Articles Posted in Constitutional rights

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By now we have all heard of the Alabama Supreme Court decision holding that frozen embryos are “unborn children” under Alabama State Law. This was the holding in LePage v. Center for Reproductive Medicine, issued on February 16, 2024. Although much hay was made out of a concurring opinion that quoted the Bible extensively, the primary opinion was based squarely on Alabama State Law only, specifically the Alabama Wrongful Death of a Minor Act. You can read the full, actual opinion here. 

In LePage, three couples had their frozen embryos destroyed in an incident at a fertility clinic. The plaintiffs in the Alabama case had undergone IVF treatments that led to the creation of several embryos, some of which were implanted and resulted in healthy births. The couples paid to keep other embryos frozen in a storage facility at the Mobile Infirmary Medical Center. A patient in 2020 wandered into the area and removed several embryos, dropping them on the floor and “killing them.”

The justices ruled that wrongful death lawsuits by the couples could proceed. Justices, citing anti-abortion language in the Alabama Constitution, ruled that an 1872 state law allowing parents to sue over the death of a minor child “applies to all unborn children, regardless of their location.””Nothing about the [Wrongful Death] Act narrows that definition to unborn children who are physically “in utero.”

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On Thursday, Feb. 8, Georgia Tech’s Ivan Allen Jr. Prize for Social Courage will be presented to Retired Justice Robert Benham.  There is not a more worthy recipient. I have admired Justice Benham for my entire legal career, spanning 35 years now. I highly recommend you listen to an interview of Justice Benham by University of Georgia Professor Paul Kurtz on Youtube. It is fascinating.

Back in 2013, when I was President of the State Bar of Georgia, I had the distinct honor of giving remarks at the 14th Annual Justice Robert Benham Awards for Community Service.  That’s right. The State Bar of Georgia Community Service Awards are aptly named in honor of Justice Benham. In light of Georgia Tech’s wonderful announcement that he will be receiving its Ivan Allen Jr. Prize for Social Courage, I wanted to share again my remarks from that special day in 2013.

 Remarks of President Robin Frazer Clark at the 2013 Justice Robert Benham Community Service Awards                                                                                         

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You have probably heard by now that the Georgia Supreme Court on Wednesday reversed the conviction of Ross Harris for murder for the death of his young child, Cooper Harris, who Ross Harris left in the back seat of a hot car for hours.  I think the Court got it exactly right.  Many people have some very strong opinions on both sides of this case. All you have to do is check the hashtag #RossHarris to see how polarized the public is on the case.  The reversal was certainly big news not only in Georgia, but Nationwide. This was a closely watched case.

This may be Justice Nahmias’s final opinion on the Georgia Supreme Court, and he is going out with a bang.  I never thought Mr. Harris should have been prosecuted for murder in the first place.  We know through neuroscience that it takes very little time or effort to distract our brains.  Just the slightest deviation in our typical routine can make you forget where you intended to go or that a baby is in the car with you. Season 2 of AJC’s podcast Breakdown makes this clear with even an example of an Arkansas judge, Judge Wade Naramore, who left his 19-month-old child in his car while he was in court, resulting in the child’s death. The judge’s 911 call is one of the most horrific calls you will ever hear. You’ll also hear about an elementary school principal who left her home early one morning with her baby in her car seat in the back seat. It was too early for her to drop the baby off at day care, so the school principal deviated from her typical, normal route to go pick up doughnuts. Then she drove to school. Hours later a teacher saw the baby in the back seat. They rushed to get her out but she was dead. That simple deviation to the doughnut shop made the elementary school principal forget her child was in the back in her carseat.  I urge you to listen to the AJC’s podcast. Season Two is called “Death in a Hot Car.”

Today, there are many tools a parent can use to help you remember your child is in the back seat, e.g., Baby in Car Seat Alarms, that sound an alarm and flash lights in your car if you forget your child in his car seat. There are phone apps, e.g., Kars 4 Kids Safety, or Backseat App, that alert you to check for you child in the backseat. Even the GPS app WAZE has added a Child Alert to remind you to check on your child before getting out of your car. This shows that anyone can make this mistake and now there are tools to help you not make it.  The National Safety Council has tracked children left in hot cars for over 20 years. It reported that in 2018, 52 children died being left in hot cars. Since 1998 over 800 kids were lost from vehicular heatstroke. Of these deaths, 24% occurred in employee parking lots, just like Cooper Harris.  This is telling.  For those who are adamant that “this would never happen to me,” we know through neuroscience that that belief is simply one created through a heuristic called “defense attribution.” “Defense Attribution” is defined as “bias or error in attributing cause for some event such that a perceived threat to oneself is minimized. For example, people might blame an automobile accident on the other driver’s mistake because this attribution lessens their perception that they themselves are responsible for the accident.” Our minds do this to us when there is something so horrific you can not imagine it ever happening to you.  We also know that the worse the event, the stronger the human mind insists it would never happen to me.  This is something personal injury attorneys often face with jurors in cases in which the injuries to the plaintiff are horrible.

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Oyez, Oyez! Oyez!  All persons having business before the Honorable, the Supreme Court of Georgia, are admonished to draw near and give their attention, for the Court is now sitting. God Bless the State of Georgia and this Honorable Court.  May it please the Court.

Yesterday, I was honored to speak in the Georgia Supreme Court as part of the Court’s 175th Anniversary Celebration. The Celebration began Wednesday evening with a lovely dinner at The Commerce Club.  Thursday was a full day of seminar on the history of the Supreme Court and biographies of various former Justices. I spoke about the creation of the State Bar of Georgia in 1964, which was approved by the Georgia Supreme Court and five years later held to be Constitutional in two separate cases. It was one of the highest honors of my career. I am sharing with you below my presentation.

We are very fortunate to have the Georgia Supreme Court and the State Bar of Georgia, which, together, protect your rights to live in a Just society, grounded in the Rule of Law, so that all may reap the benefits and rewards that our system of Justice provides.

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Have you received something like this lately from any corporation?  It is a “forced arbitration” clause in which a corporation unilaterally revokes your right to a jury trial should it cause you harm or damages in any way. This forced arbitration clause is AT & T’s version. Rather than telling you “Hey, Customer, we have taken away your right to trial without your consent,” they say “We have updated your contract terms.”  Further, rather than simply telling you that AT & T is taking away your right to a jury trial regarding any dispute you may have with it, AT & T ridiculously states “We have simplified and updated the contract terms….”  Then the unilateral notice says:

                                                                        “we will resolve any disputes by individual arbitration and not by jury trial or class action. 

                                                                        Your continued use of AT & T service tells us you accept and agree to be bound by the Consumer

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You may remember I wrote recently about the Georgia Supreme Court’s opinion in Nuckles v. State, 853 S.E.2d 81 (December 2020) in which the Supreme Court made it crystal clear that a loved one has the absolute right to place a hidden camera in a loved one’s room in an assisted living facility or long-term care home and that video from such a camera is admissible in court. And, of course, it should be. The resident or patient is considered an “occupier” of that property, i.e., his or her room, and may videotape what occurs on his “property.” Nuckles is a well-reasoned, common sense opinion authored by Judge Carla Wong McMillian and concurred in by all the other members of the Georgia Supreme Court, except Justice Warren who simply didn’t participate in the opinion for some reason.

That you should be able to videotape what treatment your loved one is getting in a long-term care home, and then when that videotape shows abuse by a caregiver, that you should be able to admit such videotape into evidence at trial does not seem to be a partisan or political position at all, does it?  Don’t both Republicans and Democrats alike want the very best care for their aging loved ones and don’t Republicans and Democrats alike want to hold someone who would abuse their loved one accountable? That only makes sense, doesn’t it?

Well, not so fast. Enter the Republican-controlled Georgia House of Representatives and the Republican-controlled Georgia Senate with the help of the nursing home lobby. The Georgia Legislature decides it’s not such a good idea to be able to hold abusers accountable through hidden camera videotape, taken in the resident’s own room (their “castle” so to speak) and file a bill to undo Nuckles.  This march to overturn Nuckles legislatively only two months later  started with HB 605.  This bill actually provided for criminal prosecution of anyone who set up a “nanny cam” in their loved one’s long-term care room. So imagine this:  your parent suffers from dementia and lives in an assisted living home. You suspect he is being abused both physically and emotionally by the staff, so you set up a hidden camera to see how they treat him while you are not present. Sure enough, your “nannycam” video shows a staff member slapping your parent. You want to bring criminal charges against the person for abusing your parent.  But HB 605 would have actually authorized criminal charges against you! That bill passed the House. So on to the Senate. It was placed on the calendar to be voted on on the last night of the General Assembly session. There, Senator Jen Jordan, and several other open-minded Senators, successfully amended the bill to eliminate the criminal prosecution provision in the scenario I laid out above. So the Senate passed that bill as amended. Now back to the House, during the final hours on the final day of the 2021 session.  But once the piece in the bill making it illegal to have hidden cameras was no longer in the bill, the bill lost its only reason to exist in the first place! No need to pass a bill that essentially says nothing. The folks behind this bill wanted a law against hidden cameras because they can be used to hold these homes and “caregivers” liable for harming their residents.  The House refuses to agree (by the narrowest of margins) to the Senate Substitute and so no law passes. The vote on this was 88 against and 77 in favor, so only an 11 vote margin. This law now is still out there to be picked up again by the Legislature when they begin their 2022 General Assembly Session.

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Videocameras are everywhere today. They have become a normal, integral part of our lives. Many of us carry a videocamera with us everyday, everywhere we go, on the cellphone we carry with us.  We have “apps” on those cell phones that have as their soul purpose the easy viewing and sharing of videos.  We can text videos to one another. It seems to be our instinct now that when we see something interesting, we immediately pull out our cell phone and start videotaping. Some people have made a lot of money selling those videotapes to advertisement companies to use in commercials.  If you just “Google” “rat dragging pizza” you will find one such video that became so popular the person who filmed the video of the rat dragging the pizza sold the video and made alot of money from it.  There is no question that many instances of police brutality and excessive force would never have even come to light if it were not for a videotape of it. The murder of Ahmaud Arbery is one such case. Ahmaud’s killers may very well have gotten away with their crime without any accountability in the criminal justice system had there been no video of the shooting.  Many states are now making it mandatory that all officers wear “bodycams” that record an arrest or interaction with a citizen. In our prisons, correctional officers wear bodycams and even have numerous “use of force” cameras stashed away throughout a prison floor that the officers can quickly grab to film any interaction with an inmate. Some of us wear “Go Pros” on our bodies while we are engaging in some activity we believe is particularly athletic, so we can brag to our friends later “Look what I did!”  Many of us have Ring videocameras on our front doors so we can see who is at our door when the doorbell rings or see when a package has been delivered. I even have a client who used a Ring videocamera in their daughter’s bedroom to record her nocturnal seizures.  We have babycams that capture what infants do in their cribs when they are really supposed to be sleeping. Videocameras are in our elevators, in our parking garages and in our convenience stores. We have a “Furbo” which is a dog videocamera that records when our dog is barking or moving around or just sleeping. It even allows us to throw him a treat remotely from my cellphone from wherever I may be. I have to admit that “Furbo” still blows me away.

So it comes as no surprise that families who have loved ones living in nursing homes or long-term care homes would think it a good idea to place a camera in the room of their loved one to keep an eye on him or her while the family can not be there in person. Many families are, sometimes, rightfully worried that their loved one may be experiencing abuse at the hands of some of the employees of the nursing home. We are all familiar with cases where that has happened. Last year in a highly publicized case in Cobb County, Georgia an employee of an assisted living facility was tried for murder for the death of a 91 year old resident who died in 2017. The employee was found guilty of elder abuse but not of murder.

This begs the question:  Is it legal to place a camera in your loved one’s room in an assisted care facility? Maybe you are thinking only a lawyer would even think about that. It seems so clear and obvious that yes, of course, you can place a camera in your loved one’s room.  That’s the smart and loving thing to do. Who would possibly question that?

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I hope many of you read my last blog post “Whoever Wants To Serve on a Civil Jury Trial During a Pandemic Raise Your Hand.”    I received some wonderful comments about it, which led me to want to add a bit more to my thoughts on the subject and, hence, this is Part Two of that blog post.  I want to add to the list of why it would not be a good thing to start back up civil jury trials right now when only a small percentage of the Georgia population has been vaccinated. That reason is that Covid-19, without dispute, has disproportionately affected African Americans and people of color (BIPOC) than other citizens. Even the CDC admits this.  The CDC states:

“There is increasing evidence that some racial and ethnic minority groups are being disproportionately affected by COVID-19. [2], [3], [4], [5], [6] Inequities in the social determinants of health, such as poverty and healthcare access, affecting these groups are interrelated and influence a wide range of health and quality-of-life outcomes and risks.[1] To achieve health equity, barriers must be removed so that everyone has a fair opportunity to be as healthy as possible.”

And yesterday (February 16, 2021) Georgia tied its highest reported daily deaths of 180 from Covid-19, so that hospitalizations may be going down but the death rate is not.

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I was checking the newly released opinions from the United States Supreme Court and Taylor v. Riojas (11/2/2020) caught my eye.  I’m not sure why.  I must have seen “qualified immunity” somewhere in the summary. Taylor v. Riojas was one of the bunch of qualified immunity cases coming up at the same time before the Supreme Court and on which there was much speculation over whether the Supreme Court might overturn the qualified immunity doctrine. “Qualified Immunity” is a judicially-created doctrine that gives police officers and correctional officers the benefit of the doubt when someone under their control has suffered injury.  This Judge-made doctrine shields an officer from suit when she/he makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she/her confronted. Excuse the pun, but it is a get-out-of-jail-free card to officers.

I call the Taylor v. Riojas opinion a Loch Ness Monster because it denied correctional officers in Texas the usual qualified immunity. Thus, like the Loch Ness Monster, you have heard of cases in which (hypothetically) qualified immunity was denied but you have never actually seen one.  Well, now you have. The United States Supreme Court reversed the 5th Circuit and remanded the case for trial.  Before we take stock of that, you need to know the facts of the case.  I am quoting directly from the 2 and 1/4 page opinion, perhaps the shortest in Supreme Court history.

“Petitioner Trent Taylor is an inmate in the custody of the Texas Department of Criminal Justice. Taylor alleges that, for six full days in September 2013, correctional officers confined him in a pair of shockingly unsanitary cells. The first cell was covered, nearly floor to ceiling, in “ ‘massive amounts’ of feces”: all over the floor, the ceiling, the window, the walls, and even “ ‘packed inside the water faucet.’ ” Taylor v. Stevens, 946 F.3d 211, 218 (CA5 2019). Fearing that his food and water would be contaminated, Taylor did not eat or drink for nearly four days. Correctional officers then moved Taylor to a second, frigidly cold cell, which was equipped with only a clogged drain in the floor to dispose of bodily wastes. Taylor held his bladder for over 24 hours, but he eventually (and involuntarily) relieved himself, causing the drain to overflow and raw sewage to spill across the floor. Because the cell lacked a bunk, and because Taylor was confined without clothing, he was left to sleep naked in sewage.

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Friends:

I am happy to share with you that I have recently begun co-hosting a podcast called “See You In Court.” “See You In Court” is a podcast sponsored by the Georgia Civil Justice Foundation, on which I sit as a Board Member.  My co-host is Lester Tate, partner and owner of the law firm Akin & Tate in Cartersville, Georgia.  Lester is also, as I am, a Past President of the State Bar of Georgia and is also a Board Member of the Georgia Civil Justice Foundation.

“See You In Court” podcast is a joint project of the Georgia Civil Justice Foundation and the Georgia Institute of Technology School of Literature, Media and Communication. The Georgia Civil Justice System is a nonprofit foundation whose mission is to educate the public about the Georgia Civil Justice System and its value to the public in enforcing rights and holding negligent actors accountable for injuries they have caused.  The Georgia Institute of Technology School of  Literature, Media and Communication defines new models of intellectual inquiry and practice that bring diverse humanistic perspectives to bear on technological invention and innovation.  The School’s mission is to lead the region, the nation, and the world in researching and teaching the ways the humanities shape and are shaped by science and technology. Understanding technologies in their cultural contexts is fundamental to invention and innovation. The School’s diverse faculty and students assess and inform technological and scientific change by creating, analyzing, and critiquing a broad range of media forms and cultural practices.

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