture] nowbecause the 2015 civil rules amend-ments provide a concrete opportunityfor actually getting something done.”Roberts applauded the changes toRule 26 because “civil litigation has
become too expensive, time-consuming,and contentious, inhibiting effectiveaccess to the courts.” He viewed Rule26(b)(1) as embodying a fundamentalprinciple “that lawyers must size andshape their discovery requests to therequisites of a case [and] eliminateunnecessary or wasteful discovery.”But the responsibility is not bornesolely by parties and their attorneys.In Roberts’s view, “Judges must bewilling to take on a stewardship role,managing their cases from the outsetrather than allowing parties alone todictate the scope of discovery and thepace of litigation.” Thus, lawyers andjudges alike must “affirmatively searchout cooperative solutions, chart a cost-effective course of litigation, andassume shared responsibility...toachieve just results.”Recent judicial decisions since the
amendments were adopted revealboth an expectation that the partieswill narrow the scope of their discoveryrequests and an unwillingness toemploy proportionality to deny discoveryaltogether. The best way for attorneysto engage in Rule-abiding discovery isto meet early, communicate often, andseek to resolve discovery disputesamicably, efficiently, and preferablyout of the courtroom. n
Jaclyn E. Faulds is an active member ofthe Legal Technology and E-DiscoveryCommittee of the Allegheny County BarAssociation and an Associate atStonecipher Law Firm where she focusesher practice on corporate law, commerciallitigation and insolvency matters. RhondaWasserman is a Professor of Law at theUniversity of Pittsburgh School of Law,where she teaches Civil Procedure,Transnational Litigation, Conflict of Laws,and a seminar in Electronic Discovery.During the Fall 2016 semester, shewill be a Visiting Professor at HarvardLaw School.
1 Vay v. Huston, Civil Action No. 14-769,2016 U.S. Dist. LEXIS 48534 at *16 (W.D.Pa. April 11, 2016).
2 Id.3 Capetillo v. Primecare Med., Inc., Civ.
Action No. 14-2715, 2016 U.S. Dist. LEXIS85056, at *4 (E.D. Pa. June 28, 2016) (quotingBell v. Reading Hosp., Civ. No. 13-5927,2016 U.S. Dist. LEXIS 4643, 2016 WL162991, at *2 (E.D. Pa. Jan. 14, 2016)).
4 Id. (citations omitted).5 Haines v. Cherian, Civil No. 1:15-cv-
00513, 2016 WL 831946, at *3 (M.D. Pa.Feb. 29, 2016) (quoting Clemens v. N.YCent. Mut. Fire Ins. Co., 300 F.R.D. 225, 226(M.D. Pa. 2014) (citations omitted)).
Jaclyn Faulds Rhonda Wasserman
www.pittsburghlegaljournal.org
September 2, 2016 / Page 7
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ACBA’s Keating chairs national diversity committeeBy Tracy Carbasho
A new position with the NationalAssociation of Bar Executives willenable Alysia Keating to gauge thediversity and inclusion efforts ofthe legal profession throughout theUnited States.Keating, who will continue working
as the ACBA director of diversity andgender equality, took over as chair ofthe NABE Diversity DevelopmentCommittee on July 1 and will serve a one-year term. She expects to bring homenew ideas and to help other bar associ-ations promote diversity and inclusion.“I am honored to have a national
platform on which to continue to dothis valuable work,” she said. ACBA Executive Director David A.
Blaner is confident that Keating willhelp other bar associations move theirdiversity agendas forward. “We are fortunate to have Alysia
leading our diversity efforts here atthe ACBA,” he said. “While there isstill much work to be done promotingdiversity and inclusion within thePittsburgh legal community, we haveseen significant positive changes onthis front, and much of the credit goesto her.” Since joining the NABE in 2013,
Keating has heard from executives ofmany bar associations about how theyare addressing the challenges offurthering diversity. She believeslegal organizations across the nationface similar challenges but havedifferent ideas about how to addressthe issues. She hopes to help otherassociations become as pioneering asthe local legal community.
“The ACBA continues to be one ofthe only metropolitan bar associationsto have a staff member devoted todiversity and inclusion. The work wedo rivals that being done by manystate bar associations with far greaterresources,” Keating said. “That beingsaid, we are always willing to hearabout new initiatives and to considerimplementing new programs.”Gregory Conyers, who preceded
Keating as committee chair, saidbeing part of the national associationenables members to share ideas fromdifferent geographical regions. “Hearing from colleagues who do
this work around the country abouttheir successes and failures is perhapsthe best aspect of participating in theNABE committee work and attendingtheir meetings,” said Conyers, director ofdiversity for the State Bar of Michigan.
“Sharing ideas allows a person toconsider alternative approaches.”He said Keating was a tremendous
asset as the national associationdeveloped its diversity survey overthe past year to look at the initiativesbeing undertaken by bar associationsnationwide. She used her insights fromworking at the ACBA to help developmaterial for the survey questions andthe executive summary.“Alysia has been a great contributor
to the group. She is a good listenerwith a knack for getting to the heart ofa comment with careful questioning,”Conyers said. “I think she exhibits theleadership skills necessary to move aconversation forward and manage adiscussion in a way that values thetime of the volunteers who serve onthe committee.”Keating said one of her objectives
will be to analyze the survey resultsand make the information available tothe national members. This marks thefirst time the group has conductedsuch a survey, which will be aresource for members who want abetter understanding of what otherbar associations are doing. The surveywas completed in its entirety by 68bar associations and to some extent byanother 87.“We can’t move the needle
overnight or even in the course of theyear that I am chair of this importantcommittee, but we can continue to
move in the right direction by educatingmembers, providing resources andsharing best practices,” she said. “Theresults provided insights into howbar associations define diversity;programs and activities bars conductto advance diversity and inclusion;whether bars have a formal strategicplan for diversity and inclusion; andwhether bars have dedicated staff fordiversity and inclusion.” When Keating accepted the job
with the ACBA in 2011, she wasimpressed with the diversity effortsthat had already been undertaken bythe local bar association and Pitts-burgh legal organizations. At thattime, she remarked, “The mere factthat a metropolitan bar associationhired a full-time director of diversityand gender equality is evidence of thestaunch commitment of the ACBA tothese efforts.”As part of her job with the local bar
association, Keating serves as directorof the ACBA Institute for GenderEquality and coordinates the SummerClerkship Program for first-yearminority students. She has been anattorney for more than two decades,working at firms in New York andFlorida. She received her juris doctordegree from the Georgetown UniversityLaw Center and her bachelor’s degreein economics from the WhartonSchool of Business at the Universityof Pennsylvania. n
Alysia Keating
I think she exhibits the leadership skills necessary to move a conversation“”
forward and manage a discussion in a way that values the time of thevolunteers who serve on the committee.
– Gregory Conyers, immediate past chair of NABE Diversity Development Committee
James Angelo will always rememberJuly 25, 2016, as the day he shot hisfirst hole in one. The K&L Gatesattorney aced a 180-yard par 3 onAllegheny Country Club’s 13th hole atthis year’s ACBA Golf Tournament. Though he passes it off as “beginner’s
luck” – this was his first time attendingthe annual outing – Angelo is nonovice. He has been golfing for nearly20 years, having taken lessons sincethe age of 12. Angelo praised Alleghe-ny’s course, calling it “Gorgeous.Challenging, but not overwhelming.The perfect place to host a scramble.” In honor of this rare feat, American
Hole ’n One Insurance awardedAngelo a three-day golf vacation toFrench Lick Resort in Indiana,including hotel accommodations andgolf for two.An Associate at K&L Gates, Angelo’s
practice focuses on oil and gas andclass action defense. He recentlysuccessfully defended a local broker-dealer in a FINRA arbitration wherehe served as first chair.Congratulations, James! Hope to
see you on the course next year! n
Kennedy T. Friend Education Fundfor Yale University and
University of Paris Students
Under the will of Kennedy T. Friend, a trust fund known asthe Kennedy T. Friend Education Fund was established toprovide financial assistance to any child of an attorney whoseprincipal place of practice is in Allegheny County and whoattends either Yale University or the University of Paris.There are two permanent Trustees of the fund, PNC Bank andAlice B. Mitinger, Esq., and two ex officio Trustees, thePresident of the Allegheny County Bar Association, and thePresident of the Yale Club of Pittsburgh.
The Trustees determine the amount of the grants for studentsattending Yale or the University of Paris in June of each yearfor the following school year. The amount of the grants variesin accordance with the income of the fund and the number of eligible applicants.
Any attorney whose child may be eligible to receive a grantfrom the Kennedy T. Friend Education Fund should contactPNC Bank at 412-768-7587. It is recommended that theapplication for scholarship be submitted at the same time asthe admission application is made to Yale University or theUniversity of Paris.
The deadline for application to the Kennedy T. FriendEducation Fund is May 1st.
For more information please visitwww.acbf.org/Kennedy-Scholarship-Fund.
Results for 2016 ACBA Golf & Bocce TournamentGolf Tournament
James I. Smith, III Cup – Overall First Place Team (156) – Mark Bartholic, Jeff Heeter, Jim Joyce, Max Laun
Robert B. Sommer Award – Scramble Format First Place Team (59) –Edward Chiodo, Mark Del Duca, Alex Shenderovich, Edward Shenderovich
Robert L. Kirkpatrick CupLow Net Female (72) – Sue Arnold • Low Net Male (71) – Jeff Bresch
Hole-in-One #13 – James AngeloClosest to the Pin #15 – Kurt Mulzet (Men) (No Women winner)
Longest Putt #4 – Bob CameronLongest Drive #11 – Pat Horvat (Men) and Stephanie Solomon (Women)
Bocce TournamentFirst Place TeamTeam Cinque
William Brandstetter, Beth Fischman, Dana Richardson and Beth TibbottCreo Competition (Closest to the Pallino)
Dave GardnerVisit our photo gallery toview this year’s event!
www.acba.org/Photo-gallery
September 2, 2016 / Page 9
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PHOTOS BY JOCELIN HERSTEK
ACBA Excutive Director David Blaner prepares his swing at the 24thAnnual ACBA Golf Tournament last month. The Allegheny CountryClub’s course consisted of various twists, turns and hills.
Not everyone took to the golf course. Others like Mark Vitelli and KevinMcCarthy, top left, decided to try their hand at bocce. ACBA PresidentMelaine Shannon Rothey and Gretchen Shumaker, top right, team up tocompete against other teams out on the court. The Bocce Tournamentwas held near the clubhouse, off the patio.
Tom Crowley of PNC Wealth Management celebrates a great shot with histeam. Cris Silva, right, sets to drive the ball to the green.
For two years in a row, Beth Tibbott, Bill Brandstetter, Beth Fischmanand Dana Richardson — better known as Team Cinque — dominated theBocce Tournament.
ACBA GolfTournament
Page 10 / September 2, 2016
DiamondEckert Seamans Cherin & Mellott, LLCFragasso Financial AdvisorsHighmark Blue Cross Blue ShieldPNC Wealth ManagementTucker Arensberg PCUPMC
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Goldbit-x-bit LLCClark Hill PLCMeyer Unkovic & Scott LLPRaphael Ramsden & Behers PC
BronzeBulldog Office ProductsDuquesne University School of LawGrossman Yanak & Ford LLPUniversity of Pittsburgh School of Law
In-kind DonorsAllegheny Country ClubAllegheny County Bar AssociationBoard of Governors
Allegheny County Bar FoundationBoard of Trustees
American Eagle Outfitters Foundationbig Burrito Restaurant GroupBig Y Restaurant GroupKim Bodnar, Esq.Bill Bresnahan, II, Esq.The Carlton RestaurantCarnegie Museums of PittsburghCioppino Cool Springs Sports ComplexCostco WholesaleRon Crouch, Esq.Ditto Document SolutionsFairmont PittsburghFrank B. Fuhrer WholesaleGlengarry Golf LinksGo Ape! PittsburghWilliam A. Goyette, Esq.Michele GreenwayHofbrauhaus PittsburghHotel Monaco PittsburghiHeartRadioJerome Bettis’ Grille 36Larrimor’sJeff Leech, Esq.Ligonier Country Club
Diane McMillenNational AviaryNine On NineOlde Stonewall Golf ClubOlive or TwistOmni Bedford Springs Resort & SpaOmni William Penn HotelPenn BreweryPhipps Conservatory and Botanical GardensPittsburgh OperaPittsburgh Penguins FoundationPittsburgh Public TheaterPittsburgh Symphony OrchestraPlanet DeposJeffrey L. Pollock, Esq.Primanti Bros.Bob Racunas, Esq.River Forest Country ClubRohrich LexusAndrew Rothey, Esq.Melaine Shannon Rothey, Esq.Roundabout BrewerySenator John Heinz History CenterSeven Springs Mountain ResortSewickley Heights Golf ClubShadyside Inn All Suites HotelShannopin Country ClubTreesdale Golf & Country ClubTrinity JewelryUSI AffinityVallozzi’s PittsburghBeth Williams, Esq.
2016 ACBA Golf and Bocce Tournament Sponsors
September 2, 2016 / Page 11
Registration information for all programs unless otherwise noted: Mail in registrationform with payment to the ACBA CLE Department at 400 Koppers Building, 436 Seventh
Avenue, Pittsburgh, PA 15219. Credit card registration is also available online atwww.acba.org/CLE-Events/Events-and-Programs.
LABOR & EMPLOYMENT LAW SECTIONReview and Analysis of Recent Supreme Court
Labor and Employment Decisions Few things have a greater impact on the labor and employment legal landscape
than United States Supreme Court decisions. This program will review theSupreme Court’s 2015-16 labor and employment law cases and their holdings,including implications for employers, employees and unions. Additionally,
panelists will discuss trends and preview the cases on the docket for 2016-17.
Credits: 1 hour of Substantive CLE credit • When: Thursday, Sept. 15 •Registration: 11:30 a.m. • Time: noon - 1 p.m. • Where: Koppers BuildingConference Center, Grant Room, 9th floor, 436 Seventh Ave. • Cost: $45 forLabor & Employment Law Section members, $55 for ACBA members, $75 for allothers • Last date to pre-register: Tuesday, Sept. 13, 11:59 p.m
TAXATION SECTIONThe Latest on IRS Criminal Investigations,
Right from a Special AgentWe’ve all heard the horror stories of “when the taxman cometh.” But whatactually goes into IRS criminal investigations? Michael McGregor, a specialagent with the IRS Criminal Investigation division, will give an overview of
these investigations. His presentation will focus on IRS-CI history, special agenttraining and investigative priorities from the IRS-CI’s 2015 fiscal year. He will
also detail significant recent cases from the U.S. District Court, Western Districtof Pennsylvania. Additionally, McGregor will discuss the challenges
facing IRS-CI, including staffing shortages and fighting “crimes of the future.”Lunch will be provided.
Credits: 1 hour of Substantive CLE credit • When: Friday, Sept. 23 • Registration: 11:30 a.m. • Time: noon - 1 p.m. • Where: Rivers Club, One OxfordCentre, 301 Grant St., Pittsburgh, PA 15219 • Cost: $30 for Taxation Section members, $50 for ACBA members, $75 for all others • Last date to pre-register:Wednesday, Sept. 21, 11:59 p.m.
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Meyer, Unkovic& Scott hasannounced thatCaleb M. Turnerhas joined the firmas an associate inthe firm’s Litiga-tion and DisputeResolution Group.Turner has arange of litigationexperience, includ-ing conductinginternal investiga-
tions, drafting complaints, draftingdispositive motions, taking anddefending depositions, preparingwitnesses for testimony and managingthe electronic and document discoveryprocess. He has represented bothplaintiffs and defendants in civillawsuits related to fraud, negligentmisrepresentation, breach of contract,breach of restrictive covenants,antitrust and other matters. Turneralso has significant regulatory defenseand white-collar criminal defenseexperience.
Robb Leonard Mulvihill hasannounced that attorneys Andrew D.Shannon and Jeffrey M. Stacko havejoined the firm. Shannon’s practicefocuses on complex insurance coverage, extra contractual litigation,commercial litigation and generalcivil litigation. Stacko has experiencewith a variety of oil and gas transactional matters.
Change in StatusAnd now, this 10th day of August
2016, upon consideration of theresponses to a Notice and Orderdirecting Respondent to provide reasonsagainst the imposition of a disbarmentreciprocal to that imposed in the UnitedStates Bankruptcy Court and the UnitedStates District Court for the WesternDistrict of Pennsylvania, JasonJoseph Mazzei is disbarred from thepractice of law in this Commonwealth,retroactive to November 20, 2014, andhe shall comply with all the provisionsof Pa.R.D.E. 217.
News and NotesJana Volante
Walshak, a litigatorwith Fox RothschildLLP in Pittsburgh,has been electedvice chair of theYoung Profession-als Board of Jun-ior Achievementof Western Penn-sylvania. JuniorAchievement pro-vides hands-onexperiences to
give students from kindergartenthrough high school knowledge andskills in financial literacy, workreadiness and entrepreneurship.Volante Walshak is a litigator withsignificant experience in commerciallitigation and white-collar criminaldefense and compliance.
Thomas Smith and Rhett Cherkin –both attorneys at Caroselli, Beachler,McTiernan & Coleman – have beencertified as specialists in the practiceof workers’ compensation law by thePennsylvania Bar Association Workers’Compensation Law Section.
People on the MoveM a l l o r i e
McCue has joinedFedEx Ground asan employmentlaw staff attorney.She is based out ofthe company’s MoonTownship office.
Lovett BookmanHarmon MarksLLP is pleased toannounce thatElizabeth Ryan
Uhler has joined the firm as an associate.Uhler has experience counseling andadvising clients on estate planning;estate and trust administration; andprobate, trust and fiduciary litigation.
Tucker Arens-berg, P.C., wel-comes Charles L.Potter Jr. to thefirm as a share-holder. Potterfocuses his prac-tice on federal,state and local tax-ation issues, andhe advises clientson matters involv-ing energy, naturalresources, sports
and estates and trusts.
Bar Briefs
Andrew D.Shannon
Caleb M.Turner
Charles L.Potter Jr.
Jana VolanteWalshak
Jeffrey M.Stacko
MallorieMcCue
Page 12 / September 2, 2016
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RESULTSAndrew J. Cornelius, P.C. | Intellectual Property Law
David Frum Alex Wagner
rogue actor that doesn’t recognizeinternational rules. But that’s not true.That’s Donald Trump’s message, butthat’s not the true message of thecountry. But it is, I’m afraid, themessage the world will hear.“The message of the campaign, I
think, is that the American partysystem is in a lot of trouble. TheRepublican Party is sicker than theDemocratic Party and is unable to doits job. What parties are supposed todo is screen out extreme actors andgenerate candidates for leadershipwho are broadly acceptable to thecountry. The Republican process hassimply failed to do that in 2016.”Wagner – who previously served as
a White House correspondent, coveredpolitics and business for the HuffingtonPost and hosted MSNBC’s NOW withAlex Wagner – expects both parties todo some soul searching after the election.“Both parties are facing existential
questions about their ideologies,” shesaid. “No matter who wins in November,that debate is not settled. For theRepublican Party, it’s been a veryrestive primary campaign. And I don’tthink the sort of tension between thegrass-roots base and the establishmenthas been or will be resolved by thetime November rolls around, even ifTrump is in the White House.“For the Democrats, there is a deep
and abiding concern on the part of thebase that the Democratic institutionsmeant to serve them are not. Andagain, I don’t think that’s resolvedwith Hillary Clinton and Tim Kaine inthe White House. I feel, in fact, inmany ways it will perhaps furtherexacerbate that tension.”Wagner expects the Democratic
National Committee to become moreresponsive to the progressive base.“Whether that means reform in the
primary process and having openprimaries or reducing the number ofsuperdelegates, I’m not sure,” shesaid. “But I think the transformationwill be towards a more transparentlydemocratic institution.“Whereas the Republicans, I think,
have been dismayed at the lack ofinstitutional control. I’m sure if theRepublicans had a chance atsuperdelegates, they would havehappily taken it. So I see a correctionin the other direction, which is to saymaking it a more formalized process,giving the elders greater control onthe levers of power to make suresomeone like Donald Trump is notelected again.”
Issues this election
Frum identifies three hot topicsthis election – American livingstandards and wages, global security
ZITTRAIN FORUMS continued from front page
and immigration. Of those, he thinkswages is the most important. “The Democrats are offering an
answer that’s continuous with theiranswer in the past – that wages arestagnating because the people at thetop are taking too much and thesolution is a much more activegovernment role in the economy,” hesaid. “On the Republican side, this isthe first election the Republicans havenoticed the question, so that’sprogress. The solution that DonaldTrump is offering is destructive –trade protection, blowing up theglobal economy. But it is progress.Republicans have at least made someprogress since the last election, butthe Democrats are stuck in the sameunhelpful place.”Wagner says economics not only
are a driving force in politics, they’redriving Americans apart.“I think this is about a real cultural
fracturing in America, which haseverything to do with institutionalfailure that has promoted a kind oftribalism. It has to do with economicmarginalization, which has created areal class divide between the havesand have-nots. And look, there are havesand have-nots that are bipartisan;there are rich Democrats and richRepublicans and poor Republicansand poor Democrats. But they’veresponded this year in differentpolitical ways,” she said. “I thinkwhat we’re looking at is a long-termschism in the United States betweenthose at the top and those at the bottom.And the top can mean economically, interms of power, of who’s controllingthe media and who consumes it.”
Frum agrees that the notion of “onenation, indivisible” is being put to thetest, but he says immigration is the reason.“Of all the things that are dissolving
the sense of a common identity, theone that must head the list, even morethan economic change, is this incrediblyrapid demographic change that hascome to the country. The United Stateshas never in its history, not even in theyears before World War I, taken on somany migrants so fast from places sodifferent from that which the olderpopulation of the country came from.The country has become bilingual. It’s
changed its balance in so many otherways, and that is an extraordinarilystressful experience for people tolive through.”Talking during the week of the
Democratic National Convention,Frum detailed the starkly differentapproaches the candidates are takingto the issue of immigration.“Republicans have moved toward
more enforcement approach onimmigration at the same time theDemocrats are moving radically awayfrom enforcement. The theme of thefirst night of the Democratic conventionin Philadelphia was that any kind ofenforcement at all is an attack onfamily. The message of the first nightwas clear: No enforcement at all isacceptable to them.“We have a very stark divide on this
very fundamental question of whobecomes an American and how youbecome an American.”Wagner says Democrats are in a
tough position this election becausethey can’t turn their backs on whatPresident Obama has achieved whilesimultaneously talking about how theyplan to improve America.“The Democrats have a tricky line
to walk, which is to be attendant to theconcerns of activists, progressives –like those in the Black Lives Mattermovement – and acknowledging theshortcomings of where we are, butalso not underselling the substantialamount of legislation that’s been passedunder a democratic president and the factthat there are millions more Americanswith healthcare and the fact thatunemployment is below 5 percent.That is all good stuff that needs to besaid with an asterisk – which is, ‘andthere is more work to do.’” n
