Proximate Conviction: Why Every Young Attorney Should Listen to Bryan Stevenson

May 14, 2015

By: Jason Arter

On April 29, 2015, I had an opportunity to listen to Bryan Stevenson present a message on the injustice in America. Bryan Stevenson is the founder, and executive director of The Equal Justice Initiative. His work addresses the injustice and biases that the poor and minorities experience. Mr. Stevenson’s awards for his work are numerous. Some of the more prestigious among them are: The MacArthur Foundation “Genius” Award, The ACLU National Medal of Liberty, and the Thurgood Marshall Medal of Justice. The message of inequality among the poor, minorities, and how we as a society can change this inequality was the central theme.  The Blumenthal Spirit Square is a small theatre, but a large attendance was present on this night.

I call it a talk, but it was much more. It was conviction, determination and passion wrapped up into a charismatic delivery. It was extremely motivating, and at the end of the evening I left feeling a sense empowerment and a desire to make a change in my community. Mr. Stevenson also had a similar message at a TED talk in 2012. It was a huge honor to be able to see this similar message live, given the present circumstances in Baltimore, Maryland.

Bryan Stevenson founder and Director of the  Equal Justice Initiative. Photo courtesy of NPR.

Bryan Stevenson founder and Director of the Equal Justice Initiative. Photo courtesy of NPR.

No attentive person could have left on Wednesday night without taking something from the presentation. The presentation at its core is a message about changing the racial issues that have plagued society for 150 years. There are four basic concepts to Mr. Stevenson’s message—two of which made a lasting impression on me.

He started with the concept “proximate.” Proximate is more clearly defined as location in time, closeness, or nearness to an event. Mr. Stevenson stated that a person couldn’t really make an effective change if the proximity at which our action is made is not within a close relation to the change that is sought. Real change is not going to occur from arms length or in the periphery.

The second concept Mr. Stevenson spoke about was “conviction.” As attorneys, we rely heavily on the knowledge in our brain. We master the rules, learn to apply them correctly, and attempt to make a difference. Unfortunately, that is not enough. We must find a conviction in our hearts to find that area of the law that impassions us to make a change. As attorneys, we must marry and intertwine conviction and knowledge. When we do, we are making a change not just as attorneys, but also for society. We can overcome the crippling effects of racism, mass incarceration, and other injustices that exist within our communities.

Regardless of the view from your chair, whether prosecution or defense, we must remember the passion and conviction that has lead us to this career. We are problem solvers. We are tools for change in the positive. When, as a profession we move forward, let us remember that change is never easy. Change is always met with resistance. We must stay the course, and hold to that conviction that inspired us.

Social injustice problems can be overcome. Imagine if just one person braves the consequence and stands up for the rights of another when others are afraid, a ripple effect could occur. We would be proximate with a conviction to overcome injustice.

What is the take away? Simply this: as young attorneys we are getting ready to graduate and we are preparing to face a new profession. That said, without getting truly involved, attempting change from a distance would not be enough. As young attorneys, we must challenge ourselves to look at the underlying problems and address them. Mr. Stevenson stated that crime is a really a reaction to the underlying problems that have never been addressed. Without a closer relationship with people or our clients, the prospect of a positive change is unlikely.

Imagine if more than one person felt this way… wouldn’t our profession, and our society as a whole, be great?


Gone But Not Forgotten: Application of the Public Trust Doctrine to Preserve North Carolina’s Resources

May 7, 2015

By: Jason Arter

In a quest for more energy sources, the land and the resources are quickly being abused. The public must know that there alternative means to protect the basic resources needed for life in general. The Public Trust Doctrine (herein “Doctrine”) in its most current application dictates the protection of resources for citizens of the state; it can be a useful tool for the states as adopted in the federal judicial system. Although this Doctrine has never been codified, judges have engineered a basic set of principles that allow states natural resources to be protected. The Doctrine was developed through the federal government as a means to protect critical natural resources such as forests, land, and most importantly water. It is now incumbent upon the states to use this Doctrine to protect the environment inside each state’s respective borders.

The rights of one should not jeopardize the rights of many, in my opinion. Allowing individuals, energy companies, and states to use methods, such as off shore drilling, to extract oil reserves is a violation of the Doctrine when the extraction damages resources that have been dedicated to the public for their welfare. If allowed to use this method, the damaging effects can be quickly realized, and those effects such as damaging water reserves can be catastrophic. Thus, the natural resources, such as clean drinking water, which would otherwise provide for many, will be jeopardized. Effective application of the Doctrine, through state and local action, will not only guarantee the protection of natural resources, but ensure the protection of rights as established in many state constitutions. The natural resources in North Carolina have been set aside for the citizens of the state. The state constitution reads in Article 14 Section 5:

It shall be the policy of this State to conserve and protect its lands and waters for the benefit of all its citizenry, and to this end it shall be a proper function of the State of North Carolina and its political subdivisions to acquire and preserve park, recreational, and scenic areas, to control and limit the pollution of our air and water, to control excessive noise, and in every other appropriate way to preserve as a part of the common heritage of this State its forests, wetlands, estuaries, beaches, historical sites, open-lands, and places of beauty.[1]

A narrow and naive perspective would allow a person to think that this will not happen to our state, but just ask the citizens of the gulf after the BP Deepwater Horizon disaster.

Deepwater Horizon aerial view of the explosion. Photo courtesy of nbcnews.com.

Aerial view of the BP Deepwater Horizon explosion. Photo courtesy of nbcnews.com.

The state and its political components have a duty, and it is the responsibility of the citizens to remind those in office of this forgotten doctrine. Although it may appear a daunting task, a simple letter, a call to a person’s representative, or a grass roots signature campaign may raise the awareness levels of the elected officials duties. Those duties are clearly documented in the constitution of this state and countless other states.

Development of the Public Trust

As initially applied, the Doctrine protected commerce on the public waterways.[2] This Doctrine, however, has evolved, morphing into a tool for concerned citizens to protect wildlife and the natural resources of the state. It is under this developing model that the Doctrine has begun to gain traction in the preservation of natural resources.[3] As early as 1896, this concept of “public trust” was applied in American courtrooms. Initially, the concept within the United States courts was only used for navigable waterways and the adjacent land when the tides were low.[4] Although the concept has never been codified into federal law, it has been recognized as a “backbone” principle in deciding cases affecting states and their rights regarding land issues.

States have begun to effectively use this Doctrine in preserving not just water, but drinking water. The California Supreme Court has stated:

The state as sovereign retains continuing supervisory control over its navigable waters and the lands beneath those waters. The principle, fundamental to the public trust. . . prevents any party from acquiring a vested right to appropriate water in a manner harmful to the interests protected by the public trust.[5]

This, however, is not a new American concept. The initial Doctrine can be traced back to the early Roman Empire. It was believed, in its most basic form, that, “[b]y the law of nature,” every citizen was entitled to the common resources of the Empire. Among those being clean air, running water, seas, and the shores of the seas.[6] It is under this model that the Doctrine can be applied to the current issue of offshore oil drilling, which has become an issue for the citizens of North Carolina and the resources of this state.

Although its roots have evolved from the times of the ancient Romans through the English court system, the principles associated with the Doctrine have been successful in the modern courtroom.

North Carolina should recognize the harms associated with offshore drilling and the conflict that is created by not ensuring clean water resources for the citizens of this state. Although fracking is considered more damaging to ground water, the issue of fracking has been settled among the counties in this state. With the issue of fracking addressed, the potential of damage now stems from the potential of offshore drilling.

Why Does It Matter?

Since his inaugural speech, Governor McCrory has pushed for offshore drilling and has renewed the pressure directly at the Obama administration to relax federal legislation, which would allow drilling to begin sooner rather than later. The offshore drilling concern in North Carolina was heightened when Governor McCrory formed a coalition (which he also heads) with South Carolina Governor Nikki Haley.[7]

In recent events, the Obama administration has also begun to weaken in its attempts to limit offshore drilling. President Obama has agreed to allow federal licensing to begin for several tracks of ground located fifty miles off the coast of North Carolina.[8] This opens the door for the drilling to begin, promoting the ideas of energy independence and national security. Both ideas are worthwhile, but the risk versus the reward is the primary concern.

National security–although listed independently–seems to be a byproduct of the goal of energy independence. Governor McCrory has also stated that thousands of jobs would be created, and millions of dollars would be generated into the state’s economy.

All of these goals on the surface would be beneficial, but it only takes one BP Deepwater Horizon Disaster to erase all of it. It only takes one spill to contaminate coastal waters, and the water supplies of countless communities. The question has been raised regarding increased safeguards. These safeguards would come at the expense of the citizens as taxpayers, for whom the resources should naturally be protected. It seems counterintuitive that when a constitution sets the resources to be protected for the citizens, the citizens should pay for something that is natural.

The Doctrine then becomes a critical tool for the prevention of these dangers. As an established right in the constitution of North Carolina, citizens should not be denied clean water for the pursuit of a bottom line profit margin. The resources of this state are for the citizens to use and enjoy, not for a company to ruin with a profit as its only goal. Although at first glance, the drilling offshore may not be a civil rights issue, a quick reminder of the lives, jobs, industries, and resources that were all lost with just one incident should be remembered. The question of speculation surrounding the potential for disaster seems to ease the concerns for some, but why wait and be reactive to a disaster, when proactive prevention can be the answer?

[1] N.C. Const. art. XIV § 5.

[2] Illinois v. Illinois Central R.R. Co., 184 U.S. 77, 22 S. Ct. 300, 46 L.Ed. 440 (1902).

[3] Michael C. Blumm & Rachel D. Guthrie, Internationalizing The Public Trust Doctrine: Natural Law and Constitutional and Statutory Approaches to Fulfilling the Saxion Vision, 45 U.C. Davis L. Rev. 741, 745 (2011).

[4] Parks v. Cooper, 676 N.W.2d 823, 837 (S.D. 2004).

[5] National Audubon Society v. Superior Court, 33 Cal. 3d 419, 445 (Cal. 1983).

[6] Allan Kanner, The Public Trust Doctrine, Parens Patriae, and The Attorney General as the Guardian of The State’s Natural Resources, 16 Duke Envtl. L. & Policy F. 52, 67 (2005).

[7] Amara Omeokwe, Gov. McCrory Applauds Offshore Drilling Proposal for Carolinas, 2015, Time Warner Cable News, available at http://www.ny1.com/nc/coastal/news/2015/01/28/gov–mccrory-applauds-offshore-drilling-proposal-for-carolinas.html.

[8] Ben Geman, Obama Proposes Opening Atlantic Ocean to New Oil Drilling, 2015, National Journal Online, available at http://www.nationaljournal.com/energy/obama-proposes-opening-atlantic-ocean-to-new-oil-drilling-20150127.


Charlotte Fails to Protect People by Rejecting Non-Discrimination Policies

April 7, 2015

By: Carla Vestal

On March 2, 2015, Charlotte City Council (“the Council”) voted on an ordinance that would allow all people to be treated equally and fairly under the law. Unfortunately, the Council failed to adopt these much needed policies that would prohibit private businesses and certain public positions, such as for-hire transportation and city contractors, from freely discriminating against people because of their sexual orientation, gender identity, or expression.

The final vote came down to 1 single vote, as it ended up 6-5. This single vote came after hours of debate from both sides of the aisle, and at that point the controversial bathroom portion of the ordinance was already stricken. The bathroom portion of the ordinance would have allowed transgender individuals to use the bathroom of the gender in which they identify themselves. This was the most controversial piece of the policy, and even though it was removed it seems that certain members of the Council still used it to vote against what was being presented. “All over the world, there are restrooms for men and restrooms for women,” said Ed Driggs, a Republican Council member. “It does not place an unreasonable burden on them and it does not stigmatize them.”   Another Republican Council member, Kenny Smith, asserted that the bill was not a measure to stop discrimination, but to “impose the progressive left’s new morality on our citizens.”

Photo courtesy of The Charlotte Observer.

Opponents to the policy at the Council hearing. Photo courtesy of The Charlotte Observer.

When discrimination is discussed in the government, it should not become an issue of alleged morality. Discrimination in and of itself is immoral. Discrimination is prohibited by the United States Constitution by the Equal Protection Clause of the Fourteenth Amendment and applied to the states through the Incorporation Doctrine of the Fifth Amendment. It is simple–and yet disturbingly difficult–for people who oppose equality under the veil of a religious responsibility to do so.

Jason Arter, a current Clinic student, attended the meeting and shares his first-hand account of the spectacle at the Government Center that day. Mr. Arter informs us that, “[The scene] was about religion, and the damnation that is going to occur. . . not just for those in favor of the ordinance, but also for those that have selected to be comfortable with who they are, in whatever gender they feel most comfortable expressing themselves.” Mr. Arter also reveals that the Council members opposing the ordinance insisted on continuing to make links between bathroom usage, homosexuality, and pedophilia even after the bathroom portion was stricken from the vote. When asked about how he felt after the vote, Mr. Arter has a very strong opinion to share, “Community members should be outraged, not just that the ordinance failed, not that those who are elected failed to fairly represent all members of a community, but that religion has yet again dictated the course of the future for all members of the Charlotte-Mecklenburg community instead of the government.”

The question remains: “Why would Charlotte not want to join to rest of the country in passing these protections?”

Out of the country’s twenty largest cities by population, Charlotte is one of three that does not have in place non-discrimination policies. The other cities that join Charlotte are Memphis, TN and Jacksonville, FL. Throughout the country seventeen states and over 200 municipalities have non-discrimination policies in place to protect people who identify as LGBTQ. While visiting Charlotte, Vice President Joe Biden addressed the Human Rights Campaign Spring Equality Convention on March 7, 2015. During his speech he urged that the entire country needs to pass non-discrimination policies that protect the LGBQT community and stressed that those policies need to be passed now.  Biden also affirmed his support for a “federal non-discrimination . . . bill that is expected to include protections in employment, housing, public accommodations, credit, education, jury service and federal funding.” The bill is expected to be introduced to Congress this spring.

If you feel that Charlotte should join the rest of the country in protecting all people from discrimination, continue to reach out my emailing and calling your city leaders:

Mayor Dan Clodfelter
704-336-2241
mayor@charlottenc.gov

Mayor Pro Tem Michael D. Barnes
704-509-6141
barnesforcharlotte@gmail.com

Claire Green Fallon
704-336-6105
cfallon@charlottenc.gov

David Howard
704-336-4099
info@davidhowardclt.com

Vi Lyles
704-336-3431
vlyles@charlottenc.gov

Patsy B. Kinsey
704-336-3432
pkinsey@charlottenc.gov

Al Austin
704-336-3185
aaustin@charlottenc.gov

LaWana Mayfield
704-336-3435
lmayfield@charlottenc.gov

Gregory A. Phipps
704-336-3436
gaphipps@charlottenc.gov

John N. Autry
704-336-2777
jautry@charlottenc.gov

Kenny Smith
704-574-7241
krsmith@charlottenc.gov

Edmund H. Driggs
704-432-7077
ed@eddriggs.com

When fair-minded people join together anything is possible!


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