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DAVID BETRAS: August’s ballot decision asking to create a 60% supermajority goes against majority rule

In the 220 years that elapsed since Ohio became a state, the General Assembly has never scheduled a special election for the sole purpose of considering a legislatively initiated constitutional amendment. That streak is about to come to an end. As I write this week’s column, the state’s 88 county boards of election, are preparing to do exactly that. This extraordinary situation provides context for a Civics lesson that I hope will provide voters with the information they need to make an informed decision when—and if-they cast a ballot on August 8.

Attorney David Betras
BKM Managing Partner David Betras

I say “if” because turnout for August specials is incredibly low. For example, only eight percent of the electorate participated in last year’s primaries for seats in the state house and senate. In fact, turnout has been so abysmal that the very same legislators who just scheduled the upcoming election actually voted to do away with them just a few months ago. I’ll have more to say about that in a bit.

For now, back to the Civics lesson. Let’s start with the basics: our form of government. While commonly referred to as democracies, the United States, Ohio, and the other 49 states are democratic republics in which the people vote for the representatives who do the actual governing. The Founding Fathers embraced this model because they believed it was the most effective and efficient way to manage the nation’s affairs.

The principle of majority rule is the engine that drives democratic republics. According to famed mathematician Kenneth May, majority rule is the only “fair” way to conduct elections because it does not allow some votes to count more than others and unlike super majority rules, it does not allow the status quo to prevail even though it received fewer votes.

Is the system perfect? Of course not. When our elected representatives abandon or ignore the will and wishes of their constituents due to corruption, gerrymandering, or the influence of big money, the public justifiably loses faith in government. That is exactly the situation that existed in Ohio at the beginning of the 20th Century. Outraged by a state government that was being sold to the highest bidders, a group of reformers and progressives convinced the voters to convene a Constitutional Convention in 1912.

During weeks of deliberations delegates wrote and voters later approved a proposal that serves as the antidote to unresponsive government: Article 2, Section 1 of the Ohio Constitution which enables citizens to place an amendment directly before voters on a statewide ballot who must approve it by a simple majority vote.

The citizen-initiated amendment process is, as it should be, complicated and laborious. Over the past 111 years, 71 proposals have been placed before the voters, 19 have been approved. Many have improved our quality of life including imposing a10-mill limit on unvoted property taxes, home rule authority for cities and counties, banning smoking in public places, and raising the state’s minimum wage and indexing it to inflation. By any measure, the process has benefited Ohioans.

Which brings us back to the impending unprecedented August election. For a reason I will not address here, the Republican majority in the General Assembly is placing an amendment that will fundamentally change the rules that govern the initiative process on the ballot in  August. Their proposal will raise the threshold for approving initiated amendments from the century-old 50% plus one standard to a 60% supermajority. If passed it will erase the principle that is at the very heart of our system of government and replace it with minority rule.

And, in a final bit of irony, they will only need to secure 50% plus one vote to do it in  election they hope most Ohioans won’t notice.

Constitutional scholar and former Ohio House members Mike Curtin believes trashing Ohio’s 220-year-old tradition of respecting voters is a historic and contemptuous act of bad faith. Fortunately, the voters, thanks to the 1912 Constitutional Convention, will have the final say.

BKM Managing Partner David Betras admitted to Florida Bar and is now officially licensed to practice in law in Florida

Betras, Kopp & Markota (BKM) one of the region’s leading personal injury and complex litigation law firms, is pleased and proud to announce that Managing Partner David Betras is now officially licensed to practice law in the state of Florida. While Atty. Betras will continue to spend most of his time at the firm’s headquarters in Canfield, he will travel to BKM’s Tampa office to consult on cases and represent clients when the need arises.

Attorney David Betras
BKM Managing Partner David Betras

The BKM co-founder’s admission to the Florida Bar is the final step in what he describes as a long and arduous journey that began during the COVID-19 pandemic. “Brian Kopp has been urging me get my Florida license for years, but I simply didn’t have the hundreds of hours I knew it would take to study for and pass the bar exam,” Betras said. “Then the COVID lockdowns hit and suddenly I had plenty of time, so I began studying longer and harder than I had at any time since I graduated from law school 37 years ago.”

Hitting the books, or in this case, his laptop, paid off. Betras was notified in the summer of 2021 that he had passed the exam. That good news was tempered by the knowledge that he had to study for and pass a test on legal ethics, complete and submit a monstrous 600-page application, , and answer questions about his career and tenure as a member of the Mahoning County Board of Elections at an in-person hearing. He cleared every hurdle and was granted his Florida license on (insert date).

Betras said he has been energized by the process and the prospect of collaborating with BKM’s outstanding Tampa team which along with Brian Kopp includes attorneys Christopher Knopik and Douglas Titus. “I’m eager to put my experience, expertise, knowledge and insight to work for our existing Florida clients,” he said. “And now that I’m licensed and can raise my profile I’m sure we’ll be able to attract new clients from among the thousands of Valley natives who now live or winter along the Suncoast and recognize and respect our firm.”

“I want to emphasize that I will not be moving to Florida, reducing my case load, or retiring,” Betras said. “I love practicing law as much today as I did when I passed by first bar exam, I’m excited about having a new place to utilize my skills, and I thoroughly enjoy having the opportunity to work with the attorneys and staff who make BKM an exceptional firm.”

“If I have my way, I’ll still be doing what I do every day, fighting to secure justice for our clients, for at least another 20 years.”

What were they thinking? Why did Alex Murdaugh’s lawyers allow the now convicted killer to testilie for hours on end?

Attorney David Betras
BKM Managing Partner David Betras

Judging by the number of people who have yelled, “Hey Betras, what the xxxx (readers are free to insert the word of their choice) is up with that Murdaugh trial?” I am not the only person who has been obsessed with the sordid saga of the once prominent South Carolina trail lawyer who was recently found guilty of murdering his wife and his son.

Okay, I wasn’t “obsessed” with it, I was consumed by it. I watched every moment of the trial, hours of analysis of each day’s proceedings offered by “expert” criminal lawyers, as well as all of the documentaries, docudramas, and special reports that streamed into my smart TV, smart phone, and laptop.

The discussion and speculation that raged during the trial continues today—much of it focused on Murdaugh’s decision to take the stand. In the immediate wake of his testimony, in which he basically admitted to being a pathological liar who couldn’t tell the truth if his life depended on it, which it did, a number of talking head criminal lawyers told the media the defense team had to allow the accused killer to look the jurors in their collective eyes and refute the charges. One of the pundits, criminal attorney and former prosecutor Mark Eiglarsh told CNN “If you’re going to have somebody testify, having a lawyer who’s smart, who’s been in the courtroom, who’s lied for 20 years … that’s the guy you want on the stand…all it takes is one juror to connect with him emotionally.” 

To be frank, Mr. Eiglarsh and anyone else who thought it was a good idea for Murdaugh to hitch up his pants, take the stand, and admit to being a drug-crazed criminal who did everything but murder his wife and son is just plain stupid—a fact underscored by the verdict.

During my career I have represented numerous clients charged with murder and I have never put one of them on the stand, including those who have literally begged me to allow them to proclaim their innocence in open court. I have adopted this strategy for a number of reasons beginning with the fact that it is not my job to prove my client is innocent, it is the prosecutor’s job to prove they are guilty, and I refuse to do anything that will make that job easier.

And permitting a client to give up their Fifth Amendment protections against self-incrimination by testifying does exactly that.

Think of it this way: the accused takes the stand, I ask them if they committed the crime, they emphatically say no. This has absolutely no impact on jurors who fully expect defendants to say they didn’t do it. I sit down, the prosecutor stands up and immediately begins tearing my client apart limb from limb. Check the video of the Murduagh cross and you’ll see how this works—or I should say how it doesn’t work for the defense.

Clients also ask to take the stand because they fear the jury will believe they are guilty if they just sit quietly as I defend them. I point out that this is, for the most part, not true and that judges are required to instruct jurors that they may not draw any inference from the fact that a defendant does or does not testify—the presumption of innocence that is the beating heart of our judicial system stands.

Whether Murdaugh would have benefited from keeping his mouth shut is a question that will be debated in legal circles for years. One thing is certain, however, testilying for hours on end didn’t help at all.

Time for a Supreme Court retrospective; ‘goodbye and good riddance’

Three days after assuming the presidency in 2009, Barrack Obama looked House and Senate Republican leaders in the eye and uttered the phrase, “Elections have consequences.” The just-concluded term of the U.S. Supreme Court proves the former president was exactly right — most likely much to his chagrin. I know I have written about the court often over the past few months. Thankfully, this will be the last time I address the topic for a while because the justices are headed off to do whatever they do when they remove their robes and go on vacation. Here is a retrospective on the 2021-2022 term, which, by any measure, was one of the most consequential in history.

I will begin with the biggie: Dobbs v. Jackson Women’s Health Organization, the 6-3 decision that overturned Roe v. Wade and tossed nearly a half-century of legal precedent on the trash heap of history. With hours of the decision, Ohio AG David Yost successfully petitioned a federal court to lift a stay on the state’s “heartbeat bill,” which bans abortions after six weeks and does not include an exception for rape or incest. A few days later a 10-year-old girl who was six weeks and three days pregnant as result of a sexual assault was forced to travel to Indiana to receive the medical care she needed.

The 6-3 ruling in New York State Rifle & Pistol Assoc. v. Bruen eviscerated a New York state law that required residents to obtain a permit to carry a weapon and will make it extremely difficult for other states to strengthen their gun safety regulations. Keep in mind, this is the same year in which there were mass shootings in Buffalo, New York; Uvalde, Texas; and the July 4th massacre in Highland Park, Ilinois, where seven people died including the parents of a 2-year-old toddler who was left to wander down the street as her mother and father laid dead.

A number of decisions eroded the constitutional wall the Founding Fathers erected between church and state. Most notable were Carson v. Makin, which will make it easier for state governments to divert tax dollars from public education to religious schools, and Kennedy v. Bremerton School District, which cleared the way for prayer at public school football games and other events.

The conservative 6-3 majority struck a blow in West Virginia v. Environmental Protection Agency by curtailing the EPA’s ability to order existing power plants to reduce their carbon emissions. Ironically, this means that if more kids are born as a result of Dobbs it will be more difficult for them to breathe. Just saying.

Because the federal government has not broken enough promises to or heaped enough indignity upon Native Americans, the Court ruled against the Cherokee Nation in Oklahoma v. Castro-Huerta. Conservative Neil Gorsuch joined the court’s three liberals in dissent arguing that the decision reneges on the federal government’s centuries-old promise that tribes would remain forever free from interference by state authorities.

Because even a stopped clock is right twice a day, I will acknowledge that the justices ruled correctly in a few cases, including Biden v. Texas, a 5-4 ruling that permitted the current administration to reverse a Trump-era policy that requires asylum seekers to remain in Mexico while their cases are reviewed in U.S. courts. And Biden v. Missouri approved a federal vaccine mandate for health care workers employed at facilities that receive Medicare and Medicaid funding.

So, with that, I will say goodbye and good riddance to SCOTUS’s 2021-2022 term and take a three-month break from writing about the Supreme Court.

Leak of Alito’s draft Roe v Wade opinion threatens American jurisprudence

By defending people charged with crimes I protect justice for all

During my career as a criminal defense attorney, I have represented hundreds of people who have been charged with serious offenses. From time to time either the nature of a particular case and/or its outcome will attract the attention of MahoningMatters and other media outlets. I know this will come as a shock, but I […]

Judge dismisses felony charges against former Liberty Schools Superintendent Joe Nohra

In a ruling handed down on Wednesday, December 30, 2021, Trumbull County Common Pleas Court Judge Ronald Rice dismissed six felony counts that had been lodged against former Liberty Local Schools Superintendent Joe Nohra earlier this year. The ruling came in response to a motion filed by Atty. David Betras arguing that the statutes under which Mr. Nohra had been indicted were unconstitutionally vague. In a well reasoned six-page decision Judge Rice agreed:

“Therefore, upon reconsideration of Defendant’s Motion to Dismiss Counts 1-6 of the Indictment for Vagueness, the Court finds by clear and convincing evidence the Defendant has presented a presently existing set of facts that make the statutes unconstitutional and void when applied to those facts. The Defendant’s Motion is well taken and the same is hereby granted.” The decision may be viewed and downloaded here: Rice dismissal of Nohra felony charges

Atty. Betras hailed the decision as a victory for Mr. Nohra and the justice system. “As we have said previously, Mr. Nohra, at the discrection of the school board, and with approval of legal counsel, took appropriate action to protect the district and the taxpayers. He should have been commended instead of prosecuted,” Betras said.

Media coverage of the dismissal may be accessed by following these links: Vindicator       WKBN     WFMJ

Atty. Betras said BKM is prepared to mount a vigorous defense against the remaining misdemeanor charges that were included in the indictment.

When Mr. Nohra was indicted Atty. Betras pledges that the BKM legal team would aggressively defend Mr. Nohra in court and in the court of public opinion. “We simply won’t allow the people we represent to be smeared or damaged by rumors and innuendo,” he said. The firm also released the following statement on Mr. Nohra’s behalf:

“Mr. Nohra emphatically and categorically denies the baseless allegations contained in the indictment handed down yesterday by the Trumbull County Grand Jury.

After being presented with credible evidence that an employee of the Liberty Local Schools was engaged in activities that constituted theft in office, Mr. Nohra, with the knowledge and approval of the members of the Liberty Local Schools Board of Education and the Board’s legal counsel, initiated an investigation that resulted in the suspect employee’s resignation from the school system.

The actions described in the indictment were conducted in conjunction with and for the sole purpose of facilitating the above-referenced investigation. The members of the Board of Education and the Board’s legal counsel approved the use of surveillance equipment before it was installed. In addition, written Board policy authorizes the superintendent to utilize surveillance equipment when necessary and with approval of the Board which Mr. Nohra sought and received.

Mr. Nohra ensured that the Board members and their legal counsel were kept fully informed during each step of the investigation, were apprised of the evidence of wrongdoing that was gathered and were aware of its outcome. 

My client is both bewildered and astounded that he now faces criminal charges for taking decisive steps to protect the taxpayers and looks forward to defending himself against these ludicrous accusations.”

PREP Act Liability Protections worked, COVID-19 vaccines are safe and life-saving

Attorney David BetrasAs Brad Pitt and J-Lo know only too well, being a celebrity, a status I achieved thanks in no small part to this column and the quite fetching full-color headshot that runs with it, can sometimes be a pain in the gluteus maximus. That pain has become excruciating in recent weeks as a growing number of incredibly intense people have accosted me in public because I believe everyone should receive the COVID-19 vaccine and I support vaccination mandates.

Look, I am more than willing to engage in a fact-based debate about the pandemic and the measures being taken to end it. But I run out of patience when someone shoves their smartphone in my face while I am sitting in a restaurant eating and screams DAVID, DAVID, look at this Facebook post—thanks for that Mark Zuckerberg—and then proceeds to tell me at the top of their lungs that the vaccines contain computer chips, are made from dead babies, will alter my DNA, and render me infertile.

Well, okay, none of those things are true, a detail that has exactly zero impact on the wild-eyed disbelievers who hover around me like buzzards circling roadkill until I give up and run for the door.

A couple of days ago, however, one of the vaccine resisters who has dedicated his life to disrupting my dinner made a relatively cogent point, albeit in a belligerent manner. “Hey, Mr. Big Shot Trial Lawyer, if the vaccines are so safe, how come the government passed a law that says vaccine makers and those who dispense it can’t be sued when their poison kills and maims people? Why did they leave victims out in the cold? They did it because they know the death toll is going to be in the millions, that’s why.”

COVID Vaccination Rates, U.S. and OhioSo, my tormenter is right about one thing: the federal government has extended nearly total liability immunity to manufacturers, distributors, prescribers, and dispensers of products developed to treat, diagnose, or prevent the onset of COVID-19.

But it is important to remember that the Public Readiness and Emergency Preparedness Act (PREP) which provides the immunity was not enacted specifically to protect the makers of COVID-19 vaccines. It was enacted by Congress and signed into law by George W. Bush in 2005 in the wake of a serious bird flu outbreak. The rationale for the law was simple: the liability shield would give drug makers the protection they needed to respond quickly and effectively to a public health crisis.

When Coronavirus hit, the law worked exactly as planned. On February 4, 2020, the Trump Administration declared COVID-19 to be a public health emergency and invoked PREP. Within months the first vaccines were ready for use. Today, 191 million Americans have been vaccinated, and due in large part to vaccine mandates imposed by employers, the spread of the Delta variant is easing rapidly.

While my anti-vax buddy was right about the existence of the liability shield, he was wrong when he said those hurt or killed by the vaccine would be left out in the cold. Anyone who believes they have suffered serious side effects from a COVID-19 vaccine is eligible to file for benefits from the Countermeasures Injury Compensation Program (CIPC), a special fund established to provide payments to anyone who was injured by any drug or treatment related to a PREP emergency declaration. To date, while 416 million doses of the vaccine have been administered only 296 COVID-19 related claims have been filed.

Now that is a statistic that should be all over Facebook.

Supreme Court will decide unprecedented number of blockbuster cases during 2021-2022 term

Attorney David BetrasLike kids counting the days until Christmas, attorneys, legal scholars, and jurisprudence junkies, including me, eagerly anticipate the first Monday in October, the day the Supreme Court of the United States (SCOTUS) begins its new term each year. We can barely control ourselves as we wait for the justices to decide which of the 7,000 cases submitted to them annually become one of the 150 or so they hear.

Under normal circumstances, the justices go about their work in relative obscurity because the cases on the Court’s docket, which is dominated by battles between states over water rights, business disputes, and arguments about arcane legal principles, do not impact the lives of most Americans or generate much media coverage aside from long, jargon-packed pieces posted on SCOTUSblog. Believe me, if you have insomnia, spend a few minutes on the site and you will be sleeping in no time.

This year, however, is far from normal. Although the 2021-2022 term is less than two weeks old, the Court is under intense scrutiny because the justices have agreed to hear a number of cases that may ignite legal and societal firestorms while further undermining the public’s waning support for the Court which was once widely regarded, in the words of Alexander Hamilton, as the “least dangerous” branch of government.

Entrance to US Supreme CourtChief among the potential blockbusters is Dobbs v. Jackson Women’s Health Organization, which centers on a Mississippi law which, with few exceptions, prohibits abortions after 15 weeks of gestation. Dobbs gives the Court the opportunity to overturn  Roe v. Wade which established a woman’s right to choose and Planned Parenthood v. Casey, which protects that right until viability. It is, quite simply, the most important reproductive rights case to come before the Court in 30 years.

New York State Rifle & Pistol Association Inc. v. Bruen is the first significant firearms case to come before the Court since the 2008 ruling in District of Columbia v. Heller that extended Second Amendment protections to individuals. Bruen arrives at the Court on appeal from the 2nd Circuit which upheld New York state’s strict gun licensure law which requires residents to obtain a permit to possess a firearm and totally bans open carry. A decision in favor of the Association could gut gun laws across the nation.

Like Bruen, Carson v. Makin which challenges Maine’s prohibition against using state funds to pay tuition for schools that offer religious instruction has nationwide implications. The justices will decide if Maine’s law violates the free exercise, establishment, and equal protection clauses of the Constitution. If they so hold, voucher programs across the U.S., including Ohio’s will be impacted and taxpayer dollars will begin flowing to schools that promote religion.

Other important cases include Students for Fair Admissions v. President and Fellows of Harvard College which poses a lethal threat to race-based college admission programs,  CVS Pharmacy Inc. v. Doe which involves alleged discrimination against persons with HIV, as well as cases focused on national security, campaign finance laws, and Texas’ new draconian abortion restrictions.

The last time the Court ruled on this many consequential cases in one term was, well, never. Throughout history, cases of similar magnitude to the ones on SCOTUS’ 2021-2022 docket were heard and decided every five or ten years. As a result, one thing is certain: the justices will not labor in obscurity over the next 12 months.

Ohio Supreme Court says hijacking law firm names to drive Google results is a deceptive practice…

Attorney David BetrasI am the managing partner of this law firm which means I am a businessman, which means I am an advertiser. I understand that some people are appalled and offended by attorneys who market their services and are fond of referring to personal injury attorneys as ambulance chasers.”

That is ironic for two reasons: first, because the term was coined in the days when attorneys were forced to contact potential clients and their families directly because the bar was barred from advertising and, second because the pejorative is used regularly by the folks who run or work for mammoth insurance companies that spend hundreds of millions of dollars per year on marketing.

Talk about hypocrites. I guess it is ok for Allstate to spend $500 million annually to convince accident victims that they are in good hands, but I am a ghoul for spending less than one-two thousandth of that to tell them the company is using those hands to pick their pockets.

Go figure.

But I digress. What I really want to discuss in this column is the way marketing in my profession has evolved since 1977, the year the U.S. Supreme Court ruled that lawyer advertising was commercial speech entitled to protection under the First and Fourteenth Amendments.

Immediately after the decision in Bates v. Arizona was announced law firms began using every available advertising medium to contact clients including television, radio, billboards, direct mail, and the Yellow Pages. For readers too young to remember, the Yellow Pages were the business directory section of something known as a phone book—a thick printed directory that listed every phone number and address in a community. Think of it as a printed version of Google, only much more difficult to use.

Anyway, because the phone book was the way most people obtained phone numbers for businesses, competition for the highly visible and easily accessible parts of the directory including the covers was fierce. Attorneys often paid tens of thousands of dollars for the coveted spots which explains why every Yellow Pages sales rep back in the day drove a Porsche, Cadillac, or Corvette.

Today, the Yellow Pages have been replaced by Google, Yahoo, Bing, and YouTube. The bidding wars for frequently searched keywords like “accident attorney” are every bit as fierce as the battles that raged for prime placement in the phone book with one major difference: the competitors cheat by doing things like purchasing the names of other law firms.

Here is how it works: a person who has been injured wants to contact my firm. They search for Betras, Kopp & Harshman. The result comes back in a millisecond, but the phone number and website that pops up belong to the law firm that is paying the most for our name on that day. So instead of calling us, the potential client calls one of our competitors.

I think the practice is dishonest. The Ohio Supreme Court agrees and recently issued an opinion that said using another firm’s name to drive traffic to a law firm’s own site “may constitute conduct involving dishonesty, fraud, deceit, or misrepresentation,” and is an act “…designed to deceive an Internet user.”

I applaud the Court’s ruling. Now, if we could just get the justices to force Nationwide to admit they are not on our side…