Service of Process

Judge Reading Documents At Desk In Courtroom

The definition of the word “serve” in terms of the law is as follows: To deliver a legal document, especially a process or notice; to present a legal notice or subpoena to a person as required by law. The actual service of person isn’t nearly as glamorous as some of the TV shows or movies make it out to be- still, the issue of service, and whether it was done properly or improperly, can be a confusing one. Let’s look at one woman’s situation to help us gain a better understanding of the service of process, especially in family law matters.

She starts by telling us this: “I had my ex initially personally served with a motion to set aside our divorce judgment. After that all papers and related motions have been served on his attorney…”. Some of those related motions were need-based motions for attorney fees and costs, a motion to compel discovery, and things of that nature. The attorney whom she served with the motion papers remains her ex-husbands attorney of record through all of this. Her question: Was this service process correct? Or did her ex need to be personally served at the start of every separate motion?

Service on an attorney for a party, rather than on the party himself, is proper if the attorney has made an appearance for the party, either by filing a paper with the court on the party’s behalf, or stating in court that he represents the party.  If she started serving his attorney after he or she filed a paper on behalf of her ex husband, or showed up in court for her ex-husband, service on the attorney was proper. If she started ‘serving’ the attorney with papers before he or she appeared for her ex-husband, service of those papers was improper. However, filing a response to an improperly served motion would generally be considered a waiver of the impropriety. It sounds as if it is too late for her ex-husband to complain about improper service, if there is any to be found.

For more on the process of service, family law, and more, please visit our website: http://stanprowse.com

Civil Judgement: How to Collect

Past Due billA man was awarded $11,500 by the court in attorney fees after being sued by his ex-wife. As of now, she refuses to pay any of the fees. What’s more, she has also quit her job. This man seeks advice on how he can collect the payments he was awarded. That wasn’t all, however. He brought up the topic of child support. Due to her recent quittance, the amount of money he pays in child support increased. He wonders if there is some sort of paperwork he can file to discontinue his payment of child support until she repays the judgement.

The first thing we made sure he understood: his obligation to pay child support is entirely independent of his ex’s obligation to pay the judgement. He can file a motion to reduce the child support because time share has changed, or his income has gone down, or income should be imputed to her because she has the ability and opportunity to work, but not because she refuses to pay the judgment. Now, the question of enforcing a judgement all together. Collecting a judgment from someone who isn’t working and has no money in the bank is difficult. If she’s collecting public assistance, he can’t get his hands on it. Perhaps she has a car with equity in it, or expensive jewelry. He can send the Sheriff to ‘execute the judgment,’ or ‘levy,’ by seizing things like that, but they may turn out to be exempt if she argues about it. Threatening her with that might get her to start paying the fees, but it sounds as if she’s a tough cookie. This man needs to consult a lawyer and tell the lawyer everything he knows about her assets.

For more information on how to collect payment from a judgement and more, please visit our website: http://stanprowse.com/enforcing-a-judgement

OBAMACARE DODGES ANOTHER BULLET

obamacare-tax-creditsOn June 22, 2015, the U.S. Supreme Court decided King v. Burwell, a case involving the interpretation of the Affordable Care Act (ACA), otherwise known as Obamacare.  (King was some otherwise anonymous individual; Burwell was Secretary of Health, Education and Welfare.)  The Court’s decision preserved the availability under the Act of federal tax credits for qualifying low and middle income people buying health insurance on the insurance exchange run by the federal government, rather than on an exchanges run by a state.

The obamacare tax credits amount to insurance premium subsidies.   They may be taken in the form of a refund, which may help in visualizing the result.  If I qualify for the tax credit and you don’t, part of the tax you pay goes to me, so you are essentially paying part of my insurance premium.  Furthermore, if you do qualify for the tax credit, but you don’t buy your insurance through an exchange, you pay a penalty.

If you are a believer in income equality or feel that in principle everyone should have health insurance (whether your feeling is ethically, religiously, or economically based), you are probably happy about this.  On the other hand, if you are opposed to big government and a big believer in self-reliance, it amounts to loathsome income redistribution by taxation.

Disregarding the legal arguments advanced by each side, it’s pretty clear that the Obama administration was in the first camp, while Mr. King and his lawyers, and the folks paying their bills, were in the second.  Because this article is on a legal website, we turn to the legal arguments without saying much about the politics.

The decision turned on applying the rules of statutory interpretation to one phrase in the voluminous statute: “an Exchange established by the State.”  The first rule of statutory interpretation is the plain meaning rule; that words in a statute should be taken at their plain meaning.  The second rule is that ambiguous words should be interpreted, and interpreted in their context.

Here is the trick. If you focus on the context instead of the word, you may convince yourself that a word unambiguous when standing alone is ambiguous in its context.  Then you may disregard its plain meaning in favor of what you think the context requires.  If, for whatever reason, you like the result of doing so rather than the plain meaning result, you decide against the plain meaning.  That is what happened, for better or for worse, in King v. Burrell.

The word state is a defined term in the ACA, and therefore it is capitalized throughout.  It is defined as a state of the United States, which excludes the federal government.  In short, by definition the federal government cannot be a state.  Obamacare specifically says that a person gets the tax credit when he buys health insurance through “an Exchange established by the State.”  Standing by itself, the plain meaning of State cannot be denied – no state exchange, no tax credit.  A few weeks after the ACA was passed, its principal architect was videotaped saying exactly that.

To continue reading about this subject please visit our website below:

http://stanprowse.com/obamacare-tax-credits

By:  Stanley D. Prowse

The Supreme Court and the Law

JusticeHallTHE SUPREME COURT AND THE LAW

After the Supreme Court’s ruling on ObamaCare, it’s impossible to resist commenting on the role of the Court in American law.  Essentially the ruling is another battle in the war for supremacy between the federal government and state governments.  The federal government won this one.  It’s won most of them.

This war has been going on since the American Revolution.  The federal goernment’s first victory was the creation of the Constitution itself in 1789.  Compared to the Articles of Confederation which preceded it, the Constitution gives the federal government substantially increased powers over the states.

The extent of federal power over state power is frequently an issue in lawsuits filed around the country.  When the outcome is important, the case works its way up the judicial ladder until it gets to the Supreme Court.  The Court looks to the Constitution to decide the winner, and the Court’s interpretation of the Constitution becomes the law of the land, trumping state law.

In theory, the Supreme Court follows the law the way lesser courts do.  It is supposedly bound by judicial precedent and adheres to the Constitution.  In practice the Supreme Court often invents new law when it considers politically volitile cases, altering the meaning of the words of the Constitution to correspond with what it considers prevailing ideas of fairness and justice.  The Court decided that the Constitution outlawed school segregation by relying partly on the work of a Swedish sociologist.

Those who object to this exercise of discretion should bear in mind what might happen if the Court failed to keep up with the times.  In Dred Scott v. Sandford in 1857, the Court used a backward looking interpretation of the Constitution to preserve slavery.  Champions of states rights were jubiliant.  However, the Civil War followed, as well as an amendment to the Constitution explicitly abolishing slavery.

In the 1930’s, the Court again used a backward looking interpretation of the Constitution to strike down several New Deal laws expanding federal power over interstate commerce.  President Roosevelt was furious, and gave the Justices a tongue lashing during his inaugural address.  He also launched a campaign to pack the Court with additional members favorably disposed to his agenda.  This time the Court reversed course to avoid a poitical crisis, and federal power over the economy skyrocketed.

ObamaCare again involves expanding federal power at the expense of state power.  It is viewed by its proponents as the missing capstone of the New Deal.  Those who wrote and voted for it assumed the Court would use a expansive interpretation of the commerce clause to uphold it.  They were wrong, but the Court did uphold the centerpiece of ObamaCare under the federal government’s overwhelming Consitutional power to tax.

Perhaps Justice Roberts remembered the tongue lashing the current President gave the Justices during his last State of the Union address and thought better of provoking another court packing plan.  Perhaps he took to heart the old legal maxim that the law respects form less than substance.  Sometimes a penalty does look an awful lot like a tax.  He at least threw a bone or two to ObamaCare’s opponents.

In any event, federal power is once again expanded at the expense of the power of the states.  Whether this is good or bad depends upon your fortune telling ability.  If you see succesful universal health care in the future, it’s good.  If instead you see socialism bankrupting the country, it’s bad.  If you value freedom, you should at least be aware of the trend line, and thinking about the prospect of having the federal government as your constant companion 24/7.

For more information please visit our web site:
http://stanprowse.com

Stan Prowse

What Do You Want to Hear from a Lawyer?

Being-SuedYou have a legal problem and decide you need a lawyer.  When you meet with him, what do you want to hear?  Most people want to hear that they’re in the right, and they should fight…

You have a legal problem and decide you need a lawyer.  When you meet with him, what do you want to hear?  Most people want to hear that they’re in the right, and they should fight because they’ll win.  You can get that from a mirror.  What you should want to hear is questions – lots of them – about the circumstances underlying the dispute, followed by a discussion of the applicable law, the odds of prevailing, the risks of losing (would you have to pay the other guy’s attorney?), and the fees and costs which you could incur depending upon what happens as the case unfolds.  That would include the possibility of mediation or arbitration instead of a traditional lawsuit, and the possibility of settlement.

What you don’t want to hear is assurances that you’re absolutely right, that the other guy doesn’t have a leg to stand on, that he’ll cave quickly, and that it won’t cost much.  There’s a reason people keep saying there are two sides to every story – there are.  Sometimes there may be more.  Then there are the legal rules defining what’s wrong and what’s right, relevance, hearsay, burden of proof and so on.  It’s along list.  If your lawyer’s good, he won’t feed your ego by agreeing with everything you say and promising you the moon.  Instead he’ll do his utmost to evaluate the case honestly and give you frank advice about where you stand and what you should do.

You should want to hear the truth, and often the truth isn’t what you expected it to be or wanted it to be.  Listen.  Be prepared to alter you perceptions.  Seek a second opinion if you don’t know enough about the first lawyer to feel confident that he’s right.  But don’t go through one lawyer after another until you finally find one who tells you just what you wanted to hear from the start.  The advice will probably be wrong, and sooner or later you’ll probably regret you followed it.

For more information please visit our website:
http://stanprowse.com/civil-litigation

Stan Prowse

Owners Liability for Dogs

Nature of Clients Dispute: Neighbors dogs broke into my yard, and killed my children’s pets.

On about May 29th, my neighbor’s dogs, two Australian Cattle dogs, were not secured by the owner and they trespassed into my backyard, broke into a secure chicken coup by damaging it severely, and killed four of the chickens that were being lovingly raised by my 13 year old son and 8 year old daughter. My son and daughter were traumatized upon discovering the dogs in the coup with the dead chickens, blood, and feathers spread throughout the enclosure. The dogs had trapped themselves inside the coup and further damaged it as they violently tried to escape and to get at my children. Animal Control was called in and after a long struggle in which a back up unit had to be called in, the dogs were taken into custody. My wife and son filed an incident report with the Animal Control Officer. Six days after this happened, on the 4th of June, the dogs again were seen first fighting with each other in the street, after which time my wife called Animal Control, then later in my backyard again trying to get into the coup (which no longer has chickens in it) and then roaming around the yard and driveway such that my wife did not feel safe to leave the home. Good thing my kids were at school. They finally left the yard when they pursued a woman pushing a stroller. The woman had to confront them directly to scare them off. The Animal Control was unable to locate the dogs and therefore they were not taken into custody again. Since then, the animals have been seen by my neighbors out on the streets and in other peoples’ yards on several occasions. We are planning to file a citizen’s arrest warrant with an animal control officer and to file criminal charges, but wanted to consult a lawyer about filing a civil complaint as my family, and especially my children, are very upset about what has happened and continue to be terrorized by the dogs whom the owner does not feel a responsibility to secure even after what has happened. We want to act aggressively and quickly before someone (my neighborhood has lots of small children) ends up getting bit/mauled by these dogs. Thanks for your time.

Attorney Stan Prowse Response:

Nasty story.  I feel so sorry for your kids, and for you and your wife.

The law does not deal well with this stuff.  (I’m not so sure it deals all that well with anything, but that’s another story.)  Strict liability for a dog who bites a person is easy.  Without that, a lot rests on the owner’s prior knowledge that the dog is dangerous.  The emotional trauma to the kids is their claim (negligent infliction of emotional distress), but they can only sue by a guardian ad litem (you), who needs to be appointed by the court.  My guess is that the value of the property damage (including the chickens) is assured in small claims court (limit of $10,000).  But what you really want is a mandatory injunction against the owner to keep the dogs confined to his property.  In theory, a small claims court can issue injunctions, but that’s a tough sell in ten minutes.  A complaint filed as a limited jurisdiction case (under $25,000) in Superior Court would be a better vehicle, but if you have a lawyer, the fees might be prohibitive.  Then there’s possible retaliation by the guy when you sue him.