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Fannie, Freddie Give Some Relief to Foreclosed Homeowners

December 3, 2014 Leave a comment

Fannie, Freddie Give Some Relief to Foreclosed Homeowners

Agencies Will Allow Homeowners in Foreclosure to Buy Back Properties at Market Value

Mortgage-finance giants Fannie Mae and Freddie Mac will allow homeowners who have been foreclosed upon to repurchase their homes at market value even if they owe more, reversing a policy that prohibited such transactions.

The change comes as Melvin Watt, the director of Fannie and Freddie’s regulator, has come under increasing pressure from some groups to use the companies to provide more relief to struggling homeowners.

“This is a targeted, but important policy change that should help reduce property vacancies and stabilize home values and neighborhoods,” said Mr. Watt, the chief of the Federal Housing Finance Agency.

Previously, someone who lost a home through foreclosure and wanted to buy it back from Fannie or Freddie needed to pay the full amount owed on the mortgage, even if the market value of the home was less. That was intended to take away the motivation for homeowners to intentionally default in order to get the balance of their mortgages reduced.

In effect, that meant Fannie and Freddie had two standards where they would be willing to sell properties they owned to a new buyer at market prices when they wouldn’t do so for the former homeowner.

“There’s no reason why you shouldn’t be willing to sell a home to these borrowers on the same terms that you’re willing to sell it to someone else,” said Laurie Goodman, center director of the Housing Finance Policy Center at the Urban Institute.

The old policy drew the ire of some politicians and nonprofit groups, which argued that it encouraged homes to stay vacant and hurt neighboring property values. In June, Massachusetts Attorney General Martha Coakley sued Fannie and Freddie, alleging that the policy violated a Massachusetts state law that allowed market-value sales to foreclosed-upon homeowners in some circumstances. That lawsuit was dismissed in October.

On Tuesday, Ms. Coakley said the change “is encouraging news for homeowners in Massachusetts and across the country” while adding that she hoped the regulator would move further to reduce mortgage debt for some homeowners.

Elyse Cherry, chief executive of Boston Community Capital, a nonprofit group that provides financing to foreclosed-upon homeowners to buy their homes back, called the new policy “an encouraging step in the right direction. It makes sense for homeowners and it makes sense for neighborhoods.”

However, the impact of the change could be limited. It will only apply to the 121,000 homes that Fannie and Freddie have already foreclosed on and own, a provision that’s intended to curtail any incentive for borrowers in good standing to default. That narrow scope is unlikely to quiet the drumbeat for the FHFA to make bigger changes intended to help a larger number of borrowers who owe more than their homes are worth.

Foreclosed-upon borrowers will also still need to find the cash or financing to buy the old home back at market value, a tall order for those with tarnished credit histories.

“This is a ‘feel-good’ type of policy. It’s directionally helpful to a small number of homeowners that ran into trouble, but at the end of the day, I don’t look to this to have a major policy impact,” said Clifford Rossi, a finance professor at the University of Maryland.

Since Mr. Watt took office in January, many politicians and nonprofit groups have asked that he allow Fannie and Freddie to reduce the principal of mortgages for borrowers who owe more than their homes are worth, a step that he has so far avoided taking.

At a Senate Banking Committee hearing last week, Sen. Elizabeth Warren (D., Mass.) criticized Mr. Watt for not allowing principal reduction. Mr. Watt at the hearing said that principal reduction was “the most difficult issue that I’ve faced as director.”

The new policy in effect reduces mortgage principal, albeit for a small number of foreclosed-upon borrowers. Some nonprofit groups said that Fannie and Freddie would be better served to reduce the borrower’s principal before a foreclosure.

“It would make more sense to do a mortgage modification with principal reduction earlier in the process and prevent foreclosure in the first place,” said Kevin Whelan, national campaign director for the Home Defenders League, a nonprofit that has advocated for widespread principal reduction.

A Fannie Mae spokesman declined to comment beyond Mr. Watt’s statement.

“Our ongoing practice has been to sell homes at current market price to minimize losses to Freddie Mac and maximize opportunities to stabilize home prices in communities while fostering homeownership opportunities,” said a Freddie Mac spokesman.

Understanding New Jersey Criminal Charges

August 20, 2013 Leave a comment

Image2013-08-05 22.54.06

WHAT IS A DISORDERLY PERSONS OFFENSE

Disorderly persons and petty disorderly persons offenses are the most common variety of non-motor vehicle charge prosecuted in Municipal Court in NJ. If you have been charged with a disorderly persons offense, the most important thing you need to know is that a record of a resulting conviction shall show on a criminal background check. It is therefore extremely important that you retain an experienced NJ defense attorney to insure that your complaint is downgraded to a Municipal Ordinance or dismissed altogether. Our defense team possesses over 60 years of experience defending almost every type of disorderly persons charge in New Jersey and even includes two former Municipal Prosecutors. Our lawyers are familiar with how these cases need to be handled, having prosecuted these cases in over 20 NJ municipalities and defended literally 1000s of disorderly and petty disorderly charges. Make sure your complaint and/or arrest does not result in your being convicted, and contact a lawyer from our firm, the Law Offices of Benjamin G. Kelsen, Esq. LLC, for a complementary initial consultation anytime.

The most frequently encountered disorderly persons offenses in Municipal Court are:
1. Simple Assault
2. Possession of Less than 50 Grams of Marijuana
3. Drug Paraphernalia
4. Harassment
5. Shoplifting
6. Disorderly Conduct
7. Resisting Arrest
8. Bad Checks
9. Lewdness
10. Obstruction of Justice

Penalties If Convicted of these Charges

The penalties under New Jersey law for individuals convicted of a Petty Disorderly Persons Offense or regular Disorderly Persons Offense include a jail sentence of up to six (6) months. The Court may also impose a monetary fine of up to $1,000. Any conviction also carries mandatory assessments of $50 for the Victims of Crime Compensation Board (VCCB), $75 for the Safe Neighborhood Services Fund, and $33 in court costs. For additional detail concerning penalties, consult our page titled Disorderly Persons Offense Fines & Penalties.

Difference Between a “Crime” and Disorderly Persons Charge. The New Jersey code refers to violations of law in terms of “crime” or “offense”. Whenever the code uses the term offense, it is referring to a disorderly person or petty disorderly person charge. By contrast, a crime is an offense that is customarily defined as a felony in other states and involves exposure to six (6) months or more in possible incarceration in jail. An individual is entitled to have allegations of a crime presented to a grand jury, hence NJ’s reference to these offenses as Indictable. An individual arrested for a Disorderly Persons offense has no right to a grand jury as these are non-indictable charges punishable by a maximum period of imprisonment of six (6) months.

Statute of Limitation for Filing Disorderly Persons Cases. The statute of limitation for prosecution of disorderly persons offenses like simple assault, harassment, bad checks or the like is one (1) year. What this means is that a complaint alleging, for example, resisting arrest, possession of less than 50 grams of marijuana or obstruction or drug paraphernalia, must be filed with the Court within a year of commission of the related offense or the complaint is barred from prosecution by virtue of it being out-of-time under the law of New Jersey.

Expungement of Disorderly Person Convictions. A person who has been convicted of a disorderly or petty disorderly persons offense may seek expungement five (5) years following conviction or completion of probation and payment of fines, whichever is later. Eligibility to have a petty or disorderly persons offense expunged is limited to individuals with no more than three (3) convictions of this nature and persons who have never been convicted of a “crime”.

Diversion Programs for these Offenses. A program referred to as Conditional Discharge allows individuals charged with Possession of Less than 50 Grams of Marijuana and Drug Paraphernalia to avoid conviction provided they meet certain requirements and successfully complete approximately one (1) year of probation. Pretrial Intervention is presently unavailable in Municipal Court as a means of diverting and/or avoiding conviction for disorderly persons offenses.

If you would like more information about disorderly persons charges, one of our attorneys would be happy to assist you. Our lawyers are always eager to assist individuals in need of our assistance and initial consultations are always free of charge. Don’t make a decision in the dark if you have been charged with a disorderly persons complaint in Bergen County, Passaic County, Monmouth County, Union County, Middlesex County, Ocean County, Hudson County, Essex County, Morris County, Mercer County or elsewhere in NJ. The assistance you need from a knowledgeable attorney is just a telephone call away at 1-800-380-5591.

What is an Indictable Criminal Charges

A category of crimes that can have a particularly significant effect on a persons life are indictable offenses. Charges of this nature require the experience of a seasoned attorney. If you were arrested on allegations of an indictable offense, the defense lawyers at our firm, the Law Offices of Jonathan Marshall, have the know how and expertise you need. Do not hesitate to contact us if you are the subject of an indictable charge in Monmouth County, Middlesex County, Ocean County, Hudson County, Morris County, Union County, Mercer County or elsewhere in NJ.

Grand Jury Presentation
When a criminal complaint alleges a First Degree, Second Degree, Third Degree or Fourth Degree crime, the offense is indictable in nature. What this means is that a defendant possesses an absolute right to have his or her charge presented to a grand jury when they have been issued a criminal complaint for this type of charge. A grand jury is a panel of 23 citizens that decides whether there is sufficient evidence for the state to prosecute an individual for a particular indictable offense.

Experienced & Aggressive Defense Attorneys

With over 13 years handling indictable charges, we have handled numerous Superior Court cases. This experience translates into a thorough understanding of the court system and law. It also affords us the wisdom to know when a case should be aggressively defended through trial or finessed in order to arrive at the absolute best outcome for our client. We handle a wide variety of crimes to which an individual may be indicted including:

1. Possession and Distribution of Controlled Dangerous Substance (“CDS”)
2. Eluding
3. Robbery
4. Aggravated Assault
5. Prescription Drug Fraud
6. Burglary
7. Credit Card Fraud
8. Firearm & Weapons Charges
9. Conspiracy
10. Penalties for Indictable Offenses

Grading of indictable charges is by “degree”, with First Degree being the most serious and Fourth Degree the least. The Fines and Jail Exposure escalate with the seriousness of the related criminal charges. A First Degree crime carries 10-20 years in prison and a fine of up to $200,000. A Second or Third Degree charge involves jail of 5-10 years and 0-5 years, and fines of $150,000 and $15,000, respectively. A Fourth Degree crime has a jail range of 0 to 18 months and a fine that can reach $10,000.

Don’t rely on guess work with your future, speak to an attorney without obligation now at 1-800-380-5591 about your Bergen County, Passaic County, Middlesex County, Monmouth County, Union County, Ocean County, Morris County, Hudson County, Essex County, Mercer County or Burlington County, case. A lawyer will address your concerns and provide you with appropriate guidance you need to avoid conviction.

 

False Child Molestation Claims Held To Amount To Child Abuse

November 28, 2012 Leave a comment

False Child Molestation Claims Held To Amount To Child Abuse

Charles Toutant

New Jersey Law Journal

11-27-2012

A mother subjected her daughter to abuse and neglect by making baseless reports that the child was molested by her father, the Appellate Division ruled Tuesday.

By lodging the claims, and coaching the girl to corroborate them, the mother showed a reckless disregard for her child, the court said in DYFS v. C.O., A-2387-11.

The girl’s well-being was further jeopardized by the stress of physical and psychological examinations during the sex-abuse investigations, the court added.

The girl, referred to by the pseudonym Amy, was born in November 2006 after a brief romance between her parents, referred to as Sally and Charles.

Sally resisted letting Charles spend time with Amy, but he won visitation rights shortly before her first birthday.

In April 2010, when Amy was 3, Sally took her to an emergency room and said Charles had penetrated the girl’s vagina with a vibrating device while she was visiting him.

An investigation was conducted in New York, where Charles lived. The New Jersey Division of Youth and Family Services (DYFS) remained involved because Amy is a state resident.

New York police found no evidence of sexual abuse, based on a physical examination, conflicting accounts by Amy and Sally, and interviews of guests at a party attended by Charles and Amy at the time of the alleged abuse.

DYFS and Child Protective Services (CPS) in New York also found no sexual abuse. They cited the same sources, as well as a videotape of the party showing Amy playing happily and photographs of Amy’s genital and anal areas, taken by Sally’s father before and after the visit, which did not display any injury.

DYFS and CPS also cited counselors’ concerns that Amy’s statements had been prompted by Sally.

While that investigation was under way, Sally made additional allegations of sexual abuse against Charles and insisted that Amy have a second, invasive physical exam. Again, no signs of sexual abuse were found.

DYFS contended that Sally’s continuing conduct was harmful to Amy, in violation of N.J.S.A. 9:6-8.21 to -8.73, which defines child abuse and neglect.

A judge granted DYFS’s motion to transfer residential custody of Amy to Charles on May 13, 2010, pending a fact-finding hearing. The hearing was conducted on 12 nonconsecutive days between November 2010 and July 2011.

In December 2011, Bergen County Superior Court Judge Bonnie Mizdol ruled that DYFS had sustained its burden of proof that Sally exhibited a pattern of reckless disregard that harmed Amy.

Mizdol cited the “repeated, unnecessary medical, physical and psychological examinations” and Sally’s attempts “to shape and manipulate” Amy’s behavior to further Sally’s goal to isolate Charles “from any meaningful parental relationship with his daughter.”

Sally appealed, contending that Mizdol’s factual findings were not supported and that Sally’s constitutional rights were violated by the nonconsecutive hearing dates.

Appellate Division Judges Clarkson Fisher, Carmen Alvarez and Alexander Waugh Jr. affirmed, adding that Sally had not intended to hurt Amy.

The panel cited the stress of multiple investigations, Sally’s insistence on a second physical examination and counselors’ notes that Amy had an enhanced knowledge of sexual matters for a child of her age.

In addition, the panel said Mizdol properly characterized the mother’s conduct as “abuse or neglect.”

Noting that the child-abuse statute requires such conduct to rise above the level of mere negligence, and requires conduct that is “grossly or wantonly negligent” or “reckless,” the appeals court cited Mizdol’s finding that the mother’s conduct was “reckless.”

Sally also claimed that her pursuit of a clear answer as to whether her child was sexually abused did not constitute grossly or wantonly negligent behavior.

The appeals judges noted, however, that Sally had received a clear answer from Child Protective Services and the police but would not accept it.

“The reckless disregard found by the judge stemmed not from Sally’s efforts to rule out sexual abuse, but rather from her refusal to recognize a clear answer once she had one and her continued, baseless assertions that Charles had abused Amy,” the panel added.

Sally also disputed Mizdol’s conclusion that she had coached Amy, citing a counselor who supported her view.

But the appeals court said Mizdol’s finding was appropriately supported by two other counselors and an interview of Amy by a New York child-abuse investigator and a sheriff’s officer.

The panel also rejected Sally’s claim that her rights were violated by nonconsecutive hearing dates. Although R. 5:3-6 requires a trial to run over consecutive days, the delays were caused by scheduling issues, including Sally’s work schedule and the judge’s trial calendar, the panel said.

Sally’s lawyer, James Doyle of Swenson & Doyle in Hackensack, says the ruling unfairly labels his client a child abuser because she sought further reassurance that Amy had not been abused.

DYFS did a poor job of communicating to Sally the outcome of that inquiry, says Doyle. He adds that Sally no longer suspects Charles of child abuse and still hopes to regain primary custody but the abuse and neglect finding makes that difficult.

DYFS was represented by Assistant Attorney General Andrea Silkowitz. Lee Moore, a spokesman for the Attorney General’s Office, says his agency will not comment.

 

The Compelling Case For Re-Electing President Obama

October 15, 2012 Leave a comment
Compelling Case For Obama

http://www.huffingtonpost.com/steve-sheffey

By Steve Sheffey

 

Israel should not be an issue in this election–President Obama and Romney both support Israel.  All administrations have ups and downs, but there have been fewer downs in this administration than in previous administrations, and many unprecedented successes.

 

Paul Ryan was wrong about President Obama’s meeting with Prime Minister Netanyahu and he was wrong about Iran sanctions.

 

President Obama is the clear choice on the economic and social issues that most of us care about. As the St. Louis Post Dispatch observed in its must-read endorsement of President Obama, “If more Americans were paying attention, this election would not be close. Barack Obama would win going away, at least 53 to 47, perhaps even 99 to 1.”

 

Friends,

 

The Romney campaign is based on, as Joe Biden delicately put it, “malarkey.” Paul Ryan said at the debate that President Obama was in New York the same day as Prime Minister Netanyahu but went on a TV show instead of meeting him. The truth, according to Politfact, is that “the two leaders were not there on the same day: Obama was there Monday and Tuesday, and Netanyahu was there later in the week, on Thursday and Friday.” Ryan out and out lied. That’s the only way Romney-Ryan can win this election. Ryan also misrepresented President Obama’s position on Iran sanctions; more on that below. And by the way–Joe Biden was right to laugh, because the Romney-Ryan tax plan is an insulting joke on the American people.

 

For most of us, Israel is our threshold test. We won’t even consider voting for someone unless we are confident that he or she supports Israel. The good news is that both President Obama and Governor Romney support Israel. The bad news is that the Republican path to victory depends on denying that basic fact. So the first part of  today’s newsletter sets the record straight on Israel.

 

The Facts on Israel

 

The rest of this section is from my October 11, 2012 Times of Israel article, “Playing Politics With Israel.” I urge you to read it on-line because the links are there and because, well, it looks better on-line. Please click here.

 

Israel should not be an issue in the November election.  No one argues that President Obama’s record on Israel is perfect. But our legitimate concerns about Israel are being manipulated for partisan gain by those who attack Obama for policies that are no different from previous administrations.

 

The United States has never officially recognized Jerusalem as Israel’s capital. That’s why the US embassy is not in Jerusalem. The Jerusalem Embassy Act of 1995 requires that the US embassy be moved to Jerusalem unless the President signs a waiver every six months preventing the move. Bill Clinton signed the waiver every six months. George W. Bush signed the waiver every six months. Barack Obama signed the waiver every six months. And unless the parties to the conflict reach an agreement on Jerusalem, the next president will continue to sign the waiver every six months. We’ve seen videos of State Department officials refusing to say that Jerusalem is Israel’s capital. But we’ve never seen videos of State Department officials from prior administrations saying that Jerusalem is Israel’s capital. It’s been this way for over 60 years, and it will continue this way no matter who wins in November.

 

The United States has always objected to settlements. Settlements are not the root cause of the conflict. There were no settlements when the Arabs attacked Israel in 1948, nor were there any settlements prior to the Six Day War. The root cause of the conflict is Arab refusal to accept and recognize the permanent reality of a Jewish state of Israel. But every American administration since the Six Day War has opposed settlements because the more settlements there are, the more difficult it becomes to draw reasonable borders for a Palestinian state. The Bush administration publicly objected to construction even in Jerusalem, and George W. Bush publicly expressed frustration with Israel’s Prime Minister. The Bush roadmap for peace explicitly forbids “natural growth” of settlements. It’s not a new issue.

 

Even President Obama’s statement that “we believe the borders of Israel and Palestine should be based on the 1967 lines with mutually agreed swaps, so that secure and recognized borders are established for both states” was simply a restatement of George W. Bush’s declaration that any peace agreement between Israel and the Palestinians “will require mutually agreed adjustments to the armistice lines of 1949 to reflect current realities and to ensure that the Palestinian state is viable and contiguous.”

 

The policies of this administration toward Israel that some question are continuations of American policy that will persist no matter who is president. But this is what sets the Obama administration apart from previous administrations: President Obama has called for the removal of Syrian President Assad, ordered the successful assassination of Osama bin-Laden, done more than any other president to stop Iran’s illicit nuclear program, restored Israel’s qualitative military edge after years of erosion under the Bush administration, secretly sold Israel the bunker-busting bombs it requested but did not receive during the Bush administration, increased security assistance to Israel to record levels, boycotted Durban II and Durban III, took US-Israel military and intelligence cooperation to unprecedented levels, cast his only veto in the UN against a one-sided anti-Israel Security Council resolution, opposed the Goldstone Report, stood with Israel against the Gaza flotilla, and organized a successful diplomatic crusade against the unilateral declaration of a Palestinian state.

 

Contrary to Paul Ryan’s claim during the vice-presidential debate, President Obama did not oppose Iran sanctions-the issue was executive prerogative, and the provisions President Obama requested actually gave the President more flexibility to impose tougher sanctions.

 

Yet we’ve all seen the videos–some of which feature attractive young people who claim to have voted for Obama in 2008 and are now shocked, SHOCKED that his election did not usher in an era of world peace and universal love and that the US and Israel disagree on certain issues.

 

The reality is that US policy toward Israel has remained remarkably consistent over the past 60 years. There have been ups and downs throughout the history of US-Israel relations, but there have been many fewer downs during this administration than in previous administrations. We don’t know what Romney will do if elected. While there are legitimate questions about his foreign policy expertise, chances are that a Romney administration would resemble a Bush administration on Israel, for better or for worse.

 

Israel is an election issue because Republicans need it to be an election issue: It’s their only hope for winning Jewish votes. The problem for Republicans is that while they are generally supportive of Israel, the Democrats are too. There are real differences between the parties and the candidates, but Israel is not one of them. Where the parties do differ, the Democratic party is much better on the social and economic issues that most Jews care about.

 

The Republicans have a choice: Admit that both parties support Israel and concede the Jewish vote on social and economic issues, or use Israel as a partisan wedge issue by denying the Democratic party’s strong record of support for Israel (you can read my reaction to the Democrats who booed Jerusalem here). Unfortunately for America and Israel, the Republicans have chosen to ignore Michael Oren’s warningabout turning Israel into a partisan issue.  Fortunately for America and Israel, the vast majority of Jews are smart enough to see through these divisive Republican tactics and will vote to re-elect President Obama.

 

The Facts on Social and Economic Issues

 

On October 7, the St. Louis Post Dispatch endorsed President Obama. If you click on only one link in today’s newsletter, click on this one.  You should really read all of it, but at least read this:

 

Mr. Obama sees an America where the common good is as important as the individual good. That is the vision on which the nation was founded. It is the vision that has seen America through its darkest days and illuminated its best days. It is the vision that underlies the president’s greatest achievement, the Affordable Care Act. Twenty years from now, it will be hard to find anyone who remembers being opposed to Obamacare.

 

He continues to steer the nation through the most perilous economic challenges since the Great Depression. Those who complain that unemployment remains high, or that economic growth is too slow, either do not understand the scope of the catastrophe imposed upon the nation by Wall Street and its enablers, or they are lying about it.

 

To expect Barack Obama to have repaired, in four years, what took 30 years to undermine, is simply absurd. He might have gotten further had he not been saddled with an opposition party, funded by plutocrats, that sneers at the word compromise. But even if Mr. Obama had had Franklin Roosevelt’s majorities, the economy would still be in peril.

 

Extraordinary, perhaps existential, economic challenges lie just beyond Election Day. The nation’s $16 trillion debt must be addressed, but in ways that do not endanger the sick and elderly, or further erode the middle class or drive the poor deeper into penury.

 

The social Darwinist solutions put forward by Republican Mitt Romney and his running mate, Rep. Paul Ryan, are not worthy of this nation’s history, except that part of it known as the Gilded Age.

 

The Dispatch says this about Mitt Romney:

 

Mr. Romney apparently will say anything that will help him win an election. As a president, he might well govern as a pragmatic chief executive, or he might sell himself to the plutocrats and the crazies who have taken over his party. He is asking Americans to take a lot on faith – there’s nothing to see in his tax returns; he can cut taxes and whack away debt while trimming deductions he will not specify.

 

Mr. Romney’s business career is the only way to judge his foundational beliefs: He did not run a company that built things and created jobs and strong communities. He became fabulously wealthy by loading up companies with tax-deductible debt, taking millions out up front along with big management fees. Some companies were saved. Others went bankrupt. Mr. Romney’s firm always got out before the bills came due, either in lost jobs, bankruptcies or both.

 

If the nation’s most pressing issue is debt, why elect a president whose entire business career was based on loading up companies with debt?

In picking Mr. Ryan as his running mate, Mr. Romney signaled that he’s ready to perpetuate that model in public office. The middle class hasn’t had a raise in 20 years. Income inequality has reached record heights. Mr. Romney is the very embodiment of what’s gone wrong with the economy: Too many people at the top create vast wealth that they do not share, either by creating jobs or by paying fair tax rates.

 

If more Americans were paying attention, this election would not be close. Barack Obama would win going away, at least 53 to 47, perhaps even 99 to 1.

 

But the atmosphere has been polluted by lies, distortion, voter suppression and spending by desperate plutocrats who see the nation’s changing demographicsand fear that their time is almost up. They’ve had the help of a partisan Supreme Court.

 

The question for voters is actually very simple. The nation has wrestled with it since its founding: Will this be government for the many or the few?

 

Choose the many. Choose Barack Obama.

 

Read the entire editorial here.

 

Just for fun…your reward for getting through another newsletter. Bill Clinton’s take on the first Obama-Romney debate. Click here.

If you like what you’ve read and you’re not a subscriber, click on the Join Our Mailing List button below to join this list. Please consider forwarding this email to a few friends and sharing it on Facebook and Twitter by using the colorful symbols at the top of this email.

 

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Unless explicitly stated otherwise, the views I express in my emails do not necessarily reflect the views of any candidates or organizations that I support or am associated with.

SCOTUS ALERT: The Affordable Care Act is Constitutional

June 28, 2012 1 comment

SCOTUS ALERT: The Affordable Care Act (“Obamacare”) is Constitutional

http://www.scribd.com/doc/98543773

In Plain English: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn’t comply with the new requirements, rather than all of their funding.

FROM SCOTUSBLOG: Essentially, a majority of the Court has accepted the Administration’s backup argument that, as Roberts put it, “the mandate can be regarded as establishing a condition — not owning health insurance — that triggers a tax — the required payment to IRS.” Actually, this was the Administration’s second backup argument: first argument was Commerce Clause, second was Necessary and Proper Clause, and third was as a tax. The third argument won.

The rejection of the Commerce Clause and Nec. and Proper Clause should be understood as a major blow to Congress’s authority to pass social welfare laws. Using the tax code — especially in the current political environment — to promote social welfare is going to be a very chancy proposition.

Interesting, at least to scholars, that while the mandate and its attached penalty are a tax for purposes of its constitutionality, but not for the Anti-Injunction Act. If it were a tax for AIA purposes, this case would not have been decided re the mandate.

For all of those who second-guessed the Solicitor General’s defense of ACA, it might be worth noting that the tax defense of the mandate was, indeed, an argument that the government lawyer did advance.

 

Health care: Time to sum up

June 28, 2012 Leave a comment

Lyle Denniston Reporter

Posted Tue, June 26th, 2012 7:37 pm

Health care: Time to sum up

 Analysis

With a little more than twenty-four hours to go before the Supreme Court is scheduled to release its last rulings of this Term, it is very likely that the Justices and their staffs are still doing some final editing on the opinion — or opinions — that will tell the constitutional fate of President Obama’s most important domestic policy: the massive overhaul of the way Americans get and pay for health insurance.   The media and other pundits, and the academics, have all done their speculating on outcomes, and the blame games have started in anticipation that the ruling may turn out wrong for this or that constituency.

Leaving aside the ill-informed guessing and the petty blaming, there is still an actual decision to be made, and it may not be very easy — at first glance on Thursday – to tell just what the Court has decided.  No one outside the Court knows, for example, whether there will be one opinion that controls the multiple outcomes, or multiple opinions and mixed voting patterns, potentially complicating the result.  And, even if the Court says it does not have the authority to decide the most controversial part of the new law, that will still leave something to be decided right now — provided, of course, that the Court does not put off the whole thing.

 

The Court’s choices are many, and even canvassing what the likely options are may miss some.   The most deflating option, for all of those anxiously awaiting a definitive decision, would be for the Court to issue a simple order setting the case for re-argument at the next Term, starting October 1.   If a Court already wearied after a tough nine months just doesn’t have the energy to wrap up one more big case, a delay would be a way to get out of town and start the summer recess.

After having spent nearly six hours hearing arguments in March, and months since then working on opinion drafts, would there be any appetite to do it all over again? Besides, it might look a bit bad to do that, since the Court rushed its review of the new law partly because of the overwhelming importance it recognized in the controversy.  Postponement, however, is not an option that has been taken off the table, and it at least would have the virtue of putting everything off on the constitutional issue until after this fall’s election, and reduce the Court’s political profile.  There has been a lot of rash speculation that the Court’s ruling is going to be driven by an exercise of political will, perhaps even partisan preference.

If the Court does decide to decide, it has four issues before it — three of which are somewhat clustered, and one of which stands somewhat (but not entirely) alone.

The three that are definitely bunched together could be decided with a ruling on just one of them, or with a ruling on just two, or with a ruling on all three, separately.   Those three issues all relate to the insurance mandate, or what is technically labeled the “minimum coverage” provision.   By that provision, the most controversial of all, Congress declared that virtually every American (there are a few exceptions) must obtain health insurance before the year 2014, or else pay a financial penalty with their tax returns until they do get a policy.

So the individual mandate is one of the clustered issues.  The second is whether the Court has the authority to decide the fate of the mandate.  And the third is whether, if the mandate is struck down as unconstitutional, other parts of the massive Affordable Care Act must fall with it — if any.

The authority-to-rule question turns upon the meaning of a section of the federal Anti-Injunction Act, first enacted by Congress in 1867.  That section was designed to protect the federal government’s capacity to continue collecting tax revenues, to keep the national government running.  It says simply that no one may go to court to challenge a tax law before it actually goes into effect, and before they have been compelled to start paying the tax-related penalty.   If the AIA is found to be binding in this case, then the mandate’s fate (if not repealed by Congress in the meantime) could not be decided until after it goes into effect in 2014.   The final answer might not be known until sometime in 2015, after another round of court review.

The choice before the Court on the AIA issue might appear to be an easy one:  if the individual insurance mandate is a tax law, then no one is legally free to challenge it in court now, and all cases focused on that issue would have to be dismissed as beyond judicial authority at this time.  But it actually is not easy.   The Court must first decide whether the individual mandate is a tax provision, based on its presence in the tax code and the fact that it has a tax-related penalty, plus the further fact that it will, indeed, raise a good deal of revenue.  And, even if it is deemed a tax provision, does the federal government have a right to waive the AIA block to litigation over its validity or is this the kind of jurisdictional law that can’t be waived?

Suppose that the Court finds that the AIA does apply.  That takes off the Court’s agenda a decision on the mandate itself, and, obviously, also removes any need to decide what other parts of the law fall with it.  That is the three-in-one potential of the AIA question.

But suppose the Court were to rule that AIA does not apply, perhaps because the mandate is not a tax provision at all, or perhaps because it is, but it can be waived in a case like this.  Then the Court would have to move on to the second of the clustered issues: is the mandate, in fact, unconstitutional?   If the Court upholds it as constitutional, that makes it unnecessary to decide the third item in the cluster: what else falls with the mandate, or does none of it fall?   But if the mandate is struck down, the Court has to get to that third issue (which is called the “severability” question, because it involves deciding whether the invalid part of a law can be sliced off from all, or at least part, of the rest).

If the mandate is nullified, the severability issue would be a really hard one for the Court to resolve. Would it go through the hundreds of pages of the Affordable Care Act, and pick and choose which provisions are tied to the mandate and which are not, or would it pass that issue off to a lower court or to Congress?  During the hearings on severability in March, the Justices showed a distinct distaste for handling that task themselves.

This brings the summing-up to the fourth issue, in some ways separated.  That issue is whether Congress exceeded its constitutional powers by enacting, as part of the new law, a very wide expansion of eligibility for the government-subsidized Medicaid program of providing medical care to the poor.   This may be thought of as separate from the clustered three issues, because a decision not to decide the mandate and severability issues (because the AIA prevents such a ruling) would not affect the need to decide the challenge to the broader Medicaid eligibility.

But before getting further into that question, it is necessary to point out that, in fact, it may not actually be separated from the mandate and its associated cluster issues.  If the Court strikes down the mandate, and then concludes that all of the rest of the law must go with it, then the Medicaid expansion, too, is dead.  And, if the Court strikes down the mandate, but not all of the rest of the ACA, then it must still address whether at least the Medicaid expansion will be among the doomed provisions.

Suppose, though, that the Medicaid expansion does avoid being nullified.   The Court must then decide whether to do something it has not done to a federal law in three-quarters of a century: strike down a law that Congress enacted by using its power under the Constitution’s Spending Clause.  (The mandate part of the law was based upon the Commerce Clause, not the Spending Clause.)  Three times since the last use of the Court’s power to nullify a federal law was used against a Spending Clause measure, the Court has said that it might be possible that the conditions Congress imposed on someone receiving federal funds were so onerous that they would amount to coercion.   In other words, the conditions actually forced the recipient of money to make a choice it would not otherwise make.

In mentioning the “coercion” possibility, the Court has done so in the context of complaints by state governments that a federal spending program under which they could get funds was being enforced with such harsh conditions that the states’ choice to take part, or not, was being coerced, thus compromising their sovereignty and dignity within the Federal Union.   The Court has never actually used the “coercion” theory to nullify any federal law, but it has at least agreed to consider it as it weighs the validity of the Medicaid expansion.   That is the very hard fourth question that may well remain after the Court has done what it is going to do with the mandate.

The states challenging the ACA have argued that the entire Act must fall, on the theory that all of its parts are interlocking and must stand or fall together.  The federal government has argued that many of the ACA’s parts have little or even nothing to do with the mandate, and that, therefore, the only parts of the law that should go down if the mandate does are the command that insurance companies may not turn aside individuals because they have pre-existing medical conditions, and the separate provision that limits insurers in varying their premium rates because of the age or medical health of those who seek coverage.   But there is also an argument in the case that, whatever the fate of the mandate, the rest of the ACA should remain intact and working.

All of these issues, summarized here, are the puzzles that the Justices have been trying to solve among themselves since the arguments ended on March 28.  On Thursday morning, soon after 10 a.m., they could announce their conclusions.

 

http://www.scotusblog.com/2012/06/health-care-time-to-sum-up/

 

 

NEW CASE: N.G. v. J.P. FAMILY LAW — Domestic Violence – 50 YEARS DIVORCED IS NOT TOO LONG TO BE CONSIDERED DOMESTIC VIOLENCE

June 28, 2012 Leave a comment

N.G. v. J.P.

http://www.law.com/jsp/nj/PubArticleFriendlyNJ.jsp?id=1202560223664

FAMILY LAWDomestic Violence
Although the parties have not resided together in more than 50 years, defendant‘s sporadic harassment of plaintiff over that period, arising from their status as former household members, conferred jurisdiction on the Family Part to issue a final restraining order under the Prevention of Domestic Violence Act.

 

By Judith Nallin

06-20-2012

N.G. v. J.P., A-3247-10T3; Appellate Division; opinion by Baxter, J.A.D.; decided and approved for publication June 18, 2012. Before Judges Baxter, Nugent and Carchman. On appeal from the Chancery Division, Family Part, Essex County, FV-07-321-11. DDS No. 20-2-6661 [34 pp.]

Defendant J.P. appeals from the issuance of a final restraining order against him under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35.

Defendant and plaintiff N.G. are siblings who have not resided together since 1960. J.P. harbors a deep resentment of N.G. and their mother, B.P. The record describes confrontations between J.P. and N.G. in the 1960s when he allegedly hit her over the head with a baseball bat, in 1989, when he confronted her in a school parking lot, and in 1991, when he encountered her at a local pizzeria.

As a result of those incidents, N.G. obtained an order for preliminary restraints barring J.P. from contacting or disparaging her and from conducting any sort of public protest adjacent to her residence. In 1991, a judge entered a FRO prohibiting J.P. from coming within four blocks of the residences of B.P. and N.G.. The FRO was vacated in 1993 as to B.P. only.

In February 2010, J.P. began picketing in front of N.G.’s residence. On 29 occasions he marched back and forth repeatedly saying “F— you G——–,” “Burn in hell,” and “I hope you rot in hell.” He often made an obscene gesture in which he raised each of his middle fingers.

As a result, N.G. filed a domestic-violence complaint against him. The judge ruled that J.P. had committed the predicate acts of stalking and harassment and issued the FRO barring him from contacting N.G. and from entering any portion of Millburn Township. J.P. responded that he would not comply with the court’s order. N.G. was awarded attorney fees.

Held: The harassment of plaintiff by defendant over the intervening decades — although sporadic — conferred jurisdiction on the Family Part to issue the FRO since the present incidents arose directly from the parties’ acrimonious family relationship and their status as former household members.

Defendant’s conduct constituted harassment and stalking. The award of attorney fees to plaintiff is affirmed, as such fees are expressly available under the act and the judge correctly applied the factors in Rule 4:42-9(b). However, because the FRO failed to give sufficient consideration to J.P.’s legitimate need to attend church and visit his physician in Millburn, the matter is remanded so that the judge may set precise conditions respecting those activities.

J.P. claims that the court lacked jurisdiction to issue the FRO and that the judge committed reversible error when he refused to dismiss N.G.’s complaint. The panel says the act defines a victim of domestic violence to include, “any person … who has been subjected to domestic violence by … any … person who is a present or former household member.” The panel applies the six-factor test for determining whether jurisdiction exists based on the parties’ status set forth in Coleman v. Romano, 388 N.J. Super. 342 (Ch. Div. 2006).

As to the first factor, the nature and duration of the prior relationship between the parties, the panel agrees with the trial judge’s finding that although N.G. and J.P. have been estranged for decades, his attempt to re-establish contact with her springs from the antagonism he harbored toward her while they were members of the same household. The long duration of the parties’ relationship, albeit composed of sporadic episodes of intense strife, supports the conclusion that this factor was satisfied.

As to the second factor, whether the past domestic relationship provides a special opportunity for abuse and controlling behavior, the panel says J.P.’s testimony concerning the motivation for his behavior makes it clear that if N.G. were not his sister, he would not have behaved toward her as he did. Her testimony supports the conclusion that events during her childhood made her fearful of his conduct and threats in adulthood. Thus, the second factor weighs in favor of jurisdiction under the act.

The panel says that while the parties have not lived together for more than 50 years, the third factor, the amount of time that has elapsed since the parties last lived together, is only one factor to be considered in determining the availability of the act’s protection.

The fourth factor is the nature and extent of any contact between the parties between the time they ceased living together and when the plaintiff seeks protection under the act. The panel says that although J.P.’s conduct in 1989 and 1991 is distant in time both from when the parties stopped living together and from when N.G. sought protection under the act, the incidents were of such severity as to weigh in favor of jurisdiction.

As to the fifth factor, the nature of the precipitating incident, the panel says that case law has held that when the precipitating incident relates to the prior domestic relationship, jurisdiction under the act is appropriate. Because J.P.’s behavior in 2010 was motivated exclusively by what he perceived as B.P.’s and N.G.’s unjust treatment of him, and his conduct was persistent and threatening, the nature of the precipitating incident weighs in favor of jurisdiction.

Finally, the panel says the sixth factor, the likelihood of ongoing contact or a continuing relationship, weighs in favor of jurisdiction since defendant’s testimony provides ample evidence that his behavior will not cease.

Because all of the Coleman factors, with the possible exception of the third, weigh in favor of jurisdiction, the panel affirms the denial of defendant’s motion to dismiss.

As to defendant’s argument that the FRO was oppressively and impermissibly broad, the panel notes that remedies under the act are liberally construed for the protection and safety of victims and the public at large. Noting J.P.’s defiant attitude and his vow to disobey the FRO, it says extraordinary measures are necessary for N.G.’s protection.

Therefore, the panel affirms the ban on defendant entering Millburn. However, it remands to give J.P. a fuller opportunity to describe his church attendance and any visits to his doctors in Millburn. If he fails to do so, his right to seek such relief will be deemed waived.

As to defendant’s claim that the judge erred by finding his conduct constituted harassment and stalking, the panel reviews the statutory definition of stalking and concludes that the trial court correctly found that J.P. committed the predicate offense of stalking where he maintained a visual and physical proximity to N.G., his conduct was repeated 29 times, he threatened N.G. by offensive hand gestures and shouting curses at her, and he caused emotional distress.

Similarly, the panel reviews the definition of harassment and concludes that J.P.’s conduct constituted harassment where he communicated with N.G., his conduct undermined his claim that his intent was other than to harass her, and his repeated conduct was likely to cause annoyance or alarm.

The panel affirms the award of counsel fees, finding that such an award in a domestic-violence proceeding requires no special showing and that the judge carefully applied all of the factors specified in Rule 4:42-9(b), RPC 1.5(a) and Schmidt v. Schmidt, 262 N.J. Super. 451 (Ch. Div. 1992).

For appellant — Jack Venturi (Jack Venturi & Associates; Venturi and Michael B. Roberts on the briefs). For respondents — Mark H. Sobel (Greenbaum, Rowe, Smith & Davis; Sobel and Dennis F. Feeney on the brief).

 

http://www.law.com/jsp/nj/PubArticleFriendlyNJ.jsp?id=1202560223664