Far better it is to dare mighty things, to win glorious triumphs, even though checkered by failure, than to take rank with those poor spirits who neither enjoy much nor suffer much, because they live in the gray twilight that knows neither victory nor defeat.

Theodore Roosevelt, The Strenuous Life

June 24, 2012

Legal Views

Comments Off on Increasing Formality in Crossing Borders

 

Below are some of the common variations in requirements imposed by nations in allowing foreigners into their country.

A treaty based unfettered right: This exists in the European Union. Once you are admitted by one nation, you may simply travel to any of the nations participating in the treaty.

A very informal entry procedure: This is what I experienced a lot as a child in crossing the U.S./Canada border. No passport was required until 2009. The questions by customs or immigration officers might be an inquiry as to your name, the purpose of your visit, whether you were bringing in new purchases and the like.

A passport is required: This requirement respects the procedures of the visitor’s nation in having a secure passport issuance system. The nation to which you are applying for admission can be confident that if your name appears on their data bases, it is indeed you. They can deny your application for entry if their records indicate doing so is lawful and prudent under their laws, regulations and policies.

A passport and a visa are required: This is a robust system, where the passport is issued by the citizen’s home country and the nation being visited issues a visa. The visa often includes a photographic image, signature, the passport number, and the rights of the visitor such as the duration and allowed purpose of the visit. The U.S. requires the visa holder to inform the U.S. of their location within the U.S. a few days after they are admitted. The visitor is essentially registered with our federal government.

 

June 3, 2012

Legal Views, Money and Finance

Comments Off on Is Your Identification in Good Shape?

Recent trends are causing new problems with our identification.  For example, as of 2011, birth certificates issued by American jurisdictions that do not list the parents of the applicant no longer constitute proof of citizenship for issuance of a passport. This is a problem for people applying for passports and can be one for those who hold U.S. passports but fail to renew them.

Lawyers and financial advisers ask about estate planning, but seldom check whether the client has adequate documentation of their identification. Here is a short check list to make sure you have the basics covered.

 

1. Is the name you are using the same on the most recent of the following documents: name change order, order of dissolution or divorce, marriage license, and birth certificate? If not, it is time to visit the local court house. This is the kind of law, petitioning to change your name, for which you should not need a lawyer in many jurisdictions. In Washington, the courts of limited jurisdiction often have simple forms available.

2. Do you have adequate proof of citizenship or other proof of your right to be in the United States? As stated earlier, if your proof of birth does not list your parents, it is time to contact the state or territory where you were born to get a new certificate of birth. This can take many weeks, and should be done even if you have no immediate need for a passport.

3. Are all your important records under the same name? These include your legal name as established by the documents listed in item no. 1 above, your academic records, your certificate of citizenship if applicable, licenses you hold, your social security and tax records, and your business and credit records.

4. Can you prove citizenship to a country other than the United States? Some Americans  enjoy citizenship to more than one nation. Dual citizens may not wish to take any action to prove a second citizenship, and that is fine. Reasons might include the need for U.S. government security clearances, which can be impossible to acquire if you have exercised rights as a foreign national while an American. But proving citizenship to a country can take a long time, and can grow in difficulty as ancestors die and records and memories of residences fade. It is silly to wish to move somewhere immediately and find it will take you a year or more to do it when a little advance work at your leisure would have made the move easy and quick.

Because of changes in the documentation required by the United States to cross the U.S./Canada border a few years ago, I realized that the documents I had did not allow travel between the two countries, despite being a citizen of both.  My decision to get an enhanced driver’s license was a good one, but the state would only issue it with my name as it appeared on my U.S. Certificate of Citizenship. That name was different than the one I use. It was different than the one on my state licenses, credit records, real estate holdings, and even different than the one on my social security records.  I would not have been able to use my license as identification with credit cards or even in court to prove I was a lawyer – the bar association records would not have matched my common picture identification. So I obtained a new birth certificate; the old one was not valid and had not been since 1994. I then changed my name to the one I use for all other purposes and applied for the enhanced driver’s license. I recently obtained a passport using the name that is mine for all purposes. The benefits are personal, but also inure to my survivors. They can prove that the guy named on my death certificate is the same dude that holds various assets without resorting to affidavits or worse (because more costly, difficult, risky, and time-consuming), going to court to have a judge decide the two names used to identify me were for the same person. Note that taking care of identification problems now is easier and cheaper than waiting until you or your survivors need a lawyer arguing in court to sort things out.

May 6, 2011

Current Events, Legal Views, Opinion

Comments Off on Obama Kills Osama

The two major ways nations kill is by execution pursuant to criminal laws and through war. Osama bin Laden was not killed by the United States because of his criminal acts; he was not tried, convicted or sentenced. All of these processes are prerequisites to execution. Instead he was declared an enemy combatant by the executive branch and killed by the same branch of government. The only legislative involvement with Osama’s death was the passage of the Uniform Military Code of Justice into law long before he was shot. There was no court or judicial check on the use of executive authority.

It is quite clear that nations have the authority to defend themselves from attack by military invaders. The executive branch would argue further that it can initiate combat operation without a declaration of war under many broad circumstances. Interesting questions follow from this. Should the United States and the Commander in Chief  kill those, like Osama, who are unarmed, not a member of a uniformed military service, and not engaged in espionage against the U.S. on behalf of a foreign government during time of war?

I make no argument that Osama was not depraved, not evil, and not a perpetrator of heinous acts. That is established. But that Osama was an enemy combatant and could be declared such and then executed by the president of the United States without a check on that power is like the authority vested in British kings many hundreds of years ago. We revolted from a system with more protections for those being killed at the hands of the state than that.

March 20, 2011

Current Events, Legal Views, Opinion

Comments Off on Professionals are Sometimes, Well Unprofessional

On February 18 an article appeared in the Seattle Times entitled, “Dispute Over Cancer Tied to Breast Implants.” A physician, Dr. Phil Haeck, advised his colleagues in a webinar to not describe a cancer caused by breast implants as cancer. He suggested avoiding other factual and descriptive terms such as tumor, disease or malignancy, and instead advocated that doctors use the less fear-inducing term “condition.”

This is very logical if the intent of the medical profession is not dissuading women from sometimes unnecessary surgery that enhances the income of doctors. It also violates an ethical duty. The doctor must  inform the patient  of probable outcomes and risks associated with procedures sought by them or recommended by the doctor. It is very similar to the duty lawyers owe clients, to inform them of their options and gain consent before acting on their behalf. Professionals should never assume their idea of a course of action is best for the patient or client and then proceed to bias their disclosure to get consent. Accurate and complete disclosure is the mark of the professional. Assuming the patient or client is incapable of making a good decision for themselves and not providing full disclosure is arrogant. Lack of frank disclosure should subject the professional to discipline.

 

March 12, 2011

Legal Views, Opinion

Comments Off on Funny Justice in Olympia, Washington

I was in a municipal court recently to fight a personal parking ticket. Approximately fifty citizens had requested mitigation hearings or decided to contest their parking tickets that had been issued to them by the City of Olympia. The judge was the Honorable Skip Houser, judge pro tem.

The notice from the city advised me to be at court at noon. I thought I would be one of a few willing to contest a parking ticket, but that was wrong. Then I hoped to get called soon, which also proved wrong. The judge said he called people in alphabetical order during the last hearing, so today he would start with “z,” or “zed” for my Canadian friends. I then groaned as he flipped the three inch packet of documents over.

But I was actually pleased to witness the conduct of the hearings. Judge Houser found humor in every case. He took the explanations of each defendant at face value, explained the law, and exercised the utmost in compassion. I do not recall one of us leaving the court without a dismissal or substantial reduction in our fine.

Judge Houser made an adversarial process into an educational and humorous one. He executed a task that could have been drudgery for him and painful for us, and made it joyous. More judges should learn from him.

However, the proceedings were a little strange, even for something as informal as handling parking tickets. The city had no one representing it. The judge accepted the city’s declarations and record as fact, and there was no opportunity to confront the witnesses against you; they were not there. Also, only those contesting their tickets were sworn in. I wondered if it was okay for those requesting mitigation to lie at will.

I suspect all of this conformed to the statutory law of Washington, which years ago de-criminalized many traffic matters and began to allow very informal hearings for things like hearings on parking tickets. But this relaxed process does not feel anything like what we bargained for as American citizens.

March 12, 2011

Legal Views

Comments Off on The Judicial Frown

A most unpleasant experience is watching the judge frown as you argue a point of law. Often the ruling that follows is largely based on what the judge feels is the correct outcome based on his prejudices, not based on things like statutes and constitutions.

It happened to me. Fortunately the cost was to me, not a client. And the cost was a blow to my pride and $5. I fought a parking ticket in a nearby city, contesting the ticket and not requesting mitigation. The frown came when I argued that I did not pay to park because I never saw the pay station and its sign. Its view was blocked by a landscape tree owned by the city, my argument supported with excellent photographs of the dire circumstances I faced on that January day. My guess is the judge was substantially bothered by my admission that I paid nothing. He argued that the parking ordinance did not require the city to post signs at all. Apparently, it would be alright to not notify drivers and simply ticket them. The judge’s mindset was that I was local, despite not living or voting in the jurisdiction, and that I should know what is going on. I didn’t. I left the court wondering what happened to procedural due process; didn’t cities have to provide reasonable notification to folks parking on city streets of how to comply with their silly ordinances? I guess not.

The judge was not a mean guy. He even converted my hearing into a mitigation proceeding and reduced my fine 67%.

Even good judges lose on occasion the idealism and judicial temperament so valued by Americans for our courts.  That’s why we have life appointments for federal judges and the right to jury trials. It is also one reason why many lawyers encourage negotiation and settlement, thus avoiding a court ruling.

On Monday, October 4, a New York Times article on the subject of state laws regarding carrying handguns in bars contained the following sentence:

The new measures in Tennessee and the three other states come after two landmark Supreme Court rulings that citizens have an individual right – not just in connection with a well-regulated militia – to keep a loaded handgun for home defense.

The two decisions, Heller and McDonald, recite the legal history of the Second Amendment language, which states: “A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, Shall not be infringed.” The author of the NY Times article, Malcolm Gay, seems to imply the right should only attach for members of an organized militia, which is untrue. The citizens of the United States are the militia. This was so when the Constitution was written, and the Court cited and acknowledged that history in their decisions. The Court’s correct interpretation of the intent of the Amendment helped build the foundation for both rulings.

The view of the opponents, that the Second Amendment gives the National Guard members the right to be armed, is strange. There is no document that preserves the rights of citizens, such as Magna Carta, the English Bill of Rights or Bill of Right, that seeks to ensure the right to bear arms for those in uniformed military service. It is unnecessary for the sovereign to guarantee that those enlisted, and who can be called into war in the defense of the sovereign, will be entitled to bear arms. No country has failed to arm their own soldiers for lack of a constitutional provision assuring the right.

The Seattle Times reports today that the federal government is proposing fleet average fuel economy of 62 miles per gallon by 2025. This is greater than the performance of a Toyota hybrid (about 45 mpg), or a Honda Civic with a stick shift, which gets anywhere from 32 to 39 mpg depending on the gasoline blend, driving habits, and the season.

The article also reveals that the standard will be higher for heavier vehicles, and quotes speculation that technology improvements in the next 15 years will get us there. Even more impressive is that the governors of several states, including Washington, support the change. Having our governor, an attorney who I am sure knows a great deal about cars, engineering and physics, favoring this imposition on the American public is heart warming.

Here are the likely effects:

  • All vehicles will become more costly, because the lighter materials needed to build new cars are more costly than steel.
  • The ratio of plug-in electric vehicles as compared to gasoline based vehicles must increase to roughly 50% of the American vehicle fleet.
  • Pick-up trucks and vans that are gas fired will be very expensive. You will pay for this when you hire contractors through higher overhead, even if you do not own one.
  • The richer you are the less the effect. You will be able to have a larger vehicle with lower fuel economy. The corollary is that lower income folks will drive old clunkers that consume lots of expensive fuel.
  • Gasoline fired vehicles will be more costly than plug-in electrics, but plug-in electrics will be more costly than they are now.
  • The roads will be more jammed with more vehicles than they are now. But don’t worry because you won’t be burning fuel while you are parked on the local interstate highway. Also, those governors who signed letters of support for the rule change will be retired when the rule goes into effect.
  • Like conservation efforts that have been made since the oil embargo of 1973, the U.S. reliance on oil and oil imports will not decrease under this kind of rule.

The local papers ought to actually reveal what a rule like this will do. Then people can understand the consequences and not draw the unlikely conclusion that technology will cause a vehicle like they have parked in their driveway today to perform about three times better in 2025. I could support policies that encourage the purchase of plug-in hybrids and their use in inner cities. I can even support closing urban cores to gas powered vehicles. There are reasons to do so. I do not support trying to achieve the same ends with the proposed subterfuge.

Also, it is time to defeat the Democratic legislative majorities, not because the Republicans have great ideas. We need to slow the rate of change and pass fewer laws until a political party emerges that actually can lead in these challenging times.

The late breaking news today was that the Obama administration seeks statutory authority to have commercial Internet folks convert our messages from encrypted to the King’s English to ease wiretapping. Of course, they argue this authority is needed to save us from terrorists, those engaged in criminal activities and for public safety reasons.

The federal government prohibits much encryption of radio communications. This has some justification because the radio spectrum belongs to the federal government, and they can reserve any particular use they want, including granting licenses that reserve the right to use encryption. However, no such argument exists for land line communications. The communications are on privately owned facilities, the many fiber optic and copper cables along railroad and other right-of-ways.

It seems to follow from our First Amendment rights that we should be able to communicate with any language, whether it be Cheyenne or an encrypted code from person to person, even if that communication occurs on a private line under contractual arrangements with the communicators and the common carrier. Simple, eh?

Why do so many people, Democrats and Republicans alike, have so much trouble understanding that we must fight proposals like this to keep any semblance of freedom? I encourage everyone to state their opposition to this and similar proposals quickly and loudly so that the Obama administration bursts this trial balloon. Let the idiots know that catching a few marijuana growers or other outlaws will need to be done with field work and good old detective work, not by trampling on your Constitutional rights.

August 18, 2010

Legal Views, Opinion

2 comments

Perhaps other law students were surprised to learn that the constitutional right protecting us from double jeopardy does not protect us from another trial if:

1. The jury was hung at the first trial, neither convicting nor acquitting.

2. We are tried in a state court following a federal trial, or more commonly, tried in a federal court following trial in a state court. The latter course was followed in some of the racial murders in the South that occurred during the civil rights movement, where the alleged perpetrators were acquitted in state court but later convicted of violating the civil rights of their victims in federal court, sometimes many years later.This applies even for crimes based on the same acts, as in those cases. The reasoning is that the states and the federal government are separate sovereigns. That may have been so after the Declaration of Independence, but it seems to be completely inaccurate since the Civil War and the FDR administration eroded the authority of the states.

The former governor of Illinois is stuck with the first problem. Mr. Blagojevich stands convicted of obstruction of justice for lying to FBI agents. (Had he read my earlier posts, he wouldn’t have spoken to those guys – however, my blog was not up when that happened!) Now the prosecutor is promising to try him again for several charges on which the jury deadlocked.

Although I believe Blagojevich’s conduct was scandalous, low class, and likely illegal to an extent greater than he stands convicted today, I do not believe it is fair or just to make him prepare another defense.  How can defendants afford two strong defenses when most of us are bankrupted by one? The double jeopardy protection right we have should be meaningful for all of us, rich or poor.

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