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Law Rules

How we resolve our disputes

Thursday
Jul092009

Judicial activism

Returning from a long 4th of July holiday weekend, I feel the need to wax patriotic.  I love this country, and what I love most is the Constitution that has served us so well for almost 220 years (or at least for the last 150 years, since the post-Civil War amendments abolished slavery). But there are still many people who do not understand or appreciate what the Constitution does for us.  A recent opinion column in our local newspaper complained that “judicial activism” sidesteps democracy.  I believe that just the opposite is true.  Judicial activism is necessary for democracy.  While there is no precise definition of the term, “legal activist” is frequently used to describe any judge who makes a decision that the users disagree with.  They complain that by making decisions that certain laws or governmental actions are unconstitutional, the courts are making law.  Of course they are!  Our democracy and liberty depend not only on majority rule, but on the individual rights guaranteed by the Constitution and the Bill of Rights. Without the right of judicial review, the separation of powers established by the Constitution cannot protect us from the tyranny of the majority.  Remember, the Third Reich was popularly elected by German voters.  Without an effective (i.e., “activist”) judiciary, the legislative and executive branches could dictate what religion people could and could not practice, where they could live and work, and ultimately who could live and who would die, all based on their race, religion, ethnicity, politics, gender or sexual orientation.  People who complain that judicial activists use the courts to subvert the democratic process are missing the point.  They are the ones who are most likely to sidestep democracy. 

Friday
Jun262009

Student loans -- discharge, negotiate or mediate?

In my last post, I suggested that fatherhood is an all or nothing proposition.  Apparently, student loan agencies are taking the same position in regard to repayment of student loans.  I have a client who defaulted on her student loans and hundreds of thousands of dollars of penalties and interest (yes, hundreds of thousands) have accrued.  This didn’t matter to her while she was unemployed, but now that she has a good paying job, the lenders want her to pay back everything.  She wants to repay the loans and interest, and is able to do so, but she could not repay the penalties (and interest on them) if she lived to be 200.  If she doesn’t pay, the lenders have threatened to sue her and report her default to the agency that grants her professional license.  If that happens, she could lose her job.  Who benefits then?  The only option they have given her is that they will waive penalties if she makes payments equal to the current monthly interest for 9 consecutive months.  Her job is not that well-paying.  I suggested that they waive the penalties and interest on them if she makes reasonable principal and interest payments on the original loans for 9 consecutive months.  The lenders said no, their hands are tied.  The only sensible thing I can suggest to my client is that she file a Chapter 13 Bankruptcy and then file an adversary hearing to determine whether she is eligible for a hardship discharge.  (Note: the U.S. Supreme Court is reviewing a 9th Circuit case that says an adversary proceeding is not necessary. United Student Aid Funds, Inc. v. Espinoza, 08-1134.)   In the meantime, she is not paying.

It seems to me that the only win-win scenario is to negotiate or mediate a payment plan that would result in waiving the penalties after the debtor makes reasonable, realistic payments for a certain period of time on the original principal and interest.  That is what some courts are suggesting that mortgage lenders do before foreclosure.  That is what municipalities will have to do under Wisconsin’s Smart Growth law that takes effect next year.  Why are students and student loan agencies the only ones who are not allowed to reach a win-win resolution?

Monday
Jun222009

Happy Father's Day

What does Father’s Day have to do with dispute resolution?  All too often, the issue of paternity has become a question to be resolved by the courts.  The courts (quite correctly, I believe) seem to favor finality in this decision-making process.  For example, in a case where a man filed a formal declaration of paternity shortly following the birth of a child and then, years later in a child support proceeding with the child’s mother, requested a blood test which showed the child was not his, a court held that the initial declaration of paternity was binding.  Daniel T.W. v. Joni K.W., 762 N.W.2d 444, 2009 WI App 13 (Wis. App., 2008).  In other words, once a father, always a father (unless superceded by an adoption or termination of parental rights).   Could this situation have been resolved by alternate dispute resolution proceedings (out of court)?  I doubt it.  I don’t think the issue of paternity should be negotiable.  It might be preferable, in most situations, for the biological father to be the legal father.  But once the legal relationship is established, no matter how it is established, the state has an interest in enforcing that relationship so that the child does not become a ward of the state.  That interest can be enforced only in court.  It can’t and shouldn’t be negotiated or mediated.  Remember, King Solomon did not really cut the baby in half.  He only threatened to do so.  Parenthood is and always has been an all or nothing proposition.

The decision to become a legal father should be taken as seriously as the decision to become a biological father.   Far too many fathers take neither decision seriously and try to escape their responsibilities.  On this Father’s Day, I wish only that more men could see the benefits and enjoy the relationship, regardless of the costs.

Tuesday
Jun092009

Rites or rights of the season

It’s June — time for graduations.  Let’s go down our checklist:

  • take final exams and pass all courses
  • get cap and gown
  • file lawsuit
  • go to church

Hmmm … I don’t remember those last two items being on my checklist when I graduated from high school or college.  But they are today.  A federal judge in Milwaukee recently refused to enjoin a public school district from holding its graduation ceremonies in a church.  The plaintiffs claimed that holding the graduation in the church violated the constitutional doctrine of separation of church and state.  The school district said it could not hold the ceremonies at its schools due to lack of space and the church was the most practical and convenient alternative.  The judge agreed with the school district, at least to the point of refusing to issue a preliminary injunction.  The lawsuit is still pending and a trial date will be set to determine whether the district violated anyone’s constitutional rights.  The plaintiffs have said they will appeal the judge’s decision on the preliminary injunction.  The Milwaukee Journal-Sentinel published an editorial suggesting it would be best to drop the appeal and the lawsuit. 

In the meantime, the school district is building larger auditoriums at its high schools (after 6 to 8 years of using church facilities) and will hold graduation ceremonies at the schools next year.  So much for separation of this church and state.  Now, can we separate the schools from the courts?  

If other school districts make their graduates go to church in order to participate in graduation ceremonies, I suspect the courts will once again be called upon to interpret that pesky 1st Amendment.  What does “establishment of a religion” really mean?  For those who would suggest that this is much ado about nothing, I would ask you to substitute the word mosque, Shinto shrine, Buddhist or Hindu temple, or synagogue for the word church in this story, or in my checklist.  Is it still about nothing?

Monday
Jun082009

Litigate? Arbitrate? Pick one & stick with it!

Jerry Seinfeld once commented on Oprah Winfrey’s fluctuating weight by saying “She’s fat, she’s thin, she’s fat again. Why doesn’t she pick one weight and stick with it?”  That seems to be the approach the 5th Circuit Court of Appeals took in Nicholas v. KBR Inc, No. 08-20140 (5th. Cir. 4/15/2009). 

After her husband died in 2006 as a result of mesothelioma, a widow discovered that her husband’s employer had promised to continue to pay for her husband’s life insurance policy after he could no longer work, but failed to do so.  The widow sued the employer and the parties conducted some discovery.   After the court conducted a scheduling conference, the widow discovered that the employer’s agreement contained an arbitration provision and she filed a motion to compel arbitration.  The employer argued that the widow waived her right to arbtrate by filing the lawsuit.  Also, the employer claimed it had been prejudiced by having to litigate the matter for more than 10 months.  The district court agreed and denied the motion.  On appeal, the 5th Circuit also agreed and remanded for further proceedings in the district court.  Apparently, we are legally required to know not only what is in contracts that we sign, but also what is in contracts that our spouses sign.