Monday, December 17, 2012

Seeking a Solution to Violence



           What is the appropriate response to tragedies such as the one that occurred in Newtown, Connecticut last Friday?  Certainly, the best immediate response is to pray for those whose loved ones were ripped away in a matter of minutes.  And, of course, to be thankful that your family is safe.  But what can we do as a society about these man-made tragedies, which seem to occur over and over again?  One argument would be to strengthen gun control.  To me, that sounds like taking a pill to treat the symptoms, instead of addressing the disease itself.  Mass killings have happened throughout history, long before handguns and semi-automatic rifles existed, or as President Obama would say, back when men fought with “horses and bayonets.”  To be sure, knives and swords have surely killed far more people than guns have.  So we can’t really blame mass shootings on the weapons themselves.  To draw on a tired cliché, guns don’t kill people, people kill people. 

            So back to my earlier question.  What can we do as a society about these tragedies?  It’s not just the Connecticut shooting.  It was the Aurora theater shooting back in July.  Columbine 13 years before that.  The NFL's Javon Belcher's murder-suicide earlier this month.  Here in Birmingham, a local restaurant owner recently took his mother’s life and then his own.  Just last week in Birmingham, a federal courthouse employee committed suicide in front of his coworkers.  Over the weekend, in separate incidents, several gunmen were killed by police, one at a local hospital in Birmingham.  A quick reading of the newspaper articles on these events suggests that in nearly all of them, the shooter was suffering from some level of mental disease or distress.  That’s not excusing the crimes.  All of the shooters likely knew what they were doing at the time.  But whether you look at Dylan Klebold and Eric Harris from Columbine High School 13 years ago, James Holmes from the Aurora movie theater massacre, Adam Lanza in the Newtown shooting, or any of the murder-suicides or other recent shootings, there is a thread that seems to connect them all.  Extreme mental distress or disease during the period of time leading up to the shooting.  An argument can be made that strong restraints on gun ownership could have prevented one or more of these incidents.  But an equally strong argument can be made that each of these tragedies would have unfolded in the exact same way.  The sad truth is a motivated killer will find a way to accomplish what he wishes.

            In the wake of most of these tragedies, there has been a common theme: those acquainted with the killer either suspected serious mental issues or knew of the fact that the killer was, in fact, a ticking time bomb.  It was the case at Columbine, it was the case in Newtown, and, tragically, it will probably be the case in the next shooting, unless we as a society are willing to take responsibility for those around us.  Mothers and fathers need to be involved with their children and understand what’s going on in their lives and in their heads.  Wives need to be aware of changes in their husband’s behavior, and husband’s their wives.  Coworkers need to be familiar enough with other coworkers so that trouble can be spotted before it erupts.  Actions must be taken by those family and friends.  Warning signs can't be ignored or explained away.  To this lawyer and writer, admittedly untrained in the ways of the mind, this seems to be the only viable way to get to the actual disease that has infected society for so long now.  I know the solution may not be as simple as I just stated, but it can’t be as simple as taking guns away either.  

Tuesday, December 11, 2012

How Does Marijuana Legalization Affect Businesses and Universities?




            When a state passes a law making recreational use of marijuana legal, what does that mean for schools, businesses, and other entities located within that state?  This very issue is being raised in several states, such as Colorado, that have recently legalized marijuana.  To completely understand the issues at hand, it’s important to realize that marijuana remains illegal under federal law.  Even if Colorado state law allows personal marijuana use, federal law does not.  To take that a step further, some believe that businesses involved with federal contracts or receiving federal grants, as well as educational institutions/universities could lose their federal funding and research funds if marijuana is used by those employees or other personnel.  After Colorado legalized marijuana last month, University of Colorado president Bruce Benson explained that "marijuana threatens to cost the university nearly a billion dollars annually in federal revenue, money we can ill afford to lose.”

            Another issue is whether employers will be able to terminate an employee who tests positive for marijuana in a state where it has been legalized.  In some states, like Alabama, an employer has the ability to terminate an employee for almost any (non-discriminatory) reason.  Some states, however, specifically forbid an employee from being terminated for any private conduct that is legal.  These laws are generally aimed at preventing an employee from being fired for smoking or drinking while away from the office, but with the legalization of marijuana, these employment laws may need to be reexamined, especially given the conflict between an activity that is legal under state law but remains illegal under federal law.  Should an employer to be required to retain an employee who (now legally) smokes marijuana after work?

            With every election bringing another handful of states deciding on whether to keep marijuana use criminalized, it will be interesting to see how states move to protect employers and universities, in particular those relying on federal funding, that wish to prohibit marijuana use.

Thursday, November 15, 2012

My Take on the Secession Talk


            
            One of the reactions from last week’s election is the growing buzz over states seceding from the Federal government of the United States.  What started with a handful of residents of individual states has now erupted into hundreds of thousands of people signing petitions calling for their state to secede.  To be clear, these petitions are not supported by the governors or legislators of the individual states, and they have no legal significance whatsoever.  They are aimed at forcing the Obama administration to issue a response to the frustrations of these Americans who believe the country took a wrong turn last week.  And they may actually accomplish that very thing, as the Administration had previously said it would respond to any filed petition that accumulated at least 25,000 signatures.  Alabama and several other states have already reached this mark, and I would expect some type of response from the Obama administration, although it will probably be as meaningless as the petitions themselves. 

            Legally speaking, it is unlikely that it is even possible for a state to secede from the United States.  The Civil War began, of course, in part, when several states actually declared their secession and the United States rejecting the legality of such.  Following the end of the Civil War, the United States Supreme Court, in Texas v. White briefly addressed this very issue, stating that “[w]hen, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States…. Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null.”

            The republican governors and legislators of these states have called the petitions “silly” and “non-productive" and they're probably right.  But similar petitions have been started after previous elections of both democratic and republican presidents and we will see them again in 4 years.

Monday, November 5, 2012

Political Speech, the IRS, and Churches




            Most people are aware of the fact that churches (as not for profit entities) risk forfeiting their non-profit status if a pastor urges his congregation to vote in a particular way.  It’s why your pastor may have urged you to vote, maybe even in a manner reflecting the specific scripture or tenants of your faith, but stopped short of naming the candidate you should vote for.  Here is a link to an interesting read about the Internal Revenue Service’s enforcement (or lack thereof) of these rules prohibiting churches from endorsing specific candidates for political office. 

            The rules prohibiting churches or their leaders from political speech are controversial to many people, for both “religious integrity” and free-speech reasons.  However, according to this AP article, the IRS has avoided enforcement of these rules for a number of years.  Attorneys involved in these types of cases claim that they are unaware of any investigations into partisan statements by churches during this time.  In fact, hundreds of pastors have directly endorsed a candidate from the pulpit and sent a recording to the IRS, in an attempt to force the IRS’s hand (and as protest to the IRS rules).  So far, the IRS has never investigated, or even contacted one of these pastors.  Very interesting, especially given the intense campaign our country is emerging from.

Wednesday, October 17, 2012

Regulation Nation - Smoking Outlawed in Private Residences

           


            How far should government regulation go in our lives?  Over the course of my lifetime, government regulations on the aspects of our everyday lives have gone from being more or less non-existent to being - arguably – overdone.  Wearing seatbelts is mandatory.  Nutritional data must be placed on all packaged foods.  It seems like construction permits are required by municipalities for anything more complicated than Windexing a window.  Of course, some of these regulations are great.  They protect individuals from being harmed by other people. 

            One of the latest trends in regulations (although it’s actually been going on for decades) is the prohibition against smoking in public places.  Restaurants, hotels, retail stores, etc. are typically places where smoking is prohibited by ordinances.  Recently, the city of San Rafael, CA banned smoking in private residences that have multiple units within them.  My understanding of the law is that free-standing, single-family houses are not subject to the law.  However, apartments, condominiums, duplexes, and any other living arrangement that utilizes “shared walls” are subject to the restriction.  For the record, I am a non-smoker.  Smoking just doesn’t appeal to me, and I generally like the fact that I can go to a restaurant without smelling cigarette smoke.  If I were to be totally honest, philosophically speaking, I do have concerns over a privately owned restaurant not having the say so on whether smoking will be allowed by private citizens within its premises.  However, I am able to rectify that with the fact that the restaurant (or hotel or retail store), while private property, is open to the public, and thus, perhaps, subjects itself to such regulation.  I don’t know that I totally agree with that idea, but I can understand it. 

However, I cannot understand how a private residence can be subject to such restrictions.  Nothing about a condominium or duplex is open to the public, even if there are “shared walls.”  Certainly, there may be instances where the ventilation between two units causes problems with smoke, but isn’t that just the nature of having neighbors?  Should we also ban the cooking of ethnic food in units with “shared walls” and “shared ventilation” systems?  Unless and until the government decides to completely ban the smoking of cigarettes (which is unlikely due to the revenue gained from cigarette taxes, not to mention constitutional issues), it seems unfair and hypocritical to whittle away at the locations that a person can smoke.  After all, a man’s home is his castle, even if the castle walls are shared by another king. 

Wednesday, October 10, 2012

Supreme Court Decision May Force Us All Into The Black Market




            Hold your breath.  After a flurry of landmark decisions in June of this year, the Supreme Court is back in session…and with plenty more landmark cases in store.  By its very definition, the Supreme Court of the United States only hears “important” cases.  It’s not likely that my dispute with my homeowners association over who should repair my mailbox light would ever be deemed worthy of the Supreme Court.  However, many of the cases decided by the Supreme Court only impact a select few citizens, or maybe only those directly involved in the case.  The unique thing about the June session was that so many of those decisions directly impacted all of us.  The Court issued rulings on healthcare and illegal immigration, just to name a couple.  The October session kicks off with a case on affirmative action (use of racial factors in determining college acceptance), and also is scheduled to address the federal Defense of Marriage Act, which, among other things, allows states to choose not to recognize a gay marriage from another state and federally defines marriage as between a man and a woman for purposes of federal benefits and rights.  If the Defense of Marriage Act is overturned, states could be forced to adjust their treatment towards gay marriages. 

            One important case that won’t get as much attention as some of the others but impacts our lives just as much is our right to resell an item to another person.  We’ve all done it – maybe on eBay, half.com, Amazon, or the old fashioned yard sale.  You don’t use that video game console anymore.  You haven’t worn that shirt in years.  Resell them and make a little money.  A long-standing concept called the “first sale” principle has been recognized to allow citizens to resell this property as they see fit, once it has been purchased.  After all, it is yours.  The U.S. Circuit Court of Appeals ruled that for foreign made items (almost everything in your house, as it turns out), the “first sale” principle does not apply.  So in order to resell the foreign-made item without violating laws, the owner must obtain permission from the manufacturer.  Good luck getting Sony to grant you permission to sell that Playstation 3 on eBay.  And I’m sure getting permission to sell those shirts made in Thailand at your yard sale for $3 will be a breeze. 

            I can’t help but think that the Supreme Court will issue its ruling in a way to preserve our freedom to resell our own stuff, and thus prevent eBay and the like from going out of business.  The last thing our country needs right now is a whole sector of the economy to be deemed “illegal.”  As we’ve seen, regardless of the evidence presented and the letter of the law, our Supreme Court is more than happy to manipulate the law to achieve whatever result it wants, and I think they will do the same here.

Thursday, October 4, 2012

Red-Light Cameras Turned Off In Center Point



            Not that you would ever do such a thing, but anybody driving through Center Point can run red lights without the fear of a discreet camera snapping your picture and sending you a ticket.  For the last year or so, these cameras have given hundreds of tickets to drivers, who are not even aware that they have been caught until it arrives in the mail.  Now, the city has “voluntarily” turned off the cameras while the courts are straightening out the procedures for handling the tickets and fines.

            The camera ticketing process begins when a sensor senses a car in the intersection during a red light.  A camera snaps a picture and transmits the offense to the city clerk, who mails a ticket to the car’s registered owner.  Unlike regular tickets, the offense costs no points on the driver’s abstract, but also is not handled in court, in the event the owner disputes the offense.  Instead, an administrator in Center Point would hear the case.  So why have the cameras been turned off?  Judge Lichtenstein of the District Court in Jefferson County, who handles appeals from municipalities, has ruled that in order for the administrator to have authority, an amendment to the state constitution is required.  So the city has turned the cameras off because after Judge Lichtenstein’s order, there would be no ability for a citizen to appeal one of these mailed tickets.

            An issue I would like to see addressed is how these mailed tickets can be issued without any evidence proven in court.  Even a picture is not typically admissible in court without some form of foundation – some showing of how the picture came into being, who took it, etc.  This foundation is a basic principle of the rules of evidence and these rules have apparently been cast aside in the realm of intersection cameras.  Nobody actually takes the photo of the offender, and I doubt whoever is behind the technology of the camera will travel from California to testify in a case.  So it’s the word of the offender against…nobody.  I’m interested in what the result of a case would be if a frustrated and stubborn citizen (like myself) refused to pay the ticket and demanded a hearing on the evidence, based on his due process rights.  How would the prosecutor go about proving a case with no testimony whatsoever regarding the who, what, when, where, and how?

Monday, October 1, 2012

Yanking a Sick Player’s Scholarship Offer?

          
           There was a small news story last week about a high school football player, named Matt Beyer, being recruited by Oklahoma. Beyer was offered a football scholarship by Oklahoma, only to have it yanked away after he was diagnosed with a spinal chord condition.  When you hear of something like this, your first instinct may be to recoil in disgust at the actions of a football coach who would do such a thing.  It’s one thing to renege on a scholarship offer to a player who has been arrested, or had other character issues.  But is it acceptable for a coach to backtrack on a scholarship offer to a player suffering from an injury or illness? 

            Let’s be clear, this is not a question of legality.  An offer is only verbal, and neither the school nor the player is legally obligated until the player signs on the dotted line in February.  But a coach’s decision to take back a scholarship offer because of an injury or illness may not be as evil as it sounds.  A school is only allowed to grant 25 scholarships for each incoming freshman class (and only 85 scholarships for all players on the team).  So it’s hard to blame a coach for not wanting to use one on a player that will be unable to contribute.  After all, this is a team sport, and the other players are trusting that their coach will find the best players to fill those scholarship spots, in order to put a championship team together. 

            However, there may be an even better reason for a coach to pull an offer in this case.  For every Matt Beyer out there, suffering from an injury or illness, there is another high school player waiting in the wings that would give (and maybe has given) everything he has to try to earn a scholarship.  For that player, an offer from Alabama, Auburn, or Oklahoma could change his life or perhaps even his family tree.  While you feel for Beyer who has been hit with the double whammy of his diagnosis and missing out on his dream of collegiate football, you have to be happy for that next kid in line that just got the break of his life – a newly available scholarship offer from Oklahoma. 

Thursday, September 6, 2012

Enjoy Your Milo's Tea While It Lasts

          
            Forgive me if the tone of this post sounds depressed, but things may be changing soon and maybe not for the better.  Anybody who knows me can tell you that my favorite fast food restaurant is Milo’s.  Every [original] item they serve is world famous, and rightfully so.  The hamburger, with that brilliant extra piece of meat.  The perfectly seasoned fries, generously overfilling the paper bag. The delicious sauce (or “gravy” as my wife referred to it after her first encounter) that goes so perfectly with both the hamburger and fries.  And, of course, Milo’s Famous Sweet Tea.  So good it’s sold in stores all over the South, there are people who go to Milo’s only for the tea.  I don’t drink tea regularly at home or any other restaurant - only Milo’s. 

            So now that I’ve decided what I will eat for dinner tonight, I must address the problem that may be impacting all of Alabama soon.  Recently, Milo’s (legally known as Milo’s Franchise Co., LLC) filed a lawsuit in Jefferson County against Milo’s Tea Co., Inc.  To better explain this, about 10 years ago, the “restaurant division” split with the “tea division,” forming two distinct entities, so that each could focus on what they do best – either providing the restaurant experience or making excellent sweet tea.  As part of that arrangement, Milo’s Tea Co. would provide tea to Milo’s restaurant franchises.  Now the restaurants want to produce their own in-house tea brew, instead of purchasing the tea from Milo’s Tea Co.  Milo’s Tea Co. has demanded that the restaurants stop serving non Milo’s Tea Co. tea in Milo’s cups.  The restaurants want to be able to serve their own tea brew in Milo’s cups.  

            I don’t know if the new tea is better, worse, or indistinguishable from what we are accustomed to, but in my experience, messing with a good thing usually makes things worse (see New Coke formula from the 1980’s).  In any event, this suit can’t be good for the public image of Milo’s.  My hope is that each company will recognize its need for the other - and I can continue to enjoy my Milo's tea, with my #1 combo, minus the onions, with 4 extra sauces.

Thursday, August 30, 2012

Landlords and Pit Bulls

           


            It will come as no surprise to most people that landlords often prohibit their tenants from keeping pets on the rented property.  For the most part, this is to prevent pet damage, stained carpets, etc.  A less familiar, but equally important, reason for such restrictions on pets is the potential for liability, especially with so called “vicious dogs.”  And when it comes to dogs, we all know that pit bulls have a reputation (fair or not) for being an especially vicious breed. 

            There is a recent trend of cities passing laws banning pit bulls altogether.  In Maryland, the state legislature recently passed a law labeling pit bulls as “inherently dangerous” and increasing the legal liability imposed on pit bull owners – and their landlords – for dog bites caused by pit bulls.  As you would expect, the reaction of landlords, in fear of finding themselves on the business end of a dog bite law suit, was to send out letters to tenants, demanding that the pit bulls be removed from the rental property or face eviction.

            I’m not sure where I stand on the idea of pit bulls being inherently dangerous.  Certainly, we hear stories of pit bull attacks all the time.  But do we hear these stories because pit bulls truly are more dangerous, or because an attack by a pit bull grabs headlines better than an attack by a beagle? 

            I don’t believe you can blame the landlords for requiring the removal of the pit bulls.  In a society where a huge money judgment from a dog bite case can cost the landlord everything he/she owns, how do you expect the landlord to respond?  Demanding the removal of the dog is an act of self-preservation, and it’s wise, legally speaking.  The harsh truth is, these pet owners now have to make a choice between giving up their beloved pet – or moving their family out of their home.  It’s the result of a legislature passing a law intended to protect people, but instead, making their lives more difficult.  Sound familiar?

(The picture at the top is of my dog, Max, and yes, I know that he is not a pit bull.)

Friday, August 10, 2012

FAQ for Landlords



A large part of my practice involves assisting landlords throughout the rental process.  I have written before on tips on being a successful landlord.  I also have a portion of my website devoted to this topic.  Here are several questions (and my responses) involving some of the issues that seem to come up time and time again as I represent landlords. 

Prior to Renting

Q: Is there a way I can run a credit check or background check on a prospective tenant?

A: Yes.  There are multiple websites (just search "tenant credit check") where you can purchase a credit report of a prospective tenant.  The cost ranges from $20-$40 depending on how much information you are seeking.  You should require the tenant to pay this upfront as an application fee, and also make sure you have the tenant sign a statement (included on the application itself) authorizing you to have these checks conducted. 

Q: What information do I need to collect from a prospective tenant before renting to them?

A: I recommend having a standard application form filled out.  The most important pieces of information are 1) full name, 2) multiple phone numbers, 3) social security number, 4) date of birth, 5) current employment information, and 6) prior landlords.  All of this information will be useful in screening the person prior to renting or collecting on a money judgment after evicting.  Email me at matthornsbylaw@gmail.com and I can provide you with an application form. 

Q: Where can I get a residential lease agreement?

A: Email me at matthornsbylaw@gmail.com and I will be happy to provide you with a tried and true lease agreement.

Q: How do I know what terms/provisions to use in the lease agreement?

A: Your best bet is to ask an attorney to assist you with filling out the lease agreement.  Most of the common terms are easily understandable, however some rogue leases out there include provisions prohibited by law, so you want to make sure these are not used.

After Renting

Q: How much can I take as a security deposit?

A: Normally, you can take an amount equal to 1 month’s rent as security deposit.  So if the monthly rent is $1000, the security deposit should be $1000, or less. 

Q: If the tenant fails to pay rent one month, do I have to apply the security deposit towards that unpaid month?

A: No, the tenant is required to pay the monthly rent even if a security deposit was paid at the start.  This does not have to be credited to their account during the lease period.

Q: What do I do if the tenant stops paying rent?

A: As soon as the rent is late under the terms of the lease, you should provide a written notice of intent to terminate the lease.  I recommend seeking assistance from an attorney at this step, at least for the first such incident, so that the attorney can ensure that you provide a proper notice.   

Q: What do I do if the tenant has allowed other people to move in?

A: If this is a breach of the lease agreement (and it needs to be) you should provide a written notice of intent to terminate the lease.  Note: this notice is very different from the type of notice used in cases of non-payment of rent, therefore I recommend seeking assistance from an attorney at this step.

Q: What do I do if I think the tenant is destroying my house?

A: Normally, you should provide a 48 hour notice of a particular time that you intend to enter into the property for the purposes of inspecting the property.  If the tenant is indeed destroying the property, you should provide a written notice of intent to terminate the lease.

Q: How do I get rid of this tenant?

A: Only by filing an action in court, called an unlawful detainer.  In Alabama (and most other states) the landlord does not have the right to “self help.”  That means that you must go through the court system and have the sheriff’s department physically remove the tenant and their property. 

Q: Can I shut off power, water, or other utilities to the house? 

A: No, no, and no.  I often have a landlord-client who, prior to retaining me, and acting out of understandable frustration, called the power company or water board and instructed that services be stopped.  The law can severely penalize a landlord for these actions, even if the tenant is not paying rent.  The safe bet is to retain an attorney before things escalate to that point.

Q: How long will it take to evict the tenant?

A: Depending on the circumstances, usually 4-6 weeks. 

Q: Is it possible to recover my money after evicting the tenant?

A: Yes, and this is made easier if the landlord has collected certain important information in the application process.  It is possible to garnish the wages of the tenant if their employment is known, and that is usually the best option for collecting on your judgment.

Monday, July 30, 2012

Alabama Trying to Ban Use of Welfare $$ for Alcohol, Cigarettes, Strip Clubs, and Psychics.

Alabama Bill Introduced Would Prohibit Spending Welfare $ on Alcohol, Cigarettes...and Psychics. (Link!)

          It's sad that we even have to discuss the need for a law prohibiting these sorts of things.  Welfare dollars being spent on booze? On cigarettes?  At strip clubs?  I'm sure it's not a stretch to the imagination for most people.  Corruption exists among the rich and poor alike.  But these problems are certainly no endorsement of the welfare system in general.  Alabama is trying to join states all over the nation which are passing laws banning such use of welfare dollars.  And before someone argues that such laws are just partisan politics at play, consider that this state bill introduced by an Alabama Republican is very similar to a new national bill just signed into law by President Obama.

Monday, July 23, 2012

Gun Control - The Solution or the Scapegoat?

           

           
            The tragic events in Aurora, Colorado last week are still rippling throughout the country.  In the wake of such a heinous crime, it's natural to ask what could have been done to prevent such senseless killing.  The options are many, however I’m not sure any of them would have prevented something like this from happening.  Many point to gun laws, and argue that further restricting the availability of guns is the best solution.  I have even heard some argue that the 2nd Amendment to the U.S. Constitution (establishing the fundamental right to bear arms) should be repealed, in favor of laws totally restricting the possession of firearms to those serving in law enforcement or military.  Personally, I find this argument unpersuasive and absurd.  It is my understanding that the primary purpose of the 2nd Amendment was to allow the people (that’s us) to stand against tyrannical governments that no longer functioned for the people.  Another purpose of the 2nd Amendment is to provide the individual with the ability to protect him or herself from others.  As it’s been argued countless times before, a dangerous criminal is bound to find a gun whether legally or illegally, and whether they are readily available or not. 

            So, short of a repeal of the 2nd Amendment or some sort of a complete ban on personal use firearms, should we further restrict the acquisition and possession of firearms?  Perhaps to the level of a county such as Norway, which completely bans automatic weapons, limits ownership of handguns to one gun per caliber, and forbids the carrying of loaded guns, among other strict regulations?  While this may sound appealing to many, keep in mind that one of the world’s worst mass murders occurred one year ago yesterday – in Norway, by a Norwegian named Anders Breivik.  Breivik went on an orchestrated killing spree, which lasted around 90 minutes, and left around 70 dead and many more wounded.  While I would never second guess the actions taken by the innocent victims in Norway, I do wonder how things may have been different if looser gun laws would have allowed one of those victims to carry a weapon for self defense.  How many lives could have been spared, if the killer wasn’t the only person there with a gun?  As is the case in Norway, the United States, and every other country on the planet, sick, deranged people walk in our midst everyday.  No matter how strict the gun laws are, every once in a while, these things are going to happen.  I believe rather than tighten gun laws, all we can really do is try to look out for each other and be aware of the mental state of those around us – and never allow the actions of a monster to steal the freedoms granted to us under our Constitution.

Monday, July 2, 2012

Woman Jailed After Warning Motorists of Speed Trap

            A woman in Texas was jailed for 12 hours after she held up a sign warning drivers that police officers were pulling cars over for speeding.  According to the woman, she was standing on the sidewalk at the time. According to the officer she was standing in the road, and thus he arrested her for that, not for holding up the sign.  It seems somewhat unlikely that a person would be arrested and jailed for any period of time for an offense such as standing in the road.  Who knows which person is telling the truth, but let’s assume the woman was lawfully standing on the sidewalk and the officer was irritated by her warnings to other motorist.  Does the First Amendment protect a person’s right to warn other motorists of a speed trap or is that some form of obstruction of justice? 

            Currently, I have a client who has been charged with hindering prosecution because she allegedly provided the authorities with “misinformation” after U.S. Marshals asked her about the whereabouts of a suspected criminal.  While we maintain her innocence in this matter, I will say that if my client did knowingly provide such false information, under the statute, she would be guilty of the crime with which she is charged. 

            So is warning drivers of an approaching speed trap analogous to my client’s situation?  Is it hindering prosecution or some other form of obstruction?  Or is it constitutionally protected free speech?  And what’s the difference between this woman’s actions and the occasional public service announcements we hear informing us of a “take back the highways” blitz where State Troopers are beefing up their highway patrols (such as during this week’s holiday)?  Aren’t this woman’s actions and those public service announcements both aimed at slowing people down before they receive a ticket?

Did the Obamacare vote almost go the other way?

          There's been a lot of speculation over what led to Chief Justice Roberts' vote in upholding Obamacare and whether he changed his mind at some point.  Sometimes the Justices will discuss their general feelings towards the law and their opinions on how the Constitution should be interpreted, but getting commentary on a particular decision may be unlikely.  This article may be as close as we get for some time.  Did Roberts switch his vote?

Thursday, June 28, 2012

Supreme Court Uses Backdoor to Let Health Care Law In

           
            As everyone has surely heard by now, the United States Supreme Court has upheld the Health Care Law.  The impact of this ruling is both obvious and extreme.  A quick read of any number of news websites will tell you what that impact is.

            However, the way that the Supreme Court arrived at its decision is perhaps as significant, and surprising, as any effect the law will have.  When the law was passed by congress, it included a provision mandating that, for the most part, all individuals were required to purchase insurance or face a fine.  Importantly, the legislation was written without the word “tax” being used in that provision.  People running for office know that voting for taxes is generally not the best way to get reelected.  So it was called a “penalty.”  The distinction is more than simple politics at play.  Congress has undisputed broad powers to tax almost any person or any thing that it chooses…but it does not have power to enact penalties for these types of things.  By using the word “penalty” members of congress (and Barack Obama, who pushed for and signed the Bill into law) were trying to avoid the dreaded “T” word that could doom their reelection chances.  At the same time, many believed by trying to save their reelection chances, and calling it a “penalty,” they had doomed the Health Care Law’s ability to pass. 

            Apparently, the Supreme Court decided that words do not in fact mean certain things.  The Court basically interpreted (even manipulated) the language of the law in an effort to allow the law to pass.  The penalty was interpreted as a tax and the law was largely allowed to stand, because of congress’ broad taxing powers.  Or as the conservative dissenters of the Supreme Court wrote "The Court today decides to save a statute Congress did not write. It rules that what the statute declares to be a requirement with a penalty is instead an option subject to a tax."

            The immediate impact is the upholding and enacting of a law which is unpopular with the people of this country.  The ultimate impact may be those same unhappy people voicing their displeasure in November – displeasure for the legislators and president responsible for what now becomes one of the largest tax increases in United States history.

Tuesday, June 26, 2012

Supreme Court Nixes Life Without Parole for Juveniles



In 2005, the United States Supreme Court abolished capital punishment for defendants who committed their crimes while juveniles.  This week, in a 5-4 decision, the Supreme Court has taken it a step further, and now has also abolished the practice of sentencing juveniles to life without parole.  Many states have mandatory sentencing schemes that call for a life sentence without the possibility of parole, for capital offenses where the death sentence is not given. 

In Miller v. Alabama, the Supreme Court ruled that sentencing juveniles to life without parole violates the Eighth Amendment prohibition on cruel and unusual punishment.  (As an interesting side note, Justice Kennedy, often viewed as the moderate “swing vote” on many controversial issues sided with the 4 liberal Justices on both the 2005 case and this case). 

One basis of the Court’s opinion resides in the belief that a juvenile’s mind is not as well-developed as the mind of an adult, and thus the punishment for his misdeeds should not be as severe.  Of course, logic may tell you that a juvenile capable of the type of cold-blooded murder that would qualify for life without parole is not likely to see his mind develop for the better.  In fact, it may be that a 16 year old capable of such heinous crimes will escalate even further later in life, perhaps even murdering again. 

Monday, June 25, 2012

Supreme Court Splits the Baby on Immigration Law

       

            In a case that will have a significant impact on a similar Alabama law, the Supreme Court has partially upheld the controversial Arizona immigration law enacted in 2010 to combat the influx of illegal aliens in the state. 

            The Supreme Court actually struck down 3 of the 4 provisions at issue, however the remaining provision is perhaps the most important.  That provision, known as the “show me your papers” provision, requires Arizona police officers making any stop, detention, or arrest to make efforts to verify the suspect’s immigration status, if the officer has reasonable suspicion that the person is illegally in the United States.  So for example, if a person (whether he be named Jose, Jamaal, or John) is stopped for speeding or arrested for vandalism, and the officer has reasonable suspicion (less concrete than both “probable cause” and “beyond a reasonable doubt”) that the person is illegally in the United States, the officer is required to check into their immigration status, either by asking for proof of citizenship, or checking with the Feds (ICE).  Opponents of the law have called this portion legislative racism, while supporters have called it a necessary course of action after the Federal government has neglected immigration enforcement for decades. 

            The Obama administration (after weeks of political turmoil) and like-minded liberals are claiming a victory because of the provisions that were overturned.  The AZ governor and other conservatives are claiming a victory because of the Court’s approval of the “show me your papers” provision.  The truth is, neither side will be very happy with the result, as the left will cry foul over the possibility of racial profiling with the “show me your papers” provision, while the right will long for the banned provisions that would have enabled the state and local governments to punish illegal immigrants located within the state. 

But in any event, by allowing the “show me your papers” provision of the AZ law to stand, the Supreme Court is basically saying that that portion of the law is not unconstitutional on its face, and that the state has a right to administer the law and see how it plays out.  There will certainly be challenges to the methods used by the police officers and state officials so we may see this law, as well as a similar law enacted in here in Alabama in front of the Court again, so the Court can rule on the specific manner in which the states are carrying out the law.  But until that time, you will see both sides spin the latest Supreme Court decision in the light most favorable to them, in the ever-present battle for political capital heading into the election this fall.

Wednesday, June 6, 2012

So You’re Letting Complete Strangers Live in Your House – What Could Possibly Go Wrong? - Part 2

     
           Yesterday's post addressed the importance of properly screening potential tenants and having a knowledgeable attorney review the lease you intend on using.  Here are two more important things to consider if you are planning on renting residential property.

            3. Familiarize yourself with the basic rights and limitations of a landlord.  In Alabama, these can be found under the Alabama Code.  There are things you can do, things you can’t do, and certain timeframes that must be abided by in nearly everything you do.  Different types of tenant breaches call for very differnt procedures.  Certain situations allow for the landlord to enter the property and certain situations don't.  An attorney can really help you stay out of the mud here.

            4. No matter how much work you do at the front end, occasionally you get a tenant that needs to go.  Maybe they won't pay their rent, or they commit a crime on your property, or they just insist on breaching every lease provision known to mankind.  In that instance, don’t waste your time trying to evict the tenant without an attorney.  It never fails that when I am in court on an eviction, there will be another case on the docket where a landlord tried to go it alone.  It usually ends with the Judge dismissing the landlord's case because of some legal technicality - and the tenant gets to remain in the property.  After having already spent hundreds on court fees, and weeks or months trying to get to court, the landlord has to start all over and pay an attorney anyways.  A four or five week process can turn into a four or five month process, costing thousands in lost rental income. 

            Being a landlord can be almost like playing Russian roulette.  But there are things a wise landlord can do to give himself or herself the best chance possible of having a good experience, and hopefully making some money while at it.  Unlike most things in life, common sense will not necessarily lead a landlord to the proper conclusions about how to handle a situation.  Having a knowledgeable attorney assist you along the way can help you save time, money, and lots of frustration.

Tuesday, June 5, 2012

So You’re Letting Complete Strangers Live in Your House – What Could Possibly Go Wrong?

          
            What could go wrong, right?  When you’re dealing with rental property, perhaps the better question is “what won’t go wrong?”  The fact of the matter is, there are lots of things to look out for as a residential landlord, from the initial screening process of prospective tenants, to getting rid of the tenant who just won’t pay the rent.  With laws constantly changing, it can be hard to keep track of your rights and responsibilities as a landlord and the legal procedures you must adhere to. 

The current real estate market has forced many homeowners into the landlord business.  Often, it can take a seller 9-12 months or longer to find a buyer for their home.  Many sellers, after months of frustration, turn into inexperienced landlords by default, renting their house out to complete strangers.  So as a landlord, how can you protect yourself from legal issues down the road and help the arrangment be both profitable for you and enjoyable for your tenant?  Read on…. 

            1. Avoid knee jerk reactions while looking for a tenant.  Before you start the tenant search, have an approval process plan and stick to it.  It is always a good idea to require the prospective tenant to fill out an application, detailing their past tenancies, social security number, and current employment information.  Those are probably the three most important pieces of information because they can help you at virtually any stage of the rental process if things go awry.  A quick call to their prior landlord will probably tell you most of what you need to know about their worthiness as a tenant up front.  Their social security number and employment information can help you recover unpaid rent from them in the future.  It is also a good idea to obtain the prospective tenant’s written permission to run a credit check.  Knowing how financially stretched he or she is will tell you from the start the odds of getting your rent on time or at all.

             2. Before you sign a lease with a tenant, have an attorney review it.  State law governs the provisions of a lease and the interpretation that courts will give them later on.  There are many very popular provisions that appear in leases that are illegal in Alabama.  For instance, did you know that it is unlawful (and subject to monetary penalties) to include a lease provision requiring the tenant to pay attorney fees in the event of an eviction action?  Or that it is unlawful in most situations to require a deposit in excess of the monthly rent?  An attorney familiar with the ever-changing landlord-tenant laws can quickly determine deficiencies and/or provide you with a court-tested lease. 

            More tips on being a successful landlord, including understanding your rights and responsibilities as a landlord and how to deal with a bad tenant, will appear in my next blog post.

Tuesday, May 29, 2012

Collapse of a Huge National Law Firm


One of Nation's Largest Law Firm Collapses, Files Bankruptcy (link)

          It's amazing to think that a law firm with such an impressive list of clients (L.A. Dodgers, GM, eBay) can be mismanaged to the point where it ceases to be profitable.  The writing has been on the wall for some time now, with over half of the partners leaving the firm so far this year.

Monday, May 28, 2012

For The Heroes, On Memorial Day


“When you see men choke down their fear and dive in after an unexploded bomb so that our planes can land safely, a lump comes in your throat and you know why America wins wars.” –Navy Commander Joseph Blundon, 1942. 

            Most of us don’t truly have an understanding of Memorial Day.  As time separates our country from those 20th century wars that were responsible for the deaths of so many, it gets easier to forget.  Each year, Memorial Day becomes more and more about BBQ, swimming pools, and the unofficial start of summer.  It becomes less and less about remembering and thanking God for our soldiers who paid the ultimate price for our freedom.  Perhaps for those with sons, husbands, daughters, and wives in harm’s way overseas fighting the war against terrorism, Memorial Day hits home again.  But for most of us, myself included, this day has become a good excuse for a long weekend and good food.  At least until recently.  Thankfully, my changed attitude is not because a family member or friend has gone off to war. 

            The quote at the beginning of this post is taken from a book by Winston Groom titled 1942.  This book made its way to my bookshelf in the first place because it belonged to my grandfather, a hero from WW2, who passed away last year.  On a whim, I picked up 1942 several weeks ago and began reading.  At times both horrific and heartening, 1942 offers more meaning to this day that we call Memorial Day than everything else I have learned in my life about our country’s history.  To discover what misery hundreds of thousands of 18-20 year olds suffered in the Pacific theater of WW2, so that we could experience the joy of life in the United States, is…sobering, to say the least. 

What a blessing for the rest of us to experience hot showers, Starbucks, traffic jams, life’s successes, and life’s failures.  For those who never made it back from Guadalcanal, Normandy, Baghdad, Afghanistan, or the countless other lands stained with American blood, we are thankful for these simple things as well as the significant freedoms we enjoy.  America wins wars because of the bravery and honor of those heroes, and we will never forget them, and the heavy price they paid.

Wednesday, May 23, 2012

Why You Should Avoid Co-Signing on a Loan or Lease



Imagine your friend approaches you one day with an idea.  He has found a great deal on a car.  They have the terms hammered out, and now the dealer or bank just needs him to sign the finance documents.  Oh, and he needs someone else with decent credit to co-sign on the loan with him – you.  “It’s really just a technicality,” your friend says.  He assures you that he can easily afford the payments, and it’s 100% his responsibility.  What could go wrong? 

Well, your friend’s statement that the loan is 100% his responsibility is correct – that is unless he stops making the payments.  Then it becomes your responsibility.  All of it.  Under Alabama law, the lender can go after either your friend or you for the money, and it sounds like your buddy’s fresh out of cash.  If you’re lucky, the bank repossesses the car from your friend and everyone goes their separate ways.  In this case, your credit may be trashed, which is no small thing, but you may not be out any money.  If you’re unlucky, the bank sends you a letter informing you of their expectation that you pick up the payments.  In that case, your credit is still trashed and you have a new liability to squeeze into your budget. 

The same situation can arise in an apartment or house rental situation.  Often, a landlord may be uncomfortable with a particular prospective tenant, so he requires another person, with better credit or employment, to co-sign on the lease.  The landlord is not getting the co-signor on board as a character reference for the tenant.  He’s getting another source to go to for money when problems arise.  The co-signor is, in a way, acting as the collateral to the landlord, bearing all of the risk, but enjoying none of the benefit. 

While there are unique situations where it may be acceptable to co-sign on a loan or lease (i.e. for your twenty year old college student’s apartment lease), make sure that you are aware of the risks associated with doing so, and never assume that anybody is “too responsible” to default on their obligation.

Monday, May 21, 2012

Why This November’s Election Matters More Than Ever

           
           The future of our country could depend on the upcoming election, and it’s not for the reason you are thinking.  As we are all aware, this November our country will choose either Barack Obama or Mitt Romney as our President for the next four years.  We are all aware of how important a presidential election is.  Presidents have the power to push legislation through Congress and to veto legislation they disagree with.  The President has powers of military action abroad, even without a congressional declaration of war, and powers to issue executive orders or signing statements that more or less amount to “executive legislation.” 

            However, one of the most important duties that a President has is the nomination of Supreme Court Justices.  Over the next four years, there is a reasonable chance that multiple Justices currently sitting on the bench will choose to retire.  Currently, four of the nine Justices are 74 years of age or older (2 conservatives, 2 liberals).  It stands to reason that the next President could have the opportunity to change the balance in the Supreme Court, by replacing a retiring conservative Justice with a liberal Justice, or vice versa.  In recent years, a number of monumental cases have seen the Court split the vote by a 5-4 margin. 

For those who believe the Supreme Court would never allow for the banning of handgun possession, the case of D.C. v. Heller ended with the Supreme Court’s 5-4 vote striking down a Washington, D.C. law that attempted to do just that.  For those who believe the Supreme Court would never order 46,000 inmates released from California prisons, it was a 5-4 decision that recently made such a ruling.  It was also a 5-4 ruling that, in 2007, upheld the nationwide ban on partial-birth abortions.  There are dozens of other recent cases of extraordinary importance – that were decided, in essence, by one individual.  A tie-breaking, earth-shattering vote cast by a Justice appointed to the bench by a former President.  A President just like the one who will be leading our country for the next four years.