LGBT | Dolan Law Firm

Without Jurors, The Light of Democracy Dims Remarkably

This week’s question comes from Frank T. in the Mission District: I got a jury summons in the mail. Why do I keep getting them? I don’t want to sit on a jury and take time away from work. My husband and I had a real hard time during COVID and taking time off work right now would be difficult.

Frank, I know this is a sentiment shared by many right now. The right to trial by a jury of one’s peers is enshrined in the Bill of Rights that was formed at the time of the birth of our Nation. When The Colonies were under British rule, citizens had no right to have members of their community decide their fate. Justice had become politicized, and it was administered pursuant to British law, and as a manner of repression, as the colonists were considered British subjects. British law was often unjust and unfair to the Colonists and failed to recognize the realities of living in the New World. This was one of the many injustices that spurned the birth of our Democracy. Trial by jury was, and largely remains, an American institution with most countries not offering jury trials to their citizens.

The right to trial by jury was established under and through the Seventh Amendment to the Bill of Rights. As such it was one of the original rights for which a war was fought, blood was spent, and lives were sacrificed. The right to trial by jury is also guaranteed by Section 16, of Article One, of the California Constitution.

What was once considered a fundamental right and honor is now perceived by many as an annoying and disruptive inconvenience. Not to minimize the impact that you feel jury service has upon your personal circumstances, too many of us now take for granted our democratic freedoms, rights and responsibilities. Jury service is an apolitical right and in today’s environment where the courts have become more politicized, the fact that a jury pool is drawn from a broad cross-section of our community is perhaps one of the most apolitical aspects of our Democracy.

As your name, Frank, suggests that your pronoun is male, and you reference your spouse with the pronoun he, I deduce that you are in a same sex marriage. (If my assumption is incorrect, please forgive me.) I want to put this into some perspective: imagine if you or your husband were accused of a crime, were the victim of a hate crime, or been deprived a civil right based upon your sexual orientation. If you lived in another state, not as progressive as California, the judge might be an elected or appointed official who is homophobic, or against gay marriage, and she/he would be the sole decisionmaker on your case. That prejudice could very well affect the outcome of your case and be demoralizing. Likewise, were no members of the LGBTQ community to heed the call to jury service, you would not receive a jury of your peers.

No one knows the case you have been summoned for as of now. Jurors are randomly selected from DMV records, voting rolls and other public sources of information and, until the day you show up at the courthouse, there is no way to know what type of trial, or what type of issue, is involved. In San Francisco, if you are summoned to 400 McAllister Street chances are that it is a civil trial involving disputes between two parties, two businesses, or an individual seeking justice against much more powerful interests such as corporations and/or the government. If you are summoned to 850 Bryant Street, it is most likely a criminal case.

Since COVID-19 began, I have tried two cases to verdict, one in September against a police department and officer where there was a claim of unlawful and excessive use of force resulting in a shooting and one against an insurance company for injuries suffered in a collision. I selected juries, presented the facts, and received verdicts in favor of my clients who otherwise would never have received justice. Had jurors not shown up, my clients would never have had their chance to receive fair and impartial justice. We would never have been able to stand up to the police and, quite possibly, given the judge and venue in another state, we would not even have had a chance, much less won.

The right to trial by jury is already threatened by big monied interests that don’t want trial lawyers like me to balance the power dynamics. Organizations which I am proud to be a member of, such as the American Association of Justice, and the Consumer Attorneys of California, fight diligently and spend millions of dollars annually, contributed by members such as myself who believe in this right, to help elect pro-justice, pro-civil rights and pro-7th Amendment legislators to help preserve the right to trial by jury.

Many jurors, originally reluctant, after serving their jury service are glad they did it. They feel proud of being a group of twelve (or six in Federal Court) who participated. I hope you take the call to service and have a meaningful experience. Lastly, just because you are called for jury duty doesn’t mean you will serve. Many times, jurors are not needed as a case gets resolved or settled. Even if you are called into court, most jurors do not get selected, as often more jurors are called then end up being needed.

I hope this helps you see things in a different light. Without Jurors, the light of democracy dims remarkably.

Written By Christopher B. Dolan and Matthew D. Gramly

It is now early June, the time of year when the U.S. Supreme Court steadily releases all of the remaining opinions they have not yet released throughout the Court’s term. Since June is also Pride month, Court watchers are keeping an eye out this year for the Court’s opinion in a case involving adoptions of children by LGBTQ+ families. The case, Fulton v. City of Philadelphia, involves a religious-based adoption and foster care agency that refuses to provide any services to married same-sex couples. The agency’s denial of services is based on the religious beliefs of the Roman Catholic Archdiocese of Philadelphia, which runs the agency. Because of the denial of services to married same-sex couples, the City of Philadelphia canceled a contract with the agency because of this discriminatory practice. The Diocese thereafter sued the City, alleging that local regulations discriminate against the Diocese because of their religious beliefs.

One year ago, the United States Supreme Court handed down a landmark decision in support the LGBTQ+ community in holding that employers who terminate an employee because that employee is gay, lesbian, or transgender is in violation of Title VII of the 1964 Civil Rights Act. But one year ago, Ruth Bader Ginsberg was still on the Court. Today, Associate Justice Amy Coney Barrett occupies Justice Ginsberg’s former seat on the Court. And today, with the addition of Justice Barrett to the Court, there is a 6-3 conservative majority on the Court, including Trump’s other two appointees, Justices Kavanaugh and Gorsuch. It is a much different Court today than it was one year ago and no one knows quite what to expect on the Fulton case.

For more than 100 years the Roman Catholic Diocese of Philadelphia had run Catholic Social Services (CSS), a foster care agency in the city. CSS had a contract with the city to provide foster care and adoption services to the city’s residents and children under the terms of which CSS received taxpayer funds from the city. During an investigation in early 2018 Philadelphia’s main newspaper, the Philadelphia Inquirer, discovered that CSS had a policy of refusing to provide foster or adoption services to same sex couples. The paper notified the city’s Department of Human Services (DHS), the department overseeing and enforcing regulations for such foster care agencies, and asked if the city was aware of CSS’ policy. DHS discovered that only one other foster care and adoption agency in the city run by religious organizations (there were several) had a similar policy of discriminating against same-sex couples. DHS Secretary Cynthia Figueroa thereafter canceled CSS’ contract with the city because of CSS’ discriminatory practices.

CSS and the Archdiocese sued the City of Philadelphia pursuant to the Free Exercise Clause, the Free Speech Clause, and the Establishment Clause of the First Amendment to the U.S. Constitution. CSS also alleged religious discrimination had been perpetrated against them by the city government. The Free Exercise clause, accompanied by the Establishment clause, reads in relevant part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The contention was that Philadelphia’s city government, by canceling their contract with CSS because CSS did not provide services to same-sex couples, was using the power of government to discriminate against CSS and the Diocese solely because of the religious beliefs held by both; that by canceling their contract the city was preventing CSS and the Archdiocese from freely exercising their religious beliefs, and was using the power of government to disfavor the Catholic faith impermissibly.

The majority opinion in this case is due to be handed down by the Court any day now. The implications could be devastating to LGBTQ+ families and their ability to adopt children from adoption and foster care agencies run by religious organizations. As with most cases involving LGBTQ+ discrimination issues, it pits the right to be free from discrimination because of one’s sexual orientation against claims that “religious freedom” permits various churches and religious organizations to openly discriminate against people in the LGBTQ community because of deeply held religious beliefs.

The case was argued before the Supreme Court on November 4, 2020, the day after the 2020 election. Associate Justice Amy Coney Barrett had been on the Court for just ten days. It is important to note as well that all six of the Court’s conservative Justices, Chief Justice John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Justice Barrett were all raised Catholic and all six remain practicing Catholics to this day.

Justice Ruth Bader Ginsberg spent her entire life fighting against discrimination of all kinds, including discrimination against the LGBTQ+ community. Following her death last year, Rea Carey, executive director of the National LGBTQ Task Force, said in a statement that,

“Justice Ginsburg was an American hero and pioneer, a voice for so many marginalized people, leaving behind a legacy of courage, tenacity, and historic impact in creating a better country and a better world for all of us. We are all so grateful for all Justice Ginsburg has done for LGBTQ people, for women, for our ability to control our own bodies, for all that seek to move freedom forward in this country.”

Justice Amy Coney Barret, on the other hand, belongs to a Catholic sect that believes wives should be subservient to their husbands and openly opposes both abortion and just about any rights extended to members of the LGBTQ+ community, even banning them from membership in the sect. One would be wise to not get their hopes up with regard to this particular imminent Court decision.

Written By Christopher B. Dolan and Jeremy M. Jessup

This week’s question comes from Johanna in Truckee who asks: Every new year there are hordes of new laws that are enacted but I find it difficult to know what they are. Is there any way you can provide some highlights of California’s new laws?

Dear Johanna: Out with the old and in with the new, as the saying goes, and as you pointed out — and that includes a number of new laws that went into effect on January 1st here in California or are going to come into effect shortly. There were hundreds of bills that were signed into law and some that were voted on by the people. A number of these will not start until later this year, such as being prohibited from buying more than one semiautomatic rifle in a 30-day period. Some may begin even later, like a flavored-tobacco ban that was set to go into effect on the 1st, probably will not be adopted until some time in 2022.

Here are some of the laws that have gone or are going into effect for 2021:

Additional penalties for texting and driving

It’s already the law that you must use hands free devices while driving, whether you’re talking or texting. Now the punishment is getting stricter. Two convictions in 36 months will add a point to your record starting in July 2021.

Hot car rules

It’s already against the law to leave a child under 6 in a car unattended. Now those who try to help are protected from civil or criminal liability for property damage or trespassing if they break into the car to rescue the child.

Minimum wage

Starting January 1s California’s minimum wage is $14 at companies with 26 or more employees and $13 at companies smaller than that. This is a $1 increase from last year’s hourly minimum. Some cities, like Palo Alto, Sonoma and Mountain View have already increased their minimum wages to $15 or more this year.

Expansion of paid family-leave benefits

Family-leave benefits for nearly six million residents have been expanded. In addition, Californians who work for an employer with at least five employees are included in job protection benefits. The new law also expands on the potential reasons for taking leave, making it possible for workers affected by COVID-19 to take time off to care for a parent, sibling or grandchild.

Transgender protections

The Transgender Respect, Agency and Dignity Act allows incarcerated transgender, gender-nonconforming and intersex individuals to be housed and searched according to their gender identity.

Workplace COVID-19 protections

The new law requires employers to take specific actions, like written notifications to employees, within one business day of a potential exposure to COVID-19 in the workplace. The notification must be written in English and another language, if applicable. This law does have a sunset provision, which is the end of 2023.

Inmate Firefighters

After a devastating fire season, when many inmate firefighters were released early because of the pandemic, prisoner firefighting crews served a crucial role; a new law will now allow nonviolent offenders to petition to get their records expunged and to use their training to gain employment as firefighters. Previously, inmates were precluded because of their criminal records from becoming firefighters upon release.

Parolees’ right to vote

Voters passed Proposition 17 in the November election, which restores felons’ right to vote after the completion of their sentence.

Youth criminal justice reforms

Starting in July, the state will be phasing out juvenile prisons. In addition, a new law prevents kids who are acting out in school from being referred to probation programs or becoming a ward of the court; instead, they’ll be referred to community support services. Finally, it will become easier for minors in police custody to get legal counsel before being questioned.

The three remaining state youth facilities will no longer accept newly convicted youth after July 2021. The state will be transferring the responsibility of the convicted youth back to the counties.

Student loan borrowers

Effective July 2021 will be Assembly Bill 376 which offers new protections for student loan borrowers and makes it harder for lenders to take advantage of people who may not know all their rights or how to navigate the system.

Demilitarizing police uniforms

Law enforcement will no longer be allowed to wear uniforms that have camouflage or otherwise resemble military uniforms. This law does not apply to members of various tactical response teams, such as SWAT, nor does it apply to the Department of Fish and Wildlife.

Bans on certain police restraint tactics

AB 1196 eliminates the use of any chokehold or carotid restraint technique by law enforcement. The bill prohibits any state or local law enforcement agency, including campus police, from authorizing the use of a carotid restraint or chokehold. The bill defines a chokehold as any defensive tactic involving direct pressure applied to a person’s trachea. It also defines a, “carotid restraint,” as any restraint, hold, or other defensive tactic that applies pressure to the sides of a person’s neck, which involves a substantial risk of restricting blood flow, and that may render the person unconscious.

By: Christopher B. Dolan and Lourdes DeArmas

Jennifer K. asks: Did Gov. Gavin Newsom just sign into law protection for pedophiles?
Dear Jennifer: No. That is far from the truth.

Pedophiles are not protected under the recently passed California Senate Bill 145. Unfortunately, we are currently living in a reactionary time. We hear something and instead of researching and confirming, we react. Most of the time, our reactions are based on emotion and fear, not logic. As soon as SB 145 was signed into law by Gov. Newsom, Twitter and Facebook were immediately inundated with posts shared thousands of times about how California Democrats “just passed a pro-pedophilia bill” and “they want to protect pedophiles who rape and lure your children” and also: “No felony for having sex with a minors.” #SaveOurChildren started trending on all social media. This is simply wrong!

The fervor over SB 145 clearly exemplifies that there was either an intentional misconstruing of the law in an attempt to mislead and create a reactionary fear, or possibly the fervor came from blatant ignorance and failure to educate oneself. SB 145 has nothing to do with pedophiles and it does not shield predators who rape children. Even in a statutory rape situation, an adult will still be charged with a felony. The legislation merely eliminates anti-LGBTQ+ inequality and actually standardizes the rules about who is required to be on the state’s sex offender registry.

SB 145 is what is called in other states a “Romeo and Juliet law” – and it is limited to consensual relationships that involve non-forcible statutory rape situations and only erases the mandatory registration as a sex offender. Specifically, SB 145 is really a “Romeo and Juliet,” “Romeo and Romeo” and Juliet and Juliet,” type of law. The main point was to protect a young couple who is having consensual sex. Meaning, that neither would have to automatically register as a sex offender. The judge and the prosecutor would have discretion. But SB 145 does not create a new law, it only amends current law to include other non-forcible sexual acts. The cutoff is still 14 years old. The statute does not apply to minors 13 and younger.

Under current California law, vaginal intercourse (specifically penile-vagina) between a minor (14-17 years) and partner within 10 years of age is illegal but does not require mandatory registration as a sex offender. A judge is allowed to decide if the convicted person would be placed on the sex offender registry or not.

This distinction in the law before SB 145, disproportionately targeted LGBTQ+ young people for mandatory sex offender registration, since LGBTQ+ people usually cannot engage in vaginal intercourse. For example, if an 18-year-old heterosexual man has vaginal intercourse with his 17-year-old girlfriend, he can be arrested, charged and convicted of a crime, but is not automatically required to register as a sex offender. The judge is allowed to make that decision. However, if an 18-year-old gay man had sex with his 17-year-old boyfriend, the judge would have been required by law to automatically place the adult on the sex offender registry, regardless of the circumstances.

Therefore, SB 145 only amends current state law to include other types of intercourse such as oral, anal sex and digital penetration. SB 145 eliminates an inequality and discrimination in a sentencing law that has harmed LGBTQ+ youth related to California’s sex offender registry.

To be clear, SB 145 has no effect on the level of crime prosecuted or sentencing for that crime. It only takes away automatic sex offender registration and leaves it up to a judge to make that determination. The laws against sex with minors remain intact. It is still illegal to have sex with a minor under the age of 18.

More importantly, nothing in SB 145 would protect an individual who commits a sex offense against a minor under 14, nor can they take advantage of the discretionary relief provision. Luring a minor for sex is also not protected under this bill. Those types of sex offenders are predatory and would not benefit from the changes in SB 145.

Our state is inching towards equal rights in all forms of laws to LGBTQ+. Unfortunately advances towards equality under the law, such as SB 145, are marred with personal biases and fear mongering.

FOR IMMEDIATE RELEASE: CLAIM FILED AGAINST U.S. GOVERNMENT FOR TRANSGENDER IMMIGRANT’S DEATH

PRESS CONFERENCE: June 12, 2019, 1:00 p.m., Dolan Law Firm, 1438 Market Street, San Francisco, CA.

On June 11, 2019, the family of Johana Medina Leon filed a claim against the Immigration and Customs Enforcement Agency (ICE) and the Department of Homeland Security for denying her civil rights and thereby causing her death while she was being detained after crossing into the United States. In December of 2018, Johana, an El Salvadorian National, was threatened with physical violence based on her transgender status. She fled El Salvador in fear for her life to Mexico where she received a Humanitarian Visa. With her visa she traveled to an asylum center in Juarez, Mexico. While in Juarez, Johana was assigned a number for an appointment with the Customs and Boarder Control, ICE and the Department of Homeland Security where she sought asylum. Her fear of persecution was found to be credible and she was detained pending a hearing. Although she was given a court date, The CPB questioned her transgender status, as she had male genitalia, and housed her with males. Unlike other transwomen, she was not paroled pending a future court date and was, instead, sent to the ICE Otero County Processing Center in New Mexico.

Soon after arriving at Otero, Johana’s health rapidly deteriorated. Having been trained and employed as a nurse in El Salvador, she recognized that she needed IV fluids but her request for treatment was denied. She asked for water, sugar and salt so she could prepare her own IV but that request too was denied. In April and May Johana’s condition got progressively worse and, since she was being denied care, she asked to be deported so she could receive treatment. Her request was ignored, and her condition continued to deteriorate. On May 15, 2019, Johana appeared before a U.S. Magistrate to present her case for asylum where she was told that she would receive a decision in 8 days, and she was returned to ICE custody. On May 20th she spoke with her boyfriend in El Salvador and reported that her requests for treatment had been denied. On May 23 or 24, 2019, Johana was found unconscious and was taken by ICE to the Del Sol Medical Center Hospital in El Paso, TX. ICE apparently granted her release on her own recognizance right before she was dropped at the hospital. Over the next several days, Johana spoke with her boyfriend and family members reporting that her condition was worsening. On June 1, 2019, Johana’s family was notified that she had died as a result of pneumonia.

Johana’s family claims that the Government, in violation of Johana’s civil rights, negligently managed her care because of her nationality, her seeking asylum, and her transgender status; thereby causing her death.

Christopher Dolan, the family’s attorney, based in California, stated :“On the Statue of Liberty there is a famous poem by Emma Lazarus, known by all Americans, which states in part, “Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore. Send these, the homeless, tempest-tost to me . . .” The Trump Administration seems to have re- written the poem, to say “. . .and I will send them back abused, terrorized and dead.” Johana deserved to be protected by this Country as a human being seeking asylum. Instead, she was detained, humiliated, mistreated, and dumped at a hospital where she was not on the threshold of liberty; but, instead, on death’s door. We will get to the truth and hold this Government accountable for its callous disregard of Johana.

A representative of Johana’s family will be present via Skype, from El Salvador, to answer questions.

FOR INFORMATION CONTACT CHRIS DOLAN at 415-279-2604 or presscontact@dolanlawfirm.com

For access to the press conference via video conference go to: https://zoom.us/j/878557725

California’s Progressing The Rights Of The Elderly LGBTQ Community

This week’s question comes from Debbie D in the Castro who asks: “With all the hate coming out of Washington and the federal government trying to push back LGBTQ rights I heard that California is moving in the other direction. I’m glad I live in California. What is our State Government doing for us?”

Dolan Law Firm fights for the rights of transgender persons — To show our solidarity with transgender persons, we are displaying the Transgender Pride Flag at our building on Market Street in San Francisco.

Dustin from San Francisco writes: “Chris, I am outraged that Trump has banned transgender people from serving in the military. Is this constitutional?”

Thank you Dustin for your timely question. I share your outrage. I am proud to have championed transgender rights. I have assisted courageous transgender persons in safeguarding their rights and ending discriminatory policies and practices by the government, professional associations, hospitals and employers. My clients have shared with me the pain and emotional turmoil they have suffered from being marginalized and treated unfairly because of their gender identity.

California Considers Gender Neutral Bathroom Policy To Aid Transgender Rights

The battle to protect the rights of transgender individuals is fought on many fronts. The California Fair Employment and Housing Act (FEHA) establishes that transgender people have the same civil rights in housing and employment as every Californian. Of course, having the law on your side is not the same as being free from harassment and discrimination. FEHA is an important tool in the fight for equal treatment, but more needs to be done.

Transwoman Denied Healthcare Services for Religious Reasons?

Today’s question comes from Gina J. from Los Angeles: “I used to live in San Francisco and read your column. I moved to L.A. recently. I am a trans-woman and as part of my transition I wanted to undergo breast implantation. I found an excellent surgeon and he scheduled my surgery at a local hospital that is part of a religious healthcare system. I had received approval from MediCal and was excitedly awaiting my surgery when my doctor sent me an e-mail, accompanied by a letter from the hospital stating that, because of their religious beliefs, I could not have my surgery “because God made me a man.” Is this legal?”

Dear Gina, I am surprised that this kind of discrimination continues. In 2008 I brought action for a woman named Charlene Hastings against Seaton Hospital when they engaged in similar discriminatory conduct.

LPGA Voted to Reverse Its Policy

On November 30, 2010, the LPGA voted to reverse its policy that only women “born female” can be LPGA members and participate in LPGA events and schools. This action came as a result of a lawsuit filed by The Dolan Law Firm on behalf of its client, Lana Lawless, in October of this year. Ms. Lawless had applied to join the LPGA and her request was rejected because she, as a transgender female, was not “born female.” Likewise, Ms Lawless, the Long Drivers Association of America (LDA) 2008 world champion, sued the LDA after it changed its rules in 2010 to require that competitors be “born female.”