Supreme Court upholds bulk of Obamacare

With Chief Justice John Roberts among the 5-4 majority, the Supreme Court of the United States mostly let stand President Obama’s 2010 health care overhaul, known as “Obamacare.”

We’re a law firm.  We believe that legal scholarship is important rather than just taking cues from the media spin machines.  So get out your reading glasses and read what SCOTUS decided by clicking here for the full decision.

You might want to get a cup of coffee first because it is a 193-page decision.  If that’s not brief enough for you today, you can google to your heart’s content or read some media summaries.  The New York Times has a story running here.  Our own Columbus Dispatch has one here.

First Amendment, Middle Finger. It’s all protected speech.

This Amendment is Number One! See...?

An Oregon man flips off some cops.  They stop him.  Then, he does it again.  They stop him again.  The man then sues claiming the cops harassed him by stopping him while engaged in free speech.  The case settles without a trial paying the man $4,000.00.  Protected speech?  Certainly.  Ridiculous plaintiff?  Most probably.

I agree that making a certain infamous hand gesture is free speech.  Shoot, any hand gesture is probably protected as free speech by the First Amendment to the Constitution.  But for Robert Ekas, I do not think the constitutional question is at issue so much as the personal conduct/gentlemanly behavior issue.  Why flip off a bunch of Sheriff’s deputies?  What’s the point?  My guess is that it was just a way to get national attention including an appearance on The Colbert Report.

Personally, I think Mr. Ekas’ victory (if you can call it that) should be widely celebrated by giving Mr. Ekas the very free speech he holds so dear.  So when you see Robert Ekas, make sure to extend your favorite hand, extend that hand’s middle finger, and let us all celebrate what our Founding Fathers must have truly intended with the First Amendment.  Let us direct that speech squarely at the man that fought so hard to protect it by taking a $4,000.00 settlement and running rather than trying to establish legal precedent that the “cop flip-off” is protected free speech.  That’s definitely the forthright man’s way through the case.  (Readers, I hope you’re picking up the sarcasm, because I’m laying it on pretty thick here). Continue reading

What the heck is habeus corpus?

Correctly pronounce habeus corpus ad subjiciendum and you can have this card.

It’s not a dead body or something you can pick up from touching raw chicken.  People have asked me this question several times over the years.  They have seen the term in newspapers, on TV news, and have probably even seen William Shatner shouting about it on Boston Legal reruns.  It’s Latin, it sounds funny, and it doesn’t make much sense.

In Latin, habeus corpus means “you have the body.”  A writ of habeus corpus is a written judicial order to bring a party before a judge or court.  99% of the time, the writ is used to seek release from unlawful imprisonment.

The complete name for the order to release someone from unlawful imprisonment is habeus corpus ad subjiciendum, which is the Latin equivalent for Monopoly’s get out of jail free card.  (Just kidding, it truly is a serious matter).

Unfortunately, in our justice system, there are people that have been jailed and later proven innocent.  A writ of habeus corpus is the process by which the legality of someone’s imprisonment is tested.  For a recent example of great work by a Columbus attorney that saved death row inmate, Kevin Keith, from execution, read this.  After obtaining clemency from execution from Governor Ted Strickland, Rachel Troutman is now trying to get her client released from prison.  A writ of habeus corpus will start the way.

JK-Q&A: Do I have to trim my tree because my neighbor says so?

A friend contacted me with this question:

What was that? Ahh, just the panic alarm on the new caddy. I'm sure it's fine.

I have a weeping willow in my back yard and some of the branches hang over my neighbor’s fence, and he told my wife yesterday that we need to pay someone to trim the tree to prevent the braches from falling in his yard and supposedly killing his grass. My question is, do I by law have to trim the tree at my expense?

The short answer is NO.  In this situation, my friend is not legally obligated to trim his tree.  But, it is important to know some of the consequences of doing nothing.

1.  The neighbor has a right to protect and enjoy his own property.  At the same time, the neighbor has no right to encroach on my friend’s property.  Section I, Article I of the Ohio Constitution provides that : “All men are, by nature free and independent and have certain inalienable rights, [including] acquiring, possessing and protecting property…” This Article (and ample Ohio case law), provides that the neighbor may undertake reasonable  steps to protect his property or exclude others from its use and enjoyment.

What does that mean?  The neighbor might grab a pruner and go to town trimming the tree himself!  But, he needs to be cautious.  The neighbor is only within his rights to trim the branches that physically extend onto his property and the neighbor cannot kill or cripple the tree.  A neighbor exercising reasonable care and only cutting back the branches that cross onto his property is probably safe.   My friend may be left with a lopsided tree, but he didn’t have to do the work or pay anyone.

If the neighbor cuts a branch (or even a part of a branch) that is over my friend’s property, the neighbor may be guilty of a fourth degree misdemeanor pursuant to Ohio Revised Code 901.51 and 901.99, and would owe my friend double the amount of damages in a civil claim, such as the replacement cost of the tree x2. Continue reading

Thomas Parenteau could not save himself – surprised?

"Fee-fi-fo fum," benching your lawyer is pretty dumb.

Back in June, I wrote this post about the Thomas Parenteau trial where Parenteau (not a lawyer) was representing himself against 13 federal charges in a multi-million dollar fraud scam.  I discussed what a bad idea that was.  As it turns out, the jury convicted Parenteau of 11 of the 13 charges against him.  Parenteau was acquitted of two money-laundering charges.  I guess he left the stolen money dirty and maybe that’s why he was caught in the first place.

Parenteau was convicted on 11 counts including wire fraud, tax fraud, obstruction of justice, and witness tampering.

I am a firm believer that criminals should pay the price for their crimes and should not “get off easy.”  That belief stands whether you are a starlett like Lindsay Lohan who is getting jail time for violating probation or a less-well-known real estate scammer like Thomas Parenteau.  However, one big difference is that Ms. Lohan was represented by an attorney who will likely succeed in getting Lohan’s actual jail time reduced to a fraction of her sentence, while Mr. Parenteau’s ill-advised courtroom antics probably did nothing to help his cause.

According to Kathy Lynn Gray’s recent article in The Columbus Dispatch, the trial was expected to last six weeks.  It lasted two months and a lot of that extra time was a result of Parenteau’s decision to represent himself.

Trials are like traffic.  When the jury is taking in evidence like a nonstop cruise down I-71 at 65 MPH, the jurors are comfortable, attentive, and understanding.  But when the jury’s evidence show hits a traffic jam brought on by constant objections, improper questions, recesses, sidebars, and antics, the jurors become irritable, restless, fatigued, and annoyed.  You just want to lay on that horn and get the people in front of you moving to arrive at your destination.

The Parenteau trial was no cruise down I-71 with Parenteau’s appointed counsel locked in the trunk of the car.  Instead, Parenteau tells the jury “I’m an entrepreneur, not a criminal” and “fee-fi-fo-fum, the government says I am a cheap bum.”  Well, guess what?  Saying you’re an entrepreneur and and not a criminal is something I think Al Capone would say.  Spouting off “fee-fi-fo-fum” makes me think of an ogre, a bully – basically not someone with whom I want to be friends.  These statements do no paint a picture of a victim of circumstance or generate much sympathy.

I do not have any reason to believe that Parenteau was wrongfully convicted.  All evidence to the contrary.  But, competent legal counsel can mean the difference between life in prison and maybe seeing the dawn on an open field of freedom one day.

Parenteau will be sentenced in a few weeks.  If he has any appealable issues, I wonder if he’ll let his attorneys finally get involved.

Class Action against Apple and AT&T to proceed

I have an iPhone.  I love it.  I have AT&T service on my iPhone because I have to.  I don’t love it.

I honestly don’t know if I would love the iPhone more on Verizon, T-Mobile, Sprint, or any other carrier.  A device so powerful, so popular, and so demanding of bandwidth has the capacity to cripple any carrier.  That’s why I hope all the carriers will have the iPhone someday.  I may not even switch from, AT&T.  At least, not right away.  I will wait to see how network traffic across carriers is affected.  Fewer iPhones on multiple networks will should reduce traffic and dropped calls. Also, competition amongst the communication giants should reduce the “sticker shock” when I get the monthly bill.

These topics and more, including anti-trust and claims of secret deals between Apple and AT&T, are the subject of many lawsuits filed since 2007 and now consolidated in the Northern District of California.  The AP reported this morning:

SAN JOSE, Calif. – A federal judge says a monopoly abuse lawsuit against Apple Inc. and AT&T Inc.’s mobile phone unit can move forward as a class action.

The lawsuit consolidates several filed by iPhone buyers starting in late 2007, a few months after the first generation of Apple’s smart phone went on sale.

An amended complaint filed in June 2008 takes issue with Apple’s practice of “locking” iPhones so they can only be used on AT&T’s network, and its absolute control over what applications iPhone owners can and cannot install on the gadgets.

The lawsuit also says Apple secretly made AT&T its exclusive iPhone partner in the U.S. for five years. Consumers agreed to two-year contracts with the Dallas-based wireless carrier when they purchased their phones, but were in effect locked into a five-year relationship with AT&T, the lawsuit argued.

The actions hurt competition and drove up prices for consumers, the lawsuit claims.

Apple and AT&T have not commented on the terms of their deal. In its response to the complaint, Cupertino,California-based Apple said it did not hurt competition.

In court documents filed July 8, Judge James Ware of the U.S. District Court for the Northern District of California said parts of the lawsuit that deal with violations to antitrust law can continue as a class action. The class includes anyone who bought an iPhone with a two-year AT&T agreement since the device first went on sale in June 2007.

Apple has sold more than 50 million iPhones in the last three years. The company does not specify how many have gone to U.S. customers.

Ware dismissed other claims against Apple, among them allegations that the company broke laws when an update to the iPhone’s operating software caused some phones to stop working and deleted programs that users had purchased.

The lawsuit seeks an injunction to keep Apple from selling locked iPhones in the U.S. and from determining what iPhone programs people can install. It also seeks damages to cover legal fees and other costs.

We will continue to follow this story on the blog.  Would you like links to filed court documents from this case?  Let us know in the comments and we will provide.

The Second Amendment’s Arms get Beefier

Woo-hoo! Mr. Blasty gets to stay at home with me!

In a 5-4 decision issued today by Justice Samuel Alito in McDonald v. Chicago, the U.S. Supreme Court signaled the strengthening of the Second Amendment’s right to keep and bear arms with respect to a state law out of Illinois.  For the AP, Mark Sherman writes:

WASHINGTON — The Supreme Court held today that the Constitution’s Second Amendment restrains government’s ability to significantly limit “the right to keep and bear arms,” advancing a recent trend by the John Roberts-led bench to embrace gun rights.

By a narrow, 5-4 vote, the justices also signaled, however, that some limitations on the right could survive legal challenges.

Writing for the court in a case involving restrictive laws in Chicago and one of its suburbs, Justice Samuel Alito said that the Second Amendment right “applies equally to the federal government and the states.”

The court was split along familiar ideological lines, with five conservative-moderate justices in favor of gun rights and four liberals opposed. Chief Justice Roberts voted with the majority.

Two years ago, the court declared that the Second Amendment protects an individual’s right to possess guns, at least for purposes of self-defense in the home.

That ruling applied only to federal laws. It struck down a ban on handguns and a trigger lock requirement for other guns in the District of Columbia, a federal city with a unique legal standing. At the same time, the court was careful not to cast doubt on other regulations of firearms here.

Gun rights proponents almost immediately filed a federal lawsuit challenging gun control laws in Chicago and its suburb of Oak Park, Ill., where handguns have been banned for nearly 30 years. The Brady Center to Prevent Gun Violence says those laws appear to be the last two remaining outright bans.

Lower federal courts upheld the two laws, noting that judges on those benches were bound by Supreme Court precedent and that it would be up to the high court justices to ultimately rule on the true reach of the Second Amendment.

The Supreme Court already has said that most of the guarantees in the Bill of Rights serve as a check on state and local, as well as federal, laws.

Monday’s decision did not explicitly strike down the Chicago area laws, ordering a federal appeals court to reconsider its ruling. But it left little doubt that they would eventually fall.

Still, Alito noted that the declaration that the Second Amendment is fully binding on states and cities “limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values.”

The Opinion effectively strikes down Chicago’s hand gun ban, however the case was remanded back to the Illinois’ federal court for further proceedings.  The five Justices concurring in the Opinion are Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas in addition to Alito.  The dissenting Justices were John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor.  You can read their bios here.

If you have some time on your hands, you can read the Court’s entire 214 page opinion here.  The Court’s opinion is actually 51 pages, with the rest dedicated to a concurring opinion by Scalia, Thomas’ opinion concurring in part,  and dissenting opinions by Stevens and Breyer.

What do you think?  Should states be able to ban handgun possession by private citizens, or does the Second Amendment guarantee our right to keep guns?