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.

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.

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. 

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.

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?

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. 

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.