Document Notarization is Important

            There has been a lot of buzz about certain shortcuts that may have been taken with respect to foreclosures of some homes.  Most states have a protocol, or procedure, that is supposed to be followed when real property is sold at foreclosure sale.  Sometimes these procedures require that certain documents be signed or recorded.  When these documents aren’t prepared and signed like they should be, then there can be a temptation to take shortcuts.  Some borrowers have claimed that shortcuts were made with respect to their foreclosure documentation, and such claims are a source of much of the “buzz” about foreclosure procedures.

There is a constant need for veracity, or authenticity, of written documents.  It’s actually a remarkable process.  By using a series of papers and signatures, some borrowers can get a million dollars or more from a lender for the purpose of buying real property.  Even though there can be a trend towards going “paperless” in some situations, there’s still a lot of our commercial law that is founded on paper.  And the system has been in place for a long time.  Whether it’s a contract, a deed, a mortgage, or a written loan agreement, there’s a lot of money that changes hands every day based on papers that have printed terms and signatures.

Unfortunately, the temptation for taking shortcuts can be very real.  And sometimes even a downright fraud can look appealing.  Though fraud is usually criminal, sometimes the potential rewards can look very appealing, and a person’s internal moral compass may be sufficiently dim that the prospect of “fast cash” may win out.  When this happens, victims can be disappointed or financially injured, and when the true facts come to light, the person who hoped to make a lot of “fast cash” can find themself in a whole lot of trouble.

The concept of a “Notary” has been around for a long time. “The notary public, or notary, is an official known in nearly all civilized countries.  The office is of ancient origin.  In Rome, during the republic, it existed . . . and there are records of the appointment of notaries by the Frankish kings and the Popes as early as the ninth century.  They were chiefly employed in drawing up legal documents; as scribes or scriveners they took minutes and made short drafts of writings, either of a public or a private nature.  In modern times their more characteristic duty is to attest the genuineness of any deeds or writings, in order to render the same available as evidence of the facts therein contained.”  Benjamin F. Rex, The Notaries’ Manual section 1, at 1-2 (J.H. McMillan ed. 6th ed. 1913).

In other words, a modern notary will generally confirm, or witness, the authenticity of a signature.  Many documents must be “notarized” before they can be recorded in the recorder’s office.  For example, a deed that conveys ownership to real estate must be notarized, or it cannot be recorded.  Likewise, a Deed of Trust must be notarized before it can be recorded.  The notary takes evidence that the person signing the document is actually the person whose name appears on the document.  This process provides an added layer of security that the signature on such document is genuine.  However, the system is not foolproof.  Notaries have been known to notarize documents after they were signed and without seeing evidence of the identity of the person who signed the document.  Therefore, even when documents have been notarized, there is still a need for prudence, for care, and for good common sense.  But when the system is working properly, the notarization on a document can be a good indicator that the signature is authentic.

Authentication of documents can involve complex factual and legal issues.  Persons with questions concerning authenticity of documents should consult competent legal counsel.

Pet Peeves

            Nobody knows all the law.  There’s just way too much of it.

The law is definitely available. But there’s a lot of it.  There’s state law, and there’s federal law.  There are executive orders (issued by the chief executive, such as the President of the United States).  There are cases issued by courts, and there are statutes passed by the legislature.  There is Administrative law made by the administrative branch of the government.  There are local laws (such as city ordinances).  And then there’s international law.

That’s a lot of law.

It’s no surprise that any given lawyer doesn’t know all the law.  As a result, lawyers often tend to develop areas of expertise.  Otherwise, they’d spend all their time learning instead of working.  Some continued learning is essential.  But trying to first learn and then keep up on everything, all the time, would be impossible.  There’s too much going on, all the time.

So lawyers talk to each other. They often refer clients to each other. You practice law for a while, and you get an idea as to who practices what kind of law in what area.  Then when your clients need legal help outside your practice area, you refer them.

In addition to referring clients, lawyers often let each other know about recent developments in different practice areas.  So I recently found myself speaking with a probate and estate planning lawyer who told me something interesting.  He said that he had recently met with a CPA, an insurance professional, and others, and the conversation turned to insurance.  It was reported that one of the major insurers had recently adopted a policy of excluding coverage for losses caused by pets.

Now, a lack of insurance coverage for pets may not be likely to hit the front page of the newspaper anytime soon.  But there can actually be some profound consequences for pet owners.  Suppose a homeowner keeps a 70 pound dog indoors.  People have been known to do such things.  And there are dogs that weigh in at 70 pounds or more.  I sometimes ride a bicycle home from work (it’s a great way to commute).  I recently found myself on a bike path where several persons were walking their dogs.  There was one dog owner who had paused off the trail with her dog.  As I rode by, I said to the dog owner “That’s not a dog – that’s a horse!”  The owner replied “No – it’s a dog.”  I’d never seen anything like it.  It was almost the size of a shetland pony.  I can’t image what such a dog must weigh.  But it was certainly over 70 pounds.

Anyway, if a dog owner kept a large dog indoors, then such a dog will certainly move around.  And it’s possible that such a dog might wander into rooms throughout the house when nobody else was present.

What if such a dog wandered into a room with an electric floor lamp?  And what if that dog knocked the lamp over so that it fell down?  And what if the lampshade broke, and the bulb landed on something flammable?  And what if a fire resulted?

There could be a significant loss from such a fire.  The house could potentially burn to the ground.  And such a fire could even start a fire on neighboring properties.

What if that dog owner had a homeowner’s policy that said that no loss or injury from pets would be covered?  Would the insurance company be obligated to pay for the house to be rebuilt?  How about the repairs to the neighbor’s house?

Good questions.  The answers depend on the policy language and applicable insurance coverage law.  But one thing is certain: the insurance company’s obligation to cover any loss in such a situation could be significantly affected by a policy exclusion for loss, injury or damage caused by pets.

Homeowners with pets would do well to check with their insurance or legal professional to determine whether or not their policy covers losses from pets, and if so, to what extent.

Every Dog Has His Day?

            “A dog does not have a fundamental right to travel.”

That’s a quote straight out of a court decision from Ohio.  The case is cited as City of Akron v. Tipton (1989) 559 N.E. 2d 1385.

Why would a court say such a thing in a decision?  There’s a good reason.  It has to do with dogs, and pets, and rights of pet owners, and the right of cities and governments to adopt legislation regarding pets.

If a homeowner’s policy excludes losses or injuries from pets and if a dog knocked over a lamp that started a fire, then it’s conceivable that the insurance company that wrote the policy might claim that such a loss isn’t covered.  In addition, if such a fire caused a neighbor’s house to burn, then it’s possible that this same insurance company might decline to cover the cost of rebuilding or repairing the neighbor’s house as well. (Whether or not the neighbor’s own homeowner’s policy would provide coverage may be a different question).

What about a dog that bites?  It’s a well known fact that some dogs bite. In fact, one court stated in a written decision that “It is common knowledge that horses buck, cattle roam, cats stray, and dogs bite.”  Blaha v. Stuard (2002) 640 N.W. 2d 85.

So if a homeowner has a dog that bites a neighbor, will the homeowner’s insurance policy pay for the resulting loss, injury or damage?  This can be a significant question.  Dogs can be powerful, and their bites can sometimes result in a lot of damage – perhaps hundreds of thousands of dollars of loss or injury.  If a dog bite causes a substantial injury, then insurance coverage can be very, very important – both to the homeowner and also to any person who gets bitten.

It’s been reported that some homeowner policies may exclude loss or injury from pets.  For a homeowner with a dog or other pet capable of inflicting injury, it might be very important to know whether or not insurance coverage exists if the pet should cause injury or loss.

Homebound Hound

What happens if a pet knocks over a lamp and starts a fire?  Will homeowner’s insurance be obligated to cover such a fire?  Or what if a pet bites a friend or a neighbor?  Is a homeowner’s policy obligated to cover the medical bills along with payment for pain and suffering?

These are good questions.  The answers will depend on the policy language and applicable insurance coverage law.

Here’s a great quote from an Ohio case:  “A dog does not have a fundamental right to travel.”  The case is reported as City of Akron v. Tipton (1989) 559 N.E. 2d 1385.

So what kind of case would consider whether or not a dog has a right to travel?

It seems like the City of Akron passed an “ordinance” (which is a local law) that concerned control of dogs.  Among other things, the ordinance required the following things:

– That any person who owned, kept or possessed a “Pit Bull” keep a special “Pit Bull” collar on the dog at all times

– That Pit Bull owners post on their premises at least one warning signed issued by the City

– That each owner have each Pit Bull tattoed with a code number provided by the City

– That each owner notify the city within 24 hours if the Pit Bull was sold or was donated, along with the name and phone number of the new owner.

– That each owner keep the dog indoors, or outdoors in a locked pen with a top, a fence and a concrete base.  If the dog left the pen, it had to be muzzled and kept on a leash no longer than 6 feet

Apparently a certain defendant resident of Akron was charged in five separate cases with violating this ordinance.  This defendant challenged the ordinance by claiming it was unconstitutional.  The Defendant also claimed that dogs have a right to travel.

The Court found that even though the ordinance was strict, and even though some harmless dogs might be affected by it, the statute did not violate the Constitution.  The Court also held that if there is a right to travel, then such right is held by individual people and not by dogs.  Therefore, according to this Ohio court, dogs do not have any specific right to travel.

Laws and court court cases can vary from state to state.  The result in a California court might be different.  Persons with questions concerning their pets, or their rights under laws governing the ownership, care, or keeping of pets, and persons with questions concerning insurance coverage for losses caused by pets, should seek competent legal counsel.

Dog Treatment Can be Important

            Many attorneys have access to a legal database of California law and cases.  A word search on one of these databases resulted in 145 legal decisions where the word “dog” or “dogs” was found to be within 10 words of “barking.”

Not surprisingly, many of these cases involve issues of criminal law – in other words, where a dog or dogs start barking when something unusual was happening that ended up in some kind of prohibited behavior.  This is no surprise; dogs are often “tuned in” to their owners’ lives, and if something strange or unusual is happening, then the dogs can get excited and start barking. There are also a number of non-criminal cases involving dogs that bark.  For example, in one case a Homeowner’s Association was found to have improperly denied a homeowner’s request for permission to keep a small dog.  In that case, the rules of the Homeowner’s Association prohibited homeowners from keeping dogs.  However, in that situation the homeowners suffered from depression, and they felt that a small dog might help them feel better and be more productive.

The rules of the Homeowners Association provided that no “reptiles or animals shall be permitted shall be permitted in the Condominium Units or on the property except that pet birds and domestic house cats (limit of 2) shall be allowed so long as they do not constitute a nuisance to the neighbors and other residents.”  The rules further provided that “No dogs are allowed to be kept anywhere in the development.”

Despite the express ban on keeping dogs, the homeowners acquired a small terrier named “Pooky.”  The couple found that with Pooky, the wife’s agitation lessened, her concentration improved, her interpersonal relationships improved and she slept better.  The dog also helped the husband by keeping him occupied; he took the dog on walks and played with her. The couples’ psychiatrist believed that both of their conditions improved after they got the dog.

About two months after they got the dog, the couple received a letter from the director or property manager for the association advising them that they would need to get rid of the dog or fines would be imposed.  Because they couldn’t afford the fines, the couple placed the dog with friends. But the couple’s condition noticeably deteriorated and their depression returned. The wife thereafter petitioned the Association for permission to keep the dog on the basis that the couple were disabled persons who were seeking a reasonable accommodation for their situation.  They promised that they would “immediately dispose of any solid waste products produced [by] the dog; keep all barking to an absolute minimum at all times; and the dog will wear a lead at all times if she’s within the common condo areas. Furthermore, she will not be allow[ed] in the laundry‑room, pool area, or places where residents congregate.”

There were further interchanges between the homeowners and the association, and eventually both sides hired attorneys, who had additional communications and interchanges.  Ultimately, the Association offered to allow the couple to keep other pets, but not a dog.

The couple filed a complaint with the California Department of Fair Employment and Housing, claiming that the Association had not made reasonable accommodations for their disability.  A hearing was held before an Administrative Law Judge, who found that the couple should have been allowed to keep the dog.  The Association took the matter to Superior Court, where the trial judge ruled that the couple were not entitled to keep the dog.  The case was appealed to the Court of Appeal, where the court cited the California Government Code and held that it is an unlawful practice to refuse “to make reasonable accommodations in rules, policies, practices, or services when these accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling.”  The Court of Appeal reversed the trial court and held that the couple was entitled to keep the dog.  The complete details of the case, which are too lengthy to be included here, can be found at Auburn Woods I Homeowners Association v. Fair Employment and Housing Commission (2004) 121 Cal. App. 4th 1578.

Rules, cases and applicable State and Federal law concerning nuisance, disabilities, and interactions with Homeowners Associations are complex.  The results in one case may be markedly different from those in another case; results may vary.  Persons with issues of these types should consult competent legal counsel.

Owners Love Their Dogs

            There’s no doubt about it.  Dog owners love their dogs.

For 12 years we had a yellow lab named “Caleb.”  He was always good natured.  He never snapped at anybody.  The biggest risk he posed was that he might lick someone to death. He was never ill-tempered, or snarly, or angry.  He loved everybody without exception. He even loved those dogs that snapped at him.  But he would eat anything in sight, and he wasn’t shy.  If he ever got out of our yard, he’d make a beeline for the nearest dish of dog or cat food at a neighbor’s house – any neighbor’s house – and he didn’t care whether he ate dog food, cat food, or any other kind of food.  He recently passed away, and so our lives are now just a bit more quiet.

Because dogs are a part of so many people’s lives, it’s no surprise that discussions of dogs show up in California case law.

Lighthouse Field Beach is a California State Beach that is located in the City of Santa Cruz.  It is administered by the California Department of Parks and Recreation, but that Department agreed to have the City of Santa Cruz administer and manage the use of the Beach.

The use of the Beach is governed by a general use Plan. The Plan is required to enhance “the general public use and enjoyment of, and recreational and educational experience at (the beach, and the Plan should provide) for the satisfactory management of park resources.” The Plan that governed the use of the Beach was adopted in 1984.  That 1984 Plan expressly provided that “Pets should be restricted to leashes.”

Several years ago, the City of Santa Cruz decided to update its Plan for the use of the Beach.  The use of the Beach is subject to the California Environmental Quality Act (also known as “CEQA”) CEQA is a legislative enactment that ensures that “the long-term protection of the environment . . . shall be the guiding criterion in public decisions.”  Under CEQA, the public agency that establishes a plan for use of a public property must evaluate whether or not the plan will result in a negative impact on the environment.  If the public agency determines that there will be no negative effect, then the public agency can adopt a “Negative Declaration” stating that there will be no effect on the environment.  If there may be an effect on the environment, then the public agency must prepare an Environmental Impact Report (“EIR”) that describes and addresses the impact.

Even though the 1984 Plan provided that pets should be on leash, the City of Santa Cruz began permitting off-leash dogs use of the Beach during specified hours starting in 1993.  An internal memo from the City’s Parks and Recreation Department indicated that the Department hoped that relaxation of the leash laws would “lead to educate[d] dog owners which would in turn lead to cooperation with law enforcement and the potential for further relaxation of the laws.”  However, the memo further noted that the Department’s hopes had not been “realized” and the memo recognized that there was a considerable and increasing problem with doggie poop  throughout the area and on the Beach, and that dogs were frequently being seen “off-leash during on-leash hours” and that the “signage and pooper-scooper bag stations” had been “severely vandalized.”

In 1993, the City of Santa Cruz began allowing dogs to be on the beach without leashes (even though the Plan required that they be kept on leashes).  The Santa Cruz Department of Parks and Recreation had hoped that relaxing the leash laws would result in better “education” of dog-owners, and could lead to further relaxation of leash laws.  However, the City’s hopes weren’t realized because dogs were pooping on the beaches, and owners were taking dogs off-leash during hours when the dogs were required to be on-leash.  Nevertheless, the City of Santa Cruz decided to update the 1984 Plan by formally providing that dogs could be “off-leash” during certain times of the day.

The City of Santa Cruz was required to assess whether or not its updated Plan would have any significant impact on the environment.  The City held a community workshop to identify issues and receive public input.  The City proposed that the Plan be revised so that (1) dog use would be restricted in sensitive areas (2) off-leash hours would be extended to last from sunrise through sunset in certain areas other than the beach, and (3) off-leash dog use hours would be extended on the Beach from late fall through spring.”

The City published a notice of its intent to issue a “Negative Declaration.”  This meant that the City would have found that the new Plan allowing dogs to be off-leash would not have significantly affected the environment.

Many public comments were received regarding these proposed changes. The comments included the following adverse remarks regarding dogs. “[T]he Field at present resembles an urban wasteland, a neglected backyard. Its primary present use and future if the draft report is accepted is *1185 as a dog‑running area.” “[B]oth the field and the Its Beach have somehow become the exclusive domain of dogs…. [A]nyone who wants to stroll on Lighthouse Field and/or enjoy Its Beach had better be prepared to deal with piles of dog poop, scary unleashed and uncontrolled dogs, and their self‑righteous owners.” “Irresponsible dog owners have turned Its Beach into a dog toilet and dogs (have the) run of the beach even during the hours when dogs are not permitted…. I have been ‘run over’ and accosted by dogs on numerous occasions…. It is no longer pleasant to go to Its Beach even during the hours reserved for people without dogs because dogs are always there.” “[T]he clear policy is to allow dogs off leash at the beginning and end of each day: and a defacto [ sic ] policy made by the City of allowing off‑leash dogs in the park 24 x 7 by reason of non‑enforcement of the existing law….” “It is obvious and well‑documented that the biggest single cause of sensitive habitat degradation in LFSB is the relatively recent introduction of huge numbers of dogs that are allowed to run free.” “I paid a premium to live at my favorite park and beach (Its) but now I don’t even use them because they are so dangerous and unpleasant due to uncontrolled dogs everywhere.” Other dog behaviors that are particularly unsuited to beaches where humans congregate: [¶] Constant barking …. [¶] Whining, yowling, crying and other forms of dog complaint. [¶] Fighting; chasing; digging (with flying sand in all directions); begging for food; stealing food that is left unattended; running over people’s towels and blankets; shaking off water next to people other than owner, chasing … animals, wild or domesticated; … violating personal space of humans … and on and on.”

Eventually, the Santa Cruz City Council passed a resolution adopting a “Negative Declaration”, which meant that the City Council found that having off-leash dogs would not significantly affect the environment.  The text of the new Plan adopted by the City Council noted that “dog use was ‘the most controversial and publicly discussed issue during this planning process.’”

A non-profit advocacy organization named “Lighthouse Field Beach Rescue” filed a lawsuit asking the Court to find that the City hadn’t properly evaluated the effects that the new Plan would have on the environment.  The trial court denied the petition, which meant that the City would have been able to proceed with its new Plan allowing for off-leash dogs on the beach.  The advocacy organization appealed, and after a lengthy legal opinion, the Court of Appeal reversed the trial court, which meant that the City would need to set aside the new Plan it had adopted, and would need to make sure that any new Plan fully complied with CEQA (which is the California Environmental Quality Act.) The case is reported as Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal. App. 4th 1170.  The reported decision doesn’t report what steps the City of Santa Cruz eventually had to take – but the reported decision does indicate that the new Plan had to fully comply with CEQA.

Issues regarding CEQA, public planning, use of public resources, and laws concerning animals can be complex.  Results can vary significantly, depending on the facts of any given situation.  Persons considering these issues should consult competent legal counsel.

Dogs Can Get Excited

            Lots of California homeowners keep dogs on their property.  Sometimes such dogs can act in an unexpected way.  Following is a description of a legal case involving a dog.  You be the judge.

Two members of a religious organization were sharing messages of their divine faith by knocking on doors in a residential neighborhood.  As they walked along a driveway, they noticed a dog in the yard.  One of them said “Look out . . . it’s a pit bull.” Before the other could react, the dog approached them on a full run, jumped up on one of them, and knocked her to the ground.  She suffered a broken hip and head lacerations where her head hit some sharp rocks.

At the time these events happened, the dog was leashed to a chain, which was in turn tethered to a guy-wire that was 100 feet long.  This guy-wire allowed the dog access to the front yard and also to the driveway.  After the dog knocked the person to the ground, the other person shouted for help, and the dog’s owner came out, and allegedly said that the dog “had a habit of jumping on people.”

The dog owner denied making this statement.  Instead, he claimed that the dog was well-trained, well-behaved and liked people.

The injured person filed suit for recovery for her injuries. At the trial, there was evidence that no complaint about the dog had ever been received by the county Animal Control Office.  Several persons testified that the animal was a well-behaved, gentle animal.

The dog was an American Staffordshire Terrier, commonly known as a pit bull, and weighed 65 pounds. The injured person introduced evidence that pit bulls are bred for being aggressive.  The dog owner offered evidence that pit bulls are not inherently dangerous to people.  The dog owner acknowledged that on one occasion the dog had barked at a stranger and would not let him come up the driveway towards the house.

So – you be the judge.  On those facts, should the dog owner be liable to the injured person for her injuries, or not?

If you said that the dog owner should not be liable to the injured person, then you agreed with the trial court jury.  At trial, the jury found that the dog owner was not liable for the visitor’s damages. However, if you said that the dog owner should be liable for the injured person’s damages, then your decision is closer to the decision of the Court of Appeal.

The Court of Appeal’s opinion stated that the general rule in California is that an owner who keeps an animal that is known to be vicious or dangerous can be liable for injuries caused by that animal.  However, the Court of Appeal also noted that dogs are generally presumed to be not dangerous. Apparently, at trial the plaintiff’s counsel wanted the jury to be instructed that the dog owner should be liable if the dog owner failed to use ordinary care to prevent injury to others. However, defense counsel wanted the jury to be instructed that the dog owner should only be found liable if the dog owner knew that the dog had dangerous characteristics that the dog owner failed to properly address.  The trial court only allowed the jury to be instructed on the higher standard.  Because the jury found that in this case a tendency to jump on people was not a dangerous characteristic, the jury found the dog owner not liable for the visitor’s injuries.  However, on appeal, the appellate court reversed this result, and sent the case back to the trial court for further proceedings consistent with the Court of Appeal’s opinion.

These further proceedings would allow the jury to consider whether or not the dog owner had acted with reasonable care in avoiding potential injury to others.  (Because the further proceedings aren’t included in the opinion, the end result of the case isn’t readily available. But there is a possibility in this case that the dog owner could be found to be liable).  This case is published as Drake v. Dean (1993) 15 Cal. App. 4th 915.

Dog-bite cases can sometimes involve substantial amounts of money and damages.  The specific facts of each case can have a significant effect on the outcome.  The Court’s opinion is lengthy, detailed, and filled with legal analysis.  This article only relates a few of the points made in the opinion of the Court of Appeal.  Persons who are concerned or involved with issues such as these should seek the advice and assistance of qualified legal counsel.

The Land of the Free

            “Oh say, does that star spangled banner yet wave, O’er the land of the free, and the home of the brave?”

With the recent observance of the fourth of July, our country celebrated its 236th birthday.  America is indeed the land of the free (and the home of the brave).  Our country is, in a very real sense, a beacon to all the world of a free society that has lasted now for over 200 years.  Given the political history of the known world, that’s no small thing.

With immigration issues constantly in the news, it seems like a key challenge for many seeking freedom or a better life is to get here – or to another nation where “freedom rings.”  But having gotten here legally, few people spend much time thinking about being asked to leave.  That’s because in this country in this day and age we don’t think much about exile, or banishment.

But that wasn’t always the case.  There’s a long history of exile.  The Encyclopedia Britannica notes that exile (or banishment) is a “prolonged absence from one’s country imposed by vested authority as a punitive measure.”  In other words, an exile occurs when someone is told to “get out – and stay out.”  We don’t think about this much these days.  But banishment used to be a very real thing.  According to Brittanica, banishment developed long ago in ancient civilizations as a means of designating an offender as an outcast, and then depriving him of the comfort and protection of his group.  In Rome, exile was a means of avoiding a death penalty.  Under Roman law, a Roman citizen could escape a death penalty by voluntary exile so long as they left before a death sentence was pronounced (in other words, get out while you still can).  If you were a wealthy Roman and you were in trouble, you were often banished.  If you were a less-wealthy Roman and you were in trouble, then you might be sentenced to forced labor.  Not an equal treatment, but that’s the way it was.  See the article on “Exile and Banishment” in Encyclopedia Britannica Ultimate Reference Suite; Chicago: Encyclopedia Britannica 2012.

Sometimes when we talk of criminals in the “Old West” we talk of “outlaws.”  The concept of “outlaw” actually didn’t develop in the “Old West” – it was a concept that was known and used in England long before America was settled.  “Outlawry” consists of putting a person beyond the “protection” of the law due to such person’s refusal to follow or obey the court having jurisdiction over that person.  Refusal to obey a court order is known as “contempt of court” and in England, such contempt of court made someone an “outlaw.”  In some countries, such “outlaws” were exiled, which resulted in their losing the legal rights and privileges they had enjoyed in their native land.  See the article on “outlawry” in Encyclopedia Britannica Ultimate Reference Suite; Chicago: Encyclopedia Britannica 2012.

Banishment can either be a forced relocation to an area within the borders of the person’s country, or a person can be banished from an entire country.

It seems that a certain resident of Tennessee got into trouble by illegally possessing a controlled substance in Kentucky.  This Tennessee resident (who was an “offender”) was tried in Kentucky and found guilty.  This offender was sentenced to 12 months jail time, but was allowed probation instead if the offender would agree to be banished from the county in Kentucky where trial was held.  (It looks like the Court thought it would be a good idea for this offender to stay away from the area where the trouble occurred).  The offender agreed, and the Court entered a probation order.

The offender subsequently returned to the county for the purpose of attending a preliminary hearing in unrelated matter so that she could show support for a friend.  The offender was arrested for violating her probation order and was ordered to serve her 12 months jail time.

The offender appealed, and claimed that the United States Constitution guarantees citizens free, unrestricted travel within the United States.  The offender claimed that the Court’s probation order providing for banishment was unconstitutional since it sought to restrict the offender’s right to freely travel within the United States.

The Kentucky Court of Appeal agreed that the trial court did not have the right nor the authority to enter an order banishing the offender from the county.  However, the court of appeal then found that probation is a privilege, and not a right.  Since the probation order was invalid, the offender was subject to serving the 12 months’ sentence.  Therefore, the offender was placed in jail.  The full details of this case can be found at Butler v. Com., (2010) 304 S.W. 3d 78.

It therefore appears that banishment is not a legal punishment under American law. (Incidentally, the article from Encyclopedia Britannica  cited above was written by Geoffrey Abbot who, according to Britannica, is the “former Yeoman Warder, Tower of London, United Kingdom.”)

Constitutional rights are complex, and persons who want to know more about them or intend to seek to enforce them should consult competent legal counsel.

Foreclosure Not Always All Bad

Widespread foreclosures of homes and other real property can have a devastating effect in the life of a family.  But good things can occur even as a result of foreclosure and financial loss.

According to the websites maintained by the California Department of Education and the United Farm Workers, a son was born on March 31, 1927 to a Mexican-American family in Yuma, Arizona. The family named the son Cesar.  This son grew up in a small adobe home, and his family owned a small grocery store and ranch.  But the family home and ranch were lost as a result of the economic downturn in the Great Depression of the 1930’s.  The father agreed to clear 80 acres of land in exchange for a deed to 40 acres of land that adjoined the family home, but the agreement was later broken. The father then borrowed money to buy the land, but then could not pay the interest on the loan, and as a result the land was sold to the original owner.  The family’s home was lost because they could not afford to keep it.

The family moved to California in order to find work, and they became migrant farm workers along with other workers who had lost their homes. They moved from field to field and from farm to farm picking and harvesting crops and vegetables.  Cesar didn’t have much education; he only graduated from the eighth grade.  His father could not work because of an accident, and Cesar did not want to see his mother go to work in the fields as a farm worker.  Cesar therefore chose to not attend High School but to instead he chose to become a migrant farm worker.  In 1944 he joined the military for two years.  After he was discharged from the service, he married and began raising a family.  He lived in very difficult circumstances.

Though his own formal education was very limited, Cesar became passionate about the need for education.  He felt the only way for him to break the cycle of poverty was to work hard so that he could send his children to college. He not only saw education as the road to a better future for himself and his family, but he also saw education as a basis for improving the entire community around him.  He is reported to have said that “The end of all education should surely be service to others.”

Concerning the need for justice, he is reported to have said “The love for justice that is in us is not only the best part of our being but it is also the most true to our nature.”  For more details on his life, point your browser to the website of the United Farm Workers at

Cesar Chavez experienced discrimination and unfair treatment first-hand.  He worked long and hard advocating fair treatment of farm workers.

The State of California has declared March 31 as a state Holiday in honor of Cesar Chavez.  In March of 2011, the President of the United States declared March 31 of each year as “Cesar Chavez” day for the entire United States. In his Presidential Proclamation concerning the establishment of the day, President Barack Obama declared : “Our Nation’s story of progress is rich with profound struggle and great sacrifice, marked by the selfless acts and fearless leadership of remarkable Americans.  A true champion for justice, Cesar Chavez advocated for and won many of the rights and benefits we now enjoy, and his spirit lives on in the hands and hearts of working women and men today.  As we celebrate the anniversary of his birth, we honor Cesar Chavez’s lasting victories for American workers and his noble methods in achieving them. . . . I call upon all Americans to observe this day with appropriate service, community, and educational programs to honor Cesar Chavez’s enduring legacy.”

Legal Statutes Can Be Lengthy

            I was an English major in college.

I remember getting multiple assignments for 500 word essays.  These essays would generally fill two typewritten pages, double spaced.  500 words is a comfortable length for an essay.  It doesn’t take too long to write a 500 word essay, which means it also doesn’t take too long to grade a 500 word essay.  The length is well suited for the development of one or two ideas, but such a paper isn’t so long that you end up writing a book in order to express yourself.

Brevity is one of the hallmarks of powerful, effective writing.  Take too long to get to your point, and you’ll lose your audience.  Get in, get out, and  move on.  If you’re brief, your audience will be more interested in what you have to say.  Be concise.  Get to the point.  Don’t dawdle.

That all changes when you get to law school.  Keeping things interesting is not a hallmark of legal writing.  The law is concerned with razor sharp precision – and not with brevity.  Sure, take all the time you need to make your point.  But make it carefully, precisely, and thoroughly.

California foreclosure law is complex.  Detailed. Exhaustive. And the legal writing involved in foreclosure is, well, cumbersome.

Here’s an example.  Most promissory notes, or loans, provide that if the borrower misses a payment, then the lender can “accelerate” the loan.  When a loan is “accelerated,” all of the past and future payments are due now.  This means that a borrower can miss a single payment, and then the lender can “accelerate” the loan so that the entire loan balance is due and payable now.  The law allows for such acceleration in most instances.

But the law also provides borrowers with a safety net.  If a borrower pays all the past due amounts, then in most cases a borrower can “reinstate” a loan.  This means a borrower can usually reverse any “acceleration” so that a loan resumes the same payment schedule that existed before the borrower defaulted.  This principle is true both for home loans as well as many other types of loans.

The law that allows a borrower to “reverse” an acceleration is found at California Civil Code section 2924c.  The full text of that statute can’t be reprinted here – it’s too long.  If you doubt that, then try reading it.  You will find – and this is true – that the very first sentence of that statute consists of 375 words.

375 words!  Think of it. And that’s only the opening sentence.  The entire statute is much longer than that.  Plowing through that statute requires a substantial amount of time, a trained mind and a skilled eye.  In everyday writing, most sentences are something like ten or fifteen words at the most.  Fifty words is a really long sentence.  And a hundred words seems like a book.  Lawyers refer to “legal briefs” with good reason.  If you’re summarizing something like this foreclosure statute, then anything shorter is a complete bonus.