Author Archive for Jason Cheung

Yes, You Can Steal a Car in Minnesota Without Moving It

During winter, the temperature drop in Minnesota can paralyze most vehicles. Each morning, J.V. would start his car and leave it in the driveway before leaving for work. One morning in 2016, J.V. spotted a stranger knocking on his front door. Suspicious, J.V. called the police. An officer arrived and found the man, later identified as Thonesavanh, sitting in J.V.’s car. The doors were locked and the headlights had been turned on, but Thonesavanh hadn’t moved the vehicle since J.V. started it. The officer persuaded Thonesavanh to step out of the car and arrested him.

Thonesavanh was charged with theft of a motor vehicle. The trial court dismissed the charge, since Minnesota defined theft of a vehicle as “taking or driving a motor vehicle” and there was no evidence that the defendant had moved the car at all. The appeals court confirmed the verdict, though it noted that the word “taking” was ambiguous. Taking could either mean “moving or transporting” or “having possession of.” The Minnesota Supreme Court took up the case, ruling that “taking” meant having possession. The state Supreme Court’s ruling means that Thonesavanh would be guilty of theft of a motor vehicle without ever moving it.

minnesotaThe Expansion of Law

Many courts believe that no words in laws should be surplusage – that is, every word in a statute should mean something and that there are no extra or redundant words. If the Minnesota Supreme Court reads “taking” to mean “moving or transporting,” then “taking” would be redundant since it would be mean the same as “driving.” With that logic, “taking” could only be the other applicable definition, “having possession of.”

Since Thonesavanh was sitting in J.V.’s car without his consent, Thonesavanh had locked the doors and turned on the headlights, adjusting the vehicle according to his wishes. With the doors locked, Thonesavanh was in control of the vehicle and was preventing J.V. from using it himself. Effectively, Thonesavanh was in possession of the car. Thonesavanh hadn’t moved the car but he had done everything possible to assert his control over it.

It might seem exhausting, elitist, and frankly boring, to spend four paragraphs arguing over the definition of a common English word like “taking.” However, this much word usage is necessary because the definition of “taking” was literally the difference between a guilty and non-guilty verdict. More importantly, these types of arguments are the difference between guilty and non-guilty not just for Thonesavanh, but for any other individuals arrested for theft of a motor vehicle in Minnesota.

What are the Implications of a Case Like This?

This process of arguing over the meaning of a single word or phrase can have enormous consequences. In cases like Thonesavanh, it separates a man from freedom and jail. In the big picture, these kinds of arguments over the meaning of a word also lead unintended consequences. Although the doctrine of surplusage is intended to ensure that judges don’t ignore the words written by the legislature, giving words different meanings can also lead to meanings that the lawmakers never intended either. When that happens, it is the people who suffer from good judicial intentions gone awry.

Divorcing a Spouse with a Mental Illness

“I, take you, for my lawful wife/husband, to have and to hold from this day forward, for better, for worse…in sickness and health, until death do us part.”

Most people want to believe that they can stand by their marriage vows no matter what happens. However, some people may discover that the new Mr. or Mrs. has a severe mental illness. In other cases, you or your spouse may develop a mental illness later in life. Many people will stand by their husband or wife “in sickness,” but time may bring greater and greater stress to the marriage with no respite in sight. If you or your spouse has a mental disorder that is breaking down the marriage, is there an exit ramp?

mental illnessCan I Divorce My Spouse If They are Mentally Ill?

Generally, an individual has capacity to divorce if that individual understands the nature of a divorce and the legal and financial consequences of being divorced. A mental illness may impair mental or emotional function, but as long as the person understands what a divorce is and how it will affect his or legal and financial status, the person can still divorce or be divorced.

Example #1 – A spouse with bipolar disorder may go through “manic” episodes where the person stays up all night and spends thousands of dollars in a month and then pivots to extreme depression where the person refuses to get out of bed and might physically hurt themselves if they do. Legally, it would be possible to obtain a divorce, even if doing so might trigger a depression episode.

Example #2 – A spouse is diagnosed with paranoid schizophrenia and believes that an old employer is blackmailing his wife and the family court judge into divorcing him. Legally, it would be possible for the wife to obtain a divorce, although a guardian might be appointed to manage the husband’s interests (for example, to prevent the husband from filing a frivolous appeal which would further exhaust his financial resources).

Example #3 – A spouse with Alzheimer’s Disease forgets that she was married and cannot remember she jointly owns a vacation home and two joint bank accounts with her husband. In this case, a court could rule that the spouse lacks capacity to divorce and the ruling would likely be affirmed on appeal.

Note that these are only examples and that courts determine capacity on a case by case basis. Consult an attorney to determine whether you or your spouse has capacity to marry or divorce.

Is It Moral to Divorce My Spouse If They’re Ill?

Some parties may worry about the moral or social effects of divorcing a spouse with mental illness. After all, marriage vows state that couples will support each other “in sickness or in health.” Many divorcees may feel guilty about leaving a lover in his or her time of need.

Moral considerations are ultimately up to each individual. However, if a mentally ill spouse is draining you for years on end, it may be imperative to your own health and mental/emotional well-being to at least separate from the other spouse, at least for a little while.

Annulment

Just as a party must have capacity to divorce, parties must have capacity to marry before getting married in the first place. Capacity to marry is similar to the capacity to divorce: an individual has capacity as long as he or she understands what a marriage is and how marriage would impact his or her legal and financial standing.

In some cases, it may be easier for a newly married couple to file for annulment due to mental incapacity to marry instead of trying to go through a divorce. If one of the parties didn’t understand that he or she was getting married, annulment will be a valid option.

On the other hand, annulment will be more difficult to prove. Unlike divorce, the party seeking annulment must actually prove that one of the parties lacked capacity to marry, while divorces today are typically no-fault divorces and no offer of proof is required.

Child Custody and Visitation

Although a spouse with a mental illness may have the capacity to be divorced, the mental illness may present obstacles to child custody. The Court will have two competing obligations. In all child custody cases, a judge must act in the child’s best interests. A judge must put the well-being of the children ahead of any other considerations. On the other hand, federal law requires that courts reframe from discriminating against mentally disabled individuals.

The compromise against these two competing interests is to determine whether a mentally disabled individual would be able to care for the children without endangering them. Judges cannot assume that a parent is unfit merely because he or she has a disorder. Parties must actually prove that the parent with mental disorder is unable to serve as a parent. And even if a disability might interfere with a parent’s ability to care for children, certain accommodations such as medication or supervision should be considered before visitation is reduced or custody removed.

Sarah Palin’s Defamation Suit Against NYT Tossed: What is the Line Between Biased and Fake News?

Sarah Palin’s defamation lawsuit against The New York Times has failed. U.S. District Judge Jed S. Rakoff dismissed Palin’s suit late August. Palin’s suit focused on an editorial the New York Times published shortly after a Congressional Baseball Shooting in mid-June.

In its opinion column, the editorial board alleged that the 2011 shooting of Rep. Gabrielle Giffords and several others was connected to a map passed around by Palin’s political action committee in 2010. The map showed several electoral districts — including Giffords’ — under illustrated crosshairs. The newspaper issued a correction two days later, clarifying that “in fact, no such link was established.” Shortly after, Sarah Palin filed her suit, seeking damages for the alleged defamation.

Judge Rakoff ruled that Palin’s legal team had failed to put forth plausible evidence of malice, a required element in a defamation suit by a public figure. Malice means that news outlets must knowingly publish false information or acted with reckless disregard for the truth towards public officials. Given the speed of events and the New York Times swift retraction after they discovered their error, it was very unlikely that the newspaper acted out of malice.

Fake vs. Biased News

Judge Rakoff’s ruling might also end threats of future suits by other prominent Republicans to sue “fake news” that print or publish unfavorable stories. The New York Times editorial linking Sarah Palin to the shooting of Representatives Gabrielle Giffors and Steve Scalise was poorly written, since it gave the impression that Palin’s campaign ads were an indirect causation of the Congress Persons’ injuries.

sarah palinThe reaction by many Republicans was to cast New York Times as fake news. Although the editorial lead to conclusions that were outrageous, it should not implicate the newspaper as a whole since the editorial was quickly retracted and the rest of the newspaper maintains an investigative team that has often uncovered real information that is in the public interest.

However, many people, including politicians in office, have confused biased news with fake news. Biased and fake news are not the same. Bias news means that the author has is writing or speaking in a manner that casts his or her “side” in a favorable light. The author is usually making an argument designed to advance some sort of agenda.

However, just because the author is making an argument favorable to his or her objective, doesn’t mean that the facts the author is using are fake. In fact, it’s often to an author’s advantage to use facts that are proven true so that the listener or reader trusts the author. All lawyers write bias legal briefs to advance the interests of their clients. Of course, lawyer’s pleadings are expected to be factually accurate; if a lawyer is discovered lying to the court, there will be consequences.

Fake news, on the other hand, is factually false and/or there is almost no evidence to support the claims. Fake news can be committed intentionally or unintentionally. If it’s the latter, it means the author made a mistake. If a child is taking a math test and answers “2+2” with “five,” the child is wrong, but he isn’t doing it intentionally. It might be reckless if the kid is just guessing what the answers are, but if he honestly believes two and two make five, then it isn’t reckless either. However, if the information is false and the author knows the information is false, then the author is intentionally spreading fake news.

Defamation against a public figure is not just fake news or incorrect news, but intentional or reckless fake news.  Defamation means that the author was spreading fake news intentionally or that the author was just widely speculating without regard to the truth, like the child randomly guessing on a math test.

Of course, there is some overlap. Biased news can be fake. However, non-biased news can also be fake and not all biased news is fake. If this is confusing, here it is broken down:

Non-Biased and Not Fake News is:

  1. Confirmed and collaborated news reports by several respectable news agencies
  2. Basic and easily confirmed facts presented by credible and authentic evidence, such as photographs and sworn testimony
  3. Exhibits entered into legal evidence by a court of law

Non-Biased and Fake News:

  1. Factual errors in news reports
  2. Factual errors in editorials

Biased and Not Fake News:

  1. Most editorials and opinion columns
  2. Legal briefs
  3. Polls with transparent methodology

Biased and Fake News:

  1. Unconfirmed reports which draws conclusions based on inferences and assumptions
  2. Polls with hidden methodology and/or completely one-sided questions
  3. Some editorials and opinion columns

How Does This Work for Real Political/Legal Issues?

Similarly, we could apply this model to address most political and legal issues:

Non-Biased and Not Fake News:

  • Obamacare is the nickname for the Affordable Care Act passed in 2010.

Non-Biased and Fake News:

Biased and Not Fake News:

  • Obamacare will raise premiums for some Americans.
  • Obamacare will expand healthcare coverage for some Americans.

Biased and Fake News:

Obviously separating biased and fake news will not always be easy. However, if we can learn to better examine our public rhetoric, perhaps we will be able to overcome our present political divide. And hopefully, after that, we can avoid any more shootings over political differences.

Class Action Lawsuit for Subway but Not for Equifax, Why?

In January 2013, an Australian teenager shared a Facebook picture of his Subway Footlong Sandwich alongside a measuring tape, showing that the advertised “Footlong Sandwich” was only 11 inches. Class-action lawsuits over false advertising of 11 inch sandwiches were filed by the dozens as lawyers all rushed to the courthouse to get a piece of the dough.

A Milwaukee federal judge approved a settlement that would have given the plaintiffs’ side $520,000 in attorneys fees, $500 for a couple of named plaintiffs, and a court order that Subway change its baking procedures. The catch: Subway had already changed its procedures before the first lawsuits were ever filed. The settlement did next to nothing to actually change Subway’s practices. One of the class members to the case, Theodore Frank, appealed the settlement. The Seventh Circuit overturned the deal.

According to Judge Sykes, the appeals court overturned the settlement because early discovery established that Subway’s baked rolls were almost uniformly within 12 inches. Rolls that were shorter were almost certainly due to minor statistic variance that was unavoidable. More importantly, the Court found that no customer was shorted any food, even if a sandwich roll fails to bake to a full 12 inches. Finally, subway sandwiches are made to order in front of the customer; any discrepancy can be immediately corrected at the counter.

Nevertheless, the class action lawyers who brought the case plan to challenge the appeal. They claim there were Subway memos that prove their case wasn’t a frivolous cash grab. The memos were not part of the public record because the documents were introduced during settlement discussions, where evidence is kept off the record.

class actionThe Value of Class Actions

Proponents of tort reform will certainly jump on this case and this ruling to justify reforming class action suits. Tort reform, at least in the early 2000s, mostly refers to reform of medical malpractice. However, those same reformers would be happy to remove or neuter class actions to the point of impotence.

The Subway case clearly highlights how class actions can be abused. The fact that a few sandwiches are off by an inch due to baking variances while the quality and quantity of the food received remains unchanged is hardly a serious injustice that warrants a court’s intervention. The case would merely be humorous if not for the idea that lawyers were profiting off the case while the consumers they claim to represent were given mere inches of the fees the lawyers received.

However, this Subway case should not bring the extinction of class action suits. In an era when corporations are allegedly neglect or even malicious, removing class action suits would only mean removing one potential tool in checking corporate power. The issue with the Subway case isn’t that the attorneys were paid ($520,000 is on the low end for a case like this), but that the alleged injury seems very trivial. An inch off a sandwich is hardly the end of anyone’s world.

Will Equifax Also Face a Class Action Lawsuit?

On the other hand, a company like Equifax is a more legitimate target for a class action. I’m not suggesting Equifax can be liable for being hacked; that would be like blaming a bank for getting robbed. However, the fact that Equifax knew for weeks that there was something wrong and failed to notify those affected is an egregious breach of public trust. If the hackers had obtained an individual’s information and Equifax had the opportunity to alert that individual to the theft of that person’s information, then Equifax can certainty be liable for that negligence.

Indeed, the use of class actions against Equifax would be solution that both sides of the political spectrum could support. Conservatives are divided on whether to use the heavy arm of the Justice Department to punish Equifax for its failure to report because conservatives prefer to minimize federal power and maximize the free market. The perfect midway point of that discussion would be class actions, private individuals coming together to sue a company instead of relying on the federal government to prosecute criminal indictments.

The only issue is that Equifax’s terms of service requires that individuals waive their right to a class action lawsuit. Class actions can be used against Subway to pay $520,000 in fees to protect a few hundred individuals from 11 inch sandwiches, but millions of Americans can have their private data stolen without ability to bring a class action. If people want to reform to class action, they should start with contracts that hamstring proper usage of these kinds of lawsuits.

Child Custody Dropoffs: Coming Halfway When Negotiating Meeting Points

One of the most common disagreements when parents share child custody, but live in separate households, is when and where to drop-off the kids. At first glance, it seems simple: just pick a halfway point between where the parents live. However, there are often logistical and emotional issues that make drop off times and locations more difficult.

Choosing the Best Location

Ideally, the best drop off and pick up zones will be safe locations where the child (ren) can safely leave one parent’s side and stay with the other parent. Many police stations offer parking spots where parents can transfer children in front of a security camera. Other good locations would be highly public and visible areas, such as a local Starbucks. The most common pickup times are afterschool. The custodial parent can pick up the child (ren) after school without seeing the other parent. Parks are often chosen because of their public accessibility and wide open spaces, but ideally the parents should pick a location where other people can intervene or report if a situation arises.

child custodyVehicle Issues

Sometimes, one parent doesn’t have access to a car. Or the parent doesn’t have a license. If transportation is an issue, the parties have a few options. If public transportation is accessible, the exchange point can be at a train or bus station. Bonus points if the station is protected by security guards. Alternatively, the parents could drop off at the other parents home. This is not always an option though; one parent might have been abusive towards the other or because it would be cost prohibitive for one parent to constantly be driving to the other’s residence.

Of the two, the cost prohibition would be the easiest to overcome. The other parent can pay additional child support to make up for the price of gas. Spousal or partner abuse is a bigger problem, but neither parent has to speak or interact with each other when the child(ren) leaves the car.

One last issue: if the children are young, each parent should purchase a child seat, booster or restraint for their vehicle. Even if neither parent thinks it’s necessary, a judge will likely bring it up and inquire about it. Purchasing that car seat can save your child’s life and save you a lot of grief from the court.

Tardiness or Abstinence

Another recurring issue might be if a parent is late or doesn’t show up at all. If the pick-up parent is late or absent, this would place a bigger strain on the custodial parent as it would change the custodial parent’s schedule or plans. However, it is a bigger issue if the custodial parent is late or absent.

First, always keep a calendar of such incidents. Mark down which days the other parent is late and for how long, and/or which days the other parent fails to show up. Second, if a parent fails to appear, try to call or text the parent. If the parent is excessively late (more than half an hour), you should also call or text the other parent letting them know you are leaving. You should always make an effort to communicate with the other parent before taking the child (ren) elsewhere. If the other parent is the custodial parent, you should contact the other parent immediately about where the parent and the child(ren) are. If there is no response, contact the police immediately; this situation is parental kidnapping.

Air Travel

In some cases, one of the parents moves out of state. If the children are young, be prepared to accompany them. As they become older, the parents and/or the children might wish to travel alone. Maturity will obviously be a big factor in whether that’s a good idea, but courts will give more weight to a child’s wishes as they grow older.

The elephant on the plane with air travel is money. Flying will be more expensive than driving around and there’s no way around it. The parents can agree to split the costs of flying, alternate paying for tickets, or have the price of tickets included in one parent’s child support or back pay.