Saturday, July 21, 2018

My Rural Travelogue (Part XIX): A new National Park concessionaire could seriously undermine a rural economy in southern Oregon

The Siskiyou Mountains, from Cliff Nature Trail above Oregon Caves

I made a grand tour through the would-be State of Jefferson last week, both California and Oregon sides of the state line. I hope I'll get to write more about the trip in a number of posts, but I want to begin this series with a post about my visit to Oregon Caves National Monument and Preserve, about 20 miles from Cave Junction, Oregon (population 1,883), in the state's southwest corner, in the Siskiyou Mountains.

I had reserved two nights in the Oregon Caves Chateau, a grand national parks lodge built in 1934.   (While grand, the lodge is small, with just about two dozen guest rooms, considerably smaller than most other signature National Park lodges).
Oregon Caves Chateau, July, 2018 
Guest room, Chateau
Our stay was lovely, with many local touches, including friendly and highly competent hotel and wait staff from nearby Cave Junction (we had the same server for dinner, breakfast and lunch the first day) and the "Gift Gallery" featuring numerous local artists in many media and, for example, local honey and beeswax products.  One of my favorite purchases is a Native American-made basket of pine needles.  Perhaps the most extraordinary local touch is that the quilt on each guest room bed has been made and donated by a Cave Junction resident.
Typical patch on quilts used in Oregon Caves Chateau guest rooms, July 2018

When we checked in, the front-desk staff member explained that neither WiFi nor cell reception was available, and in that regard she also mentioned that the Chateau would be closing this fall for a two-year renovation.  The suggestion was that when the Chateau re-opened, WiFi would be on offer.

The next morning, we saw laminated news stories about the impending closure in the Chateau Cafe, a '30s style affair with an extensive diner-type menu and decor.  The stories were from local media outlets, like this one from the Medford Mail Tribune, dated April 4, 2018.  It announces not only the upcoming two-year closure of the Chateau for renovation, but also the shift in concessionaire from the local Oregon Caves Outfitters to a subsidiary of Aramark Corporation, which will also be taking over the concessions at Crater Lake Lodge, a few hours away.  The Mail Tribune story reads:
The National Park Service announced Tuesday the selection of Crater Lake Hospitality LLC, a subsidiary of Aramark, to operate visitor services at both of the popular facilities.
The concessioner will operate lodging, including Crater Lake Lodge, a campground, boat tours, food service and retail operations at Crater Lake. 
At Oregon Caves, it will operate the Chateau, along with food services and retail operations. 
Crater Lake Hospitality replaces Xanterra Parks and Resorts, which has managed concession services at Crater Lake for 15 years, and Oregon Caves Outfitters, which has managed Oregon Caves services for 17 years. Aramark is a major concession operator that manages several national parks, including Yosemite. 
Craig Ackerman and Vicki Snitzler, superintendents at Crater Lake and Oregon Caves, stressed the concession contract was awarded through a competitive selection process that combines two currently separate operations under one contract. Both learned of the decision Tuesday.
As my son and I digested this news and enjoyed our breakfast in advance of a 9:30 am cave tour, we were approached by a woman from Friends of the Oregon Cave and Chateau. She invited our feedback on the lodge and what was special about it, any particular experiences or memories we had there, what the stay had evoked for us, and so forth.  As we chatted, the subject turned to the shift in management of the Chateau and the numerous Cave Junction-based employees who are currently employed there by Oregon Cave Outfitters,
a project of the Illinois Valley Community Development Organization (IVCanDO) for over 17 years.  
* * *
In 2017, the Chateau served 27,000 meals and lodged 7,000 guests and will be open for business from May 3, through September 30 this year. Accommodations range from economy to suite.
Employees of Oregon Cave Outfitters, July 2018
Here's more about IVCanDO from their website, which I find downright inspirational, under the heading "People":
The people of the Illinois Valley value their small town lifestyle and close neighbor relationships. IVCanDO supports projects which bring people closer together and foster cultural growth and celebrate their pride in their community, with special emphasis on youth engagement and on recognizing the strength of our diversity.
After a segment on "Living with Nature," there is this under the heading "Prosperity."
We create unique opportunities for a resilient economy, vibrant local business, meaningful employment, and personal fulfillment. IVCanDO provides business expertise to strengthen our entrepreneur base and connect local efforts to regional resources and beyond.
These segments speak volumes about what I saw of the local workers at Oregon Caves Chateau, and of the enterprise of the Oregon Caves Outfitters.  Here is a page of the Oregon Caves Chateau website titled "Keeping Local Business Local."  I'm cutting and pasting the whole page, realizing that it soon may be going away:
The historic Chateau at the Oregon Caves features local produce, meats, wines, micro-brews and the talented work of local artists and crafters.

In a world of corporate uniformity and increasing globalization, the Chateau strives to offer you a uniquely local experience. You will find local fare in the dining room and locally crafted gifts and works of art in our gift gallery, as well as locally produced furniture, soaps and shampoos in your hotel room. Even the uniforms worn by our employees are made locally. 
In the dining room, we coordinate with local farmers to grow the herbs and vegetables we use and whenever possible, we purchase locally raised meat, poultry and dairy products. We select bison meat from Full Circle Bison Ranch just over the hill in Williams, and vegetables and greens from Kerbyville Farms in the Illinois Valley.
Our goal is to support and encourage local, sustainable agriculture efforts in addition to offering you healthful and exceptionally tasty cuisine. By providing outlets for local products, we help make our valley an even nicer place to live. Sample the best of what southern Oregon has to offer, from the freshest, locally grown produce to Illinois and Rogue Valley cheeses and wines. 
The Oregon Caves Outfitters is part of the Illinois Valley Community Development Organization, a 501(c)3 non-profit organization working to improve economic and social conditions in Oregon’s rural southwest through programs designed to enhance the local standard of living, create jobs, and encourage sustainable community development. The IVCDO is the winner of the prestigious 2006 Northwest Area Foundation Award.
In light of these admirable goals and the local, personal touch they represent, imagine my disappointment at knowing not only that Oregon Caves Outfitters had lost the concession to run the Oregon Caves Chateau, but that they had learned that news from a National Park Service Press Release.  The National Park Service had not even dignified their years of service with a pre-press release heads up.
City Hall for Cave Junction, Oregon, July 2018
I couldn't help grieve the likely impact on this remote rural economy, first of the two-year closure of the Chateau for renovation, and then of the management of the Oregon Cave Chateau by Aramark.  If Aramark is like other National Park concessionaires, it will bring in employees from across the nation--and perhaps from around the world--announcing their hometowns on their name badges, which will make the enterprise seem more connected to the outside world, more cosmopolitan, I suppose.

But what, then, will become of those several dozen Cave Junction residents, rural workers, who have counted on this seasonal employment for decades.  And what will become of those lovingly and locally made quilts that now adorn the guest room beds?  Will Ararmark care for them?  care to even retain this bit of local flavor and artistry?

P.S.  Photos below and right:  Other staples of the local economy appear to be agriculture, in different forms.  The cannabis trade, for example, appears to be well established.  Cave Junction is in Josephine County, which I have written about herehere and here in relation to its skeletal local government and "neighborhood watches" substituting for law enforcement.  A post about neighboring Douglas County is here.
A cannabis store next to an appliance
repair business in Cave Junction, July 2018

Sunday, July 15, 2018

New Hampshire's voter residency bill is a step in the wrong direction

Civic engagement is one of the cornerstones of American democracy. The ability to influence our local, state, and federal leadership is one of the most fundamental elements of citizenship. Perhaps our greatest duty as a citizen is to take advantage of that ability and try to change the world around us. Many go even further and decide to seek public office, putting themselves in the position of representing their fellow citizens, an important responsibility. Some even decide to seek this responsibility at a young age, as is the case with two Dartmouth College students, who are seeking seats in the New Hampshire legislature. Both students, representing opposite ends of the political spectrum, see themselves as the best equipped to represent the interests of their college town to the legislature.

There is perhaps no greater state in the union for civic engagement than New Hampshire. With a 424 person legislature (the third largest legislative body in the English speaking world) and the continued use of town meetings as the predominant form of local government, New Hampshire encourages and almost requires participation in the public sphere. Given New Hampshire's rich tradition of citizen legislating, it's perplexing that Governor Chris Sununu signed House Bill 1264 into law.

New Hampshire has long allowed college students, who have not officially declared residency in the state, to vote in its elections. The importance of youth engagement has long been recognized as an important part of New Hampshire's tradition of citizen governance. In fact, prior to the passage of the 26th Amendment in 1971, New Hampshire was just one of five states that allowed people between the ages of 18 and 21 to vote. In regards to its modern laws, RSA 654:1 provides:
I. Every inhabitant of the state, having a single established domicile for voting purposes, being a citizen of the United States, of the age provided for in Article 11 of Part First of the Constitution of New Hampshire, shall have a right at any meeting or election, to vote in the town, ward, or unincorporated place in which he or she is domiciled. An inhabitant's domicile for voting purposes is that one place where a person, more than any other place, has established a physical presence and manifests an intent to maintain a single continuous presence for domestic, social, and civil purposes relevant to participating in democratic self-government. A person has the right to change domicile at any time, however a mere intention to change domicile in the future does not, of itself, terminate an established domicile before the person actually moves.  
I-a. A student of any institution of learning may lawfully claim domicile for voting purposes in the New Hampshire town or city in which he or she lives while attending such institution of learning if such student's claim of domicile otherwise meets the requirements of RSA 654:1

House Bill 1264 effectively modifies the definition of "domicile" to be identical to its definition of "residence." To qualify as a resident and satisfy RSA 654:1, a person must take additional steps such as registering their motor vehicle and obtaining a driver's license in New Hampshire. This bill has not been without controversy. Governor Sununu had previously voiced his concern about the bill and only signed the bill after seeking an advisory opinion from the New Hampshire Supreme Court that affirmed that it does not violate the state and federal constitutions.

New Hampshire Secretary of State Bill Gardner argued in favor of the bill by saying, "[e]very other state requires people to be a resident (in order to vote), either in their statutes or in their constitutions[.]”. In an op-ed in the New Hampshire Union Leader, Gov. Sununu similarly argues that this bill brings New Hampshire in line with "virtually every other state." This is at least partially true. For example, HB 1264 bring NH's voting laws into line with neighboring Maine. When asked about student voting in November of 2016, Maine Secretary of State Matthew Dunlap said that registering to vote "sets an expectation that you obtain a Maine driver’s license and do other public business as a Maine resident."

However, the notion that it brings New Hampshire in line with every other state is patently false.

For example, Iowa also contains a special carve out in state law for students. Iowa state law provides that:
A student who resides at or near the school the student attends, but who is also able to claim a residence at another location under the provisions of this section, may choose either location as the student’s residence for voter registration and voting purposes.
Further, Louisiana state law provides,
Any bona fide full-time student attending an institution of higher learning in this state may choose as his residence and may register to vote either at the place where he resides while attending the institution or at the place where he resides when not attending such institution, but he shall not have more than one residence at any one time for purposes of registering to vote. Such a student need not have an intent to reside indefinitely at the place where he offers to register.
Most states, such as neighboring Massachusetts, are ambiguous about the rights of out of state students to vote in their states. However hints can be found in other sources, such as the fact that people "physically present" in Massachusetts can be called for jury duty, without mention of residency in the Commonwealth. As the authors of this piece posit (see footnote 57), it is likely that this logic could be extended to say that such persons have a right to register to vote. Harvard University even provides a guide to help out of state students register to vote in Massachusetts.

I also would argue that signing this legislation is a betrayal of the idea of citizen legislating, an idea that New Hampshire has long prided itself on. Students in New Hampshire are undoubtedly a part of the communities in which they reside. They contribute to the local economy and are subject to the local laws and ordinances passed by their town's governments. By enacting a law that makes it more difficult for members of a community to participate in a governance structure that relies on heavy involvement from the local community, the New Hampshire government has opted to potentially disenfranchise thousands of people who make up the vibrant tapestry of its local community. It has also told students, many of who get involved in the political process, that their input is not needed or wanted.

By doing this, New Hampshire is risking alienating the very young people that it will need to grow and thrive in the future. According to a 2015 survey by the U.S. Census, New Hampshire's median age is 42.8, which ranks 2nd among the states.  Like many predominantly rural states, New Hampshire is getting older and seeing its young population leave. Allowing students to get involved in the political process could represent an opportunity for New Hampshire to reverse its fortunes and retain some of the young people who move there to seek an education. After all, getting involved in the political process and putting down social roots in a state also makes a person more likely to want to remain there after graduation. For example, if one of the Dartmouth students mentioned above wins their election, they are bound to remain in the state after graduation to finish their term. At the end of their term, they may run for re-election. Even if they do not, their experience in the legislature will have given them social and political roots that makes staying in NH a more likely possibility. A great illustration of this concepts comes from a March 2018 article in the New Hampshire Union Leader where University of New Hampshire senior Allison Bellucci, a Connecticut native, said, "I've been looking at options for staying in New Hampshire more than I ever thought before ... [w]hen I came here, I thought I'd be here four years and out, but honestly after this year of being so involved, particularly the politics, has made me want to stay more than I ever have." By working to exclude students from the voting process, they are also making it less likely that students will want to remain in New Hampshire after graduation, thus robbing the state of valuable assets that could seed its future growth.

The most essential duty of citizenship is engagement in our local political processes. College students are like any other citizen, they have a vested interest in their community and are subject to the laws and policies that are enacted within its borders. By enacting laws that erect barriers to participation in that process, New Hampshire is effectively disenfranchising large portions of entire communities and making the exercise of our greatest civic duty more difficult. I believe in removing barriers to voting, not erecting them. I also think that New Hampshire is wasting an opportunity to entice people to remain there and help grow their economy. As a state with a long history of citizen legislating and a plethora of opportunity for political involvement, New Hampshire is perhaps the last place that should be erecting barriers to voting.  This bill is a step backwards for New Hampshire and ultimately rural America. The open political involvement made possible by New Hampshire should be a model for our nation, they should not move backwards and doing so is a grave mistake.

Wednesday, July 11, 2018

Iowa Supreme Court notes the travails of "rural women" in striking 72-hour waiting period for abortion

Having written about this issue for more than a decade--nudging courts to take the lived realities of rural women's lives seriously, including the burden of distance--I have little to say about this development except how glad I am that the Iowa Supreme Court specifically acknowledged the burden on "rural women" in its June 29 opinion striking down the state's 72-hour waiting period.  You can read the Des Moines Register's coverage of this case here.

Most of the legal "action" on the constitutionality of state restrictions on abortion has been in the federal courts, but this time reproductive freedom advocates turned to a state court, perhaps because the U.S. Court of Appeals for the Eighth Circuit has no (virtually none?) pro-choice precedents on the books.  In short, the Eighth Circuit has rarely (if ever) met an abortion regulation it didn't like.

The case is PLANNED PARENTHOOD OF THE HEARTLAND and JILL MEADOWS, Appellants, v. KIMBERLY K. REYNOLDS ex rel. STATE OF IOWA and IOWA BOARD OF MEDICINE, Appellees.  No. 17-1579. Supreme Court of Iowa.  The court acknowledges rural women seven--yes, count them, seven--times.  I'll excerpt a quote featuring each use of "rural" below. The first regards the shortage of OB/GYN practitioners in Iowa:
At the time this suit was filed, Iowa ranked forty-sixth in the nation for obstetrician and gynecologist (OB/GYN) access for reproductive age women. Sixty-six of Iowa's ninety-nine counties do not have an OB/GYN. Only 7.6% of family medicine physicians perform pregnancy ultrasounds in their offices. Because a handful of medical practitioners serve large geographic areas, patients—especially rural patients—must often wait between two to six weeks to see an obstetrician.
The second acknowledges the burden of distance to travel to an abortion provider, whether you have access to a private vehicle or must rely on public transit:
Transportation poses another collateral expense, especially for rural Iowans. Dr. Collins again used the hypothetical Ottumwa and Sioux City patients to illustrate the expected transportation costs of an additional visit to a PPH clinic. Dr. Collins offered two scenarios for each patient: one in which the patient has access to a vehicle and another where the patient must rely on public transportation.
This is interesting to me because I have similarly made the point of the burden of distance by deploying hypotheticals, as here and here (the latter being a feminist re-write of Planned Parenthood of Southeast Pennsylvania v. Casey for a collection of "Feminist Judgments").  These sorts of hypotheticals were not used, as far as I know, prior to Whole Woman's Health v. Hellerstedt, and then primarily in amicus briefs like that of Public Health Deans.

The opinion's next three references to "rural" are in a single paragraph, referencing an empirical study of abortion access:
Dr. Sharon Dobie authored a study that compared abortion rates of rural and urban women in Washington during a period when several abortion providers closed. The study found that, after the closings, 73% of rural women traveled more than fifty miles to obtain an abortion. Among those women, there was a significant increase in later abortions, which was not present among urban patients. Indeed, following the closings, the proportion of rural women who had abortions at eighteen weeks into their pregnancy or later doubled.
This reminds me of the U.S. Supreme Court's decision in Whole Woman's Health v. Hellerstedt, which made many references to evidence-based medicine.  The final text excerpt mentioning rural women cites to me, having noted that the Iowa statute makes no exception to the 72-hour waiting period for rural women; that's something Texas did prior to H.B. 2, the law under scrutiny in Hellerstedt.
Unlike mandatory delay statutes in other states, the Act does not provide an exception for rural women who live far from health centers. See Tex. Health & Safety Code Ann. § 171.012(a)(4) (West, Westlaw through 2017 Reg. and 1st Called Sess. of 85th Leg.); Va. Code Ann. § 18.2-76(B) (West, Westlaw through 2017 Reg. Sess.). See generally Lisa R. Pruitt & Marta R. Vanegas, Urbanormativity, Spatial Privilege, and Judicial Blind Spots in Abortion Law, 30 Berkeley J. Gender L. &; Just. 76 (2015). Nor does it provide an exception for rape or incest victims. See Utah Code Ann. § 76-7-305(9)(c)-(d) (West, Westlaw current with 2018 Gen. Sess. effective through April 1, 2018). Nor does it provide exceptions for victims of domestic violence or human trafficking. See Fla. Stat. Ann. § 390.0111(3)(b) (West, Westlaw through 2018 2d Reg. Sess.), invalidated on other grounds by Gainesville Woman Care, LLC v. State, 210 So. 3d 1243, 1265 (Fla. 2017).
Note that, in addition to also acknowledging rape victims and those experiencing domestic violence and human trafficking, the court cites ... drum roll ... my former student, Marta Vanegas, and me for the proposition regarding rural women.  We wrote a piece early in the litigation over Texas's House Bill 2, the legislation eventually struck down in Hellerstedt. I have often joked that no court would ever cite an article with the words "Judicial Blind Spots" in the title, as mine and Marta's had, but I am happy to report now that I was wrong. 

Oh, the Iowa Supreme Court's final mention of rural women comes in footnote 7, which reads:
PPH urges that this disclosure jeopardizes a patient's confidentiality, particularly in small, rural towns.
The reference relates to this sentence of text, regarding how to get an ultrasound if you must be referred by your family medicine doctor:
Patients seeking certification would have to first schedule a family medicine appointment, meet with the physician and inform the physician of her desire for an abortion, and then be referred to a radiology center or hospital.
This lack-of-anonymity point is one I have also highlighted in my prior writing on abortion access for rural women (and a wide array of other issues, for that matter), such as here and here.

Planned Parenthood of the Heartland v. Reynolds also had some things to say about regulations on medication abortions.  I'll return to that topic in a subsequent post. 

Tuesday, July 10, 2018

Trump pardons Oregon ranchers who inspired Malheur seizure in early 2016

Carl Segerstrom reports for the High Country News, calling father-and-son Hammonds "symbols of anti-federal movement."  Here's an excerpt from today's story:
The pardon follows a plea for clemency from Republican Congressman Greg Walden of Oregon, on June 26.
In a press release, Walden wrote: “Today is a win for justice, and an acknowledgement of our unique way of life in the high desert, rural West. I applaud President Trump for thoroughly reviewing the facts of this case, rightly determining the Hammonds were treated unfairly, and taking action to correct this injustice.” 
Environmental groups and supporters of the refuge had a different take on the pardon. “We regret the message sent by the president when pardoning the Hammonds, which bolsters those intent on destroying federal property and endangering federal employees,” said Geoffrey Haskett, the president of the National Wildlife Refuge Association. 
The father-and-son duo were imprisoned for arson after setting a series of fires on private land that moved on to public land. While Walden has claimed that the Hammonds were simply using the fires as a range management tool, witnesses in the federal case against the Hammonds testified that one of the multiple fires were set to cover up evidence of illegal deer poaching on Bureau of Land Management land. Federal agencies incurred hundreds of thousands of dollars in expenses fighting the fires.
The Hammonds have a history of clashes with federal land managers in rural eastern Oregon. Malheur refuge employees have alleged that they have received death threats from Dwight Hammond dating back to 1986.
Jennifer Rokala, executive director of the Center for Western Priorities, a public-lands advocacy group, is quoted regarding the significance of he pardon: 
Pardoning the Hammonds sends a dangerous message to America’s park rangers, wildland firefighters, law enforcement officers, and public lands managers.  President Trump, at the urging of Interior Secretary Ryan Zinke, has once again sided with lawless extremists who believe that public land does not belong to all Americans.
Earlier coverage of the Malheur seizure is here, here, here, and here.  The New York Times coverage of today's pardon is here.  I note that the "gray lady" uses the same Rokala quote but buries the comments from Representative Walden much deeper in its story.

Washington Post coverage of the matter included an interview with Land Tawney, president of Backcountry Hunters and Anglers, who said that the outright pardon, as opposed to a commutation of the sentence,
sends a message of tolerance for lawbreakers who could diminish our public lands and waters.
Tawney predicted that the decision "will send shock waves up the ranks of the BLM" and commented: 
You are just empowering and emboldening those who disrespect the people who are there to manage these lands for all the people of America.  
Here is coverage from The Oregonian, which includes a phone interview with Susie Hammond, wife and mother of the ranchers.   It reports that the Hammonds "walked out of a federal prison in California about 6 1/2 hours" after Trump signed the pardon. It also quotes Ammon Bundy, who led the 41-day Malheur Wildlife Refuge seizure:
"The true reason the Hammonds have suffered has not been corrected. It must be corrected." [Bundy] pledged to continue to fight against the federal government's "control over land and resources inside our states."
The Oregonian story features this family photo, apparently from Susie Hammond's Facebook page.

These excerpts come from my (very left-leaning) Twitter feed:


and

More commentary on Western ranchers in relation to the federal government is here and here.

A la carte legal services - can this help solve the rural lawyer shortage?

Illinois Public Media recently published an article that looked at a potential way to address the rural lawyer shortage, a la carte legal services. It focused a firm in rural Iowa that has decided to offer this service. Unlike traditional legal representation, which includes any and all services related to a particular legal matter, a la carte legal services allows a client to pick which services they want to retain an attorney for. As the article notes, many people in rural spaces fail to retain counsel for a myriad of reasons, notably physical distance from an attorney (which makes it difficult to establish a relationship) and lack of funds. The article focuses heavily on divorce and custody cases, where a person may only seek assistance with completing or filing documents. An example is given in the article of a couple that only needed assistance with filing paperwork. Lawyers who offered this service were able to complete that at a much lower price than they would have paid for full legal representation.

I have some personal experience in this realm. When I was an intern at Legal Aid of North Carolina, I taught a clinic on how to represent yourself in a divorce and custody proceeding. During the training, I went over, in-depth, how to complete the paperwork needed to initiate a divorce or custody proceeding and then walked the students through the processes that would follow. My students were usually indigent clients who could not afford legal representation on their own and by virtue of living in a rural community, did not have many options to speak of anyway. In essence, they faced many of the same barriers as the litigants in the linked article. What I learned when I taught the clinic is that many people do not know the process well enough to know whether or not they may need an attorney. While the majority of people I taught did not present any questions that illustrated a barrier to pro se representation, there were a few who presented questions that made it evident that they needed an attorney to help them through every step of the process. I also noticed that students would hear about a part of the process that they were unaware existed and then decide that they needed an attorney.

When presented with a question that made the need for private counsel evident, I was able to recommend that the client consult an attorney to help them through the process. While an a la carte attorney could certainly look at a case and refer the client to an attorney who could give them full service representation, this approach would only apply to someone who engages an ala carte attorney at the beginning of the process. If a person does not know about the process at all, they may get far into it without realizing they need a full service attorney. For a person who needs a full service attorney, getting legal representation ala carte is not even remotely a real option.

My principal concern with ala carte representation is that people will assume that they may only need an attorney for a limited item, only to later realize that they needed an attorney for much more, which may result in higher costs in the long term. Also, by only engaging an attorney for part of the process, a client may also receive advice that does not adequately fit their situation. The end result is that the client may end up in a worse position than they were before they engaged an attorney at all.

I certainly have no problem with ala carte legal options existing in rural spaces, people after all deserve the right to ultimately determine the scope of representation that they receive. I disagree however with the notion that it could be a potential solution to the rural lawyer shortage. It can be apart of the solution, it does after all offer rural residents an option that already exists in many urban areas. As a potential solution to the rural lawyer shortage however, it once again feels like something that results in rural residents receiving a substandard option.

As the article also notes, the idea of a la carte legal services is not entirely new. The ABA even offers guidelines for how to carry it out. It is an interesting approach and one that I am skeptical of, at least as a solution to the rural lawyer shortage.

Who preserves history when families leave?

A couple of weeks ago, the Bangor Daily News in Maine had an interesting story about the maintenance of cemeteries in small towns after families move away and the towns begin to lose population. It's an interesting, and often not discussed, topic that touches on the effects of rural out-migration and the preservation of the memories of loved ones who have long ago passed.

As the article notes, rural New England faces unique challenges in cemetery maintenance. After all, New England was the among the first areas in the now-United States to be settled and has its oldest cemeteries. As a result, it also has a high proportion of graves of people whose loved ones have long left and who have no living known relatives in these communities who can continue to maintain their grave sites.

The history of migration within the United States is as old as the country itself. As the wheels of the Industrial Revolution began to roll, rural New Englanders began to move to the growing mill towns that began to spring up across the region. As the United States expanded westward, as did New Englanders, moving west in hopes of finding economic prosperity. As people left small towns in search of economic fortune, they left behind generations of history. As the article notes, it is the cemeteries that date from the period of westward expansion and the Industrial Revolution that are the most troublesome to maintain. Towns generally maintain the oldest graves out of respect for the founding fathers of their communities but it is the people who came after and whose families left that present the biggest issue. Since towns are not able to provide funding to maintain these graves, the cemeteries themselves are often left to provide funds. As Superintendent Todd Frederick of the First Parish Cemetery in York, Maine said, “[y]ou can’t charge anyone because there’s nobody to bill.”

The cost of outmigration to rural communities is often borne in ways that are often not thought of. As the percentage of Americans living in rural spaces continues to decline, it might be wise to think about the cost of maintaining the history that they leave behind. Communities are after all made stronger when they remember their history and who came before them.

Of course, you could get lucky and have your family cemetery end up adjacent to suburban development (which is often maintained, if only for its aesthetic appeal to its retail neighbor), this situation is surprisingly common in former small New England towns that end up enveloped by sprawl and development.  It could even end up mere feet from Interstate 95, as was the case for the Mitchell-Hatch Cemetery in Kennebunk, Maine.

Monday, July 9, 2018

East Kentucky fraudster/lawyer Eric Conn leaves a trail of devastation among clients, as well as a great need for pro bono assistance

Some readers may have followed the story of Eric Conn, a major disability attorney in eastern Kentucky, who was indicted in 2017 on charges of defrauding the Social Security administration.  Conn fled house arrest in late 2017 (he cut off the ankle bracelet), only to be captured in Honduras and extradited to the United States.  Read more herehere and here.

An excerpt explaining who Conn is and what he did follow, this from Bill Estep's early June, 2018 story in the Kentucky Herald-Leader:
Conn admitted he took part in a scheme to submit fabricated evidence to Social Security on behalf of clients he represented seeking disability benefits. 
The scheme would have obligated Social Security to pay more than $600 million over the life of the beneficiaries, according to the charges. 
The agency actually paid out $72.5 million on the claims before the fraud came to light. Conn could be ordered to pay that much in restitution. 
He already owes millions in restitution in various cases, as well as a $5.7 million judgment to the U.S. Department of Justice that it has not been able to fully collect. 
Officials have said Conn’s scheme was the biggest fraud in the history of Social Security, involving thousands of cases.
Conn colluded with an SSI judge (who was paid $400/case), as well as medical professionals, to achieve the disability determinations.  Others involved in the scheme have already been tried and found guilty, or they have entered guilty pleas.

Ned Pillersdorf, an attorney in Prestonburg, population 3,255, has represented a number of Conn’s former clients in the wake of discovery of the fraud.  Pillersdorf speculates that not all of the clients had "legitimate claims," though many did.  The files of some clients included false evidence that the clients likely did not know about.

Estep quotes Pillersdorf, who makes a stunning revelation about the number of clients who had never even met Conn:
Unfortunately Conn's outrageous antics has [sic] resulted in the SSA politically posturing by targeting more than 3,500 of his vulnerable former clients with loss of benefits for the crime of guilt by association. The irony is there was no association—in that in my three-year involvement in this continuing crisis, I've yet to meet the first former Conn client who met him. 
This introduces the crisis that is unfolding for many of Conn's clients.  Here's what attorney Pillersdorf wrote in an op-ed in the Kentucky Herald-Leader in mid-June, on the occasion of the Kentucky Bar Association's Annual Meeting.  Pillersdorf writes of the current state of affairs re: Conn:
The Social Security Administration intends to put another 1,950 former clients of Conn — who pleaded guilty to fraud this month — through another set of grueling mass hearings. 
The first set of hearings have been brutal, in that more than 800 of the 1,500 hearings resulted in our neighbors losing their subsistence benefits and being told they each had to pay back about $100,000 for alleged over-payments. We’ve had suicides, attempted suicides, panic attacks, spikes in homelessness, etc. The new round of hearings is equivalent to a nuclear bomb hitting the mountains. 
The challenge throughout this ongoing humanitarian crisis is that the SSA prevents lawyers from earning attorney fees for doing the hearings. Indeed accepting a fee can have negative consequences for your ability to practice before the SSA. We have been blessed in the first round of hearings that we found more than 100 volunteer lawyers to represent more than 1,000 former Conn clients. 
Without being asked, should the powers that be in the Kentucky Bar Association have contacted the volunteer lawyer network and asked what they could do to help? It is an interesting question. 
Regardless, we did not wait for them to ask. We requested, and thanks to KBA President Bill Garmer, we have been granted a session at this week’s convention to train and recruit lawyers. This is the good. 
The not-so-good is the reaction of the bar to the recent stunning revelation that thousands of former client files still sit in Conn’s law office that was seized a year ago. The association has the discretionary authority to request that the Supreme Court appoint a special commissioner to distribute the files to the clients prior to mass hearings. The response to our request for such an appointment was that we need to make other arrangements. So much for looking out for the rights of the least among us in their time of crisis. 
I can’t help but think that the unwillingness to assist the former clients was fueled by negative stereotypical views about those who collect Social Security benefits as well as their unfortunate association with the notorious Conn.  [On that theme, read more here]
Indeed, it is not only disabled folks in Eastern Kentucky who are subject to negative stereotypes.  The region is one of the most densely persistent poverty region in the nation, perhaps second only to the Mississippi Delta, as illustrated by this map.

And I, for one, have come to conclude that we have no more empathy--and perhaps less--for poor whites than for poor Blacks.

An e-mail plea that recently went out via a Kentucky lawyer friend of mine reads:
I am writing you as the past Director of Appalred in Kentucky, and of counsel to a local Prestonsburg, KY firm (Pillersdorf, De Rossett and Lane).

I am writing for volunteer attorney help. 
You may remember that local attorney Eric Conn has pleaded guilty to engaging in a fraudulent scheme with ALJ Daugherty to approve several thousand applications for Social Security Disability benefits. As a result, all the affected individuals were/are being noticed for hearings to review their disability status. In the first round we (Appalred, NOSSCR, and various other helpers) recruited 153 volunteer attorneys around the country to help these claimants with their hearings. The hearings were conducted by video. It was a huge effort. Appalred took over 200 of these cases. And several attorneys took 25 or more. About half of the claimants “won” their hearings and so about half lost. The “win” percentages of those who were represented was substantially higher than those who were not. 
The “first round” of these hearings involved about 1900 cases. The SSA has announced that there will be about 2000 more in Round 2 . We are hopeful that the lawyers who helped us in Round 1 will help in Round 2, but there is a fair amount of work involved in preparing these cases, so some of the lawyers may drop out. Additionally, there is currently an appeal pending in the 6th Circuit Court of Appeals which challenges the limitation on the evidence that was permitted to be introduced at the hearings. Based on the reaction of the Judges at the oral argument, we feel somewhat confident that the appellants (our clients) will win and that this will result in a remand of several hundred cases for new hearings, so the lawyers who handled those hearings the first time around will have plenty to do. 
There are Training Videos on the Appalred website, www.ardfky.org (Legal Information and social Security tabs) 
The result is that we need your help in recruiting more volunteer lawyers for the next round of hearings, currently slated to start in July and August, and to continue on probably throughout the next year or so. I will be glad to talk with any of you to discuss this further, and to obtain your suggestions for how to recruit more lawyers successfully. Or you can contact Appalred’s Pro Bono Coordinator, Mary Going, directly by calling 606-886-3876 Ext. 1315, or by email, maryg@ardfky.org or with me by phone at (606) 886-8851 (preferred); 606-422-4484 (cell); or e-mail, jandjrose@suddenlink.net. Thanks in advance. John Rosenberg
If this doesn't illustrate the need for more rural lawyers generally, as well as good rural-urban attorney networks, then I don't know what does.  Here is my prior post on that very topic.

Sunday, July 8, 2018

Major article on rural access to justice, the rural attorney shortage in Harvard Law & Policy Review

I am delighted to report that I am one of six authors of a major comparative study of rural access to justice in six states (listed her from most rural to least rural):  South Dakota, Maine, Wisconsin, Minnesota, Georgia and California.  This article, Legal Deserts:  A Multi-State Perspective on Rural Access to Justice, is forthcoming in the Harvard Law and Policy Review's issue on "Revitalizing Rural."  The abstract follows:
Rural America faces an increasingly dire access to justice crisis, which serves to exacerbate the already disproportionate share of social problems afflicting rural areas. One critical aspect of that crisis is the dearth of information and research regarding the extent of the problem and its impacts. This article begins to address that gap by providing surveys of rural access to justice in six geographically, demographically, and economically varied states: California, Georgia, Maine, Minnesota, South Dakota, and Wisconsin. In addition to providing insights about the distinct rural challenges confronting each of these states, the legal resources available, and existing policy responses, the article explores common themes that emerge through this multi-state lens, thus framing a richer, broader discussion of rural access to justice, with particular attention to the rural attorney shortage.

Written for a special issue on “Revitalizing Rural,” the article ultimately proposes a two-step approach toward closing the rural justice gap. First, although the information presented here provides a solid foundation, a critical need remains for ongoing careful and thoughtful study of the legal needs and lack of legal resources in rural areas. Second, the unique institutional, structural, and demographic characteristics of rural areas will require tailored, innovative, and data-driven solutions to match appropriate legal services with needs. We advocate a re-thinking of the roles of many justice system stakeholders, with particular attention to the critical steps that legal educators should take to bridge the justice gap. Our hope is that this article will inform and expand access-to-justice conversations so that they more intentionally address the legal needs of the vast rural reaches of our nation, thus furthering the ultimate goal of realizing access to justice for all Americans.
My co-authors are Hannah Haksgaard at University of South Dakota; Danielle Conway, Dean at the University of Maine Law School; Michele Statz, University of Minnesota School of Medicine (an anthropologist of law); Lauren Sudeall Lucas, Georgia State University; Amanda Kool, formerly a lecturer in Law at Harvard Law School and now an independent consultant living in her home state, Kentucky.  My earlier articles on rural access to justice are here and here.

Special thanks to Christopher Chavis, whose frequent contributions regarding rural access to justice here on Legal Ruralism has been so informative and influential on these issues. 

Monday, July 2, 2018

Small-city woes in Virginia partly attributable to city-county structure, relationship

The Washington Post reported yesterday under the headline, "Two cities share a name, water and a library.  But one is in big trouble."  The two cities are Bristol, Virginia (population 17,000) and Bristol, Tennessee (population 27,000).  It is the former one that is struggling, in part because of the socioeconomic woes of its residents, as City Manager Randall Eads explains: 

"One of the biggest things we have to overcome as a city is our demographics,” he said. Nearly a quarter of Bristol’s residents are in poverty. More than 42 percent get some form of monthly government assistance. Because 83 percent of the city’s school population qualifies for help, every pupil gets free lunch.

Journalist Gregory S. Schneider also addresses the city's remoteness from the seat of government.

At the far southwestern end of Interstate 81’s path down the Great Appalachian Valley, Bristol is closer to the capitals of six other states than it is to Richmond (West Virginia, Tennessee, Kentucky, North Carolina, South Carolina and Georgia).
Schneider notes that Virginia presents itself as "a top-tier, economically advanced place to do business" but that "small cities and rural areas are losing population and economic power while the state's wealthy suburban crescent--from D.C. through Richmond to Hampton Roads--grows and prospers."  

Schneider also observes that "several quirks of Virginia state law make it harder for ... suffering areas to help themselves."  The primary structural difference is that "Virginia is the only state in the country in which cities are independent entities," a quirk that dates to colonial times.

Another aspect of the comparison Schneider offers regards criminal justice costs, an arena where the status of home-rule cities (versus towns) works against small cities like Bristol.  Schneider explains the situation in Virginia:
One of the most urgent issues is the city jail, built to house 67 inmates. In March, the city had 240 prisoners, thanks to the [  ] drug crisis. ... About 140 of those have been squeezed into the jail; the rest are sent to a regional holding facility at a cost of $38 per inmate per day. 
That adds up. So Eads has been working with local law enforcement, prosecutors and judges to come up with what seems like the only solution: a way to reduce inmate population.
Tennessee's Bristol, on the other hand, has no jail; surrounding Sullivan County takes care of that function, as is the case in most states.  Sullivan County also partly funds Bristol, Tennessee's school system, which is standard in Tennessee.    

Sunday, July 1, 2018

Separation of children in Indian Country - The boarding school experiment

Over the past couple of weeks, millions of Americans have sat horrified as images of children being taken from their families by ICE officers have flooded our screens. Many of us are troubled by the thought of children being taken from their families and placed into unfamiliar surroundings where they do not know anyone and may not even speak the language. These images, while horrifying, are not unprecedented in American history. In fact, at one point, it was the official policy of the United States government to take children away from Native communities, send them to boarding schools in distant lands, and try to strip them of their cultures.  I have covered this before, but given current events, I thought that it would be timely to briefly revisit the issue.

"Kill the Indian, save the man" was the rallying cry of General Richard Henry Pratt, who thought that the way forward for Native people was to be stripped of their cultures and assimilated into mainstream American society. Pratt believed that this could only be achieved by removing the child from their homeland and immersing them into Western society, an idea that led him to establish the Carlisle Indian School in Pennsylvania. At Carlisle, students were taught to speak English, their hair was cut, their names changed, and they were discouraged from practicing their traditional cultures. The "success" of Carlisle even led to similar schools being established in other locations.

From almost every humanitarian perspective, Carlisle was an unmitigated disaster. Many students, unaccustomed to the diseases common in white society and in the industrialized North, died there and were buried on the school's grounds. The students were also subjected to violence as a form of punishment. The graduation rate was, as you might expect, very low. Over 10,000 students from 140 tribes attended Carlisle but yet, according to at least one source, only 158 actually graduated. By every metric, the school had failed in its stated goals.

The effects of this on the communities back home are real and continue to this very day, years after Carlisle shut its doors and the boarding school experiment was put into the dustbin of history. You can read more about the long term effects of the boarding school experience here, it's a long but very interesting read.

If we are to wonder about the effects of forcibly taking children from their families, we already have a blueprint to draw from. The effects are not limited to the individual person who experiences the event, they carry through for multiple successive generations. The communities affected by the current policies will likely feel its effects for generations to come.

Thursday, June 28, 2018

New Book: For-Profit Democracy: Why the Government is Losing the Trust of Rural America

Loka Ashwood's first book has just been published by Yale University Press's Agrarian series.  A description follows:
A fascinating sociological assessment of the damaging effects of the for-profit partnership between government and corporation on rural Americans
Why is government distrust rampant, especially in the rural United States? This book offers a simple explanation: corporations and the government together dispossess rural people of their prosperity, and even their property. Based on four years of fieldwork, this eye-opening assessment by sociologist Loka Ashwood plays out in a mixed-race Georgia community that hosted the first nuclear power reactors sanctioned by the government in three decades. This work serves as an explanatory mirror of prominent trends in current American politics. Churches become havens for redemption, poaching a means of retribution, guns a tool of self-defense, and nuclear power a faltering solution to global warming as governance strays from democratic principles. In the absence of hope or trust in rulers, rural racial tensions fester and divide. The book tells of the rebellion that unfolds as the rights of corporations supersede the rights of humans.
I reviewed the book and have a blurb on the jacket cover:
Loka Ashwood turns the conventional story of American reverence for private property on its head by revealing ways in which property rights are undermined when they conflict with the interests of the 'corporate-state,' an increasingly present and powerful player in the neoliberal era.
John Gaventa and David Pellow also endorse the book.
Ashwood is a rural sociologist at Auburn University