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Marriage 101: Free Community Education for Unmarried Couples

Thursday, April 12, 2012, Seth Hicks Law will present the free Community Legal Education Workshop, Marriage 101: How to Protect your Family When the State Won’t, in conjunction with The Strickland Law Firm.  Registration is limited.  We hope to see you there.

Here’s the brochure for the workshop:

Brochure

 

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A Letter to Representative Mike Colona Regarding Security Procedures in St. Louis County Courthouse

Missouri Representatives Mike Colona and Timothy W. Jones worked together to introduce HB1416.  A story featuring the bill and reactions to it was posted on St.Today.com.  Here is the text of an e-mail I wrote to Representative Colona in support of his bill:

Representative Colona:

Thank you for introducing HB1416.  As a St. Louis attorney, I appreciate your effort to make access to the St. Louis County Courthouse easier for members of the Bar.  After years of training, background checks at least as rigorous as those performed on the sheriff’s deputies operating the metal detectors and hours of work spent in preparation of a case, it is ridiculous that attorneys should be required to disrobe to enter the courthouse to assist in court business.  This is especially true given the fact that we are issued easily recognizable identification cards and many if not most of us work in the courthouse regularly.

The overzealous security measures in the St. Louis County courthouse contributes to inefficiency in the administration of justice, require unreasonable expenditure of public employee time and therefore public funds and disproportionately burden female members of the Bar, whose professional attire makes complying with the security policy in place at the courthouse more difficult.  Allowing attorneys access to the court house by showing their Supreme Court issued identification cards will allow a smaller number of paid public employees to manage security check points and save public funds by reducing the number of people who must be screened to enter.  Additionally, female professional attire often requires wearing articles of clothing, hair accessories, jewelry or shoes that are more difficult to remove than typical male professional attire.  The women who join our profession should not be forced to bear the brunt of these overly burdensome procedures as they assist in the administration of our justice system in equal, if not greater proportion to male members.

Though I sympathize with the security considerations that motivate the existing security procedure, the 1992 shooting upon which the policy is based occurred before metal detectors were even in place in the courthouse.  The box cutter incident that is offered as the other justification for the extreme settings on the metal detectors did not result in any injury.  No member of the Bar, has ever been said to have committed these or any acts of violence in the St. Louis County Courthouse. In fact, it was an attorney who assisted in the apprehension of the subject in the 1992 shooting, saving the life of the judge involved.  The courthouse is our place of business.  The people who work there are our colleagues and clients.  We are there to assist in the business of the court as surely as the courthouse employees who pass through security without screening using identification cards not entirely dissimilar to the ones each member of the Bar is issued by the Supreme Court on administration of our oath and on re-affirmation of that oath each year.

I am saddened that it might take an act of the General Assembly to address this issue.  The introduction of this bill is, perhaps an extreme measure.  Still, I hope it will shed some light on a policy that ought to change with our without legislative action.

Best regards,

Seth Hicks

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Get Your House in Order: How Your Tax Situation Can Affect Your Family Law Matter.

This is a post about two “silos” that often get built next to each other on the law farm, specifically, family law and tax law. It is a lawyer’s job to find solutions to the problems our clients bring us. Unfortunately, many attorneys are trained and practice in “silos.” We do family law or criminal law or tax law. Here are a couple of situations where a tax problem can affect a family law matter and vice versa. If you have tax issues, you should bring them to the attention of your family lawyer and make sure their family law work takes your tax issue into account. This may mean brining in a tax attorney as co-counsel to lend their expertise in this specialized practice area.

Tax Issues Can Stall or Kill Family Court Matters.

Family court filings require financial disclosures. Tax information can be either required by the Court (http://ww5.stlouisco.com/circuitcourt/fcforms/MandatoryDocExchangeComplForm.pdf), or can be required to be provided as part of discovery (http://www.courts.mo.gov/courts/ClerkHandbooksP2RulesOnly.nsf/c0c6ffa99df4993f86256ba50057dcb8/eaf6abbe82915a0586256ca600521350?OpenDocument). This means you can be required by the court to give your tax documents to the other party when you file in family court. Usually, this affects division of property, child support or maintenance issues.

If you have a tax problem, you can face a catch 22 if you want to get divorced or set or modify maintenance or child support. Disclose, and you might give the other party the ability to use your tax problem to affect settlement discussions to your detriment. Fail to disclose and the other party can move for sanctions against you in family court. If you have an unresolved tax issue, the family court may also refuse to enter an order until it is resolved to avoid a conflict with the body of government involved in the tax issue.

If you have back taxes, missed filings, inaccurate filings or other tax issues, you should absolutely discuss them with your family law attorney and make a plan to address them before you file in family court. Discussing the issue first and making a plan can prevent many problems and make resolving the issue much less expensive.

Unresolved Family Court Matters Can Create Tax Problems.

Part of divorce is division of property between the two formerly-married parties. Division of property may carry tax implications. Tax Attorney Alex Curcuru http://alexanderlawfirmllc.com/ gave me the example of a property division where parties to a divorce fail to dispose of a house held during a marriage as a family law matter that creates a tax problem for his client. On dissolution or separation, the tax liability is divided between the parties or assigned to one party or another. With a settlement decree or judgment in hand and the proper deeds recorded, the tax liability is assigned to the proper party. Without these legal filings, state or federal tax agencies will see the property as held jointly by the parties to the marriage or mortgage. This means, though the parties have moved on with their lives and are no longer living together, both parties are still potentially on the hook for a tax liability that would arise at the time the home is eventually sold.

An unresolved property division can mean one party or the other faces a tax liability on a property for a relationship that no longer exists in the minds of the parties. Here, resolving the family law issue, can resolve the tax issue.

Conclusion

Don’t be afraid to talk to your family lawyer about tax problems or your tax lawyer about family law issues. An issue you don’t discuss with your lawyer can lead to bigger problems and greater expense. Brining in co-counsel in complex legal matters of this sort may cost more in the short term, but can save you money over leaving issues unaddressed until you are in the middle of a law suit.

Don’t be afraid to ask your lawyer if your problem is within their area of expertise. They should give you a straight answer if you do. Don’t be afraid to ask if they know a lawyer with expertise in a related area of law. They should not be afraid to refer out or bring in co-counsel if it would be in your best interest.

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Happy Holidays. You’re Evicted.

The Holidays are a time when people like to celebrate, but if you live in Missouri do not use drugs or allow guests or others to use drugs in your leased apartment or house.  If you do, you may be subject to immediate eviction under 441.740 R.S.Mo.

Immediate Eviction

This can happen very, very quickly.  When served with a petition under this section, the court shall hold a hearing as soon as is “practicable,” but no more than fifteen days after service.  (441.720.1 R.S. Mo.)Your landlord or the prosecuting attorney where you live can initiate a proceeding. (441.710 R.S. Mo.).  If they do not follow up on evicting you, the court may substitute others as a plaintiff to continue eviction or removal proceedings.  (441.730 R.S. Mo.).  At that hearing, you, people living with you and/or your guests can be immediately evicted and/or barred from the premises.  (441.770.2 R.S. Mo.).  You can be evicted unless you can show you “in no way furthered, promoted, aided or assisted” in the drug-related criminal activity AND that you “did not know or have reason to know the” activity was occurring on the property. (441.750.1 R.S. Mo.). This means if you allow people to use drugs or you know or could reasonably guess they were using drugs in your home, you can be evicted.

Being evicted under 441.720.1 R.S.Mo. does not terminate your tenancy.  That may mean you would still be responsible for the rent for a period of time prior to your eviction even though you are no longer allowed to live in the property.

Limited Access to an Attorney

You may have trouble getting an attorney to go with you to the hearing.  At the hearing you get no more than fifteen days’ notice for, the Court may not issue a continuance or stay unless you can show “compelling and extraordinary reasons” for the stay. (441.720.2 R.S. Mo.).  This means many lawyers may not be able to clear their schedule to go to court with you for your eviction hearing.  Lawyers are rightfully reluctant to enter in cases where they do not have adequate time to prepare a case that will advance a prospective client’s interests.  Your landlord or the prosecutor may have taken time to gather evidence of drug related criminal activity before they filed to evict you and you may not have had time to prepare evidence to rebut their evidence.  You may find yourself in court alone against an opposing party with a lawyer and a case prepared against you.

You May Have to Report Your Friends and Family or be Evicted

You may have to choose between initiating criminal drug proceedings against your friends or people who live with you or be evicted yourself.  If an action is filed alleging a person you allowed to be on the premises, you may still be evicted if you do not seek a protective order against the person engaging in drug-related criminal activity on the premises or report them to the police or the prosecutor that they engaged in drug-related criminal activity in order to initiate criminal prosecution against them. (441.750.2 R.S. Mo.)  If, after your friend or family member is removed from your rental for drug related criminal activity, you allow them to return to the premises or do not report to the plaintiff (whether the landlord, the prosecutor or presumably another party later made plaintiff) that they were on the premises, you yourself can, then be immediately evicted. (441.740.5-.6 R.S. Mo.)

Your Right to Sue Your Landlord for Wrongfully Evicting You is Limited by Statute

You cannot sue a landlord or other party who continues attempting to evict you after a landlord initiates an immediate eviction proceeding unless they do so ” in bad faith.” (441.870 R.S. Mo.)  This means if they believe drug related criminal activity but are not merely attempting to evict you for some malicious purpose and they evict you, you cannot sue them for evicting you.  Prosecutors enjoy near total immunity from law suits under prosecutorial immunity.  So, you can be evicted negligently, but in good faith and have no civil remedy against anyone for any damages you suffer as a result of the eviction.

Conclusion

“Do not engage in criminal conduct” is a no-brainer.  Don’t engage in criminal conduct and you won’t have to worry about any of this. Consider, however, the hypothetical landlord who takes a dislike to a hypothetical tenant with some friends who like to party.  In addition, to refraining from criminal conduct, please be careful what you allow to occur in your home and be aware of what others who are in your home are doing there.

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Updated Your Estate Plan Lately?

“But I’m not an English Country Squire.  Why would I have an estate?”

You don’t.  No one does until they die, but you want to tell the people who will look after your eventual estate what to do with it.

I’m just back from a family funeral that happened yesterday.  It was chaos, but it could have been worse.  My grandfather passed away after a difficult time in the hospital.  Ultimately, my grandmother had to decide to withdraw the feeding tube and let him go.  This was what he would have wanted.

You probably have no idea how many things have to happen to send a loved one to their final rest and you probably won’t until you have to do it.  What went well was the proper family members were allowed to visit grandpa in the hospital.  It was clear who was empowered to make the medical decisions for him, they were able to get the medical information they needed to decide and the decisions were made in accord with his wishes.

Grandpa told grandma what he wanted so she could make the decision with a minimum of worry.  As my grandfather’s spouse, my grandmother was the person the medical personnel were legally obliged to ask what to do when my grandfather became incapacitated.  Had my grandmother been unavailable, due to absence, death or incapacity, my grandparents had executed durable powers of attorney and health care directives designating their children, my mom and my uncle, to make decisions for them.  My grandparents are elderly and have had some health problems.  They have updated their wills recently and my grandfather’s last wishes are preserved for probate of his estate.

Then, I talked to my mom and dad.  They have no durable powers of attorney or health care directives.  They have not updated their wills in over 20 years.  If they should be in a car accident tomorrow, as their child, I will be legally able to make the same decisions, but they have never talked with me about what live-saving measures they want in the event of their incapacity.

So, I know what I’m giving mom and dad for Christmas.  (I’ll give them other presents too.)

When was the last time you reviewed your will?  Who will decide what happens to you if you become incapacitated?  What if that person is unavailable or also incapacitated?  Have you executed a release for your medical records to allow them access to the information they need to make a decision?  Have you talked to them about what you want to happen to you if you become incapacitated?  Is there someone who is not your legal spouse or child who you want to be able to visit you in the hospital?  Have you indicated that in a health care directive so the hospital must allow them to visit you?

If you are in an unmarried relationship, this is incredibly important stuff for you.  Your partner may be unable to make any of the decisions you want them to make.

If the answer to any of these is “No” maybe you should put another Christmas present to yourself on your list this year.

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Are we Penn State?

I spent a good amount of time this weekend talking about Joe Paterno and not because of football.  As an attorney with a Master of Social Work degree and years of experience working in and around child welfare, child sexual abuse and mandated reporter laws are issues that hit close to my heart and my professional life.

First, let me say despite the media’s initial concern about Penn State’s football program followed by its stumbling attempts to express sympathy for and sensitivity to the alleged victims in this case, I don’t care one bit what happens to Penn State’s athletic program compared to what happens to the alleged victims.  I feel the same about any athletic program when there are unresolved legal and factual issues about an alleged abuser and untreated, uncompensated alleged victims.  Victims, especially child victims matter.  In comparison to the suffering of a child victim of sexual violence, football does not, no matter how many years of service or how many wins a coach may have.

Secondly, let me tell you about the discussion I had with my dad this weekend about the legal and moral responsibilities that are at play in a situation like the one in which Joe Paterno and the Penn State football staff found themselves this weekend.  If you aren’t familiar with the story, here’s a link with a summary of events as I understand them to   as I write this.  http://espn.go.com/college-football/story/_/id/7207465/penn-state-nittany-lions-sex-abuse-scandal-jerry-sandusky-was-campus-last-week-reports-say.

My dad is a retired middle school teacher and long-time coach.  He takes his mandated reporter status very seriously and was very angry at Joe Paterno and believed Paterno should face criminal charges for failing to report the alleged child abuse by former assistant coach Jerry Sandusky to law enforcement.  Paterno did report to Penn State Athletic Department personnel, but did not take the extra step to report to law enforcement or child welfare agencies.  In my dad’s role as a public school teacher working with children, he would have faced criminal charges for failing to report the alleged conduct of Sandusky to police or child welfare.  He felt very passionately (the way he does) that Paterno’s conduct violated “the spirit of the law” if not “the letter of the law.”

Let’s take a step back here for some lawyer stuff.  Dad taught 11-13 year-old students at a public middle school in Illinois.  Paterno coached mostly adult college students in Pennsylvania.  Generally, our system of law does not place an affirmative (making you do something as opposed to preventing you from doing something) duty to report crimes.  This is a very old principle of our law that is older than our Constitution and comes down to us from English law.  Mandated reporter statutes place a higher duty than the general population has on certain people who work in certain kinds of jobs that put them in constant contact with children as part of their job.  Typically these sorts of people are health care workers like doctors and nurses, public safety officials like police and fire fighters, child welfare workers, and public school employees like teachers.  But remember, the duty owed by a mandated reporter to a child to report suspected abuse comes from the state statute in the state where the mandated reporter works.  In Illinois as a teacher, my dad was required to report to child welfare officials or police AND notify his superiors at the school when he suspected child abuse or neglect.

Here’s the relevant part of Pennsylvania’s mandated reporter law.  This is the law that defines the legal duty Paterno owed to the alleged victims.  Here’s a link to the whole section. http://law.onecle.com/pennsylvania/domestic-relations/00.063.011.000.html

It’s a lot to read.  If you trust me, read on and I’ll explain the parts that are important.  If you don’t, follow the link and check the language of the statute against what I say.  This law says what a mandated reporter must do.  If the law doesn’t apply to Paterno, he had no legal duty to do anything to report the alleged abuse.

1)  Notice “college football coach” isn’t listed under (b), the list of persons required to report, but he might fall under the “but not limited to” language there.  His training to coach adult college football players may also not be sufficient to allow him to form a reasonable belief about abuse or neglect, but we don’t know exactly what he was told or when.  Paterno probably falls under part (c) above for staff members of public or private agencies.

2)  If Paterno was a staff member at an institution obliged to report under part (c), he might not have come into contact with children as part of his occupation, practice or profession.  He probably has to do with youth football camps and clinics as many college coaches do, but a court might find the kind of contact he may have had in the course of these camps and clinics constitutes “contact” for the purpose of this law.  There may be some argument over whether this kind of contact was in his “occupation, practice or profession” as a coach of adult college football players as an employee of Penn State or whether this was an extra activity, but I bet there were Nittany Lions all over the t-shirts and promotional materials for these camps.

3)  Even if Paterno came in contact with children as part of his occupation practice or profession, his obligation was to notify the person in charge of the institution (Penn State).  He arguably did that by notifying his superiors in the athletic department.

4)  When the alleged abuse occurred, a law with less stringent reporting requirements was in place.   You can read a discussion about that at: http://mattmangino.blogspot.com/2011/11/penn-state-mandated-reporter-law-under.html

Not very satisfying is it?  That gets back to my dad’s argument about the letter versus the spirit of the law.  The letter of the law lays out a mandated reporter’s duty in words.  If a person does not satisfy their duty as it is written in the law, the law prescribes a penalty. In this case it’s a misdemeanor for failure to report suspected child abuse.

But what would happen if our courts enforced what they saw as “the spirit” of the law?  How would Joe Paterno know what his duty was?  Whether to report child abuse is an easy one.  Yes, you report.  To whom you report may be tougher.  Joe’s a less sympathetic case.  He’s probably a millionaire or at least doing very very well financially.  He can probably get another coaching job relatively easily (at least after the media attention dies down and any possible criminal liability is resolved).

What about a janitor at Penn State who volunteers at football camps with youth?  Does he come in contact with children in the course of his occupation or profession?  Is he one of the enumerated lists of people obliged to report?  Does he have the training or experience to form a reasonable suspicion that abuse has occurred?  Let’s pretend our janitor, who we’ll imagine has a high school degree in this economy reports the Nittany Lions for harboring a child molester in College Station, Pennsylvania.  Football is a religion in College Station and Joe Paterno is its god.  Will our hypothetical janitor be able to find a new job if he’s fired for reporting to law enforcement or child welfare?  How will he feed his family while he’s looking?  Tougher question than Paterno?  If you were our janitor, wouldn’t you want to know what the law required of you before you made your decision to report?  Or would you want the courts to decide whether you were a criminal based on “the spirit” of the law?  Some lawyers and judges would call this judicial activism.

Do you know what your mandated reporter obligations are?  Do you know what the law says in the state where you live?  Is it more important to you to comply with the letter or the spirit of the law?  Here’s a link to a guide published by the Missouri Department of Social Services. http://www.dss.mo.gov/cd/pdf/guidelines_can_reports.pdf.  Do you think your state’s mandated reporter law would cover a Penn State situation?  Here is Missouri’s mandated reporter law.  http://www.moga.mo.gov/statutes/C200-299/2100000115.HTM

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How to Get Copies of Old Tax Returns

“Well… I paid my taxes for those years, and I meant to keep my records…”

Attorneys hear this all the time.  We know you want to do what you believe is the responsible thing and keep careful records of important things like state and federal taxes, but sometimes things don’t go as planned.  Then your attorney advises you to get some number of years’ records together and you’re feeling panicked.  Don’t panic.  Here’s how to get past years’ state and federal tax information:

For past years’ federal tax information:

http://www.irs.gov/individuals/article/0,,id=110571,00.html

This will get you a tax return transcript, which has most of the information on a tax return.  Fill out Form 4506-T (PDF), Request for Transcript of Tax Return.  It’s free.

http://www.irs.gov/taxtopics/tc159.html

Getting a W-2 is more expensive.  The IRS does not keep copies of those except as part of your actual return.  To order the actual return, fill out  Form 4506 (PDF), Request for Copy of Tax Return, and pay a fee of $57.00 per tax year requested.

Often the free transcript will not be enough.  Attorneys want the W-2 to confirm whether the information in your return is accurate.  Talk to your attorney about whether the free transcript will be enough or you need to pay the $57.oo per year for the full return.

For past years’ Missouri tax information:

go to:

http://dor.mo.gov/forms/1937.pdf

Fill out the form and mail or fax it to the address on the form.  There is no fee for this information.

Allow ample time for IRS or the Missouri Department of Revenue to get you your requested information.

If you’re seeking this information as part of a court proceeding, requesting the information sooner is better, now is best.  You and your attorney will want to review your information after you get it before it is produced to an adverse party in litigation, which takes time.  Do you want to hand such personal information to a person who you’re suing or is suing you without your attorney reviewing it to make sure you’re not giving away information that might hurt you?  I didn’t think so.

 

 

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The Amazing Unenforceable Handicapped Parking Space

Litigation isn’t always the best answer. Most people learn what a lawyer is on TV, and TV lawyers are always in court. So, it’s often the first thing clients think to ask for. It’s often the most easily-billable answer and it’s what they teach you how to do in law school, so it’s often the thing attorneys are most comfortable with. Good attorneys counsel their clients to do what’s actually in the client’s best interest like the Rules of Professional Responsibility say we must. They start with what the client needs, not with what remedies are available.

Here’s a story

A friend of a friend was having a problem with her parking space. She uses a wheel chair and lives in a condo. Somebody (we don’t know if it was other residents or somebody visiting other residents in her building, but somebody) was always parking in the designated handicapped space. She was unable to park in the space and couldn’t unload her groceries or do other things that the law reserving the space was designed to allow her to do. She tried for six months to get help with getting access to the parking space. She called the homeowner’s association and got no response. The property manager for the condo also wasn’t responding to her calls and e-mails. She called the police and they told her they couldn’t do anything because the parking space was on private property. She was at her wit’s end and nothing seemed likely to change because no one was listening to her reasonable, rational, legal and increasingly exasperated requests for help.

Now when I heard from my friend that his friend was having this problem, I had no idea what I would do to help. I spent about an hour or so doing a little legal research and found out 1) that the Americans with Disabilities Act and the Fair Housing Act offer legal remedies for property owners who don’t enforce handicapped parking spaces. If a resident with a disability makes a reasonable request for a property owner to accommodate their disability, the property owner has to comply with the request or face possible civil liability; and 2) the procedure for initiating a complaint with the Department of Housing and Urban Development; and 3) that if HUD investigated and didn’t find a violation, a private individual could bring a civil lawsuit.

I also found out that under Missouri law police departments can absolutely tow people who park in handicapped spaces and parking in handicapped spaces is a misdemeanor. Both Missouri laws took effect on January 1, 2005 and there was no reason I could figure out why the police officers my client had spoken to weren’t enforcing the violation of the handicapped space under a law that had been on the books for over six years by the time my client had started having problems with people parking in her space.

At this point I laid out the options to my client. One option was to write an attorney letter to the landlord explaining the penalties available under the law for failing to enforce the space and threatening to make a complaint with HUD. I explained that this approach could have practical problems for her. The next time she had a light bulb out or a problem with an appliance, having filed a complaint with HUD might make the landlord less responsive to her requests for help. Since her building was a condo, the property manager worked for the other tenants who might be parking in the space just as much as they worked for her. I guessed they were probably dragging their feet on enforcing the space because of this.

Another option was to call the police department and speak to a higher ranking officer than the one who had responded to her calls about the violation of the parking space. The police do not have the same problems with being employees of the people likely to be towed for violating the space and they are able to ticket and authorize towing of violators of parking spaces. I guessed that either the police department had a policy not to enforce handicapped spaces in her neighborhood or the officer who responded just didn’t know she could enforce the space.

My client called the police department and spoke to the watch commander for the district. Watch commanders are more experienced police officers who supervise the officers on patrol for a district on a given shift. They sometimes know the law a little better on one point or another than an officer who might respond to a given call and they are more responsible for maintaining good relations between the department and the community. They are also not in the middle of an emergency to which they must respond like a patrol officer might be and might have a little more time to think about a problem.

I advised my client to call during first shift when the officers with the most seniority typically work. I advised her to phrase her question to the watch commander as a request for information about how to handle the situation and not as a complaint and to express to the watch commander that she understood it was a difficult problem but that she really needed help figuring this one out. The sergeant she spoke to told her that just that Wednesday the law had changed and now the Department could enforce handicapped parking violations on private property, that she would be sending out an officer to patrol my client’s neighborhood specifically and that that officer would be instructed to tow violators in handicapped spaces. OK, “last Wednesday” was completely fishy, since the law had plainly been in effect for six years, but for whatever reason now the parking space was being enforced. Problem solved with no friction with the property manager.

Incidentally, when my client said she’d been talking to a lawyer the property manager started returning her e-mails. The homeowner’s association sent out an e-mail to all residents asking them to respect the space and the property manager instituted a policy where they’d first put a sticker on a violator’s car warning them to respect the designated handicapped space and towing them on the second offense. Not a perfect remedy given the requirements of the law, but still a step forward that let the property manager try not to be the heavy with their customers when possible but still enforcing the space for my client.

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Wrestle a Bear, Go to Jail: Sometimes the Law Can Be Fun

Did you know in Missouri wrestling a bear (Section 578.176 R.S. Mo. (Adopted by Initiative, Proposition A, § C, November 3, 1998)) is punishable by a fine not to exceed one thousand dollars (Section 560.016 R.S. Mo.) and a jail term not to exceed one year (Section 558.011 R.S. Mo.) ?  That’s right.  Wrestle a bear in Missouri, go to jail.  But wait.  Go back to the first citation and read carefully.  You saw right.  That law was enacted in 1998.  Not 1898.  I was surprised too.  It’s in the Missouri Revised Statutes in the “Miscellaneous Offenses”, the section which includes vulgar or profane language on a bus, (Section 578.315 R.S. Mo.) and feigning blindness for profit (Section 578.075 R.S. Mo.).  Alabama has a similar law, enacted in 1996.  (Alabama Code Section 13A-12-5).  In Alabama, wrestling a bear is a class B felony punishable by 2-20 years in prison and a fine of up to $30,000. (Ala. Code  Sections 13A-5-6; 13A-5-11).  It gets stranger than that.  The Missouri law has a rodeo exception. (Section 578.182.3 R. S. Mo.).  So, wrestle a bear in Missouri, go to jail.  Unless you’re wearing chaps.  Then it’s OK.

The Missouri law was enacted as part of a broad array of animal cruelty prevention measures in a ballot initiative in 1998.  Originally, bear wrestling would have been a Class D felony.  That’s right.  Wrestle a bear in Missouri, lose your right to vote.  The legislature (as it often does with animal cruelty laws like puppy mills) amended the language in the original ballot initiative to weaken an animal cruelty law, bringing the penalty down to a misdemeanor in the final statute. 

I started researching this law in law school, when I didn’t have cable.  It was an amusing way to pass the time when I had unlimited legal research resources, unlimited curiosity and a puckish desire to giggle at legislative oddities.  I write this post to show that sometimes the law is just fun.  That’s why a lot of us go to law school.

So where was this bear wrestling epidemic?  A google search performed by me in very little seriousness has not produced any newspaper articles or legal documents in Missouri, Alabama or anywhere about any cases of bear wrestling in the late ‘90s.  Was there a secret underground bear wrestling conspiracy?  Are the two big brown bears on the Missouri flag a secret message from a deeply hidden cabal of bear wrestlers?  The first rule of bear wrestling club must have been do not talk about bear wrestling club.

Missouri’s bear wrestling law leaves me with many questions.  In a state where officials advocate for limited government and individual liberty what does this sort of law say about our legislative priorities?  Was a regulation this specific necessary where I can’t find any cases of bear wrestling in Missouri?  Who thought it was a good idea to wrestle a bear?  What is the legal definition of “a rodeo?”   If any of you find the answers to these questions, I hope you don’t find out the hard way.  If you do, I hope you hire me to defend you.

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Why Is This Taking So Long?: Why Service Matters

When filing a law suit, clients often wonder why it takes so much time to get relief.  On reason that comes up early in a lawsuit is the emphasis courts place on proper service.  The United States Constitution guarantees due process of law to each citizen.  This right comes from a much older body of law stretching back to the Magna Carta.  State laws and constitutions also protect and define this right.   Generally speaking, “due process” means the government cannot take life, liberty or property from a citizen without going through certain steps to make sure the taking is just.  The proper steps are the process that is due a citizen to ensure fairness.

Proper service is one of the first processes due to a citizen.  Proper service is important because our law recognizes that it is not fair to take liberty or property from a citizen without 1) letting them know the court is considering taking away their stuff or  their liberty; and 2) giving them an opportunity to explain why such a taking should not happen.  Courts talk about this using the shorthand “notice and opportunity to be heard.”   Simply put, our courts will not take away a citizen’s property or put a citizen in jail without telling them there is going to be a legal proceeding against them and giving them a chance to come to the hearing and defend themselves.

The process our courts use to let people being sued know when the hearing is going to happen and give them a chance to defend themselves is called service.  When a plaintiff or petitioner (person filing a law suit; I’ll call them all “plaintiffs” from here on in for the sake of simplicity) files a petition (legal document telling the court what the defendant or respondent allegedly did wrong), the defendant or respondent (person being sued; from here on in, I’ll call them all “defendants” for the sake of simplicity) has to be served (given a copy of the petition) in a certain way described by law.  Service has to be done according to legal standards so the court can fairly take jurisdiction (literally “ability to say what the law is”) over the defendant’s liberty or property.

Proper service can take time.  The first method of service usually used for individual plaintiffs is service by the local sheriff.  Under most circumstances, the sheriff must physically go to the known address of the defendant and give a copy of the petition to a person over the age of 15 who is a member of the defendant’s family.  So, if the sheriff goes to the defendant’s address and no one is there, service cannot happen.  If the Plaintiff does not know the right address for the sheriff to go to, service cannot happen.  You can imagine other circumstances where the physical meeting of the sheriff with the service documents and the defendant or a person with whom the papers can properly be left do not meet up and service does not occur.  Until service happens, the law suit cannot move along.

Getting the service documents to the defendant can take months.  The papers involved in service are issued by the court, and are good for thirty days before they have to be returned to the court with an explanation for why they were not given to the defendant.  This can be extended to up to 90 days with permission of the court.  There are other methods that can be tried if personal service does not work, but they also take time and can cost additional money.  After the defendant gets the papers, they have 30 days to answer the allegations made in the petition.

Although it can feel frustrating to go through the steps of proper service, we do not want a system where proper rules of service are not followed.  Our courts exist to resolve disputes between citizens in a manner that prevents anarchy or even violence between people who cannot resolve their disputes without bringing in the court as a referee.  This only works if the People believe our courts are exercising their authority legitimately.  Imagine how you would feel about a court system that could take away your property or rights and maybe even put you in jail without telling you.  You don’t want that.  I don’t want that.  So, we have to be patient and wait for (and pay for) proper service.  It’s part of the cost of the “ticket” we buy to have the court hear our dispute and help us resolve it under the law.

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