Criminal Justice Panel Appointments

Firm founder John A. “Jay” Abom and Senior Associate Attorney Brian P. Platt were recently appointed to the United States Criminal Justice Act Panel.

Firm founder John A. “Jay” Abom begins his 20th year as a Criminal Justice Act Panel attorney for federal criminal clients.

As panel attorneys, they represent indigent federal criminal defendants before the U.S. District Court for the Middle District of Pennsylvania and the Federal Third Circuit Court of Appeals.

This begins Attorney Abom’s twentieth year as a panel attorney. He was first appointed in 2001. It is the first appointment for Attorney Platt.

Senior Associate Attorney Brian P. Platt has been appointed to the Criminal Justice Act Panel.

Senior Associate Attorneys Craig E. Kauzlarich and Stephanie L. Cesare were previously appointed and also serve as Criminal Justice Act Panel attorneys for the Middle District of Pennsylvania and the Federal Third Circuit Court of Appeals.

Among other qualifications, panel attorneys must be up-to-date on federal defense law developments, versed in electronic discovery methods, and meet ongoing training requirements under the Criminal Justice Act enacted in 1964. Panel appointments are for three years.

Medical Marijuana While on Probation

A county in Pennsylvania overstepped when it enacted a policy that punished those on probation who used lawful Medical Marijuana. The Supreme Court of Pennsylvania in the Middle District ruled that judges and probation officers in Lebanon County may not deny those on probation access to Medical Marijuana or punish them for its use.

Lebanon County officials had claimed, among other arguments, that some individuals under court supervision have a history of marijuana abuse; and, that medical marijuana is not accessed with a prescription but is only a medical recommendation.

Lebanon had also been requiring people on probation with legally-obtained Medical Marijuana cards to testify at a hearing as to their medical need before those probationers could continue treatment.

The state Supreme Court said those probationers couldn’t be punished or denied use of Medical Marijuana. The Court said that county officials could verify the validity of a probationer’s Medical Marijuana card through the state Department of Health.

Inhaling the vapors of heated forms of marijuana is among lawful forms of accessing Medical Marijuana.

Pennsylvania approved the use of medical marijuana in 2016 for those suffering from cancer, epilepsy, glaucoma and other disorders and illnesses whose medical providers issued a certification of medical need.

The drug is provided at a limited number of licensed dispensaries, in specified forms, and only to those with state-provided Medical Marijuana identification cards.

 

 

 

 

 

Sexual Discrimination Includes LGBT

Firing someone because they are gay or transgender is a violation of federal law, according to a new ruling from the Supreme Court of the United States. The Court said gay and transgender employees are protected under Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on sex.

The landmark ruling came on June 15, 2020, with the Court stating, “An employer who fires an individual merely for being gay or transgender defies the law.”

Firing an employee for being gay or transgender is against the law.

Employers must be cognizant of the rights of their lesbian, gay, bisexual and transgender workers in making disciplinary decisions and terminating employment.

The Court heard arguments in “Bostock v. Clayton County, Georgia” in October, 2019. Gerald Bostock and other individuals claimed they experienced unlawful sex discrimination because they had been fired for being gay or transgender.

Writing for the majority, Supreme Court Justice Neil M. Gorsuch agreed that an employer violates rules against sex discrimination by intentionally firing an employee based in part on sex.

Gorsuch wrote: “It makes no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group.”

He wrote that, “…homosexuality and transgender status are inextricably bound up with sex. Not because homosexuality and transgender status are related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.”

“When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play — both the  individual’s  sex  and  something  else (the  sex  to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach,” Gorsuch wrote.

The ruling affirmed judgments of the Second and Sixth Circuits and reversed a judgement of the Eleventh Circuit. Justices Samuel A. Alito and Brett M. Kavanaugh dissented.

10 Years as a Pennsylvania Super Lawyer

Abom & Kutulakis is pleased to announce that four of its lawyers have been named to the 2020 Pennsylvania Super Lawyer list.

This is the tenth straight year that firm owner John A. “Jay” Abom has been selected as a Super Lawyer, a distinction that goes to 5 percent or fewer of Pennsylvania attorneys each year.

Three Senior Associate Attorneys have been named Super Lawyer Rising Stars by the Thomson Reuters rating service.

Attorney Stephanie L. Cesare, a former senior assistant public defender for Cumberland County, makes her third straight appearance as a Super Lawyer Rising Star. She focuses on criminal law, family law and child protective services matters.

Attorney Michele L. Kluk, who was first named a Super Lawyer Rising Star in 2019, makes a second appearance on the list, and Attorney Brian P. Platt, makes his first appearance in the lawyer rating list.

Attorney Kluk practices family law and criminal defense law. She is a former Deputy Attorney General with the Pennsylvania State Attorney General Office.

A former senior deputy public defender with Dauphin County, Attorney Platt focuses his practice on criminal defense law.

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multi-phase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area.

Traffic Ticket Guide

Most of us rely on being able to drive so we can get to work, grocery shop, pick up children from school or daycare, and get somewhere in a hurry when there is an emergency. Getting one traffic ticket is unlikely to interfere with your right to drive.

“The penalties for traffic violations can be very serious for you and your livelihood.” Attorney Michael N. Aegbuniwe

However, receiving multiple citations, or tickets, can have lasting effects on your freedom to get behind the wheel, especially if you are a commercial driver. Penalties for traffic violations can affect a driver’s record for years. A driver who accumulates too many tickets can face license suspension. There are other consequences, too. Insurance premiums will go up and a driver can face steep fines. Drivers of commercial vehicles face particularly serious repercussions if they are cited for traffic violations, including losing their Commercial Driver’s License (CDL). The impact can be a delay in the ability to earn a living or the need to find a job in a different field.

Here’s how it works: The Pennsylvania Department of Transportation (PennDOT) uses a point system to track drivers’ behavior on the road. When police issue a traffic citation or a traffic camera records a violation resulting in a ticket, between two to five points are added to your PennDOT record. In most cases, only three points are subtracted each year. It can take several years to clear a record, and there are additional rules for drivers under the age of 18.

License Suspensions

Cameras record accidents, speeding, running a red light and other traffic violations

Under the state Vehicle Code. PennDOT can order a license suspension for a driver who accumulates points or commits certain traffic offenses. A suspension notice is issued in writing and a driver has 30 days to respond. [A failure to respond within 30 days will result in losing the right to contest the suspension.] Legal representation may be advised following this notice as the driver will have to attend a hearing where a hearing examiner will review the driver’s record. Then, a determination will be made on whether to suspend the license and for how long. An appeal of a PennDOT suspension must be filed in the Court of Common Pleas.

Vehicle Code violations and points

These are some of the Pennsylvania Vehicle Code violations and points given for a violation:

  • Violation of restriction on driver’s license – such as failing to wear required glasses – 2 points
  • Failure to obey authorized persons directing traffic – 2 points
  • Obedience to traffic control devices warning of hazardous conditions – 2 points
  • Failure to stop for a red light – 3 points
  • Failure to stop for a flashing red light 3 points
  • Improper passing, overtaken driver to maintain speed; passing driver to pull in at safe distance – 3 points
  • Improper passing on the right – 3 points
  • Improper passing on the left, clear distance ahead – 3 points
  • Improper passing at a railroad crossing or intersection – 3 points
  • Improper passing in a no-passing zone – 3 points
  • Following too closely – 3 points
  • Failure to yield to oncoming driver when making left turn – 3 points
  • Failure to stop for stop sign – 3 points
  • Improper turning around – illegal U-turns – 3 points
  • Failure to stop at railroad crossings – 4 points
  • Failure to stop for school bus with flashing red lights – 5 points and 60-day suspension
  • Exceeding maximum speed – 2 to 5 points
  • Failure to yield to pedestrian in crosswalk – 2 points
  • Failure to yield to blind pedestrians – 3 points
  • Careless driving – 3 points
  • Leaving scene of accident involving property damage only – 4 points
  • A driver’s license is at risk with multiple citations.

 

Divorce: Who Gets the House? The Debt?

The question of how marital property is divided is the most litigated area in divorce law and generally the reason that divorce proceedings can go on for years. Equitable Distribution is the name of legal process used to divide the marital estate.

Attorney Michele L. Kluk practices Family Law

As tempting as it may be to compare your situation with the experiences of friends and family, Equitable Distribution is a complex area of the law, and is always changing and evolving. For every general rule of thumb, there are several exceptions. Legal advice on your situation should come from an attorney, not a well-meaning friend or relative. Especially when it comes to family law, under which divorce falls, a resolution depends heavily on the unique facts in a case. Therefore, your case is highly unlikely to be the same as any other and calls for professional legal guidance – not tips from friends.

An explanation of Equitable Distribution can be simplified when described in three steps. The first step is identifying what is marital and what is not marital property. The second is establishing the value of the marital property. In the third step, the equitable division of property will be determined. A divorce lawyer will help you navigate this three-step process, and his or her legal representation will allow you to offload the stress onto a professional trained to handle property distribution.

Identifying marital and non-marital property.  The general rule is that anything acquired from the date of marriage to the date of separation is considered marital property.  As stated above, however, there are always exceptions. Some property acquired during the marriage will be ineligible for division; at the same time, some non-marital property will have a marital property component. Never assume that a portion of property is marital or non-marital. You can assist your attorney in preparing for Equitable Distribution and improve your chances of a balanced distribution. Make a list of all property. Your list might look like this: home at 123 Main Street; vacation home at 345 Fun Drive; a 401(k); savings accounts; 2012 SUV; stocks; and any other property. Don’t forget to list debt as well. Just like assets, all debt will be identified as marital or non-marital. List loans, mortgages, credit card balances, and lines of credit.

Valuing the property.  This is done through a combination of the following: agreement of the parties, appraisals, statements, and documents. Once you are thinking of filing for divorce, it will save you money and time to begin collecting statements and organizing pertinent documents. The date of separation is an important date for most statements, and is a good place to start for other property. Give your attorney bank statements, credit card statements, mortgage documents, deeds, any appraisals, and any retirement statements.

Dividing the property.  Pennsylvania law requires that property be divided equitably, which is not the same as dividing it 50/50. Often, the parties can come to an agreement on a division. However, if an agreement cannot be reached, the division will be determined by a Divorce Master. In Pennsylvania, the Divorce Master is appointed by the county court. The Divorce Master considers 11 factors when making an Equitable Distribution decision. Again, you can save money by providing your attorney with a list of the property and supporting documents along with income and expenses, pay stubs, and tax returns.

Whether you are thinking of filing for divorce, or just received a divorce complaint filed by your spouse, there are complex issues to consider in dividing property. Gathering and organizing property files is important in obtaining the right legal advice for your situation. It also helps your attorney fight for the best distribution for you.

Custody and Moving – Attorney Cesare

Family Law Attorney Stephanie Cesare is tapped by Making A Way podcast to discuss custody across state lines.

Did you know that families can confront special issues with custody orders and modifications when the child’s parents live in different states? In fact, managing custody across state lines adds new legal elements to an already complex area of Family Law.

This topic is examined from a Pennsylvania perspective by Abom & Kutulakis Attorney Stephanie L. Cesare during her guest appearance in the legal podcast, Making A Way: Custody Litigation Across State Lines.

“This is a very complicated statute,” Attorney Cesare said.

Maryland attorneys and mediators Sandra Guzman Salvado and Jessica Zarrella host the podcast which provides information to parents who may want to move away from or into the state of Maryland from another state; in particular, parents who are divorced or separated and have to share children. Along with a Pennsylvania view from Attorney Cesare is a take on Virginia’s approach from guest Virginia Attorney David Marquart.

“This is a very complicated statute.”
Attorney Stephanie L. Cesare

Cesare said that a parent who moves into the state of Pennsylvania can only file certain custody actions after meeting a residency requirement. “To file in Pennsylvania… they have to be living in the Commonwealth for six months,” she said.

Each state has its own guidelines. However, there is another set of rules that applies to most states (including Pennsylvania) under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCEJA). They determine, among other things, which state is a child’s ‘home state.’ These rules come into play anytime parents plan to move to a new state.

A knowledgeable custody attorney will be able to supply legal advice and correctly apply the UCCEJA rules as well as individual state custody laws in cases where custody is shared across state lines.

Listen here as the attorneys discuss aspects of this issue including:

  • Determining jurisdiction
  • Meeting requirements of the home state
  • Registration of a court order
  • Courts and judges that must be involved
  • Notification of parties

This post is not intended to serve as legal advice. Consult with your attorney for guidance on your specific situation.

‘Best Law Firm’ declaration underlines our commitment to community

We have been cited as the best that Cumberland County has to offer and it is as humbling as it is satisfying.

The honor reminds us that our clients, while in the middle of quite possibly the most difficult period in their lives, take time to consider how we support them, guide them and commit ourselves to their cases.

The importance of our commitment to community cannot be understated.

We are grateful to have a team of highly-skilled and collaborative attorneys and staff. But we owe our success to the clients who consider their options and choose us to legally represent them.

Clean Slate – New Law Seals Some Records

On June 28, 2018, after strong bi-partisan support in the Pennsylvania State House of Representatives and Senate, state Gov. Tom Wolf signed the Clean Slate Bill into law.

Gov. Wolf stated that the purpose of this law was to reduce the stigma many people with past convictions face when looking for employment or housing.[1] Nearly one in three Pennsylvania adults has some sort of criminal record, and more than half could benefit from this bill.[2]

In brief, to be eligible, a person cannot have been convicted of a crime within 10 years following a conviction or final release from confinement or from supervision such as parole or probation.

The prior conviction must be a misdemeanor in the second degree, misdemeanor in the third degree, or an ungraded offense which carries a maximum penalty of no more than two years.

The Clean Slate law does not apply to certain prior misdemeanors, such as offenses involving danger to the person, firearms and other dangerous articles, and registration of sexual offenders. Finally, the court of common pleas that is responsible for sealing a prior conviction is the court where the conviction occurred, not necessarily the court where a person lives.

Based on the language of the bill, this process should be automatic. The Administrative Office of the Pennsylvania Courts shall monthly send to Pennsylvania State Police (PSP) any case qualifying under this bill. Then, PSP has 30 days to determine if that person is eligible to have his or her conviction sealed. Once 30 days pass, and with no interjection from PSP, such relevant conviction should be sealed.

Once sealed, a person shall not be required or requested to disclose information about his or her criminal history records that have been expunged or sealed under the Clean Slate law. In addition, under many situations, a person may respond to inquiries as if the offense did not occur. Furthermore, an employer shall be immune from liability in a civil action based on damages suffered to a person or property as a result of criminal conduct of an employee whose record was sealed.

To read the full text of the bill, visit the General Assembly page on House Bill No. 1419.

[1]“Governor Wolf Signs Clean Slate Bill, Calls for More Criminal Justice Reform,” June 28, 2018 (accessed June 29, 2018), https://www.governor.pa.gov/governor-wolf-signs-clean-slate-bill-calls-for-more-criminal-justice-reform/

[2] Jan Murphy, “Gov. Tom Wolf Signs Law That Opens the Door to Giving Ex-Criminal Offenders a ‘Clean Slate,’” June 28, 2018 (accessed: June 29, 2018), https://www.pennlive.com/politics/index.ssf/2018/06/gov_tom_wolf_signs_law_that_op.html

Cell Tower Records Require a Warrant

Referring to cellphone data as an “exhaustive chronicle of location information casually collected by wireless carriers,” the Supreme Court of the United States has ruled that a defendant’s cell-site location information (CSLI) is off limits to the government unless it gets a search warrant.

This significant ruling changes a common practice of prosecutors obtaining defendants’ CSLI records via court order under the Stored Communications Act. Under that Act, the government has to show it has reasonable grounds to view an individual’s CSLI records and that the records could be relevant to an ongoing investigation.

Obtaining a search warrant, on the other hand, requires the government to show probable cause.

The Court noted the significant privacy intrusion that comes from the hour-by-hour documentation of a person’s movements through their CSLI.

In its ruling, the Court wrote, “(W)hen the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.”

The Court stated further, “Moreover, the retrospective quality of the data here gives police access to a category of information otherwise unknowable. In the past, attempts to reconstruct a person’s movements were limited by a dearth of records and the frailties of recollection. With access to CSLI, the Government can now travel back in time to retrace a person’s whereabouts, subject only to the retention polices of the wireless carriers, which currently maintain records for up to five years.”

“Whoever the suspect turns out to be, he has effectively been tailed every moment of every day for five years, and the police may—in the Government’s view—call upon the results of that surveillance without regard to the constraints of the Fourth Amendment. Only the few without cell phones could escape this tireless and absolute surveillance.”

Gathering a p[erson's cell site location information requires a search warrant.

The Court had already acknowledged that individuals have a “reasonable expectation of privacy in the whole of their physical movements,” and said that permitting the government to have CSLI records violates that expectation.

“Before compelling a wireless carrier to turn over a subscriber’s CSLI, the Government’s obligation is a familiar one—get a warrant,” the Court wrote.