Attorney Find Blog

I was always that kid who ruined all the fun. You know the one I’m talking about—the one who remembered that driving drunk could get you killed or that climbing on the roof at midnight might be dangerous. The one who said, “Um…that’s illegal” just when someone came up with a really good plan to have some fun or make some money.

Those issues don’t arise so much in my life these days, so I’d like to thank Adrian Martinez and Morusa Media for once again giving me the opportunity to say, “Um…that’s illegal.”

Martinez is the creator of the as-yet-unsigned-but-already-infamous television show “Who Wants to Marry a U.S. Citizen?” There’s been a lot of fuss and controversy already: does this exploit immigrants? Is Martinez attempting to cash in on the immigration conflict? Does the show’s premise take advantage of desperate people in difficult circumstances?

All valid concerns, but I really just have one thing to say:

Um…that’s illegal.

As you probably know, marrying someone simply to obtain (or confer) U.S. citizenship is a crime. And marriages between U.S. citizens and non-citizens are scrutinized pretty carefully before citizenship is granted—especially when there are red flags like…oh…just for example…WINNING YOUR SPOUSE ON A TELEVISION SHOW.

I’m just guessing, but it seems possible to me that the reason no network has jumped to pick up the program is that network execs are a little hesitant to face criminal charges. Just speculating.

With a little research, the whole thing just gets curiouser and curiouser. A recent press release refers us to a website with the questionable URL “hookacitizen.com”. Though the press release calls this the show’s website, it’s actually just a single page that disclaims a bunch of stuff (apparently, I’m not the first to raise the possible legal issues) and then provides a link for those needing more information about Immigration law.

That link goes to an Alabama law firm.

My first thought was that the concept had somehow been hijacked, but no…”hookacitizen.com” does seem to be registered to Adrian Martinez, the show’s creator—with a California address. So does “immigrantlove.com”, which displays the same single-page disclaimer and link to the same Alabama law firm.

I said “curiouser and curiouser” already, right? I’m beginning to think the real entertainment has nothing to do with the show.

In a potentially ground breaking ruling, a Federal Court negated Hazleton, Pennsylvania’s anti-immigration laws. The town made national headlines, in 2006, when it passed a series of laws aimed at discouraging illegal immigrants from finding their way to Hazleton. The Court reviewed the City’s “Tenant Registration Ordinance” and “Illegal Immigration Relief Act Ordinance.”

The ordinances were thrown out primarily on the principle of preemption. The Congress may expressly forbid states and local governments from passing laws. A local law would be implicitly preempted if it interferes with or conflicts with already existing federal laws.

In 1986, Congress passed the Immigration Reform and Control Act, providing for the removal of illegal aliens from the United States. The Act expressly preempted any state and local laws imposing penalties for hiring undocumented workers. The Court, relying on the Act’s preemption clause, threw out Hazleton’s ordinance penalizing employers who hire illegal workers.

Federal law also reserves to the federal government the right to remove a foreign national or to allow him to remain in the country. Hazleton’s laws forbidding renting property to illegal aliens conflict with the federal government’s right to allow an illegal alien to remain in the country. So, the Court ruled against Hazleton’s anti-rental laws.

From 1911 until last month, a manufacturer couldn’t enter into agreements with retailers to set minimum re-sale prices.  A 1911 Supreme Court ruling said such “vertical price restraints” were per se illegal under the Sherman Act.  That meant the manufacturer couldn’t argue that really it was a good idea and somehow good for consumers or the economy to impose such restraints.  It wasn’t allowed, period.

That all changed last month.

On June 28, the United States Supreme Court overruled that 1911 case, holding that vertical price restraints should be judged by “the rule of reason”.  (Leegin Creative Leather Products, Inc. v. PSKS, Ink., d/b/a Kay’s Kloset…Kay’s Shoes)  The Court based its decision in large part on the fact that “respected economic analysts” had concluded that vertical price restraints could have a pro-competitive effect.  That is, that prohibiting retailers from lowering prices beyond a certain point might be good for competition.

Some of the justifications offered included the idea that vertical price restraints would increase inter-brand competition, and that being unable to compete based on price, retailers will be forced to invest in other tangible or intangible services or promotional efforts to corner their share of the market. 

In other words, since every retailer will be equally expensive and consumers won’t be able to hope to find a better price, retailers will have to offer them something else in order to capture their business.  The idea that most consumers would prefer lower prices to having tea served in the boutique seems to have escaped these noted legal scholars.

It seemed inevitable from the moment this ruling was published that consumers could expect to start paying more.  The Consumer Law & Policy Blog warned, in particular, that the ruling would have negative consequences for internet shoppers.  Consumers used to using the internet for quick price comparisons on identical items may now find the answers startlingly similar.  And, of course, the ease of online price comparisons will also make it very easy for manufacturers that insist on minimum-price agreements to monitor internet sales prices.

Although the full impact of the ruling remains to be seen, the Southern District of Florida alone has already seen two cases in which corporations have invoked the Leegin reasoning in defense of various restraints on re-sale of specific products.  All in the interests of promoting competition, of course.

1993’s Family and Medical Leave Act took an unprecedented step in the United States by ensuring that employees–at least, those working for companies with 50 or more employees–could take up to 12 weeks unpaid leave for medical or family needs without losing their jobs.  The flaw in the plan, of course, was that many American workers simply can’t take that kind of time off work and survive.  While the promise of a job to return to after illness or family crisis is very important, it’s meaningless in a practical sense if the employee has no means to take that time off and still pay the rent and put food on the table.

Now, Senators Ted Stevens (R-Alaska) and Chris Dodd (D-Conn) have introduced a bill that would establish mandatory insurance coverage for up to eight weeks of paid leave in such circumstances.  In its current form, the bill provides for a sliding scale benefits, so that those at the lowest end of the income spectrum would receive full salary, while those at the higher end would receive only a percentage.

Dozens of other countries guarantee paid paternity leave and paid time off for parents with sick children, and more than 150 countries already guarantee paid leave for women for childbirth.

Back in April, a blogger named Kristen over at The Mom Trap accidentally stole a duck from The Gap.  Now, personally I think that she should have returned it or paid for it…it seems to me that there’s a certain clarity and consistency to the idea that if you take stuff home from the store, you pay for it.  All in all, though, it wasn’t that much to get up in arms about.  I think it says something about a person’s character if she opts to keep something she hasn’t paid for, but the world is full of shades of dishonesty, and on the scale this isn’t a very dark gray at all.

Or at least, it didn’t look that way to being with.  For some reason, though, the blogging world has been buzzing about this duck for two months, and the overwhelming concensus has been that Kristen should keep the duck, should not pay for it, and should not be at all troubled by the “holier-than-thou” folks who for some reason believe that you should pay for what you take home from the store.

There’s been a lot of dismay voiced about how “worked up” people are getting about an inadvertantly stolen duck, but I don’t think that’s what people are worked up about at all.  I think people are worked up about the justification, the cheering, and the general sense that there’s no real reason to worry about paying for what you took home.  That perspective is much bigger than a stolen duck.

The controversy has grown to the point that tonight, Blog Talk Radio will be hosting a discussion of the “issue”.

I’m not especially interested in hearing people re-hash the ethical issues, which are fairly clear to me.  I am, however, interested to hear the analysis of the legal issues (which are equally clear to me).  A very popular “mommy blogger” who goes by the handle “LawyerMama” has been asked to serve as an “expert”, and I’m very interested to hear what she has to say.

You see, ethical issues and the relative importance of a $6.50 (or maybe it was $6.95–witness accounts vary) duck from The Gap aside, I’ve been utterly unable to come up with any LEGAL justification for keeping the duck.  Since I practiced criminal law, I have a bit of experience  working up legal justifications for questionable behavior, and in this case, I think my best approach would be to minimize, to paint a sympathetic picture of my client as a harried mother who just hadn’t realized.  That’d be a tough sell after she’s spent two months polling the internet community about whether or not she should keep the duck.

If LawyerMama has a legal argument as to why it’s okay to keep the duck, I’m very interested to hear it.  And if she doesn’t–well, then I’m very interested to find out whether she’ll risk sanctions from the bar association by encouraging a disregard for the law.  I don’t know that Kristen could rightly be called a “client” or what LawyerMama is offering legal advice, but if I were in her shoes, I’d be a little uneasy.   How does a lawyer justify proudly posting a “keep the duck” icon on her website when, so far as I can assess, there’s no legal justification for keeping the duck?  Even assuming this can’t be construed as advising a client to violate the law, what about the appearance of impropriety?

The law does vary–and so do ethical guidelines–from state to state, and my reading of her other posts indicates that LawyerMama is an intelligent woman, so I’m virtually certain that she wouldn’t be risking legal sanction to publicly take the “keep the duck” position without some kind of legal theory to support her advice.  I’m eager to hear what it is.

In a rare case, the Louisiana Supreme Court has upheld a sentence of death for a defendant who did not cause the death of his victim. Only a few states allow the controversial penalty of death for defendants convicted of child rape when the victim survived. The Louisiana decision could make groundbreaking law.

Patrick Kennedy was convicted of the brutal and disturbing rape of his eight-year-old step-daughter. Her physical injuries were so severe, surgery was required to repair them. Her emotional injuries probably run much deeper. Going with the jury’s verdict, I’d like to pummel this guy to death myself. But, our system does not, for good reason, allow individuals to take the law into our own hands. If this monster should killed for his actions, where does it stop? Should every rapist be killed? Should someone who hits a child be executed? A few states currently allow capital punishment for those who commit crimes against the government, like treason, espionage, or aircraft piracy.

In this case, Kennedy originally blamed the girl’s rape on two neighborhood boys and his step-daughter backed him up. She later told her mother and a therapist that Kennedy had actually raped her. Kennedy was sentenced to death under Louisiana’s law providing capital punishment for anyone convicted of raping a victim under the age of 12.

In 1977, the United States Supreme Court overturned the death penalty for a man convicted of raping a 16-year-old. The Court said “the death penalty, which ‘is unique in its severity and irrevocability,’ is an excessive penalty for the rapist who, as such, does not take human life.” In more recent rulings forbidding the execution of defendants who were minors or mentally retarded when they committed their crimes, the Court said capital punishment should be reserved for those who commit “a narrow category of the most serious crimes.”

Following the 1977 ruling, Louisiana changed its capital punishment law for the crime of rape, asserting that the U.S. Supreme Court’s ruling only applied when the victim was at least 16-years old. The Louisiana Supreme Court, in upholding Kennedy’s death sentence, said his crime fit within the narrow category of most serious crimes for which the death penalty is appropriate.

Kennedy’s case could indicate where the U.S. Supreme will stop the slippery slope of capital punishment.

Keith Fisher, serving up to seven years for robbery in the Pennsylvania prison system, scored a victory for deadbeat dads who also happen to be convicted criminals earlier this month.  Fisher convinced a panel of judges that money he received as “gifts” while in prison was off limits for child support enforcement.

Fisher, whose court order requires him to pay $288/month in support for his two minor children, posted only $66 in earned income over a four month period in 2005.  During that same period, he spent nearly $1,200 in prison, including $330 at the commissary.  Fisher also paid for cable TV in his cell and a $65 pair of Adidas sneakers.  Although the prison system defines all money in an inmate’s account as “income”, state domestic relations law is much narrower.  Thus, Fisher’s cable television and commissary snacks remain safe, while his children go without support.

According to Phillyburbs.com, a 1998 study estimated that 38,000 custodial parents in the United States were then owed a total of $122 million in child support from incarcerated non-custodial parents.

The opening line of an article I read last week was virtually identical to a dozen I’d read before.   It began, “Dozens of people who have had their licenses suspenced for drunk driving may have those decisions reversed,” and then even the challenge itself was the same–a claim that breathalyzer test results were invalid.

The only difference was that instead of the now-infamous Intoxilyzer, the machine in question was the Yanshuf.  The challenge, in the form of two civil suits alleging damages arising from the use of the Yanshuf, is pending in a Tel Aviv magistrate’s court.

The law authorizing police to use the Yanshuf requires approval by the transportation minister in consultation with the minister of health, and apparently that approval never came for the new breathalyzer currently in use.  The statute also requires the machine to be zeroed “on site” before use.  Zeroing is akin to the process generally referred to as “calibration” in the United States.  Although the machines are currently tested once every 24 hours, at least one Tel Aviv attorney is insisting that the “onsite” requirement demands more–testing before each use.

The Federal Trade Commission (FTC) has reached a settlement agreement with Debt Solutions, Inc.; DSI Financial, Inc.; DSI Direct, Inc.; Pacific Consolidation Services, Inc..  The settlement also includes the owners of the four companies, Kenneth Schwartz and Jennifer Whalen, and two of their managers.

The FTC allegations are simple, and all-too familiar.  The companies apparently represented to debtors that they had special relationships with credit card companies and other creditors that would lower interest rates and reduce overall payments.  Customers were “guaranteed” to save a certain amount of money, but no time frame was specified, so that the debtors might have to make payments for decades to realize the savings.  The savings they did see typically came only from increasing monthly payments and not from any actual reduction in interest rates or fees.

Schwartz and Whalen agreed to a permanent ban on engaging in the debt negotiation or debt elimination business.

Two down…how many to go?

The attorney for a plaintiffs’ class reached a settlement agreement with Sears Roebuck and Co. whereby the attorney, Gary K. Shipman, would receive $1.1 million, while the plaintiffs would get less than $3,000 in cash and coupons. Fortunately, a North Carolina court stepped in to stop this grossly unreasonable settlement.

Not only did Shipman and Sears come up with this agreement, they apparently tried to hide it from the North Carolina court by going to Illinois to have it approved by a court. While lawyers are generally ethical, an unfortunate handful of high profile attorneys give the rest of us a bad name.

Because a ruling in a class-action applies to all potential class members, Federal and State Courts have rules requiring the class’s attorney to find class members, keep them informed at all stages of the case, and provide them an opportunity to opt out the case. Here, the attorney allegedly didn’t try to find class members, did not keep those he found informed, and tried to hide the final settlement.

After an Illinois judge approved the settlement, following a hearing where Shipman and Sears misrepresented the case, claiming there could be 1,500,000 class members (only 337 were found), the North Carolina court stepped in. The Court declared it would not be bound by the Illinois approval of the settlement, dismissing the case in a way that would allow the plaintiffs to bring the case again, hopefully without needing protection from unethical attorneys.

I would expect the lawyers will take this matter to the Federal courts to argue whether a North Carolina court can overrule the Illinois court’s judgment.