As I am sure you are aware, former Illinois Governor Rod Blagojevich was convicted yesterday on 17 of 20 felony counts stemming from his illegal use of his power as governor to influence (or attempt to) political outcomes - such as the selection of a replacement for now President Obama's former Illinois Senate seat. In summary, Mr. Blagojevich apparently felt he could sell the seat to the highest bidder, or otherwise obtain some form of compensation, whether through monetary gain or otherwise, as consideration for his appointment to the Senate seat.
Let's back up - lobbying in politics is as old as politics itself. Lobbyists are an important function within a democratic system whereby constituents elect representatives to their government to create and enforce laws that affect those very constituents. Lobbyists are individuals or groups of individuals that represent various specific positions relating to those laws/affects, and who attempt to influence politicians so that those politicians will support those positions in the formation and enforcement of such laws. How lobbyists "influence" the voting is key and has long been a source of concern for the government.
The US Federal Government has long attempted to restrict lobbying from being viewed as having an undue influence or "backdoor" political favoritism, which is of course, looked down upon by constituents. In 2007, Congress passed a major modification to the Lobbying Disclosure Act of 1995 - the revised law became known as the "Honest Leadership and Open Government Act of 2007." The primary mission of the law was to "provide greater transparency in the Legislative process." In summary, the law attempts to regulate lobbying by requiring several different stages of disclosure for those in the lobby business. It also restricts former legislators and senators from certain activities upon their departure from Congress.
In short, the effect is to minimize the ability of lobbyists to have an undue influence over politicians through the use of favors, gifts, bribes, jobs, etc. Why? Because politicians should be elected (or in the rare cases appointed) based upon skill, experience, knowledge, and their ability to provide for their constituents based objectively on various factors, not bought to serve those in powerful positions.
Politics have long been looked down upon because of these very virtues - the fact that if you rub my back, I'll have yours down the road. But, while certain tit for tat is normal, when the parties up the ante by suggesting that an interested person need only pay someone else, then it becomes more than favoritism - it becomes bribery, extortion, or simply fraud of the system.
Former Governor Blagojevich thankfully has a big mouth, as well as the underlying belief that he was too powerful to get caught. The latter belief is quite common with white collar criminals, and organized crime comes to mind. Unfortunately, it is also quite common that politicians believe that they have the ability to trade their use of politics to favor individuals, groups, or organizations over others in exchange for monetary gain. Governor Blagojevich is not the first to be caught, and he certainly will not be the last. Indeed, in California, there are several recent incidents of local governing officials being indicted for similar conduct.
Hopefully, Governor Blagojevich will be sentenced to a long prison sentence; unfortunately, I do not believe that the sentence will deter future conduct, because governmental power - the feeling of being above the law - is too great of a drug.
What are your thoughts?
June 28, 2011
June 15, 2011
DO I NEED TO FILE A LAWSUIT TO REMOVE A DEADBEAT?
Landlords often find that the law is not necessarily in their favor when it comes to removing a tenant who fails to perform under the terms of the lease agreement - ie, fails to pay the rent. In most cases, a landlord will be required to serve the tenant with a 3 day Notice to Pay/Cure or Quit; thereafter, should the tenant still fail to pay/cure, the landlord will be required to file a lawsuit, known in California (and most other states) as an Unlawful Detainer. While the civil procedure requirements are special, and such cases proceed much more quickly than the usual civil lawsuit, it still takes time before the landlord ultimately receives an order to kick the tenant out - most times, it takes at least 3-6 weeks, depending on various factors, though I have seen it take up to 3 months in the past.
However, there is an instance where a lawsuit is not required, where the landlord may be able to evict the tenant/lodger without court action. Civil Code section 1946.5 states, in pertinent part, as follows:
"(a) The hiring of a room by a lodger on a periodic basis within a dwelling unit occupied by the owner may be terminated by either party giving written notice to the other of his or her intention to terminate the hiring, at least as long before the expiration of the term of the hiring ... The notice shall be given in a manner prescribed in Section 1162 of the Code of Civil Procedure or by certified or registered mail; ...
(b) Upon expiration of the notice period provided in the notice of termination given ... any right of the lodger to remain in the dwelling unit or any part thereof is terminated by operation of law. The lodger's removal from the premises may thereafter be effected pursuant to the provisions of Section 602.3 of the Penal Code or other applicable provisions of law.
(c) ... "lodger" means a person contracting with the owner of a dwelling unit for a room or room and board within the dwelling unit personally occupied by the owner, where the owner retains a right of access to all areas of the dwelling unit occupied by the lodger and has overall control of the dwelling unit.
(d) This section applies only to owner occupied dwellings where a single lodger resides. ..."
Thus, where an owner of a residence (not a tenant) resides at that residence and allows a lodger/tenant (a single lodger/tenant) to occupy a portion of that residence, the landlord has special rights which, as long as the requirements of Section 1146.5 are complied with, allows the landlord to treat the terminated tenant/lodger as a trespasser, and may remove the person without a court order - by simply contacting the police.
An example would be if you let your "friend" who recently moved out of his parents' house, crash on your couch for a few days or weeks until he finds a suitable place to live. If you become tired of your friend, and cannot otherwise get him to leave, you could resort to formally dispatching his person via Section 1946.5.
Have a great day!
However, there is an instance where a lawsuit is not required, where the landlord may be able to evict the tenant/lodger without court action. Civil Code section 1946.5 states, in pertinent part, as follows:
"(a) The hiring of a room by a lodger on a periodic basis within a dwelling unit occupied by the owner may be terminated by either party giving written notice to the other of his or her intention to terminate the hiring, at least as long before the expiration of the term of the hiring ... The notice shall be given in a manner prescribed in Section 1162 of the Code of Civil Procedure or by certified or registered mail; ...
(b) Upon expiration of the notice period provided in the notice of termination given ... any right of the lodger to remain in the dwelling unit or any part thereof is terminated by operation of law. The lodger's removal from the premises may thereafter be effected pursuant to the provisions of Section 602.3 of the Penal Code or other applicable provisions of law.
(c) ... "lodger" means a person contracting with the owner of a dwelling unit for a room or room and board within the dwelling unit personally occupied by the owner, where the owner retains a right of access to all areas of the dwelling unit occupied by the lodger and has overall control of the dwelling unit.
(d) This section applies only to owner occupied dwellings where a single lodger resides. ..."
Thus, where an owner of a residence (not a tenant) resides at that residence and allows a lodger/tenant (a single lodger/tenant) to occupy a portion of that residence, the landlord has special rights which, as long as the requirements of Section 1146.5 are complied with, allows the landlord to treat the terminated tenant/lodger as a trespasser, and may remove the person without a court order - by simply contacting the police.
An example would be if you let your "friend" who recently moved out of his parents' house, crash on your couch for a few days or weeks until he finds a suitable place to live. If you become tired of your friend, and cannot otherwise get him to leave, you could resort to formally dispatching his person via Section 1946.5.
Have a great day!
June 9, 2011
PREVENTION - THE WRITTEN CONTRACT
How often do we make contracts in life? Quite often, actually. In fact, most all of us make daily contracts with so many different people, it is hardly difficult to think of your last one.
Let's take an average day. You get up in the morning, head out the door, and go get that first cup of Joe. $2-$3 at the local coffee shop. In reality, that's a contract, right? The coffee shop offers a cup of good coffee for $2; you agree to pay that price, hand over your $2, and wait while the coffee clerk makes your steaming cup o'Joe. When you receive your cup, the deal is fully performed. You go about your day. If you take the bus/train/toll road, you pay $$ to use that type of transportation and, in return, the city, county, state, etc. allows you to use the bus, train, toll road. You turn on the TV in the evening to watch the latest Fake Housewives show, and guess what, you get cable TV because you and the cable company previously agreed that, in exchange for $$, you get the shows. Thus, we make contracts all day long, usually without thinking seriously about the terms of the contract.
Sometimes, there is "fine print" or other written verbage that defines the terms. Usually, however, we simply agree to pay a price in consideration of receiving the goods or services sold, without thinking too heavily about conditions on the agreement.
Sometimes, however, an agreement must be in writing, with specific terms outlined in writing, and signed by the parties to the agreement. Public policy outlines many of these types of writings: Promissory notes, real property transactions, and purchases of goods worth more than $500 are the most common. The rationale is that a written agreement provides proof, more than just testimony/memory, but actual written terms for the parties to follow. Should something not go according to plan, you can take the writing into court and the court can interpret the meaning of the contract. Think of a dispute as a tornado. Think of insurance as the written contract that existed prior to the dispute. Your life will be turned upside down by the tornado's impact; but, you will be able to get through it with the insurance. Same with a dispute between parties to an agreement. With the written contract, you will have a much better chance of righting the ship than if you risked a dispute without such written agreement.
If you do business, you need to review your written contracts at least annually to insure that they comply with laws, are simple to understand, and specifically, protect your interests should a dispute over that agreement arise.
Have a Great Day!
Let's take an average day. You get up in the morning, head out the door, and go get that first cup of Joe. $2-$3 at the local coffee shop. In reality, that's a contract, right? The coffee shop offers a cup of good coffee for $2; you agree to pay that price, hand over your $2, and wait while the coffee clerk makes your steaming cup o'Joe. When you receive your cup, the deal is fully performed. You go about your day. If you take the bus/train/toll road, you pay $$ to use that type of transportation and, in return, the city, county, state, etc. allows you to use the bus, train, toll road. You turn on the TV in the evening to watch the latest Fake Housewives show, and guess what, you get cable TV because you and the cable company previously agreed that, in exchange for $$, you get the shows. Thus, we make contracts all day long, usually without thinking seriously about the terms of the contract.
Sometimes, there is "fine print" or other written verbage that defines the terms. Usually, however, we simply agree to pay a price in consideration of receiving the goods or services sold, without thinking too heavily about conditions on the agreement.
Sometimes, however, an agreement must be in writing, with specific terms outlined in writing, and signed by the parties to the agreement. Public policy outlines many of these types of writings: Promissory notes, real property transactions, and purchases of goods worth more than $500 are the most common. The rationale is that a written agreement provides proof, more than just testimony/memory, but actual written terms for the parties to follow. Should something not go according to plan, you can take the writing into court and the court can interpret the meaning of the contract. Think of a dispute as a tornado. Think of insurance as the written contract that existed prior to the dispute. Your life will be turned upside down by the tornado's impact; but, you will be able to get through it with the insurance. Same with a dispute between parties to an agreement. With the written contract, you will have a much better chance of righting the ship than if you risked a dispute without such written agreement.
If you do business, you need to review your written contracts at least annually to insure that they comply with laws, are simple to understand, and specifically, protect your interests should a dispute over that agreement arise.
Have a Great Day!
June 2, 2011
RIP FRIEND
This morning, I learned about the tragic death of a friend, Justin. Apparently, he was a passenger in a small aircraft making a business trip with 2 others and the pilot when, while trying to land at an airport near the Utah/Nevada border, the plane lost altitude and quickly nosed into the ground, killing all passengers and the pilot. We met because we lived in the same local community and his children and mine were classmates together at the local school. While not close friends, we had the opportunity to share many events together, and we even spoke about potential business relations.
No, this is not your typical legal blog. I simply am writing it as a tribute to someone who took life by the horns and directed his life to the fullest extent. A devout Christian, he put his family first, treated his friends as though they were extended family members, and participated in life's daily cycle with a positive glow. Whenever I met with him, whether briefly in passing or for an extended time, he ALWAYS was in a positive mood, and showed respect and sincere appreciation for whatever the day brought to him.
I know his family and friends grieve at this time, especially since his life was cut short so early (he was 36). But, in thinking about the common saying, "live life to the fullest!" Justin did just that, and welcomed all of us to share in such action.
REST IN PEACE, FRIEND. BLESSINGS TO YOU AND YOUR FAMILY.
YOUR FRIEND, ABE
No, this is not your typical legal blog. I simply am writing it as a tribute to someone who took life by the horns and directed his life to the fullest extent. A devout Christian, he put his family first, treated his friends as though they were extended family members, and participated in life's daily cycle with a positive glow. Whenever I met with him, whether briefly in passing or for an extended time, he ALWAYS was in a positive mood, and showed respect and sincere appreciation for whatever the day brought to him.
I know his family and friends grieve at this time, especially since his life was cut short so early (he was 36). But, in thinking about the common saying, "live life to the fullest!" Justin did just that, and welcomed all of us to share in such action.
REST IN PEACE, FRIEND. BLESSINGS TO YOU AND YOUR FAMILY.
YOUR FRIEND, ABE
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