Arizona v. The Inter Tribal Council of Arizona, Inc. - Can a state pass a law to require proof of citizenship for voting? This holding may address the larger issue of the degree to which states are limited or preempted in regulating federal elections.  (NOTE:  This decision was released on June 17 – see http://www.scotusblog.com/2013/06/details-arizona-v-inter-tribal-council-of-arizona-inc/#more-165155)

Fisher v. University of Texas at Austin - Do the affirmative action programs of the University of Texas admissions procedures violate the Constitution under Equal Protection Clause for discriminating based on race?

Shelby County v. Holder – Is Section 5 of the Voting Rights Act constitutional? Section 5 does not allow certain states to make changes to voting laws and regulations without approval of the Justice Department.

Hollingsworth v. Perry – Is Proposition 8 (Approved by California voters in 2008 to ban same-sex marriages) Constitutional under the Equal Protection Clause? There is also a question whether the petitioners have standing.

U.S. v. Windsor – Is the Defense of Marriage Act, which bans federal recognition of same-sex marriages, constitutional under the equal protection guarantee of the Fifth Amendment?

Luckily, Univ. of California Irvine law professor Erwin Chemerinsky has provided us with a succinct review of the legal issues – not political issues – before the court in the two cases. We all look forward to seeing the decisions in June.

Check out Prof. Chemerinsky’s article from ABA website:  http://www.abajournal.com/news/article/same-sex_marriage_cases_finally_go_before_the_supreme_court

With the ongoing debate about gun control legislation in Congress and New York State, it is important to take a closer look at the two recent U.S. Supreme Court decisions interpreting the 2nd Amendment, so that we can establish whether the legislation would be constitutional. This post is not seeking a debate on individual viewpoints on gun control. I only endeavor to remind all sides of this debate that the two recent U.S. Supreme Court decisions interpreting the 2nd Amendment are historically important, and no legislative body should pass any gun control laws prior to ensuring they will pass constitutional muster.

Let’s first be reminded of the text of the 2nd Amendment to the Constitution:  ”A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

The first landmark case updating 2nd Amendment law was District of Columbia v. Heller, 554 U.S. 570 (2008).  The plaintiffs challenged the DC City Council’s “Firearms Control Regulations Act of 1975,” which banned handgun possession by making it a crime to carry an unregistered firearm and prohibited the registration of handguns. No resident could own a handgun or automatic or semi-automatic weapon, except for police officers and guns registered before 1976. The law also required that guns be kept inside the home and “unloaded, disassembled, or bound by a trigger lock or similar device,” which made it difficult for home protection. Here is a summary of Justice Scalia’s holding in Heller (5-4 decision):

1.  The 2nd Amendment protects the individual right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home.

2.  Like most rights, the 2nd Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Prior court holdings show that the sorts of weapons protected are those “in common use at the time,” which finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

3.  The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the 2nd Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D.C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising 2nd Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.

The Court relied on the “in common use at the time” language from U.S. v. Miller, 307 U.S. 174 (1939) which stated:

“The significance attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”

It is important to note that Heller made clear the 2nd Amendment was not absolute and some gun control legislation is “presumptively lawful,” including laws that prohibit carrying concealed weapons, gun possession by felons or the mentally ill, carrying firearms in sensitive places such as schools and government buildings, and “dangerous and unusual weapons,” as well as laws that impose “conditions and qualifications on the commercial sale of arms,” and regulate firearm storage to prevent accidents.

The question remained after Heller whether it extended beyond federal legislation, and it was answered in McDonald v. Chicago, 561 U.S. 3025 (2010), which posed a challenge to a Chicago ordinance that essentially banned private handgun ownership.  McDonald held that the 2nd Amendment was binding on states and that the right of an individual to “keep and bear arms” protected by the 2nd Amendment is incorporated by the Due Process Clause of the 14th Amendment.

So here is the key question:  besides the legislative restrictions that Heller approves as not violating the 2nd Amendment, which other restrictions would be constitutional?

Let’s turn to the recently passed NY SAFE Act (from Gov. Cuomo’s website) for a review of its restrictions:

• Bans possession of any high-capacity magazines regardless of when they were made or sold. The maximum capacity for a detachable magazine is reduced from ten rounds to seven. Magazines owned before passage of the SAFE Act able to hold seven to ten rounds can be possessed, but cannot be loaded with more than seven rounds. .22 caliber tubular magazines are exempt from this limit. Previously legal “pre-1994-ban” magazines with a capacity of 30 rounds are not exempt, and must be sold within one year to an out-of-state resident or turned into local authorities. The magazine limit takes effect April 15, 2013.
  
• Ammunition dealers are required to do background checks, similar to those for gun buyers. Dealers are required to report all sales, including amounts, to the state. Internet sales of ammunition are allowed, but the ammunition will have to be shipped to a licensed dealer in New York state for pickup. Ammunition background checks will begin January 15, 2014.
  
• Requires creation of a registry of assault weapons. Those New Yorkers who already own such weapons would be required to register their guns with the state.
• Requires any therapist who believes a mental health patient made a credible threat of harming others to report the threat to a mental health director, who would then have to report serious threats to the state Department of Criminal Justice Services. A patient’s gun could be taken from him or her.
• Stolen guns are required be reported within 24 hours. Failure to report can result in a misdemeanor.
• Reduces definition of “assault weapon” from two identified features to one. The sale and/or transfer of newly defined assault weapons is banned within the state, although sales out of state are permitted. Possession of the newly-defined assault weapons is allowed only if they were possessed at the time that the law was passed, and must be registered with the state within one year.
• Requires background checks for all gun sales, including by private sellers – except for sales to members of the seller’s immediate family. Private sale background checks will begin March 15, 2013.
  
• Guns must be “safely stored” from any household member who has been convicted of a felony or domestic violence crime, has been involuntarily committed, or is currently under an order of protection. Unsafe storage of assault weapons is a misdemeanor.
• Bans the Internet sale of assault weapons.
• Increases sentences for gun crimes, including upgrading the offense for taking a gun on school property from a misdemeanor to a felony.
  
• Increases penalties for shooting first responders to life in prison without parole.
• Limits the state records law to protect handgun owners from being identified publicly.
• Requires pistol permit holders or owners of registered assault weapons to have them renewed at least every five years.

While several of the NY SAFE Act restrictions are similar to ones cited in Heller as acceptable, two do present possible constitutional problems:  the ban on assault weapons and ban of high capacity magazines.  Since these restrictions impact guns and magazines “in common use at the time,” they could run into problems under Heller’s reliance on Miller.

There is a serious issue with legislation directed at banning assault weapons because terms like “assault weapons” or “military-style assault weapons” are not defining an objectively agreed upon group of weapons.  There is tremendous debate on exactly which guns fall into this classification.  For example, the federal bill proposed by Senator Feinstein allegedly bans 157 specific guns and exempts 2,248 guns she claims are commonly used for hunting and sports shooting, although many of the 157 guns to be banned are in common use at this time and are semi-automatic guns, which many experts believe are not “assault weapons.”  (As a Marine Corps veteran with assault weapon experience, I do not believe that semi-automatic guns should be labeled as assault weapons).  There is widespread agreement that automatic guns are properly labeled as assault weapons (and I agree).  It appears the NY SAFE Act does not provide the requisite detail in its ban on assault weapons, making this component legally suspect.  However, Heller does state that restrictions on “dangerous and unusual weapons” would pass constitutional muster.  I suggest that those drafting legislation banning assault weapons better demonstrate that the guns being banned are truly “dangerous or unusual” and not simply guns “in common use at the time,” since Heller indicates that restrictions on the 2nd Amendment must pass some level of heightened scrutiny under either strict scrutiny or intermediate review.  This requires proof that the legislation is genuinely seeking to achieve reasonable and important societal goals, while minimizing unnecessary impacts on lawful gun owners.

The Congress is currently considering bans on both assault weapons and high capacity magazines, and since I believe these restrictions raise red flags under the 2nd Amendment post Heller, if such legislation is passed, it would need to be narrowly tailored to avoid vagueness and overbreadth.  The NY SAFE Act has already been challenged in court and you can expect any law passed by Congress to be challenged based on the landmark Heller case. We should expect the U.S. Supreme Court to revisit the 2nd Amendment in the coming years.

By Jim Maisano

Since I entered public service in 1997, one of the troubling injustices I’ve witnessed is eminent domain abuse, where governments sanction the taking (or de facto stealing) of private property for private use, usually for shopping malls and commercial developments, while hiding behind the fraudulent label of “public use.”  It is my view that using eminent domain in this manner is a perversion of the Fifth Amendment’s Takings Clause: “nor shall private property be taken for public use, without just compensation.” Please note that James Madison, the author of the Fifth Amendment, purposely chose the words “public use” instead of ”public purpose”, “public interest” or “public benefit.”  Unfortunately, in a 5-4 decision, the US Supreme Court did not agree with my view in Kelo v. New London (see http://goo.gl/8n8Ex), where it held that the transfer of land from one private owner to another to further economic development was a permissible “public use” under the Takings Clause in light of the general benefit to the community.

Here we go again – below are links to articles from the Institute for Justice (IJ) about the latest episodes of eminent domain abuse.  IJ is a strong opponent of eminent domain abuse and true champion in protecting private property rights (see http://goo.gl/V7vUh). You can be sure, as a legislator and attorney, I will always oppose eminent domain abuse, and if you truly believe in liberty and freedom, you need to oppose it too.

Read here how a Greek-American immigrant could soon lose his pizza shop and seven properties in Philadelphia because of eminent domain abuse:  http://goo.gl/0v1QZ.

And here is another example of governmental abuse of property owners through eminent domain, this time in Tennessee where 100 properties are being taken for a PRIVATE industrial manufacturing megasite:  http://goo.gl/lOQ03.

After the Kelo decision, 44 states reformed their eminent domain laws to limit abuses of property owners, but not surprisingly, New York (my state) continues to allow wealthy, powerful and politically connected developers to conspire with local governments to use eminent domain to take the property of homeowners and small businesses through eminent domain for the construction of exclusively private developments.  You can check out IJ’s review of your state’s eminent domain laws at this link:  http://goo.gl/vUknd.

As I was searching legal blogs, I found a bizarre case that was recently filed in federal court in Idaho. As an attorney for 20 years, I have seen too many frivolous cases and hope to have seen them all, but here is the latest:

http://blogs.lawyers.com/2013/01/prisoners-sue-beer-companies/

Yes, and I’m not kidding, prisoners are suing beer and liquor companies alleging that “the beer made me do it.” Let’s give them a cheer for creativity.

From the post on lawyers.com:

“The lawsuit seeks $1 billion from Miller Brewing, Anheuser-Busch, Coors and other major beer and wine makers for not adding warning labels on their bottles to tell people that alcohol is habit forming and addictive.

But here’s the kicker: the lawsuit was brought by five inmates in Idaho who claim that not only was the booze to blame for their alcoholism, but also for their criminal activity.”

I expect this action will meet its end after a motion to dismiss, but you can never be sure, maybe it gets all the way to trial. I imagine Letterman and Leno may have some jokes about this case. Although, I must note that the inmates don’t have an attorney yet and drafted the complaint on their own.

More on this case can be found here:  http://news.yahoo.com/idaho-inmates-sue-beer-wine-companies-1b-190211526–abc-news-topstories.html

This link from one of my favorite legal blogs, The Volokh Conspiracy, bothers me:

http://www.volokh.com/2012/10/11/you-too-might-display-hostility-if-people-started-grilling-you-about-your-teenage-deadhead-years/

This “court attorney referee” would probably benefit from an immediate CLE course on the rules of evidence, while concentrating on relevance and materiality.  Of course, the mother shouldn’t have been forced to testify about attending concerts long ago and other extraneous events.  If I was her attorney, I would have caused a scene with my objections.

What really troubles me is that lawyers may be used to the courtroom, but our clients are never comfortable there.  I have represented important business people, as well as witnesses that had never set foot in a courtroom, and trust me, they were all nervous about testifying.  While I expect opposing counsel to ask my client tough and complicated questions, I also expect the judge (or referee) to do his or her job well and make sure that justice, fairness and the rule of law are always enforced.  That clearly did not happen in the Queens County Family Court on the days this mother testified, and that is just not acceptable.  I ran for Supreme Court Justice a few years ago (lost a close one) with the intention to treat everyone in my courtroom with respect, fairness and professionalism, while also being tough in enforcing the law.  Our court system must work diligently to ensure that litigants believe in a positive way that they had their “day in court.”  I certainly would have protected this witness from such objectionable questions.  Thankfully, the appellate court granted this mother some justice.

I had to read the following article twice, which ran in The New York Times on September 15, 2012, because it was so troubling:

http://www.nytimes.com/2012/09/16/business/in-prosecutors-debt-collectors-find-a-partner.html?_r=0

In a nutshell, debt collection attorneys are sending out letters – utilizing a prosecutor’s letterhead – to people who have written bad checks. These letters threaten the consumers with jail time if they do not pay the amount of the bounced check, plus other large fees. Here is a link to an example of this kind of collection letter:

http://www.nytimes.com/interactive/2012/09/16/business/20120916_DEBT_LETTER.html?ref=business

This is an abusive process. It is certainly possible the shopper lacked any intent to pass a bad check and merely made a mistake. Could you imagine writing a check that bounced by accident and a few weeks later receiving a letter that appears to be from a prosecutor telling you to pay up or face jail time? It is most disturbing the article reports that one consumer’s ”bad check was sent directly from the merchant to the debt-collection company, without any prosecutor determining whether she had actually committed a crime.” Normally, before being charged with a crime, a person’s actions are fully reviewed by the police and/or prosecutors to ensure the alleged behavior rises to the level of crime. I realize the recipient of the letter has not been formally charged with a crime here, but the letter is misleading and certainly causes confusion, and I am sure many of the recipients believe they are being charged with a crime.

This is a deceitful scam by debt collection lawyers.  They seek to scare the heck out of people, and then turn a quick profit, and unfortunately, it is probably successful as consumers are paying quickly to avoid the threat of jail. Moreover, it is my understanding that it is not a high priority for law enforcement to target check bouncers, so it is doubtful whether many of these actions would ever be prosecuted. And who sets the fees that must be paid beyond the amount of the check…the collection attorneys? Is that fair and just? Where is the due process or governmental oversight?  How could the State of California actually sanction such abusive treatment of consumers?  Isn’t it unethical for attorneys to engage in misleading communications with the public? Shouldn’t the state bar associations be cracking down on these abuses.

The article did not mention whether these troubling debt collection letters have been mailed to New Yorkers, although I want to believe that the New York State Bar would proscribe such unethical actions under the New York Rules for Professional Conduct. If anyone becomes aware of such letters arriving here in New York, please contact me as I would like to see if I can be helpful to the affected consumer.

I was asked by a blog reader to mention New York State’s Anti-Bullying laws. Two important laws went into effect this past summer with the goal of reducing bullying in our schools. I think we can all remember how badly some of our classmates were treated back in high school, and as I look back on those days as an adult and father, it is troubling to remember the abuse some kids had to deal with. I dealt with it from both sides of the vicious cycle many kids experience – at some points I was bullied, and at other points I behaved badly towards classmates. Let’s take a brief look at New York State’s efforts to address these issues.

1) Dignity for All Students Act (“DASA”), passed in 2010, but effective July 1, 2012 (the following from Child Abuse Prevention Services website):

The theory behind the law is that all children have the right to attend school in a safe, welcoming and caring environment. DASA amended the NYS Education Law regarding instruction in civility, citizenship, character education, tolerance, respect for others and dignity. It combats bias-based bullying, harassment, and discrimination in public schools, and promotes awareness and sensitivity in the relations of people, including individuals of different races, weights, national origins, ethnicities, religions or religious practices, mental or physical abilities, sexes, sexual orientations, gender identities. DASA does the following:

• Protects all public elementary and secondary school students from discrimination and harassment of students by other students, teachers and school personnel.
• Every school must amend its code of conduct to implement the prohibition of discrimination and harassment in age-appropriate language.
• All school districts must appoint at least one staff member in every school to handle bullying incidents on school property, buildings, buses and school sponsored activities and events (and includes athletic fields, playgrounds and parking lots).
• School administrators must report incidents of bullying to the NYS Department of Education.

2)  Anti-Cyberbullying law signed by Governor Cuomo on July 9, 2012 (the following from Governor’s announcement when signing legislation):

• Requires that schools act in cases of cyberbullying, which may occur on or off campus, when it creates or would create a substantial risk to the school environment, substantially interferes with a student’s educational performance or mental, emotional or physical well-being, or causes a student to fear for his or her physical safety.
• Requires school districts to put in place protocols to deal with cyberbullying, harassment, bullying and discrimination, including assignment of a school official to receive and investigate reports; prompt reporting and investigation; responsive actions to prevent recurrence of any verified bullying; coordination with law enforcement when appropriate; development of a bullying prevention strategy; and notice to all school community members of the school’s policies.
• Sets training requirements for current school employees, as well as for new teachers and administrators applying for a certificate or license, on the identification and mitigation of harassment, bullying, cyberbullying and discrimination.

Let’s hope this legislation is successful in reducing bullying in our schools and allows our kids to have a more productive and enjoyable educational experience.

Lastly, I must point out that bullying types of behavior can rise to the level of conduct regulated by the NYS Penal Law, including Harassment in the First Degree (http://law.onecle.com/new-york/penal/PEN0240.25_240.25.html), Harassment in the Second Degree (http://law.onecle.com/new-york/penal/PEN0240.26_240.26.html), and Aggravated Harassment in the Second Degree (http://law.onecle.com/new-york/penal/PEN0240.30_240.30.html).

Outside of a few vacation days for family trips and events, it was a very busy summer at my law firm, but Labor Day has come and gone, and it is time for a new legal blog post.

Before starting this firm, I worked at two large law firms in Manhattan for about eight years, and while I did have my own clients, I also worked for clients of the firm. Being a solo practitioner is different in that you must not only provide quality and affordable legal services to your clients, you must also attract clients through advertising and promotion of the firm. I have utilized social media, Facebook, Twitter, LinkedIn, Google+ and Tumblr – along with this blog and my website (www.JamesMaisanoEsq.com), as integral parts of promoting the firm, and I am pleased to report it has been successful to the point that the firm is doing well in its second year, which is why it has been so busy.

So what kinds of legal work have clients brought to my firm recently – here is a brief summary:

• Since I began practicing law in 1992, the majority of my practice has involved commercial litigation. This includes helping businesses address contract disputes and collecting money owed by debtors. I am currently working on about ten such civil actions, which have been brought either in lower courts or the Supreme Court of the State of New York, and I have been successful for several clients thus far in recovering funds.
• I was a solo practitioner from 1996 to 2002 and during that time I developed a significant real estate closing practice. The housing market was strong in those years and I represented hundreds of clients for closings. With the struggling economy and lack of home sales, it is much harder for attorneys to attract this work, but I am happy to report that I worked on three closings this summer.
• The fastest growing part of my practice is wills, estates and probate actions in Surrogate’s Court. This summer I helped about fifteen clients by drafting wills or guiding executors through the probate process.
• Lastly, solo practitioners must be resourceful, and I also helped clients this summer with other legal matters such as setting up a LLC or corporation, legal name change, trademark protection, and traffic violations.

Thanks for following my efforts to build this law firm, and I am very thankful for the kind support and nice comments I have received on social media or by email. If I can ever be helpful to you in the types of legal matters discussed above, or for any other legal matter, please do not hesitate to contact me.

PS:  I am now associated with an immigration attorney, and am available to help you with these matters too.

As both an attorney and elected official, people often ask me about the process to get on the ballot to run for public office in New York State. Most people seem to think that a candidate gets endorsed at a political convention, but that is only partly true. While candidates do seek the endorsement of political parties at local or county conventions, that endorsement only means that the district leaders for that political party will support you and help you get on the ballot (which is very important).

However, unless you are running for state-wide office (senator, governor, attorney general or comptroller, who are nominated at state conventions), you must obtain signatures on “designating petitions.” This is the requirement for congress, state legislature, county legislature or local city and town elections (but not villages or supreme court). We are in the final week to collect signatures on designating petitions for New York’s six established parties — Democrat, Republican, Conservative, Working Families, Independence and Green. As a matter of fact, I walked my neighborhood this past Sunday night and collected signatures.

What do I mean by designating petitions? New York State Election Law sets forth the required procedures to collect the signatures on the designating petitions and to get on the ballot — see NYS Election Law Sections 6 – 118, 120, 122, 130, 132, 134, 136, 144 & 146. The Election Law requires candidates to obtain signatures of 5% of the registered voters in the district from the political party whose line they seek. Most candidates try to get about 10% to avoid any legal challenges. Therefore, since the first week of June, volunteers for candidates of all political parties have been ringing door bells and asking voters to sign designating petitions that will get candidates on the ballot, and this Thursday is the deadline to file these petitions with the Board of Elections.

For example, last year I needed about 375 signatures to run for re-election to the Westchester County Board of Legislators on the Republican line, and we were pleased to file more than 700 signatures.

If you are a registered voter in a political party and meet the 5% signature requirement from members of that party, you are on the ballot. If more that one candidate files petitions for a particular seat, they will face-off in a primary in mid-September. For candidates without primaries, they go straight to the November election.

What about seeking the lines of parties for which you are not a member? If you wish to run with a party line besides your own, you must meet the 5% signature requirement, as well as get permission from that party to run on its line.

And if you think your opponent’s designating petitions do not contain enough proper signatures to meet the required number, you can try to knock out those petitions with a legal challenge.

Every candidate across party lines can agree on one thing –- they are incredibly thankful for the great volunteers that have been carrying these designating petitions over the past six weeks. Many dedicated people have worked diligently to get candidates on the ballot for this November — so that voters have a real choice on Election Day. I have been carrying petitions for about twenty years now and am happy to report that most people are friendly in the doorway (but yes, there are a few cretins who are rude or too “busy” to participate in democracy). Thanks so much to all the wonderful volunteers carrying the petitions and to the helpful voters who signed them — you all play an important role in our democratic electoral process. Best of luck to all the candidates this year (especially the ones I am supporting)!