HOLY SMOKE! And Other Transgressions

By Diane M. Grassi

We can only hope as products of generations that have preceded us, that we have become wiser on issues of self-governance and that our dependency on the courts should always be used with discretion. But this week the precedent setting U.S. Court of Appeals for the 2nd Circuit in the state of New York has reminded us that this is certainly not the case by allowing the re-opening of the federal class action lawsuit initially brought by several parents on behalf their underage children in New York City in 2003 against fast-food giant, McDonald’s. The original suit stated that McDonald’s and the sale of its food products lead to obesity and the onset of secondary health problems as a direct result of having consumed such food products. This time around however, the newly acquired crafty legal counsel appealed the case by restating that McDonald’s illegally practiced deceptive advertising, by not disclosing their methods of food processing or the ingredients of their products and the implication that their food is nutritious.

Now we all know that no matter how this case is couched for the sake of legal technicality it still represents, as originally ruled, a frivolous suit. Unfortunately lawyers bringing these such suits have taken the place of what was once known as personal responsibility and reasonableness. And these types of lawsuits have steadily resonated through the inner workings of federal and state governments throughout the country effecting both the public and private sectors. So as much as we would like to dismiss them and roll our eyes, we do not have that luxury.

However there are two conflicting messages being relayed. The first, for example, that we are not discerning enough to know that overeating and lack of exercise combined with consumption of high fat and empty-calorie laden foods will eventually lead to obesity. And secondly, that for most of us on both sides of the aisle, while we scream that we want less government and the government out of our homes, we are insinuating that we need the law’s steady hand to help keep our personal habits in check by initiating such suits and also through our lack of public outcry against them. At the very least this is distressing. For every frivolous lawsuit filed, we feel the long-term repercussions of these suits. Bearing witness to the continuing onslaught of newly proposed laws and legislative bills we seemingly no longer know how to take care of ourselves or how to impart common sense.

Awards in the billions of dollars against tobacco companies in the 1990’s then brought by plaintiffs who claimed they did not expect to develop lung cancer or emphysema from their smoking habits only led to aggressive cigarette taxes in California and New York, with each state now commanding about $7.00 for a pack. The lawsuit awards and tax revenues were also to be earmarked for healthcare programs for the respective states in which they were collected. Sadly, much like money collected by state lottery commissions for education, these monies are put into a general fund and largely are not earmarked as promised. (To fund healthcare from the proceeds from sale of cigarettes, whose government objective is to discourage such sale, is laughable enough.)

But it gets even better, as now employers have gotten even more aggressive with smoking policies regardless of existing state smoking laws. A Michigan healthcare company has fired four of its employees so far in 2005 for refusing to take a test to determine whether they smoke cigarettes. Weyco, Inc. of Lansing, Michigan, enacted a new policy on January 1, 2005, providing for workers to be fired if they smoke, even if the smoking takes place when off duty, after-hours or at home.

The founder of Weyco Inc. said the company does not want to pay the higher healthcare costs associated with smoking. And due to the absence of law in Michigan which does not prohibit smoking as a cause of termination, employees have no recourse. Each employee upon demand must comply with a breathalyzer test. So, should you go out to lunch and light up, if you come back and fail the test, your pink slip awaits you.

On January 25, 2005, the city of San Francisco’s Board of Supervisors approved an amended smoking law to prohibit smoking in all public parks, stadiums and beaches with the exception of privately owned golf courses. It is even more far reaching than the ban on smoking at beaches in the cities of Santa Monica and Beverly Hills, CA, as well as beaches in Florida and Delaware. Giving summonses for smoking to pay for city services apparently is lucrative enough to enact such legislation.

And lest we forget the federal government, this week in its inimitable wisdom in proposing more encroaching legislation, none other than Senator Dianne Feinstein (D-CA) along with members of the Senate Judiciary Committee, proposed a bill on January 26, 2005, to further restrict the sale of cold medication products containing the ingredient psuedoephedrine.

Psuedoephedrine, found in common cold products such as Sudafed, Tylenol Flu, NyQuill and Afrin, would require limiting sale to purchasing one box at a time, with no more than 64 tablets, within a designated time frame. (Currently some boxes of Sudafed come with a total of 96 tablets.) In addition, the term “over-the-counter” would no longer apply as these common cold formulas would only be allowed to be sold by licensed pharmacists and pharmacy technicians, behind the counter, accompanied by presentation of a photo ID and a signature, much as required when purchasing prescription medication.

The proposed bill, stemming from an Oklahoma state law, would be an effort to cut down on the production of methamphetamine, an illegally manufactured substance, predominant in the west and southwest in homemade labs. The cold pill sale panic started nearly 10 years ago, regarding methamphetamine manufacture, with many western states having already adopted the Oklahoma law which restricts the buyer to one box per purchase. Yet its effectiveness has yet to be established. The new bill which would create additional inconvenience and implied illicit purchases by law abiding citizens has not been weighed. It is one thing to limit the number of packages sold, but to require ID for another legal product sold to adults, is more continued erosion of what is left of our personal privacy and consumer rights.

And until cigarettes, cold pills and foods fraught with high fat and high calorie content become illegal, it is important that we keep a watchful eye on ever-intrusive laws which continue to limit our right of personal choice. The re-evaluation of sound drug law policies and more scrutiny paid to the illegal importation of drugs; amended insurance policies to perhaps charge a premium for smokers or obese patients; better FDA oversight of drugs which come to market concerning their levels of safety; and the reinstatement of physical education classes in all of our public school curriculums would better serve us.

Those attorneys and individuals bottling up the courts and the committees of Congress to retro-fit our laws for every individual circumstance which arises, predominantly by those who choose not to exercise personal responsibility and would rather have the public-at-large pay for their own indiscretions, should perhaps be charged for all court costs and administrative resources for bringing forth such specious claims, as common sense and appreciation of others’ rights is at an all time low.

And if you think that this is the end of it, the doughnut police are coming next!

MISGUIDED DECISION MAY LEAD TO LIFETIME STRUGGLES

By Diane M. Grassi

Most Americans will agree that our legal system although flawed is the best there is to offer. And in spite of its flaws it allows for redemption and an opportunity for judges to correct the record for perceived inappropriate decisions. That will hopefully be the case for this past week’s overreaching arm of the law in the case of Evan Scott.

As we once witnessed the 1995 legal battles of Baby Richard, wrenched from his adoptive parents at the age of four to live with his biological parents, and the 1991 first trial of three in the battle for Baby Jessica, not to mention the in vitro fertilization clinic’s mix-up with the 1999 case between Donna Fasano and Deborah Perry-Rogers, once again another victim of the legal system has arisen. Fasano delivered twins of two different races due to an embryo implantation error which wound up in the courts, eventually returning said embryo and now baby to the donating couple. But do the courts apparently still need to be reminded of the 1988 ‘switched at birth’ nightmare of Kimberly Mays, historically the first of its kind, that this is not supposed to be played out time and time again?

Last week the U.S Supreme Court handed down a decision regarding the sentencing guidelines and parameters given judges in the federal court system. Essentially it will now go back to the system utilized prior to 1984 when judges were given more discretion in their mandated sentences. We can only hope that some common sense will prevail in the federal courts.

But in the case of Baby Evan Scott, which is not a federal case, perhaps the letter of the law was maintained but common sense was certainly thrown out with the bath water. As for those professionally trained in the business of preserving the rights and interests of children, they should perhaps tear up their protective services business cards.

In brief, Dawn and Gene Scott met Amanda Johnson (now Amanda Hopkins by marriage) in the final weeks of her pregnancy. There was an agreement in fact that she would give up parental rights of her child upon his birth in May of 2001 at which time the Scotts would formally adopt the baby, Evan Johnson. In the month prior to Johnson’s delivery, she pulled out of the implied agreement.

Amanda Hopkins had not intended to retract her original agreement with the Scotts, but at the eleventh hour did so because the biological father, who failed to appear for any prior hearings to establish his paternity, came out of nowhere and filed for immediate custody. Hopkins then felt she had to obtain full custody herself in order to prevent the sperm donor and felon, Stephen White, from getting custody.

Hopkins was unmarried at the time of the agreement and a victim of criminal assault and domestic violence committed by White. He was subsequently sent to prison for beating Hopkins. She learned about her pregnancy after receiving hospital treatment for her injuries suffered from White. White knew of the pregnancy and had no interest in the child until he heard another family had petitioned for adoption. He was egged on by his father to “stake his claim” during the course of his incarceration.

It was apparent to Hopkins from the beginning that it was in the child’s best interests to give Evan up for adoption, given her financial situation as a single person without a spouse to help her raise the child. And having been told that White’s failures to appear to establish his paternity rights, Hopkins was legally advised that the adoption would go through.

Since this original case was filed, in 2003 Florida Adoption Law in the state of Florida was amended and no longer considers the right to automatically grant paternity to biological fathers regardless of the circumstances. It states that “only when he demonstrates a timely and full commitment to the responsibilities of parenthood during and after the child’s birth” is a biological father granted an interest in the child and then acquires constitutional protection. Ironically, the Evan Scott case apparently does not benefit from the new law as the original lawsuit was filed in 2001 and preceded the change.

On January 11, 2005 Evan Scott was torn from the only parents he knew from birth going on four years and was moved to Glenview, IL. Although Hopkins has since married, at the time that she blocked the adoption, Hopkins was unmarried. How much if any influence the fact that she has now married with another very young child was not disclosed. But meanwhile, ex-con Stephen White has now been granted liberal visitation rights with the boy. So instead of Evan living in Florida in a secure and comfortable two-parent home, he will now be arm-strung between three families while the Scotts fully exhaust all appeals to get him back.

The real atrocity here is that Florida Circuit Judge Waddell Wallace while given full jurisdiction to rule on this case, had the power to rule as he saw fit, based upon the facts. But in 2005, apparently progeny still overrides the best the interests of children, and even if the biological father was incarcerated for domestic violence.

We here in the U.S. are preached to by the self-ordained moralists, including our political leaders that a two- parent stable home is preferable to a single parent one. But at the same time we are encouraged not to cast dispersion on those who come from such homes or even from broken homes in an effort to be tolerant. (And this case was based upon Amanda Hopkins status when she was still Amanda Johnson.) However most of us take issue with both proselytizing crowds, especially when we see our courts’ treatment of our children.

Our justice system and bureaucrats have let us down ever and again and as such should be admonished for decisions in relocating children as if they were no better than pieces of a chess set. It will not be enough to merely acquiesce in accepting Baby Evan as another isolated case, as collectively these noted cases create a stronghold on precedent being set, ultimately making it harder in the future in these United States to protect the constitutional rights of our children under the law. Let us not potentially jeopardize the mental health and well-being of the most innocent members of our society and give them the best possible chance for a successful future.

LASERS, LIGHTERS, LOSERS & LUNATICS

By Diane M. Grassi

It appears that thus far in 2005 we have entered a new arena in the betrayal of common sense. This week in a bid to make more sense of our laws and in keeping our civility in check, not even the U.S. Supreme Court could clarify how our federal sentencing laws are to be interpreted, themselves looking less than sensible.

In the first major decision handed down by the Supremes in the 2004-05 session of the U.S. Supreme Court, they called upon an ailing Chief Justice William Rehnquist to break their tie to in order to quash the 1987 public law passed by the U.S. Congress which was the amended 1984 Federal Sentencing Reform Act. This case was the first the Supreme Court heard in the 2004 session, this past October 1, 2004.

There will much debate for weeks and months to come over this most controversial decision, much because of the overturned law which imposed mandatory federal sentencing guidelines and stirred much controversy when it was originally passed. It gave federal judges less latitude in imposing sentences and provided more supposed consistency in criminal punishments. This new decision now allows federal judges to use the guidelines as advisory rather than as mandatory when handing down sentences.

But at this juncture what is most disturbing to the legal community and the public-at-large are the future ramifications of cases previously tried as well as those presently on appeal. The legal eagles will tell you two different stories. On the one hand they are saying that the new law does not extend to previously tried cases, but there is a contingent of criminal defense attorneys who obviously will test the water. At least temporarily this puts the whole federal legal process into a tailspin. But whether the judges, the Congress, the inmates or the public end up the winners or losers in this scenario, has yet to be decided.

In matters of homeland security, the Intelligence Reform Bill which was signed on December 17, 2004 by President Bush, in the shadows of the Christmas holiday in Washington, now requires all butane cigarette lighters to be banned from passengers’ carry-on bags on any U.S. airline. The ban goes into effect on February 15, 2005.

Again, with butane being a flammable chemical it may make sense from a non-security standpoint to be eliminated. Shoe bomber Richard Reid is the party to thank for this, but over two years have gone by since that incident, making the timing of this imposition questionable But while curling irons powered by butane will still be allowed in checked luggage and pepper spray may still be packed, get ready for the next “smoking gun.” Our astute mental giants overseeing air travel in the best interests of the public do not intend to stop with prohibiting lighters.

Given their way, regulators hope to ban paper matches from smokers’ pockets as well as carry-on bags. Since matches are not detectable by x-ray, this would require all carry-on bags to be opened and inspected in a hunt for the illicit matches. Therefore, additional TSA screeners and anticipated extremely long lines at airport security check-ins would have a crippling effect on passengers and the entire system, and would give travelers another reason to either cut back on air travel again or to acquiesce to ad hoc policy. Perhaps this is a win for the anti-smoking crowd, but another blow for common sense amongst the lawmakers. How about concentrating on 90% of the cargo which goes uninspected into the belly of the plane you’re on?

With a virtually untested Patriot Act under tow, David Banach, a Parsippany, NJ man has been indicted for interference with the operation of a mass transportation vehicle and for lying to FBI personnel about it. He shined a laser beam pen at a 13-passenger jet attempting to land at the Teteboro, NJ airport and then did so again two days later with a helicopter carrying Port Authority Police detectives.

The statute provides for a possible incarceration of up to 25 years in prison and a fine of $500,000.00 for his irresponsible and reckless behavior. We have plenty of laws already on the books to address his illegalities. But the Patriot Act which has come under much scrutiny because of its broad interpretation of the law was implemented to address issues of terrorist activity in the interests of national security. It would have come in handy when Timothy McVeigh was indicted.

The question will be whether Banach will be correctly tried under the Patriot Act. It will play out as either a positive for an opportunity to finally fine tune the Act, or it may turn out to be a negative as it could diminish the Act’s effectiveness when truly tested by actual terrorists who specifically threaten U.S. security. Either way, Banach is a loser, who should have known better.

And finally, two national icons in the sports world, and both dandy Randy(s) once again proved that they could not help themselves. After all, lunacy is not just relegated to the inner sanctums of the workings of our government. But Randy Moss of the NFL’s Minnesota Vikings as well as the other Randy as in Johnson, now of the heralded New York Yankees showed their less than desirable characters.

Moss, as well known for creating havoc off the field as for his stellar athletic prowess, in his pretend display of mooning the Green Bay Packers’ crowd at Lambeau field Sunday, took on a life of its own in the media. The aftermath in the press was almost as distasteful as the incident itself. The week prior Moss left the field early before the end of the game without his teammates, and speaks as much about instilling game rules as it does about the lack of character in this “I did it because I can” generation.

And pitcher, Randy Johnson, having spent the past 20 years pitching his heart out in baseballs’ Major Leagues, earning 5 Cy Young awards, and winning a World Series Championship as well as 246 games, was frightened by a WCBS-TV news cameraman. So instead of acting like a professional or a reasonable person, he attempted to knock the camera out of the cameraman’s hands in his grand entrance to win the hearts of Yankees fans.

So what kind of signal does all of this send to the American public? Namely that we can no longer expect the U.S. government, its administrators and lawmakers to not only not have all the answers for us, but to no longer expect to even be provided any answers at times. And that is a scary proposition. And also that it’s no wonder that so many have tuned out and tuned into TV reality shows instead of keeping up with the changing and sometimes lunatic choices our government decides for us all in the name of our “best interests.”

THROUGH THE LOOKING GLASS

By Diane M. Grassi


Now that the hustle and bustle of the holidays have passed, which served as a reprieve from issues of importance amongst the powers-that-be in Washington, we start 2005 with much pomp and circumstance with Washington trying to create the impression that all is well in the U.S. After all, we were spared a tsunami.

It is more than disconcerting that the tsunami disaster has turned into a cleansing of mammoth proportions for the U.S., on trying to improve its image throughout the world. Along with the efforts of the U.S. military being under-appreciated by Iraq, the U.S. has had a problem being credited for much good in the world since we defied the U.N. by invading Iraq. And as such, the U.S. is losing no time in rehabilitating its image through the amount of promised good will and aid to the Asian countries decimated by Mother Nature.

Historically, the U.S. can not be beaten in its generosity in donations and resources to impoverished countries or to those in crisis. In fact the U.S. has never stopped giving and in being front and foremost in supplying military support for nations throughout the world and in using our troops to distribute food and medical supplies. There was no doubt amongst the people of the U.S. that we would step up and offer our resources in myriad ways for the tsunami victims.

Unfortunately however the tsunami relief effort seems to have turned into a diversion from the war in Iraq as their elections quickly approach. The unrest still continues and the U.S. forces are stretched too thin according to many military experts. An exit strategy still has not been discussed publicly by the administration, nor have re-enlistment shortages been addressed.

But propping up former President George H.W. Bush and former President William J. Clinton before the world to “head up” a fundraising program for relief for tsunami victims will not be enough distraction. It is nothing more than a dog and pony show again to create a preoccupation from the real issues at hand such as our international relations with both our allies and our enemies. Why the president would stick his father and Bill Clinton together in the first place, boggles the mind. But then again, nothing is ever done in Washington without a reason.

Tsunami relief will also create another means of “relief” from the real issues appearing on the front pages across the U.S. This comes none too soon for both houses of Congress and the president’s administration as they begin their 109th session and 2nd term respectively. As the $60 million presidential inaugural approaches on January 20, 2005, this year to include no less than 9 balls, it too will temporarily get top billing in the press.

Followed up by such important days as February 7, 2005, the day of Super Bowl XXXIX, the people of America are expected to tune out as they tune in to the most watched “television program” of the year. Halt the presses as the NFL takes top priority in spite of how the Iraqi voters make out on January 30th and the aftermath of such.

But Congress as well as the president cannot escape those issues which are not popular to discuss for too long, such as the state of our armed services, securing our borders, keeping our jobs in the U.S. from being deported, and making healthcare accessible for not only the poor and the rich but the middle class. Those issues are not fun or flashy, and take ingenuity and real thinkers to address. Washington is not real good at that. Spinning the issues is what Washington is good at, and creating illusions, such as through the looking glass, as they have thus far and will be doing for the next several weeks to come.

Don’t we deserve more?