Federal Appeals Court Rules Against Hazleton

The Times Leader is reporting the Third Circuit Court of Appeals has ruled against the City of Hazleton in a case with its insurer, Scottsdale Insurance Company, over the payment of legal bills involving its Illegal Immigration Relief Act lawsuit.

In this very inaccurate statement Terri Morgan-Besecker writes:

A federal appellate court on Friday ruled an insurance company does not have to pay attorneys’ fees associated with Hazleton City’s battle over its illegal immigration ordinance, leaving the city on the hook for at least $2.4 million, and likely much more.

What is true is that the Third Circuit Court of Appeals relieved Scottsdale Insurance Company from any financial obligation in this court issue. What is totally untrue is that the city is "on the hook for at least $2.4 million, and likely much more."

No court has awarded any attorney fees in this case. Judge Munley ruled against the City of Hazleton with regards to the Illegal Immigration Relief Act which can be found a this link.

The Plaintiffs filed a separate action to recover attorney fees and cost titled Plaintiffs Petition for Fees and Costs . Since the appelate process has not concluded the actual award has not been established.

Let's look at one of the firms involved in the litigation and mentioned in the Plaintiffs Petition for Fees and Costs, Cozen O'Connor. The Metropolitan Corporate Counsel interviewed the Douglas B. Fox, Member of Cozen O'Connor and Chair of the firm's Pro Bono Committee on August 08. 2008 about its role in the case.

Fox: We are currently handling a high-profile case, Lozano v. Hazleton , involving a challenge to the Hazleton, PA., illegal immigration ordinances. Our team of six attorneys has dedicated thousands of hours to this case - our single largest pro bono matter to date. Lost in the rancorous debate over immigration policy is the fact that the Hazleton case does not seek to vindicate illegal immigration. Our clients simply sought to restore immigration enforcement to the federal government - where it belongs. We were successful after a two-week trial in striking down key elements of the ordinances, and currently, the case is on appeal to the Third Circuit Court of Appeals. A ruling is probably several months away.


The case has made national headlines and was highlighted by the National Law Journal as one of the most significant pro bono matters of 2007, with the tagline for their article being "What Lawyering is All About." And, that really says it all. Firm management deserves a great deal of credit for having the courage to take on an unpopular cause, one that many law firms would have shied away from. We have received many honors for our pro bono work, including in the Hazleton case. This kind of recognition for the quality of our pro bono lawyering is what makes me the most proud.

The Pennsylvania Bar Association gave Cozen O"Connor one such award in 2007.

Cozen O’Connor: Philadelphia, Philadelphia County (Nominated by H. Robert Fiebach, Esquire) Cozen O’Connor law firm is recognized as a “go to” firm in handling complex pro bono matters, particularly in the field’s Immigration/ Asylum Law and post conviction remedies. Pro bono service is an integral part of the firm’s culture. Cozen encourages all of its attorneys to devote at least 60-hours annually, allowing 50 of those hours to be treated as full production credits. In 2006, Cozen O’Connor’s Pennsylvania attorneys and paralegals devoted over 9,900 hours to pro bono matters. Firm attorneys also take leadership roles in public service and charitable organizations and sit on the Boards of Directors of pro bono services organizations. Additionally, the firm has developed its own charitable programs that serve the greater Philadelphia region.

If their work was pro bono why would they be entitled to a court award of their fees?

Look at the Plaintiffs Petition for Fees and Costs. There are five firms applying for attorneys fees. Cozen O'Connor has twenty one attorneys billing for fees.

Witold Walczak, attorney for the ACLU, filed for $324,400 worth of fees at a rate of $400.00 per hour. Lest we not forget that the ACLU has also represented the American Nazis, the Ku Klux Klan, and the Nation of Islam. According to their website this is how they fund themselves. Member dues and contributions and grants from private foundations and individuals pay for the work we do. If that is the case why is their attorney billing Hazleton at a rate of $400.00 per hour?

Fifteen attorneys besides the 21 from Cozen O'Connor have filed for fees. The total listed on the Petition is $2,333,551.50 in attorneys’ fees and $45,492.70 in costs.

Clearly the size of the bill is intended to send a message to any government entity that wants to take action against the cost of illegal immigration to its community. It is funny that the American Civil Liberties Union will protect your right to free speech but punish the citizens of Hazleton for protecting its community. The elected officials will not be stuck with their bill. It is the taxpayers that will fund their burden should an award be given to the Plaintiffs. But, as stated, until that happens the news media should not be as reckless with its articles to the public.

Sexting-Students Privacy Rights Flexing Muscle On Issue

Ting-Yi Oei And His Wife

The Legal Intelligencer is reporting on a case unfolding in Wyoming County over an issue involving sexting and the contents of a student's confiscated cellphone. The student claims her constitutional rights were violated when her principal, Gregory Ellsworth, at Tunkhannock Area High School confiscated her cell phone, found nude images she had taken of herself and turned it over to prosecutors.

According to that suit, school officials turned over the students' phones to former Wyoming County District Attorney George Skumanick Jr., who responded by targeting 13 girls and three boys with threats of criminal charges if they did not agree to take a class he had designed on the dangers of sexting.

Most agreed to take the class to avoid prosecution, but three of the girls and their parents instead enlisted the help of the ACLU to challenge the threatened prosecutions. Lawyers from the American Civil Liberties Union of Pennsylvania won an injunction from U.S. District Judge James Munley that was later upheld by the 3rd U.S. Circuit Court of Appeals.

Now, in a second suit, a student identified only as "N.N." claims the school officials and prosecutors illegally searched the contents of her phone even though she intended the racy photos to be "seen only by herself and, perhaps, her long-time boyfriend."

Listening to Webster and Nancy this morning on WILK on the subject I was almost swayed in their argument that the prinicipal had the right to confiscate their phone but didn't have the right to drill down with its keyboard to find out what information including photos were saved on the phone.

Take a look at this case from Virginia fedatured on Wire which almost branded assistant principal, Ting-Yi Oei, at Freedom High School in South Riding as a child pornographer. In that case Mr. Oei was charged with possession of child pornography and related crimes after he had been asked to investigate a rumored sexting incident at the high school where he worked. Upon finding a student in possession of a photo on his phone that depicted the torso of a girl wearing only underpants, her arms mostly covering her breasts, the assistant principal showed the image to the principal who instructed him to preserve the photo on his computer as evidence, which he did.

A Virginia court threw out the case but only after Mr. Oei took out a second mortgage on his home and spent $150,000.00 to clear his name.
"These charges are so toxic and incendiary," says Diane Curling, a former teacher and Oei’s wife of 35 years. "Children need to be made aware of the dangers of sexting, but to intimidate public education officials and try to make it a felony to even touch something like this is terrifying. . . . If we are not careful, we will find ourselves with a new McCarthy era. "

Getting back to the Tunkannock case: The plaintiff is one of the girls who took Skumanick's class to avoid prosecution, but now claims that the initial search was illegal.

"I was absolutely horrified and humiliated to learn that school officials, men in (the) DA's office, and police had seen naked pictures of me," the plaintiff, now 19, said in a statement released by the ACLU.

"Those pictures were extremely private and not meant for anyone else's eyes. What they did is the equivalent of spying on me through my bedroom window," the plaintiff said.

In Oei's case Oei says he showed the image to his boss, Principal Christine Forester, who told him to preserve a copy on his office computer for the investigation. A computer neophyte, Oei didn’t know how to transfer the image from the boy’s cell phone, so the teen sent the picture to Oei’s phone, and told him how to forward it to his work e-mail address. When the process was complete, Oei instructed the student to delete the image from his phone.

Since the Virginia court threw out the case before it ever went to trial it begs the question in this case "Does the prinicipal have the right to view information on the phone on grounds of a security issue or suspected child abuse?" In Oei's case the court dismissed the fact that he not only viewed a photo but downloaded it and didn't penalize him.

The National School Safety and Security Services points out some significant and potentially life threatening scenarios when schools allow cell phone use on their campuses.

Cell Phones Can Detract From School Safety & Crisis Preparedness

1.Cell phones have been used for calling in bomb threats to schools and, in many communities, cell calls cannot be traced by public safety officials.

2.Student use of cell phones could potentially detonate a real bomb if one is actually on campus.

3.Cell phone use by students can hamper rumor control and, in doing so, disrupt and delay effective public safety personnel response.

4.Cell phone use by students can impede public safety response by accelerating parental response to the scene of an emergency during times when officials may be attempting to evacuate students to another site
It will interesting how this plays out in Pennsylvania.

5.Cell phone systems typically overload during a real major crisis (as they did during the Columbine tragedy, WTC attacks, etc.), and usage by a large number of students at once could add to the overload and knock out cell phone systems quicker than may normally occur. Since cell phones may be a backup communications tool for school administrators and crisis teams, widespread student use in a crisis could thus eliminate crisis team emergency communications tools in a very short period of critical time.

It is somewhat amazing that it is mandatory to subject your cellphone to scan and search in the airport but one child believes her privacy was violated because she initially broke a rule and didn't like the consequences. It will be interesting to see how this issue plays out in the courts.

AG Tom Corbett Goes On The Twitter Attack

Most bloggers are familiar with the site Casablancapa.blogspot.com. In a peculiar twist Philly.com is reporting that AG Tom Corbett has subpoened the identity of two twitter accounts that seem to be related or linked to that website, @bfbarbie and @casablancaPA.

[Corbett] subpoenaed Twitter, asking that it hand over the “name, address, contact information, creation date, creation Internet Protocol address and any and all log in Internet Protocol address” associated with two Twitter accounts, @bfbarbie and @casablancaPA, which have only 68 and 123 followers, respectively [as of Wednesday night, 124 and 206].

UPDATE: The story has taken a new twist, with the Post-Gazette reporting that Corbett's office believes CasablancaPA is being run by Brett Cott, a former legislative aide just convicted in the unfolding Bonusgate scandal. In court filings, two assistant attorneys general argue the blog demonstrates that Cott is deflecting blame and denying responsibility for the crimes of which he's been convicted. They are seeking a longer-than-normal sentence and basing their argument on that.

Corbett spokesman Kevin Harley told Politico that the attorney general didn't issue the subpoena because the Twitter users have been critical of Corbett and said it was issued as part of an ongoing criminal investigation. But he declined to go into further detail.

Meanwhile, the American Civil Liberties Union has thrown itself into the fray, saying it will move to quash the subpoena if it can't reach a negotiated settlement with Corbett. And Allegheny County executive Dan Onorato, who will face Corbett in the fall gubernatorial election, has accused him of misusing his office.

From this blogger just an observation. Isn't there something more pressing than this particular issue facing Pennsylvania? This matter is not a win-win for Corbett.