Category Archives: Legal

To Have and to Hold – Part 8 – Dodge the Bullets

Four years after my first divorce, in a courtroom on the other side of the state, the parties were gathering to complete their divorce case.  Apparently, things were going really bad for the husband.  He knew he was going to lose it all, so it lost it all in a different way.

Mentally.

There was limited security in the courthouse.  No metal detectors.  The court relied mainly on its bailiffs to keep order.

The husband, seemingly an ordinary guy of even temperament, an aerospace technician, had stashed two pistols in his briefcase.  It wasn’t long before the gunfire began.

He shot and killed his wife.  Shot both his attorney and her attorney.  Shot a bailiff and a sheriff’s deputy.  Shot at, but missed the judge.  All before the police responded and took him down.

He sustained nine gunshot wounds – two to his head.

Before the paramedics arrived, and while he was still conscious, the story is that he exclaimed:

“Did I kill the bitch?!!  Did I kill the bitch?!!!”

Now that is some powerful hatred.  From a man who presumably, at least at one time, loved the woman he just killed.

Continue reading To Have and to Hold – Part 8 – Dodge the Bullets

To Have and to Hold – Part 7 – Bedtime Stories

They say time heals all wounds.  But that’s just a cliché.  Sometimes our minds gift us with the ability to forget, maybe selective dementia, erase the slate, ease the pain.  But other times, not-so-much.  And while writing about this stuff is therapeutic, it also raises those dead memories from the past.  Tears the scab off the old wounds and brings the pain right back to the surface again . . .

Oh, and I still have the paperwork. . . I’m afraid to throw it away.

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Continue reading To Have and to Hold – Part 7 – Bedtime Stories

To Have and to Hold – Part 6 – Oh Where, Oh Where Did My Property Go?

I was the charge nurse for a general surgical floor and you might say that things were a bit hazardous.  That’s actually putting it mildly.  You might have less risk of harm bungee jumping off the Kawarau Bridge in New Zealand with rubber bands wrapped around your ankles than receiving patient care under these circumstances.

Between sundown to sunup, just what would the body count be?

Working on the night shift meant that in addition to myself and a LPN, my staff was composed of a rotating group of five or six graduate nurses still waiting to see if they passed State Boards.  They weren’t licensed, but the hospital let them practice as though they were.   This small band of ragtag, inexperienced, semi-educated, youngsters and I had to take care of forty-nine very, very sick, post-op surgical patients.

We had twenty-four patients on cardiac monitors, and I was the only RN on duty and the only nurse certified in the reading and interpretation of EKGs.  I was the only nurse on that shift for that ward with any length of experience.  In addition to supervising my grads and ensuring their patients’ safety, I had to take a full load of my own patients.  And based on the hospital’s patient acuity system, each nurse would routinely be assigned 14 to 16 hours of patient care to deliver in an 8-hour shift.

Nice.

I worked those shifts at a full gallop.  And once the graduate nurses got their licenses, they would move on to other units and other shifts and be replaced by another group of graduates.  Thus, the five to six-month cycle of rotating bodies.  This always left me with a staff of inexperienced nurses who needed constant supervision and on-the-job training.

Crazy and dangerous as this was, we also had conflicting and distracting interpersonal situations to deal with during work hours because of the many doctor-nurse relationships.  It was quite a simmering stew of young women mixed with older, rich, prestigious men.

Soap opera and reality combined to form some pretty insane chemistry experiments.  Anything you can imagine, from nurses having “quickies” in the treatment room, to giving doctors blow-jobs in the bath room.  It was safe to say that there were more than just the patients’ body secretions floating about on the ward.

How long would a patient have to wait to get their call-light answered . . .

Continue reading To Have and to Hold – Part 6 – Oh Where, Oh Where Did My Property Go?

To Have and to Hold – Part 5 – The Alpha and Omega

* Ok folks, my apologies.  This chapter is a bit long at over 2500 words.  I had no idea where I’d go when I started writing this morning, but I thought it was important to provide some more personal history before getting to the technicalities of marital asset division.  To provide a better understanding.  Yeah, I was stupid.  Love is blind.  So at the risk of my own personal embarrassment here goes:

It’s said that every story has a beginning, a middle, and an end.  Of course, it’s a little more interesting to jump around a bit, so if you’re looking for chronological order in the tales of my marriages and divorces, well, you might have to string some of my posts together in a completely different way.

For instance, today, I’ll jump towards the end.  And then towards the beginning of my first marriage.  The Alpha and the Omega – in reverse order, of course.  Time to set the stage for the grand dissolution.  The first one.  Then wash, rinse, and repeat, maybe.  😊

Continue reading To Have and to Hold – Part 5 – The Alpha and Omega

To Have and to Hold – Part 4 – A Zigging and A Zagging

When my daughter was a teenager, I told her to avoid two things during her teenage years that could leave her struggling for financial gain and independence for the rest of her life.  Two Albatrosses, that could strangle and weigh her down and prevent her from ever getting ahead.

Smoking cigarettes and having babies.

These two things are incredible financial weights that can decimate monthly earnings, prevent you from going to college or learning a trade, and have the potential to actually impoverish you if take these on early in life.  Especially in your teens, before you’ve even start building a career.

But there are other weights we can acquire later in life just as devastating, and some might put marriage in that category.   Why, because they dissolve and turn into everlasting debt.  Or at least very long-standing debt.  The debt from a divorce can bankrupt you.

***

Continue reading To Have and to Hold – Part 4 – A Zigging and A Zagging

To Have and to Hold – Part 3 – Where the Rubber Meets the Road

I remember in my first semester of law school being in property class.  One of my fellow students was answering the professor’s question.  They grilled us pretty hard.  The Socratic Method.  My classmate made an error.  They had said,

“Well, that’s not fair!”

My instructor paused for a moment.  Chuckled.  And then replied.  “I was wondering how long it would be before someone used the ‘F’ word.  If you’re going to argue that something is not ‘fair,’ then you have to tell me why it is not ‘legally fair’.”

***

Continue reading To Have and to Hold – Part 3 – Where the Rubber Meets the Road

To Have and to Hold – Part 2 – Contract, What Contract?

So, what’s all this talk about a contract?

And forgive me, but this post is going to get a little technical.  But not too technical. 😊

If you haven’t, you might want to read part one first to understand this post’s jumping off point.  Also, nothing I’m going to talk about will cover all of the intricacies of the law, or the evolution of marriage law, nor will it constitute legal advice.  If you want true legal advice, please go hire an attorney.

Here we go . . .

Continue reading To Have and to Hold – Part 2 – Contract, What Contract?

To Have and to Hold – Part I – Myths of Old and New

I listed a couple of my disclaimers in yesterday’s intro into this series, but I better cover them here as well:

My writings on this topic will be based upon a mix of personal experience and my experience as an attorney.

All opinions are my own, and it is not my intent to upset anyone in any way or feed into any stereotypes or traditional prejudices that people may have.

None of us can have a full understanding of what other folks are doing, or what’s in their minds, their perspectives, what they were taught, what their intentions are, or why events in their lives may have unfolded the way they did.

Obviously, since I’m a male, you will be hearing a male perspective, but I’ve tried to balance that and be as objective as possible.  For those following my blog, you may remember I did a series on being “Woke” where I discussed gender roles and patriarchy, and I tried to provide a balanced discussion in that series as well.

Also, readers may span different generations and have been taught completely different things and may approach love, sex, and marriage in completely different ways than prior generations.   Or they may come from a different cultural base that treats relationships completely different than from the way they are treated in this country.  One of my blogging friends just this morning introduced a different term for this discussion – the “bonded pair,” and I like that because it encompasses much more than a single concept.

I have edited parts of my articles to remove personal observations that some might find objectionable.  It is not always easy for people to look in the mirror, or into the mirror I’m holding.  I’m trying to respect that.  But those observations may come out once comments begin.

Everyone will have their views, and I hope you will share yours with me frankly – trust me, I won’t be offended.

All that being said, let’s dive into some myths.  Even at the risk of my own embarrassment. :-0

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Continue reading To Have and to Hold – Part I – Myths of Old and New

Speaking Freely

**Disclaimer: By writing this post, I am in no way claiming to be a constitutional expert.  I am commenting as a now retired attorney, who did ace Con Law, and did have many opportunities to see all this stuff play out in the legal arena for almost 20 years.  Give it whatever credibility you choose.  It’s my blog, and I’m speaking freely 🙂

*****

I have intentionally not posted too many articles to the political section on my blog because we seem to live in a time where such issues are truly filled with volatility.   By that, I mean people tend to get a bit EXPLOSIVE (imagine that word in flaming font that WP sadly doesn’t support) about their political opinions and there is plenty of hate-speech circulating about the Net without me stirring the pot on Word Press.

Word Press is more of a happy place for us writers, as it should be.

And while there are many web forums where people do speak freely, and at times in threatening manners, from what I’ve read, not many people understand what this means from a legal perspective at all.  Not even close.

So, today I thought I would speak about speaking.  😊  It seems like a particularly appropriate topic given CEO Jack Dorsey’s announcement that Twitter would ban political ads on its social media platform.

And before people start screaming that Twitter’s decision is somehow violating someone’s rights, let me just say from the beginning, it’s not.  Plain and simple.  Not even close.

And, I hate to tell you, there are no Constitutional rights to smoke cigarettes or eat cheeseburgers either.   That statement may actually irritate some people a lot more than Twitter’s decision to ban campaign ads.  But it’s also true.

Continue reading Speaking Freely

Relationships – What’s Binding? Heart, Soul, or Contract?

My blogging friend, LA, recently wrote a couple of posts about one of the traditions surrounding the marriage contract.   And yes, while the piece of paper a couple signs says “marriage license” it’s actually a contract with a lot of implied terms and conditions.

The tradition LA had focused on was that of the men asking parental permission to marry their daughter.  This question provoked some good discussion on the possible drawbacks of maintaining such a tradition in modern times.

At the same time this discussion was transpiring, I came across an article suggesting that married couples needed an additional contract, a “relationship contract,” especially if they were a dual-career couple.

Continue reading Relationships – What’s Binding? Heart, Soul, or Contract?

Bullshit – Take 2 – Being “Woke” – Part 2

Ok, so yesterday I talked about how I had attempted to write a story about the use of the slang word “Woke,” and how I didn’t quite land on the mark with that first draft.  The post I was working on is part of a series I’ve waded into about the fray between gender roles, well, maybe gender behavior says it better.  See my previous posts, “Query” and “Tse’itsi’nako – Thought Woman ‘Being Woke’ – Part 1.”

So, here’s take two – on the Bullshit post. 😊

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Continue reading Bullshit – Take 2 – Being “Woke” – Part 2

Framers, Federalists, and the Reality of the Administrative State

The Framers of the Constitution wanted to avoid the problems of the governments they were all running away from in Europe, so while they wanted a centralized government for certain functions, like taxation, printing a common currency and conducting wars, they also wanted less power in that centralized government to prevent abuses and more power vested in the individual states who theoretically would better be able to determine their specific jurisdictional policies and priorities.

They also wanted to form a Union, and concessions were required to get all of the states on board.

Of course, terminology in law is often stood on its head and “Federalism” has become one of those terms.  Federalism, generically speaks to the relationships between the federal and state governments and the original “Federalists” wanted some form of centralized government as opposed to those who did not.  But the term does not mean more “Federalization” of government, it means less.

The philosophy of the Federalist Society today advocates for a very limited federal government, for a strict constructionist view of the Constitution, and for strong adherence to the separation of powers doctrine.  That doesn’t sound so bad.

Except, “strict construction” and “strong adherence” are just as susceptible to legislative and executive manipulation and to judicial activism as is applying the “spirit” of the Constitution.  And laws and social policy are shaped and changed just the same by “textualists” as they are by “living documentalists.”

It is all a fight over words, definitions, and semantics, and it’s all highly partisan and politicized regardless of any faction claiming otherwise.

And, the reason I bring this up is because how this all intertwines with what has become the modern “Administrative State,” and the massive amount of power being wielded by federal and state agencies that weren’t created in the Constitution.  This seems not to have been contemplated by the Founders and certainly seems opposed to what modern-day Federalists all talk about.  So how did this come to be?

And again, standing language on its head we have the “Non-Delegation” doctrine flowing from Article I and the Separation of Powers doctrine.  So we have three branches of government that are supposed to stay put in their respective arenas, provide checks and balances, and not run around giving their authority away to the other branches or interfering with the authority of the other branches.

For example, Congress can’t pass a law that would allow the executive branch to pass legislation – they can’t delegate that authority away.  But the Non-Delegation doctrine has been stood on its head and has become a means of defining the opposite.  It is used to define just what authority Congress can delegate away and who gets to control that authority.

And while Congress largely gives away authority to the executive branch, it will at times, muck around with the authority of the courts by tinkering with structure and jurisdiction, and by dangling the power of the purse over the heads of the judiciary when they get upset over an unconstitutional law being struck down.

Turns out, the Constitution, over time, probably to the chagrin of the Federalists, has been interpreted to allow Congress to create executive branch level agencies.  They create agencies with what we refer to as “Organic” or “Enabling” statutes and while the agencies’ powers are limited by these statutes, Congress gave agencies a little boost by allowing them to promulgate “rules.”  And, gee whiz, rules, if properly promulgated, have the same force and effect as statutes.  Lawmaking.

When you think about it, Congress expanded the executive branch big time.  They created much more of it than the Constitution originally did and much more of it than people probably like.  And, then they delegated away some of their legislative power to the executive branch (rule-making), but we call this quasi-legislative authority.  And what the Legislature (Big “L”) giveth, it can taketh away.  Although changes may be slow.

This is true at both the Federal and State level and we have Administrative Procedures Acts at both levels to give agencies some guidance and fill in the gaps in the agency-specific Organic statutes.  And these procedures allow agencies to intrude into the Judicial branch too!  They give agencies quasi-judicial powers to hear and decide contested cases, subject to judicial review of course.

And guess what, since the executive branch enforces the law and agencies are by nature regulatory bodies, we naturally have executive prosecutorial functions as well.  So agencies can make the law, prosecute under that law, and convict you (so to speak) under that law, all under one roof.

Agencies do a little more than licensing and maintaining files of annual reports.

Of course, the legislature generally did not delegate any authority to agencies to run around imprisoning people as punishment for any types of violations, so once the agency “convicts” you, the only penalties agencies can implement have to be found in the statutes themselves or you have to go to court for yet another judicial proceeding.  The Sixth Amendment is still alive, for the moment.

Federal and State legislatures can’t be experts in everything and there is so, so much to regulate that we have evolved into a “Administrative State” that has multiple layers of regulation that come from authority delegated out to the Executive Branch by Congress or by State Legislatures.  And the executive agencies’ regulations and decisions are given considerable deference by the Courts because the agencies are the “experts” in their respective fields.

So while many people focus on the acts of the legislature, which is a good thing to do, they should also pay close attention to what’s happening at the state and federal agencies, because there is much more law and social policy setting going on there that has a much more immediate impact on the populous.  You can look at current environmental policies for example.

There, I just kind of laid out the framework for how agencies evolved.  I’m not trying to address how different administrations have used the agencies to implement particular agendas or the merits of specific agendas.  At least not today 🙂

***

Photo:  My pocket Constitution.  These things are good little tools to have and it might be wise to read the Document once and a while.  The Constitution is actually pretty short.  And pretty amazingly well done.  The development of the Administrative State has shifted major powers to the executive branch, and that is partly why administrations do receive so much attention – because of the dramatic effect they can have on people’s day-to-day lives.

BTW: On a personal note.  Federal and state agencies have administrative law judges to preside over the quasi-judicial functions and trials at the agencies.  For part of my legal career I was a state Regulatory Law Judge.

About a year and a half ago, I applied to make the registry of qualified applicants for Federal Administrative Law Judges.  My understanding is they get 12,000 applicants when they open the registry, which is only opened about once every five years.  And they whittle that number down to 200 with an objective examination process.

They have been doing this since 1920 to ensure they get qualified applicants and to minimize the politicization of the process.

The competitive application process consisted of a series of examinations conducted by the Office of Personnel Management (OPM).  I made the list, scoring in that top 1.67% of the applicants 🙂 !! This didn’t guarantee me a position, but I could have been selected when there was a vacancy, subject to another interview process.

I recently received an email from the OPM informing me that our president, by executive order, terminated the competitive application process and eliminated the list of qualified applicants, thus doing what no other president has done since the registry’s creation and injecting politics into the selection process.  Selection by one, with no standard for qualifications.

Kind of sad, because the checks and balances set up by the Framers, and even those originally put in place by the independent branches, have been slowly getting whittled away, bit by bit . . .

 

 

Your Castle, Your Bubble, and What You Can’t Do to Protect Them

This is not an article about gun control, it’s about controlling yourself with guns.  For as a Louisiana man just found out the hard way, you may think you have the right to fire a weapon at a someone, especially a criminal, but it all depends on the situation . . .

Disclaimer: The information in this article does not, in any way, constitute legal advice.  Everyone should consult their own states’ laws and/or an attorney of their choosing if they wish to obtain an expert legal opinion of the laws in their jurisdiction and how they apply to them.

When I was clerking for a State Supreme Court Justice, in addition to drafting legal memorandum and court opinions, I gave tours of the courthouse along with historical lectures.  Invariably, people on the tours would ask questions about the laws and how they worked, especially the most controversial ones.  Like how judges get elected or appointed, abortion, or guns laws.

As I learned quickly in law school, the law generally does not work the way it is commonly perceived or displayed on TV.  I’m sorry, but you can’t get a legal education by watching Judge Judy.

So, explaining the law is sometimes tricky.  A case in point.  On one of my tours, a man asked a question, or rather he made a statement, that I tried to assist him with.  Basically, he said that since the state was going to allow its citizens to carry concealed weapons that this would immunize anyone with a legal weapon from any form of liability.  And, of course, he was wrong.

But despite my explanation of what the law stated and what it didn’t state, he refused to accept the facts that even if you are justified with using a firearm, that does not give you a license to shoot innocent bystanders if you are negligent or even shoot at criminals if the tables have been turned and you have become the aggressor and not the defender.  There are good reasons for this, because if you own one of these tools you have to use it responsibly.

I will try to summarize these legal precepts based upon my state’s laws as they are written.

Self Defense

With a few exceptions, you are allowed to use physical force against another to the extent reasonably necessary to defend yourself or others from an aggressor if you reasonably believe the aggressor is using, or will imminently use, unlawful force against yourself or those others.  But you can’t use deadly force unless, you believe it is necessary to protect yourself or others from death, serious injury or a forcible felony.

Castle Doctrine

You can use deadly force if it is used against a person who unlawfully enters, or remains after unlawfully entering, or attempts to unlawfully enter a dwelling or residence that you lawfully occupy; provided that it is necessary for self defense as stated above.  “A [person’s] home is their castle.”

Extension of the Castle Doctrine

The Castle Doctrine was extended to vehicles you lawfully occupy.  And extended further to where you can use deadly force in the same circumstances above if you occupy private property where you’ve been given authority to occupy that property.

Stand Your Ground

There used to be a duty to retreat from a situation if you could without engaging in a confrontation, even to protect yourself.  But that duty was eliminated in the following circumstances.  There is no longer a duty to retreat from a dwelling or residence or vehicle or private property or any location where you have a lawful right to be.

Keep in mind, if you are standing your ground, to engage in self-defense using deadly force you must still face an imminent threat of death, serious injury, or be the victim of a forcible felony.

To sum it up, there is a bubble around you and you have the right to protect yourself within that lawfully-occupied bubble without running away, but only if you face an imminent threat.

So back to Louisiana and what you can’t do.  A home invader entered the residence with a gun, stole cell phones and fired the gun at the feet of one of the occupants.  The occupants gained the upper hand, took the gun, and one occupant pistol-whipped the intruder.  The invader broke away and ran to his vehicle.  Note, he is no longer the aggressor and no longer unlawfully inside the home.  One of the occupants then opened fire on the fleeing vehicle striking the would-be robber twice.

That’s where things went awry.  The occupant of the home was not under any imminent threat of physical force being used against him at the time he opened fire.  There was no one else that needed protecting.  The invader had fled and was no longer remaining in the residence after having unlawfully entered it.  There was no longer a forcible felony occurring.

The lawful occupant that wanted to play cowboy ended up being convicted of attempted manslaughter.  Understand, that doesn’t let the invader off the hook.  He will still be tried for his crimes.  But no one is given the license to become a criminal because of another person’s criminal acts.  None of these legal doctrines offer protection from criminal or civil liability unless your situation matches the specific instances where you are legally allowed to use force or deadly force.

If the occupant firing the weapon at the fleeing criminal had negligently hit an innocent bystander, then he would also be subject to a personal injury lawsuit by that bystander.  That would be a civil matter separate and distinct from the criminal matter for which he was tried and convicted.

Yes, we have a right to own firearms and, yes, we have a right to defend ourselves when we are within our lawful bubbles, but those rights are not unlimited and we are not allowed to play cop or vigilante.

I know a lot of people who own guns.  Sometimes that ownership becomes incorporated in their ego.  They imagine themselves to be bigger than they are, stronger, more in control, and powerful.  God-like in their ability to take a life.  And therein lies the problem, it’s not that they have more control over the circumstances surrounding them, they have a greater responsibility to control themselves.

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Post Script:  I will be writing a piece on the 2nd Amendment before too long.  I had hoped to wait until the frenzy surrounding mass shootings and gun control had subsided, but it appears that, with the continual onslaught of gun violence, waiting for emotions to die down may not be possible.

Post Script # 2: After my post went up yesterday, a friend mentioned to be me she didn’t believe ego was always an issue with gun ownership.  And I agree.  Sometimes people find themselves in situations where they may be caught up in the moment or acting out of passion and not rationally thinking.  Other times a person may be confronted with a would-be perpetrator and that person has to hope they are making the best judgment call in the way they defend themselves because, while they have no desire to hurt another, they do not wish to become a victim either.  Who would?  The possible scenarios are limitless.  This all points to the need for good training and practice.  And the need to learn and understand the lawful uses of such weapons.

Photo: This photo was found on the Internet in the public domain.  A link to it traces back to the Virgin Island Free Press.

Link: Louisiana man convicted of attempted manslaughter for shooting at fleeing home invader.

Note: All links are subject to link rot.