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Burden of Proof

South Carolina Battle Over Maternal Privacy; Workplace Disputes and the Courts; Does the Ex-wife Get the Money?

Aired March 22, 2001 - 12:30 p.m. ET


ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: You have a dispute with your boss, where do you turn? Plus, the Supreme Court says that, in certain cases, the ex-wife gets the money. And enter today's maternity ward, a new battleground for privacy and search-and- seizure laws.


LYNN PALTROW, NATIONAL ADVOCATES FOR PREGNANT WOMEN: A consent to a medical test is not a consent to a search for criminal justice purposes. What this decision really means is that there are not exceptions to the Fourth Amendment for people who either have drug problems or for pregnant women.

PAULA HALE, ARRESTED FOR COCAINE USE: After birth, I got arrested. After birth, I went through trauma because of the statute that was implemented at the time.

CHARLES CONDON, SOUTH CAROLINA ATTORNEY GENERAL: The object of this policy has never been and is not now maternal prosecution. The object is fetal protection.


ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Great Van Susteren.

COSSACK: Hello and welcome to BURDEN OF PROOF.

Yesterday, in Washington, the U.S. Supreme Court weighed in on a controversial practice in a South Carolina hospital. In a 6-3 ruling, the high court ruled that public hospitals cannot test pregnant women for drugs and turn them over to the police.

Justice John Paul Stevens wrote for the court that when hospitals test patients and gather evidence -- quote -- "for the specific purpose of incriminating those patients, they have a special obligation to make sure that the patients are fully informed about their constitutional rights" -- well, dissenting in the case: Chief Justice William H. Rehnquist, Justice Antonin Scalia and Justice Clarence Thomas.

So joining us today from Columbia, South Carolina is Charlie Condon, the attorney general for the state of South Carolina, who was also the local prosecutor in Charleston when the testing program began. And from Los Angeles, we're joined by attorney Laura W. Brill, former Supreme Court clerk for Ruth Bader Ginsburg.

Here in Washington: Kerry Finnegan (ph), attorney Bill Kilberg -- who had another case before the Supreme Court that we're going to discuss shortly -- and attorney Richard Bernstein, a former Supreme Court clerk for Antonin Scalia. In the back: Hunter Prince (ph) and Katie Binz (ph).

Charlie, I want to go right to you since it was your case that yesterday the Supreme Court decided. Were you disappointed? It was not something that you had asked for. You believed that, in fact, search warrants were not necessary for you to test for drugs and turn those results over to the police.

CONDON: Well, our first opposition was that this came under the special needs exception. That actually came from a 4th Circuit ruling. But, really, I don't think the ruling was particularly surprising. It was, I think, sort of a logical extension of basic Fourth Amendment law.

And I think the key here, though, is that this whole program was never about maternal prosecution. It's about fetal protection. And because we won 98 percent of this entire litigation history here, the program goes on in South Carolina. And we are able to protect innocent children from drug abuse.

COSSACK: Charlie, in fact, what the Supreme Court said was that, as I understand it, is it wasn't the testing part that bothered them; it was the testing and then turning the material over to the police. So, in fact, what are you left with in South Carolina?

CONDON: Well, what the court ruled is that, in order to turn over the testing material -- and you are right, the testing wasn't the problem -- we needed to either have a consent to search -- which, by the way, the district court found that there are consents -- there are valid consents in this particular case -- or we need to have a search warrant.

And, really, from a practical standpoint -- I've been in prosecution now, gosh, 20, 25 years -- getting search warrants, if they are not consents, it really isn't that bit of a burden.

COSSACK: Laura, let's talk about this case. This is a case in which, apparently, what the Supreme Court did was what they do best: They did a little balancing. And, apparently, they balanced the individual right to privacy that the mother may have in the maternity ward, as opposed to the safety or well-being of the child. How did they come down on that?

LAURA BRILL, FMR. SUPREME COURT CLERK: Well, Roger, I'm not sure that's exactly the balance that they were looking at. They really said a pregnant woman, when she goes to the maternity ward, she doesn't give up her privacy interests just by virtue of the fact that she's pregnant. And what the court was doing was really looking at this particular program and saying that it was so intertwined with police activity that it didn't come within a special exception that the court had carved out for warrantless searches and searches that didn't have consent, where the purpose of the program didn't have anything to do with law enforcement.

So that's what they were principally focusing on. But I do think you are exactly right that it is very important that the court decided that pregnant women don't simply have a diminished interest in privacy just by virtue of the fact that they are pregnant and seeking medical care.

COSSACK: Richard, there are exceptions in the law for Fourth Amendment. The Fourth Amendment, by the way, for our viewers' sake, is the amendment that gives us the right of privacy, that the government wants to search us, most of the time, presumptively, they should have a search warrant. But there are exceptions to that search warrant necessity. And one of them is called special needs.

In fact, that's why police can search students lockers without a search warrant. Isn't this really what the South Carolina people were asking; they were asking the court to look at this particular thing -- that is, the testing of the mother -- and then turning the material over to police as a special-need exception?

RICHARD BERNSTEIN, FMR. SUPREME COURT CLERK: I think that's what South Carolina was asking. But I think South Carolina was wrong. I think what the Supreme Court yesterday said was: Cops can be cops and doctors can be doctors, but doctors can't be recruited to be cops.

And they found that the purpose of this program was to assist in criminal prosecution. And they cited a lot of support in the record for that. And I think, if you have state employees -- in this case, doctors -- acting as such -- doctors and nurses -- acting in order to assist criminal prosecution, that's a search.

Now, if they were just testing people for their health needs, and there was some independent statute that said after do you that testing, you should report certain results to the police, I think you have a different -- you would have a different outcome in this case, but not when the -- when law enforcement is the purpose of doing the testing in the first place.

COSSACK: Let me go back to Charlie, then, for a second.

Charlie, you are left with the Supreme Court saying that: If you want to do this, you are going to have to get a Supreme Court -- go get a search warrant. Now, what exactly are the officials of South Carolina going to do? Obviously, you are concerned about the children and you want to do your best to protect the children.

The Supreme Court says you can't turn it over to the police. What other program could you put in effect?

CONDON: Oh, no. What the court is saying is, at public hospitals in South Carolina -- and this protocol is really now statewide. And, in South Carolina, I believe we are the only state in the Union, because of litigation, really, in this case, we've -- we recognize, in South Carolina, an unborn viable fetus for the purposes of our child abuse laws is considered a person, a fellow South Carolinian.

So hospital officials -- doctors, nurses -- they are under a legal obligation now to report illegal drug use that harms innocent unborn children. So throughout the state of South Carolina, I think it is a really good law. It is a requirement that, once viability attaches, that the state has an obligation to watch out for these children. So across the state, we're now -- we have been doing this for a number of years.

We're out there protecting the children. We're trying to use the least intrusive means possible. So we start off with the Department of Social Services. It can go to probate court. And at the very last resort, it can resort in criminal prosecution. But the criminal prosecution is really only used to coerce them, much like the drug courts, into free drug treatment.

So I think, throughout the state of South Carolina, we are helping hundreds and hundreds, if not thousands of innocent children from illegal drug use. And, of course, it also helps the mother. We need to get her off of drugs also.

COSSACK: Laura, as Charlie explains this, obviously, it is a noble purpose for the government of South Carolina. But do you think that there's a privacy issue with what he has described?

BRILL: Well, I don't know the exact parameters of the South Carolina law that's currently in place. But it sounds to me as if it could have the potential of really keeping women away from seeking medical treatment during their pregnancy for fear that they will be coerced into going to -- they will have to go to prison as a result of taking drugs, and that that really could end up being the worst situation, both for fetuses and potential children, and for mothers involved.

COSSACK: All right, let's take a break.

Up next, now, also on the Supreme Court docket: work place disputes. You having a problem at the office? Think you're heading to court? Not so fast. Don't go away.


A former deputy U.S. marshal was charged Tuesday with lying about a post-trial romance with an alternate juror in the 1997 Oklahoma City bombing trial. The Justice Department has said that the charge would have no effect on the guilty verdict handed down to Timothy McVeigh. A conviction could carry a five-year prison sentence. (END LEGAL BRIEF)

(COMMERCIAL BREAK) COSSACK: The United States Supreme Court reached into the American workplace yesterday, ruling that employers can force their workers to take disputes to arbitration, rather than to court.

The case reviewed by the Court involved a former employee for Circuit City, who sued the company in California State Court, claiming he resigned after being harassed at work because he was gay.

And joining us from Richmond, Virginia, is David Nagle, attorney for the Circuit City stores. And on the phone, we have St. Clair Adams, the plaintiff in this case.

St. Claire, thank you for joining us.

Tell us what happened and why you went to court.

ST. CLAIR ADAMS, FMR. CIRCUIT CITY EMPLOYEE: Well, basically, I had received about a year's worth of discrimination, comments that were from approximately 20 employees and five managers.

And after repeatedly complaining about it, I decided that I had enough. So I decided to seek an attorney, which I found, Attorney Angela Alioto in San Francisco. She took my case.

And then Circuit City invoked some arbitration agreement that was never explained to me, nor did I understand it. It was part of the application that said that I was required to arbitrate, or my application would not be accepted for employment.

So after losing in that case, with the federal court, we took it to the Ninth Circuit of Appeals. We won in the ninth Circuit of Appeals. Then Circuit City then took us to the U.S. Supreme Court. And that is what you are talking about today.

COSSACK: All right.

From Richmond, David Nagle. David, you represented Circuit City, the victorious litigant yesterday in the United States Supreme Court.

What does this mean? Does this mean now that as a way of getting employment, that people -- the employer has the right to require any employee to take a -- to sign an arbitration clause or not offer the job?

DAVID NAGLE, ATTY. FOR CIRCUIT CITY STORES: Certainly, Roger, it's permissible for an employer to include an arbitration agreement in the employment application, as Mr. Adams has just stated.

This arbitration provision was in the employment application. I know he says he didn't have anyone explain it. It did have a 15-page description of the arbitration program attached to the application.

And he elected to sign that arbitration agreement. And so he was considered for employment. He was employed by the company for several years. So an employer does have the right to provide such an arbitration agreement as a condition of hire, a condition for consideration of an application for employment.

COSSACK: David, isn't the reason that an employer would want an arbitration agreement, one that could enforced like this, is because it's better for the employer, and they avoid the problems of having to go to court and perhaps lose in front of a jury?

NAGLE: Well, the considerations you raise are the same for both employer and employee, Roger. The problem is, as you know, that your show certainly is attuned to all of the litigation today. And what we are trying to do is find a quicker, less expensive, less formal way of resolving workplace disputes, rather than going through court.

Of course, Mr. Adams brought this claim back in 1997. If he had brought in an arbitration, it would have been resolved some time in 1997 or 1998. And here we are, some three years later, having gone through three levels of federal courts to determine that now in fact he should arbitrate it as he had agreed back at the time that he applied for employment.

COSSACK: Let's go to Laura Brill out in Los Angeles.

Laura, is this the waive of the future? I mean, do employers now say, you know, This is good for me because I don't have to take that chance of getting stuck before a jury and getting hurt?

BRILL: Well, I think it's a very significant decision, Roger. And I think a lot of employers will require people to sign arbitration agreements as a condition of employment.

But perhaps other employers, especially now with tight labor markets, will decide this is really a large blow to employee morale, and will say, We don't want to touch that.

This decision will also have the impact that employees will, if they have to sign an arbitration agreement, will give up their right to a jury trial. And so that's a very substantial right to require someone to give up just as a condition of employment.

And I think it has the broader implication, that it may encourage more employees to seek unionization, because they want representation in arbitration proceedings that their employers may require.

COSSACK: Richard, notion is, as I always understand stood it, is that your constitution said you had a right to a jury trial. Isn't this, in a sense, asking someone, Before you can go to work for me, you have to give up certain rights, rights that you might have under the Constitution?

BERNSTEIN: Sure, it is. But you can contract away a right to a jury trial. I mean, all the Supreme Court said in this case is that this particular employment relationship falls within the Federal Arbitration Act. They haven't resolved any issues about consent or voluntariness. And of course, if this results in a bad situation for lots of employees, we are talking about a federal statute here. Congress can always change it.

COSSACK: But it's going to take Congress to change this.

St. Claire, I want to go back to you for a second. Do you -- do you still have the right to go ahead now and have your case arbitrated?

ADAMS: Yes. Angela is moving forward. We are going to take this back to state court.

We may have another challenge from -- my information; I just spoke with her on the phone. We may have another challenge that -- with the federal court.

But just to correct something. I was not given a 17- or a 15- page description of arbitration. And that's really totally bogus. It was part of the application. And that was all there was to it.

But, yes, we -- this case is live and well. And we will continue, as well as I am going to go to the U.S. Congress and ask them to modify this bill. They created it, this law. They created. Let's change it.

COSSACK: All right, let's take a break.

Up next: a hard lesson in updating a will and other beneficiary paperwork. The U.S. Supreme Court rules in favor of a former wife. Stay with us.



Q: Why were New Jersey second-graders charged with making terrorist threats?

A: For threatening to kill everyone with a paper gun. The boys were suspended, and school officials called the police, who charged the boys.



COSSACK: In 1994, David Egelhoff died in an accident shortly after being divorced. With no will, his ex-wife received $46,000 as the listed beneficiary on his life insurance policy. Well, his children sued.

But yesterday, the Supreme Court ruled in favor of the former wife.

All right, Bill, tell me what happened. You represent Donna Egelhoff.


COSSACK: She was the wife, and then got divorced of the deceased gentleman.


COSSACK: And somehow, he apparently, either on purpose or whatever the reason was, never got around to taking her name off as the beneficiary.


COSSACK: She receives the money. The children sue.

KILBERG: The children from prior marriage sue.

Donna Egelhoff was the beneficiary both of a life insurance policy and a pension plan, actually a 401(k) plan. And she remained the beneficiary prior to the divorce and after the divorce.

COSSACK: Now, how long were they divorced before the policy -- before these events took place?

KILBERG: They were divorced about four months. But the proceeding, the divorce proceeding went on for almost a year prior to that time.

COSSACK: Was there any other documents that he had changed to remove her name as beneficiaries...


COSSACK: ... or was this -- these were just the only ones that he had just never done it.

KILBERG: He had not done it. Nor in the divorce proceeding, had they obtained that is called a qualified domestic relations order.

That's an order which you can obtain, in a divorce proceeding, which would then be filed with your benefit plan, and could divide up the assets. You could give a portion of them to one beneficiary, a portion to another. you could change beneficiaries.

But you'd have to do that pursuant to that order, which is actually a very, very simple document.

COSSACK: Wasn't done.

KILBERG: Wasn't done.

COSSACK: Laura, what about this? This is one of those states rights federal issue -- a state-versus-federal-government issue, isn't it? The question of whose law is better or supreme?

BRILL: Well, it is in a way, Roger.

But it doesn't have the same implications as some of the constitutional questions that the Court's been grappling with recently.

This case has to do with a federal statute that relates to employment retirement plans. And that statute specifically says that it is preempting state laws that are inconsistent with it.

And I think this Washington statute was inconsistent, because the federal statute says whoever is listed on the plan documents gets the plan. And the husband hadn't changed his plan document.

So it really helps employers to administer things in a simple way without having to look at all sorts of different state laws, and resolve inconsistencies.

COSSACK: OK, what's the rule that we take away from this, Richard? I mean, what have we been taught?

BERNSTEIN: Well, I think...

COSSACK: What advice do we have for divorced husbands and wives now?

BERNSTEIN: Well, get a lawyer and make sure you change your beneficiary, if that's what you really want to do.

But ARISA is a problematic statute...

COSSACK: ARISA -- tell us what ARISA is?

BERNSTEIN: ARISA is a statue that deals with...

COSSACK: A federal statute.

KILBERG: A federal statute that deals with pension benefits. It was written 27 years ago. Parts of it are very confusing. Parts of it, such as the preemption provision, is very broad.

And Congress hasn't revisited it in 27 years. And the Supreme Court has taken about 20 of these case, tiny little issues, because the lower courts disagree. And this is just another one of them.

COSSACK: Would you say that the ruling now, as it stands from the United States Supreme Court, is that documents that bare even an ex-wife's name -- and this is one is four months old, but it could have been four years -- is still going to be valid?

What would happen, Bill, if, for example, in this situation, the husband would have remarried? Or wouldn't have been deceased? Would have remarried, for forgotten to take his wife?

KILBERG: If he had remarried, things would have been quite different, because ARISA has provisions that specifically deal with a marriage situation. In other words, he would have had to gotten the permission of his new wife to name someone other than his -- her.

COSSACK: All right, what would have happened if they would have been divorced four years, instead of four months?

KILBERG: Wouldn't have made any difference.

COSSACK: So the presumption is, as always now, or the laws, the United States Supreme Court is saying, stands now that whatever's on those papers, we are not going to go behind those papers?

KILBERG: Right. What the Supreme Court said in essence is that a state law, which tries to bind ARISA cover plans, life insurance plans, health insurance plans, pension plans, to specific rules, other than those set forth in ARISA itself or in the plan document, are invalid.

COSSACK: All right.

That's all the time we have for today. If you got one thing out of BURDEN OF PROOF today, remember this: You'd better make sure that you have the right names and the right people as the beneficiaries on those documents. Or, they won't go to the right people.

Thanks to our guests. Thank you for watching.

Today on "TALKBACK LIVE": A minister accused of presiding over the beatings of his children at his church is arrested in Atlanta. Send Bobbie Battista your e-mail and tune in at 3:00 p.m. Eastern time.

We'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.



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