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Perry County Auditors Feel Harassed, Provide Misinformation and Appear to Be Funded

I just received some new Right to Know Law (RTKL) documents in relation to the Perry County Auditors’ lawsuit against Perry County Sheriff Nace, which result in far more questions than answers.

In a letter dated “June [sic] (July) 21, 2014,” Attorney Craig Staudenmaier informs Perry County Commissioners Benner and Rudy that his clients “continue to be dismayed and disappointed in [their] continued harassment of them,” relating to the Commissioners’ request that the Auditors withdraw their frivolous lawsuit against Sheriff Nace. Interestingly, Attorney Staudenmaier then claims that the Auditors could have brought a contempt petition against Sheriff Nace for his failure to comply with the subpoena. While I have not reviewed the subpoena, I understand from the Sheriff’s Solicitor that the subpoena was not properly executed and therefore was ignored. But, I guess we’ll ignore that legal issue, much like the Auditors like to ignore 18 Pa.C.S. § 6111(g)(3.1).

The letter also goes on to claim that, “It is not my clients’ litigation that is ‘frivolous’ as you state, but the arguments and forces aligned against them which have totally misconstrued and misinformed the public as to what the true issue is here and the reasons for the declaratory judgment action…They have been and continue to be subjected to vicious attacks by you and by members of the community for absolutely no reason.” Now, before anyone goes reaching for a tissue box, I assure you, as is shown below, it appears the Auditors have some support, from somewhere, even if it is miniscule, and there is significant reason, such as the likely criminality of the Auditors’ action, for the outrage.

Let’s talk about lies and misinformation. Auditor McMullen previously told Reporter Sauro that “concealed firearms information was available to the public under the right-to-know law…However, last year, rules were established to exclude this information from public view.” However, when I submitted a RTKL Request for that information, the Perry County RTKL Officer responded back that the Auditors’ Solicitor responded, “the auditors do not have in their possession any records which would be responsive to Mr. Prince’s RTKL request.” Prior to my representation of Sheriff Nace and in relation to the same RTKL request, Sheriff Nace also issued a response stating, “NO ONE outside of the Sheriff’s Office has had or will have access to License to Carry Firearms Application or to any information regarding Licenses to Carry Permits.” Moreover, Perry County RTKL Officer responded back, “As of May 21, 2014, no RTK requests have been made to the Office of Open Records of the County, as well as no inter-office department or other disclosures of any nature.” Hmm, just who is providing the community with misinformation?

Maybe we should talk about the misinformation being sworn to, subject to the penalties of perjury, by the Auditors that they have been provided unredacted LTCF information in the past. Sheriff Nace has steadfastly denied this allegation. Of course, maybe it is just one of those statements like Auditor McMullen’s statement to Reporter Sauro….a little misinformation never hurt anyone, right?

We won’t even touch on the misinformation that has been given by the Auditors in relation to 6111(g)(3.1). For those unaware, Section 6111(g)(3.1) (which is dealt with in extreme detail in our Brief in Support of our Preliminary Objections) provides:

Any person, licensed dealer, licensed manufacturer or licensed importer who knowingly and intentionally obtains or furnishes information collected or maintained pursuant to section 6109 for any purpose other than compliance with this chapter or who knowingly or intentionally disseminates, publishes or otherwise makes available such information to any person other than the subject of the information commits a felony of the third degree. (emphasis added)

It would seem that by the Auditors bringing this action against Sheriff Nace, they are likely in violation of the criminal law prohibiting solicitation and conspiracy. 18 Pa.C.S. § 902, Solicitation, provides:

(a) A person is guilty of solicitation to commit a crime if with the intent of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct which would constitute such crime or an attempt to commit such crime or which would establish his complicity in its commission or attempted commission.

18 Pa.C.S. § 903, Conspiracy, provides:

A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

I wonder if the Perry County District Attorney is aware of the filings in this matter. It would seem based on the pleadings and the Auditors’ own admissions that this would be a pretty simple prosecution.

But, let’s not overlook a very interesting issue – the issue of funding. The Perry County Commissioners only originally authorized a $2000 expenditure for research into this matter, which was authorized long before the litigation was instituted. (The Commissioners have consistently stated that this litigation in frivolous). The first billing from Nauman Law Firm was April 14, 2014, in the total amount of $1,435.00. Provided the authorized expenditure, it was paid. On June 2, 2014, a new invoice was submitted in the total amount of $2,456.75 for April billings. This resulted in Perry County Commissioners’ Solicitor Blunt’s June 16, 2014, letter advising that the County would not be paying any amounts over the agreed upon $2000.00. Accordingly, the County paid the difference of $565.00 for a total expenditure of $2000.00 and leaving an amount putatively owed of $1891.75. On June 16, 2014, a new invoice was issued from Nauman Law Firm in the amount of $1803.00, which does not appear to relate to any of the previous billings of the June 2, 2014 invoice, as these billings were all related to May. However, the back owed amount of $1891.75 is not listed. On August 14, 2014, a new invoice would be received from Nauman Law Firm, this time in the amount of $2,237.32 for services rendered in July. Once again, the past owed amounts of $1,891.75 and $1,803.00 (for a total of $3,694.75) are not reflected. So, who is paying the Auditors’ bills? The County has stated that it has not issued a payment since reaching the maximum provided for by the fee agreement. As the RTKL, Section 506(d)(3) requires 3rd parties to produce “public records” for which financial records, including receipts and disbursements, are part pursuant to Section 102, it should be interesting to see just who is funding this litigation….

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What Many People Don’t Understand About Attorney Billings and Consult Fees

Often times, a prospective client will call a law firm to speak with an attorney and become upset when the staff informs the prospective client that there is a fee for the consult. The client will typically respond that he just has “a question” for the attorney and that he shouldn’t be charged to simply ask a question. What the prospective client has failed to recognize is that attorneys, unlike many other professions/businesses, only have three things to sell: 1. their time; 2. their experience; and 3. their reputation.

An Attorney’s Time: When boiled down to the simplest form, an attorney only has his time to sell as a product. While some believe that only the pleadings and documents (complaints, motions, briefs, demand letters…etc) are an attorney’s product, the position fails to recognize that such is only a part of what an attorney does and provides to the client. Other aspects of representation include client meetings, research, drafting, and legal opinions/advice to prevent litigation, charging or issues with administrative agencies, just to name a few. When broken down into the simplest form, all of these are the result of the attorney’s time.

As stated by Abraham Lincoln, “A lawyer’s time and advice are his stock in trade.” Like many of other workers, they’re paid for the time they invest in a matter. Similarly, they expect to be paid for the time they devote to the client’s affairs. That time can’t be broken down into some free units and some that are charged for. You wouldn’t think of going into a supermarket with the idea that the first pound of cherries you can eat while shopping are free and you only have to pay for what you take home with you. Sure, you may pick one out of the bunch to see if they’re to your liking, and no one will complain, but you can’t sit there eating cherry after cherry.

Further, unlike most hourly employees, in addition to possibly being fired or having their license revoked for providing substandard work, attorneys, generally, have to maintain malpractice insurance, in case of providing a client with inadequate representation. Malpractice insurance, like all insurance anymore, is not cheap and the attorney risks being found negligent for malpractice anytime he/she answers just “a question,” in relation to the law. Further, like any other business, there are overhead costs for buildings, staff, healthcare…and the list goes on.

Due to the costs and an attorney only having his time to sell, consult fees become necessary for an attorney and the firm.

An Attorney’s Experience: Many clients are unaware of the difference in representation by an attorney that is experienced in a particular area of the law versus a general practitioner or an attorney whose hourly rate is less because of his/her lack of experience in that area of law. That experience, which generally results in a higher hourly fee, also generally results in fewer hours being spent on the matter, as the attorney is familiar with the process, procedures and individuals/entities involved. The outcome is a net gain for the client, as although he/she is generally paying the attorney at a higher rate, the attorney’s work product and results are generally obtained in much less time. The attorney’s experience also permits the attorney to provide the client with a more realistic opinion on the likely outcome and potential issues that could arise.

An Attorney’s Reputation: One of the most overlooked aspects of hiring an attorney is the attorney’s reputation. The old adage that “it’s who you knows, and how you knows’ em” could not be more appropriately applied to any other profession or occupation (except for politics). While the attorney’s reputation in the legal community alone can be a great benefit to the client, when the attorney’s experience and reputation in a particular field are combined, the net benefit to the client can be exponential.

As an example, an attorney who is well known for handling particular a type of matter before a particular administrative agency is much more likely to be able to resolve the matter absent a hearing or litigation, because the opposing party is well aware of the attorney’s capabilities. Further, the attorney’s experience and reputation can additionally benefit the client by opening doors that are otherwise not available because the attorney knows whom to contact to obtain the necessary documents or resolve the issue. This is not to suggest bribes or other such unlawful or immoral exchanges, but rather, to explain that having a command of the legal issue(s) and knowing the right person to contact in relation to the issue(s), as well as that person’s knowledge of the capabilities of the inquiring attorney, can result in the issue being resolved, without need for drawn out litigation or appeals.

In considering an attorney’s reputation, you should consider:

  • Does the attorney settle every case or is he willing to appeal inappropriate decisions and fight for your rights? Opposing counsel will handle their negotiations differently if their opponent’s reputation indicates that settlement offers are quickly accepted versus a reputation of insisting on full payment, even if it means taking the case up the appellate chain.
  • A judge, experienced with the attorney’s representation, will take the reputation into consideration in every decision made. Has the attorney always been honest and truthful with the court? If so, and that attorney requests a continuance for x reason, the judge is more likely to accept x as fact and grant the continuance. If another attorney has excuses every week, trying to avoid progressing with litigation will likely be denied the requested continuance.
  • Does the opposing counsel have respect for the attorney’s reputation? If so, they are far less likely to push meaningless issues or obstacles to moving forward. They know they must be reasonable in offers as the attorney is not afraid to litigate the case, and has done so many times in the past.       Essentially, is this the fight they want to pick.

But What About Free Consults?: Many attorneys still offer free consults, but it is important to understand the history of free consults and what is actually being offered.

The offering of free consults began, in part, as the law started to evolve into specialized areas, while attorneys were still general practitioners. The law began to evolve at such a fast pace through new statutes and case law that the general practitioner was unable to keep up with the changes and provide competent representation to his/her client. Attorneys didn’t want to be labeled as shysters for collecting a fee, just to tell a potential client that he/she couldn’t handle the legal issue of the client. And so, the offering of free consults came to fruition.

The free consult was an opportunity for the attorney to understand the legal needs of the client and advise the client as to whether he/she could competently represent the client. If he/she couldn’t, the client didn’t pay simply to be told that the attorney couldn’t handle his/her needs. On the other hand, if the attorney could competently handle the matter, the attorney would discuss fees for handling the legal issues.

What the attorney did not do is provide legal advice for free. If the client arrived with forms and questions as to how to fill them out, the attorney would not explain to client how to fill them out as part of the free consult. Rather, the attorney only advised the client as to whether there were valid issues and if so, estimated the time that would likely be involved in protecting the client’s interests. It also provided the client with the opportunity to meet the attorney, determine if the attorney understands the issues and possesses the required skills. This is no different today.

It’s Still Just A Question: For some, the above is meaningless, as we move further into an entitlement society. Unfortunately, at the end of the day, we all still have to put food on the table for our families, gas in our cars, and pay taxes to the Government. Contrary to popular belief, attorneys, much like doctors, are not making excessive salaries. A majority of lawyers are making between $40-$50k, while putting in 80-100hr workweeks. Moreover, the debt incurred to become an attorney, again much like doctors, is astronomical. And this is all before the overhead costs.

Just remember that next time you ask, while it may be “just a question,” an attorney has nothing more than his time, experience and reputation to sell and he/she, just like you, deserves to be paid for his/her time.

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UPDATE !! Body Art Establishment Regulation Act Passes the PA House of Representatives !

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By Tom Beveridge.      

Last year, I reviewed and outlined House Bill 1249 which seeks to regulate the tattoo and piercing industry in Pennsylvania.   See, http://blog.princelaw.com/2013/07/31/pennsylvania-legislature-seeking-to-regulate-the-tattoo-and-piercing-industry/ .   On Monday, May 5, 2014, the Bill passed the House of Representatives by an overwhelming vote of 181-16.   The Bill will now move on to the Senate for consideration.

This Bill, as written, will have a substantial impact on the tattoo and piercing industry in Pennsylvania.    I urge industry professionals to contact your legislators to discuss this Bill.    The text of the bill itself can be found here:  http://www.legis.state.pa.us/cfdocs/billinfo/billinfo.cfm?syear=2013&sind=0&body=H&type=B&bn=1249.

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Supreme Court Declines to Hear Challenge to NJ Carry Permit Statutes

By Allen Thompson, Esq.

On Monday, the United States Supreme Court declined to hear Drake v. Jerejian, a challenge to New Jersey’s carry permit regimen.  For more information on the case and the issues involved, see our previous blog article: “Case to Watch: Drake v. Jerejian.”

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Drivers Beware: Unconfirmed Anonymous Tips Now OK For Traffic Stop Basis

By Allen Thompson, Esq.

In a close case, Navarette v. California, 572 U.S.            (2014), the Supreme Court of the United States ruled 5-4 today that an anonymous 911 call may serve as the sole basis for a lawful investigative stop, even where responding police officers cannot confirm the material facts of the call.

In the summer of 2008, an anonymous caller reported being run off the road by a Ford F-150 heading south on Highway 1 and gave the operator the license plate number. Responding to the call, Highway Patrol officers located the truck a few minutes later, followed it for about 5 minutes, and then pulled the driver over. Notably, the officers did not observe any erratic driving. Approaching the truck, the officers smelled marijuana and discovered 30 lbs. in the bed of the pickup. At trial, the defendants moved to suppress the evidence on the basis that the stop was unlawful, since the officers only had an anonymous, unconfirmed tip of erratic driving. The evidence was admitted and the driver and his passenger were convicted. The Supreme Court today affirmed the convictions.

Typically, the police must have some confirmation of a tipster’s information before making the investigative stop. Confirmation of the material facts of the tip is even more important when the tip is anonymous. For example, the Supreme Court has held that where an anonymous tipster informed police that a particular vehicle was carrying cocaine, the fact that the tip described the car down to the broken headlight and was able to describe the future route of the car from a particular apartment complex to a particular hotel, the tip was reliable enough to provide the reasonable suspicion necessary for an investigative stop. Alabama v. White, 496 U.S. 325 (1990). On the other hand, where the anonymous tip could only describe an individual, his location, and what he was wearing, the tip was not considered reliable enough to provide reasonable suspicion. Florida v. J.L., 529 U.S. 266 (2000).

What is troubling with the Court’s decision today is the minimal amount of articulable facts an officer may now rely on for reasonable suspicion. As Justice Scalia points out in his dissenting opinion (a relatively short, but biting, dissent), the only thing that the police could confirm prior to pulling over the vehicle was that there was, indeed, a silver F-150 with a particular license plate driving south on Highway 1.

Of primary concern is that nothing about the truck’s behavior indicated any criminal activity; the vehicle did not swerve, veer, slow down, speed up, etc. This led Scalia to note that, not only was the tip not corroborated, it was actually discredited, for the police could actually observe that no criminal activity was occurring.  And yet, the Court found the tip convincing in that it identified a particular vehicle travelling in a particular direction on a busy highway. Scalia correctly notes that “everyone in the world who saw the car would have that knowledge, and anyone who wanted the car stopped would have to provide that information. . . . [T]hat generally available knowledge in no way makes it plausible that the tipster saw the car run someone off the road.”

That is precisely why this case is disconcerting. As of today, anyone with a grudge against a particular driver may anonymously call 911 and have that person stopped. Of course, it is a crime to falsely report criminal activity, but that only punishes the tipster; it does nothing to protect against the unreasonable search and seizure of the driver.  And if the driver happens to have something illegal in the car, he still must answer to the criminal charges.

It is unfortunate that the Supreme Court has now essentially declared that we are all under reasonable suspicion the moment any person, under the full protection of the cloak of anonymity, reports that we are criminals. Justice Scalia is entirely correct when he laments that “[T]his is not . . . the Framers’ [concept] of a people secure from unreasonable searches and seizures.” Indeed, it is not.

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Supreme Court Rejects Limits on Total Political Contributions

By Allen Thompson, Esq.

Today, the Supreme Court of the United States struck down the limitations on the total amount of money an individual can contribute to the entire political process. McCutcheon v. FEC, 572 U.S.      (2014), concerned the aggregate contributions an individual can make to all political candidates within a specified amount of time. The case did not address the limits to contributions to particular candidates. Writing for the Court, Justice Roberts broke the case down along the typical First Amendment analysis: (1) is contributing money to the political process protected conduct, i.e. a First Amendment issue; (2) does the Government have a compelling interest in limiting that conduct; and (3) if the Government has a compelling interest, did it narrowly tailor its limitation to address its interest?

The Court found that an individual does have a First Amendment right to contribute money to the political process. Noting that while

[m]oney in politics may at times seem repugnant to some . . . so too does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests, and Nazi parades [all examples from prior Supreme Court cases] . . . surely it protects political campaign speech despite popular opposition.

Slip op., at 2.

Prior to the Court’s decision, once the aggregate limit was reached, the donor was prohibited from further contributions. In other words, the aggregate limits restricted the frequency with which a person may exercise his First Amendment rights to expression and association. The Court rightly held that the

Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.

Slip op., at 15.

The Court then analyzed the Government’s compelling interest, finding that preventing corruption in the political process was a compelling interest, at least so far as “corruption” was defined as quid pro quo contributions.

Campaign finance restrictions that pursue [other ends] . . . impermissibly inject the Government ‘into the debate over who should govern.’ And those who govern should be the last people to help decide who should govern,

wrote J. Roberts. Slip op., at 3.

The Court also found that the aggregate limits were not narrowly tailored. In other words, the aggregate limits were not closely enough related to preventing corruption to justify the infringement on First Amendment rights. In essence, the Court found that the aggregate limit ultimately restricts how many candidates the donor may contribute to and does nothing to prevent corruption. Justice Roberts wrote that

under the dissent’s view, it is perfectly fine to contribute $5,200 to nine candidates but somehow corrupt to give the same amount to a tenth.

Slip op., at 19. While the Court spent considerable time discussing the Government’s argument that an individual could circumvent the contribution limits to individual candidates by donating through other vehicles, it ultimately ruled that the current statutory restrictions on the total amounts an individual may contribute to any one candidate, committee, or PAC adequately protected against quid pro quo corruption.

In perhaps the most unsettling portion of the Opinion, Justice Roberts addressed the dissenting opinion and firmly rejected it. Roberts rightly dismissed the dissent’s troubling assertion that the “public’s interest” in “collective speech” could trump the free speech rights of the individual. Justice Roberts pointed out that the collective is the majority and that the majority can easily suppress minority speech by passing laws such as the one at issue here. Hence, the purpose of the Amendment in the first place (no pun intended). In refuting that view, J. Roberts wrote:

The First Amendment does not protect the government, even when the government purports to act through legislation reflecting ‘collective speech.’

Slip op., at 17.

While the Opinion is sure to upset many people, given the reaction to Citizens United four years ago, the ruling is firmly rooted in the core of the First Amendment’s protections. While acknowledging the corruption in politics and the worthwhile goal of preventing that corruption, the Court was able to see through the façade of the corruption argument and focus solely on the First Amendment issues at play: namely, that politicians cannot, after election, enact legislation to restrict others’ access to the political process. Politics is fraught with corruption – restricting citizens’ access to the arena will not increase it.

 

Prince Law Offices is dedicated to preserving the First Amendment rights of all individuals, as well as every one of our constitutionally protected rights. If you believe the government – be it local, state, or federal – has infringed upon your rights, call us at 888-313-0416.

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The Constitutional Right Against Self Incrimination Applies Even to the PA Game Commission

By Tom Beveridge

Jack Coble of Perry County believes in his constitutional rights.   In fact, he spent thousands of dollars to fight a citation he received from a Pennsylvania Game Commission officer – and he won!

On November 7, 2012, a Deputy Wildlife Conservation Officer Steven Shaffer entered Mr. Coble’s farm to investigate a tip about “jacklighting” deer on his property.   Jacklighting is an illegal method of spotlighting and shooting deer at night.   Mr. Coble was home recuperating from serious hand injury when he was questioned by the deputy.   He denied any knowledge of such activities, but left his home to drive around his 120 acre farm followed by the deputy.   When they arrived at the barn, the deputy and Mr. Coble came upon his daughter and another man with the carcass of a deer.

As reported by the Associated Press, Deputy Shaffer testified that Mr. Coble became “irate” at this point and ordered him off of his land.   Apparently, the deputy did not leave as requested, but testified that, when things “calmed down, he [Mr. Coble] admitted to being present when the deer was shot.”   Thereafter, Deputy Shaffer apparently cited Mr. Coble with a summary charge of the fourth degree (the fine totaling $150) under section 2126(a)(6) of Title 34 of the Game and Wildlife Code.   This section states that it is unlawful for any person acting under the provisions for “destruction for agricultural protection” – an assumption apparently made by the deputy – to “refuse to answer, without evasion, upon request of any representative of the [PA Game] commission, any pertinent question pertaining to the killing or wounding of any game or wildlife killed or wounded, or the disposition of the entire carcass or any part thereof.”  Deputy Shaffer believed Mr. Coble was “being evasive” and, therefore, cited him under this section.

Mr. Coble hired Donald Zagurskie, Esquire, to defend him against this charge.   Attorney Zagurskie successfully argued that it is a violation of Mr. Coble’s Fifth Amendment right against self incrimination to cite him for not answering or evasively answering questions of the deputy.   In fact, this section of the Game Code effectively forced Mr. Coble to answer the deputy’s questions or be punished at the discretion of the officer.

In what this attorney calls a very commendable act, the Perry County Prosecutor handling the matter agreed with Attorney Zagurskie’s argument stating that it certainly had merit and did not contest Mr. Coble’s appeal.   Although the Prosecutor, believed to be Daniel Stern, Esquire, notified the Game Commission and Attorney General’s office of his decision not to contest the appeal, neither office initiated any actions to intervene in the matter or pursue the matter further.

So, what does this mean for Pennsylvania sportsmen?  While this section of the Game Code is very narrowly applied, it means that you should not be intimidated by Fish or Game Wardens who tell you that you must answer their questions or face a penalty.   It means that you have a Constitutional right against self incrimination and a right to consult an attorney.   I strongly suggest that anyone who is questioned by any such officers be very respectful to their authority, but never be intimidated or forced to answer questions.  Simply advise the officer that you wish to consult with your attorney before answering any further questions – regardless of the circumstances!   You should feel free to contact our office at any time – day or night – and use our emergency number to obtain legal advice, and, if necessary, legal representation to protect your rights.  Call us anytime, toll free, at 888-313-0416.  Not only are we devoted to protecting your Second Amendment rights, but ALL of YOUR Constitutional Rights!

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