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Sunday, October 12, 2014

Think you have free speech? Think again

Quick quiz.  What rights does the first amendment guarantee?

Most people will immediately respond, "freedom of speech and freedom of religion."

Did you know the first amendment guarantees a lot more?  The amendment also guarantees the right to peaceable assembly and the right to petition the government for redress of grievances.

Four rights are guaranteed by the first amendment.  Dorchester County's Circuit Court judge, Brett W. Wilson believes half of those rights do not pertain to his court with regards to jury selection.

For the city folks who may be reading, one has to understand how us country folk select our juries.  Names are chosen for a full month of service and it is the responsibility of those chosen to call in or visit a web site every night to see if they will be needed in court the next day.  If a chosen forgets to call or misunderstands whether or not he is supposed to show up the next day, a sheriff comes and arrests him.  (Ok, sorry Delaware folks.  In Maryland, sheriffs have arrest powers and are routinely sent out to arrest those who skip jury duty.  I'm assuming you Delaware folks arrest your jury-skippers somehow despite your sheriffs not having arrest powers.)

Day care is not provided nor is transportation.  Being a rural area, there is no public transportation and for those who are in a one-car family living thirty or forty miles from the court, transportation and day care become a big issue.  And jury service is an annual event, not once every five or ten years like it is in more populated areas.

With that background in mind, two residents of Dorchester County, who were called for jury service every year for the last six years, diligently wrote the court to be excused from service.  Each time, they were granted a deferment.  It was the latest deferment for the 1099 citizen that raises concern.

What is a 1099 citizen?  Simply put, a 1099 citizen is a self employed person, but not self employed in the same sense that a business owner is self employed.  More and more, 1099 citizens are popping up because the nine-to-five job they once had is outsourced to a third party company.  That company agrees to provide the necessary services to the parent company, but instead of hiring employees to meet their contractual obligations, they hire "independent contractors".  These employees are not bound by most labor laws and the company is not bound by tax laws such as payroll taxes and unemployment taxes nor are they obligated to provide benefit pay such as holidays and vacations.  The 1099 employee model also gets around the big expense of providing healthcare benefits that Obamacare mandates.  (In a future article, we'll spotlight a specific national company that hires 1099 employees so that they don't have to pay all these benefits, including healthcare, yet treats their contractors as "employees".)

For the sake of anonymity, we'll name our 1099 citizen John. 

John received his jury notice that he was obligated for the month of August.  August is one of those months with no holidays and usually has a half week extra to make up for the previous months' shortcomings.  Don't ask why there appears to be an extra week in two months out of the year, but it has something to do with leap year.  Anyone who gets paid on a biweekly basis knows there are two months out of the year where you get an "extra" paycheck, that is a paycheck that isn't obligated to some monthly bill.  A lot of times, August is one of those months.

Because John is a 1099 employee, not by his choice, but by his company's decision to cut expenses, jury service mean he stood the potential of losing about $120 per day for each day he had to be at court.  Now, $120 per day sounds like a lot of money ($15 per hour), but the nature of his job required him to use his own vehicle as a courier for the hospital.  At $20 per day in gas, he really made $100 per day ($12.50 per hour).  As a 1099 employee, he had no holiday pay (nine holiday days equals $2.95 per day loss), so he's down to $12.13 per hour.  It's not that he didn't want to work the holidays.  The company he worked for was simply closed so there was no work to do. 

So, on $12.13 an hour, or about $25,000 per year, John is expected to "live comfortably" for him and his family, provide his own health care (a mandatory minimum expense set by the government), pay his taxes (as a 1099 employee, no taxes are withheld from his paycheck), and then potentially sacrifice $120 per day to go serve on a jury. 

In the new job market, John gets paid the same $120 per day as when he was employed by a real company, but now that's he's been outsourced to a fake company, holidays are lost money, vacations are something rich people take, health care is something the president mandated but isn't going to get paid, retirement means death, sick means bills aren't going to get paid, and jury service is yet another unreasonable demand by the government to ensure John is a failure as a provider for his family.

Fortunately, when John is called to jury service, he has the right to ask the court for dismissal from service.  Of course, his request is subject to the whim of the judge.  He is asking an anonymous person, who makes six figures a year guaranteed, to understand why a person losing $120 for even one day is an undue hardship. 

Writing the court is exactly what John did.  He wrote asking for an excusal.  (His letter to the court appears at the end of this article.)  He also took the time to exercise his first amendment rights and expressed his grievances over the undue hardships the court places on the average Dorchester
County citizen every year.

The end result of John's letter is he was excused from jury service.  His excusal, however, came with a stern warning from the Honorable Brett W. Wilson, delivered via phone message through the jury commissioner.  While John was granted a deferral, the jury commissioner warned him that the judge did not like the tone of his letter and John might want to consider choosing better words in the future.


An average citizen would most likely take the phone message as a vague threat.  John took the message as a threat, and not so vague of a threat.  A judge, after all, made it clear that, in the future, he needs to choose his words and tone of letter more carefully.  John's assumption was he felt that if any future letter he wrote did not meet Judge Wilson's approval in word choice and tone, he might be arrested for contempt of court or something.  Judge Wilson made it clear that John's First Amendment rights to address the court of his grievances and to free speech were subject to Judge Wilson's approval of how John wrote his letter.

We could understand the judge's warning if John had used curse words in his letter or used threatening language.  A bit of poor grammar aside, John simply wrote to tell the judge how much money he would lose each day, how he could potentially lose his route if at last minute he couldn't find a replacement, and then exercised his first amendment rights and editorialized about how it was the court's responsibility to call him the day before if he were needed and not his responsibility to "check in" as if he were an employee of the court for the entire month.

Judge Wilson's response to John, delivered through his jury commissioner, clearly illustrates the dichotomy that exists between the people and those we elect.  From John's perspective, based on everything he learned in high school history, the government exists to serve him.  Elected officials, including judges, are public servants, to serve him as part of the public.

Somewhere between our Founding Fathers' vision over two hundred years ago and today, elected officials have lost sight of the fact they are public servants elected to serve the average citizen.  Today, our elected officials believe they are in office to direct citizens towards "appropriate behavior" while using them as their personal ATM machines.

Unfortunately, circuit court judges are elected for 15-year terms.  Judge Wilson appears to be in his secure position until 2021.  He'll be around 63-years-old when he comes up for re-election.  Who knows if he'll run for another 15-year term, retire, or take his career in a new direction. 

What we do know is no elected official reserves a right to make implied threats to the electorate.  When you receive a jury summons over the next seven years, write Judge Wilson with how you truly feel. 

First on the menu is that you are not an employee of the court so it is not your responsibility to call in or check a website every night to see if you are needed the next day.  It is the court's responsibility to personally notify you when you are needed, and, in today's world, at least two days notice that you will be needed should be the mandate.  It's not your responsibility to check in and see if you are needed and you need to make that clear to Judge Wilson.  Your time is more valuable than Judge Wilson's.  Don't let him waste it.

Second on the menu is to make it clear to Judge Wilson that he needs to designate specific dates you may be needed in court and that a sweeping "every day of the month" doesn't cut it.  We're a rural community.  At most, trials can, and should, be scheduled twice a week.  If that means Judge Wilson may have to work more than eight hours for the day to meet the trial demand, well, that's why he gets paid six figures a year.  Jury service is not supposed to be a burden on the average citizen.  The burden is on the court and court employees.  If the court employees, including Judge Wilson, don't like the burden, they can find new jobs.

For Dorchester County residents, when you receive a jury summons, protest on your terms to:

Dorchester County Jury Commissioner's Office
206 High street, Room 203A
PO Box 416
Cambridge, Maryland 21613
Telephone: 410-228-9840
Fax: 410-221-0315

For the TL;DR folks:

Anything the government sends you is at least twice as long as this article, and written in legalese.  That means if you're reading this, you're screwed.

Letter sent to Judge Brett W. Wilson that elicited his round-about censorship call:

Dear Jury Commissioner,

Please find enclosed your requested form.
 
Currently, I am self-employed running a courier service for XXXX.  I run the XXXX route M-F, 9:00 am until 6:00 pm and sometimes later, depending on the doctors’ needs.  Because of where I live, I don’t get home until as late as 8:00 pm.  If I find out, when I get home, that you need me the next day, I have no way finding a replacement to do my run.  Even if I could contact, at last minute, one of my replacement drivers I have as back up, I have to pay him $100 to do the run for me.  If I don’t do the run, I risk losing the account.

I would need to know at least one week, preferably two weeks, in advance which days you need me.  Since my jury service would mean I’d lose $100 per day, I’d like to know how the county proposes to make up my lost wages.  I understand every citizen has a civic responsibility to serve on a jury, but that service shouldn’t cause undue hardships.
 
I have never heard of a prospective juror being on call for an entire month.  Prospective jurors aren’t employees of the court system.  I reckon if I were retired, being on call for a month wouldn’t be considered an undue hardship, but I work for a living.  If I were still employed for XXXX, they would still be required to pay me for missing work for jury service.  Since they laid me off and use independent contractors now, losing a $100 per day to serve on a jury is definitely an undue hardship.

I am asking you to please tell me which days I need to report so I can arrange to hire my back up driver.  I am also asking how I ask the county to pay me for the lost wages on the days I am required to be in court. 

Regards,

XXXX

For your listening pleasure - with video long before the computer age:



Related Links:
 We need rural jury selection reform

 Jury Reform Proposed Changes

Posted by Five Drunk Rednecks

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