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.