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Judge Sarah Evans Baker of the United States District Court of the Southern District of Indiana ruled on July 31, 2013 that the proposed display of crosses on public property in downtown Evansville is unconstitutional.
The West Side Christian Church (“Church”) had received approval for the Evansville Board of Public Works to erect thirty one (31) six foot tall crosses on public property in riverfront area of Evansville for two weeks in August. The Church sought this permission for its own behalf and other religious organizations.
Plaintiffs Chris Cabral and Nancy Tarsitano filed suit seeking an injunction to prevent the display. The Plaintiffs argued the display would violate the Establishment Clause of the First Amendment. The Church argued that prohibiting the cross display would violate the Free Exercise and Free Speech Clauses of the First Amendment.
Judge Baker applied Establishment Clause test announced by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971) to decide the case. Under the Lemon test, governmental action violates the Establishment Clause if it “(1) lacks a legitimate secular purpose; (2) has the primary effect of advancing or inhibiting religion; or (3) fosters an excessive governmental entanglement with religion.” Judge Baker continued by noting that the courts have adopted a “slightly modified version of the Lemon test” to evaluate religious displays on public property. Judge Baker stated: “[u]nder this approach, the primary question under Lemon’s ‘primary effect’ prong focuses on whether a government practice has ‘the effect of communicating a message of government endorsement or disapproval of religion.’”
The Court found that “based on the size and scope of the project, this planned display of crosses would convey a message of the City’s endorsement of Christianity to the reasonable observer, and thus, would violate the Establishment Clause.” Judge Baker’s decision was based on the inherently religious message of the crosses combined with the “oversized, imposing and somewhat overpowering size, scope, and magnitude of the display.” The size and prominence of the display created an impermissible governmental endorsement of religion.
The City and the Church have the option of appealing Judge Baker’s decision to the Seventh Circuit Court of Appeals.
On June 3, 2013, the Supreme Court announced its decision in Maryland v. King, a constitutional challenge to a Maryland statute permitting the state to gather a DNA sample from a suspect upon arrest without a search warrant.
The defendant, Alonzo King, was arrested on assault charges. His DNA sample was taken using a mouth swab. His DNA was found to match the DNA sample from an unsolved rape case. He was subsequently convicted of the rape. King challenged the rape conviction arguing the collection of his DNA sample violated his Fourth Amendment rights.
The Maryland statute allowed the state to take a DNA sample from a suspect arrested for a crime of violence or burglary. The state does not need to obtain a search warrant prior to taking the sample. The sample was then placed in the state’s DNA database. Twenty-eight other states and the federal government have similar statutes allowing the collection of a DNA sample from a defendant prior to conviction.
The decision of the Court was based on balancing the interest of the government in enforcement of criminal laws against the intrusion on the defendant’s legitimate expectation of privacy.
The Court began by noting that a search of the defendant’s body after arrest has always been permissible and then provided five reasons to support the collection of DNA: (1) the DNA sample can assist law enforcement in correctly identifying the suspect; (2) the collection of DNA allows law enforcement to assess the threat posed by the suspect to law enforcement and jail security; (3) collection of DNA allows the state to determine if the defendant is guilty of another crime and would therefore have greater reason to flee the jurisdiction; (4) DNA evidence is relevant to the granting of bail; and (5) the collection of DNA may result in the release of the wrongfully convicted.
The Court then analyzed the suspect’s legitimate privacy interest. The Court’s analysis began by noting that an arrestee has a diminished expectation of privacy. In addition, the mouth swab necessary to take the DNA sample involves very little physical intrusion. The genetic information taken by the state in this DNA test also did not reveal genetic traits and could only be used for limited purposes.
Based on the valid state interests and minimal intrusion upon privacy interests, the Court found no violation of the Fourth Amendment by the Maryland statute.
The full text of Dr. Martin Luther King’s “I have a dream” speech given on August 28, 1963 in Washington, DC:
“I am happy to join with you today in what will go down in history as the greatest demonstration for freedom in the history of our nation.
Five score years ago, a great American, in whose symbolic shadow we stand today, signed the Emancipation Proclamation. This momentous decree came as a great beacon light of hope to millions of Negro slaves who had been seared in the flames of withering injustice. It came as a joyous daybreak to end the long night of their captivity.
But one hundred years later, the Negro still is not free. One hundred years later, the life of the Negro is still sadly crippled by the manacles of segregation and the chains of discrimination. One hundred years later, the Negro lives on a lonely island of poverty in the midst of a vast ocean of material prosperity. One hundred years later, the Negro is still languishing in the corners of American society and finds himself an exile in his own land. So we have come here today to dramatize a shameful condition.
In a sense we have come to our nation’s capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men, yes, black men as well as white men, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness.
It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check which has come back marked “insufficient funds.” But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. So we have come to cash this check — a check that will give us upon demand the riches of freedom and the security of justice. We have also come to this hallowed spot to remind America of the fierce urgency of now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to make real the promises of democracy. Now is the time to rise from the dark and desolate valley of segregation to the sunlit path of racial justice. Now is the time to lift our nation from the quick sands of racial injustice to the solid rock of brotherhood. Now is the time to make justice a reality for all of God’s children.
It would be fatal for the nation to overlook the urgency of the moment. This sweltering summer of the Negro’s legitimate discontent will not pass until there is an invigorating autumn of freedom and equality. Nineteen sixty-three is not an end, but a beginning. Those who hope that the Negro needed to blow off steam and will now be content will have a rude awakening if the nation returns to business as usual. There will be neither rest nor tranquility in America until the Negro is granted his citizenship rights. The whirlwinds of revolt will continue to shake the foundations of our nation until the bright day of justice emerges.
But there is something that I must say to my people who stand on the warm threshold which leads into the palace of justice. In the process of gaining our rightful place we must not be guilty of wrongful deeds. Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred.
We must forever conduct our struggle on the high plane of dignity and discipline. We must not allow our creative protest to degenerate into physical violence. Again and again we must rise to the majestic heights of meeting physical force with soul force. The marvelous new militancy which has engulfed the Negro community must not lead us to a distrust of all white people, for many of our white brothers, as evidenced by their presence here today, have come to realize that their destiny is tied up with our destiny. They have come to realize that their freedom is inextricably bound to our freedom. We cannot walk alone.
As we walk, we must make the pledge that we shall always march ahead. We cannot turn back. There are those who are asking the devotees of civil rights, “When will you be satisfied?” We can never be satisfied as long as the Negro is the victim of the unspeakable horrors of police brutality. We can never be satisfied, as long as our bodies, heavy with the fatigue of travel, cannot gain lodging in the motels of the highways and the hotels of the cities. We cannot be satisfied as long as the Negro’s basic mobility is from a smaller ghetto to a larger one. We can never be satisfied as long as our children are stripped of their selfhood and robbed of their dignity by signs stating “For Whites Only”. We cannot be satisfied as long as a Negro in Mississippi cannot vote and a Negro in New York believes he has nothing for which to vote. No, no, we are not satisfied, and we will not be satisfied until justice rolls down like waters and righteousness like a mighty stream.
I am not unmindful that some of you have come here out of great trials and tribulations. Some of you have come fresh from narrow jail cells. Some of you have come from areas where your quest for freedom left you battered by the storms of persecution and staggered by the winds of police brutality. You have been the veterans of creative suffering. Continue to work with the faith that unearned suffering is redemptive.
Go back to Mississippi, go back to Alabama, go back to South Carolina, go back to Georgia, go back to Louisiana, go back to the slums and ghettos of our northern cities, knowing that somehow this situation can and will be changed. Let us not wallow in the valley of despair.
I say to you today, my friends, so even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream.
I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We hold these truths to be self-evident: that all men are created equal.”
I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.
I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.
I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.
I have a dream today.
I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of interposition and nullification; one day right there in Alabama, little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.
I have a dream today.
I have a dream that one day every valley shall be exalted, every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight, and the glory of the Lord shall be revealed, and all flesh shall see it together.
This is our hope. This is the faith that I go back to the South with. With this faith we will be able to hew out of the mountain of despair a stone of hope. With this faith we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood. With this faith we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day.
This will be the day when all of God’s children will be able to sing with a new meaning, “My country, ’tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the pilgrim’s pride, from every mountainside, let freedom ring.”
And if America is to be a great nation this must become true. So let freedom ring from the prodigious hilltops of New Hampshire. Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenies of Pennsylvania!
Let freedom ring from the snowcapped Rockies of Colorado!
Let freedom ring from the curvaceous slopes of California!
But not only that; let freedom ring from Stone Mountain of Georgia!
Let freedom ring from Lookout Mountain of Tennessee!
Let freedom ring from every hill and molehill of Mississippi. From every mountainside, let freedom ring.
And when this happens, when we allow freedom to ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God’s children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual, “Free at last! free at last! thank God Almighty, we are free at last!”
As we all know, Congress has now passed and President Obama has signed the “American Tax Payer Relief Act of 2012”, the legislation avoiding the so-called “fiscal cliff” – for now. The Act made some changes to the federal estate tax.
The exemption amount for estate and gift tax is now five million dollars for an individual and ten million dollars for a married couple. The tax rate for estates above the exemption was raised five percent to 40%. Without the legislation, the exemption amount would have only been one million dollars for an individual, two million for a married couple. The exemption amount will also now be indexed annually for inflation.
The legislation also made permanent the portability of an unused exemption by the first spouse to die. Thus, the current practice of allowing the estate of the first spouse to die to transfer any unused exemption to the surviving spouse by a filing with the IRS is now permanent. Previously, it was necessary to have trusts established to insure the full exemption amount was used.
I frequently receive telephone calls from prospective clients who are in the midst of a home improvement disaster and considering litigation against the contractor. Although there is no way to guarantee a problem free home improvement experience, I can offer a few suggestions.
Before selecting a contractor, do some investigation. Performing an internet search can be surprisingly informative. You can also contact the Better Business Bureau and ask for references from the contractor. As you might expect, finding the right contractor is most of the battle.
After you find the right contractor, you want to make sure your agreement is clear. The Indiana Home Improvement Contracts Act (“Act”) (Indiana Code §24-5-11 et seq.) protects the homeowner by requiring that home improvement contractors utilize a written agreement signed by both the contractor and the homeowners. The Act requires the contract state the following:
“(1) The name of the consumer and the address of the residential property that is the subject of the home improvement.
(2) The name and address of the home improvement supplier and each of the telephone numbers and names of any agent to whom consumer problems and inquiries can be directed.
(3) The date the home improvement contract was submitted to the consumer and any time limitation on the consumer’s acceptance of the home improvement contract.
(4) A reasonably detailed description of the proposed home improvements.
(5) If the description required by subdivision (4) does not include the specifications for the home improvement, a statement that the specifications will be provided to the consumer before commencing any work and that the home improvement contract is subject to the consumer’s separate written and dated approval of the specifications.
(6) The approximate starting and completion dates of the home improvements.
(7) A statement of any contingencies that would materially change the approximate completion date.
(8) The home improvement contract price.
(9) Signature lines for the home improvement supplier or the supplier’s agent and for each consumer who is to be a party to the home improvement contract with a legible printed or a typed version of that person’s name placed directly after or below the signature.” Indiana Code § 24-5-11-10.
If your contractor cannot or will not produce a written contract in compliance with this statute, simply find another contractor. Strict compliance with this statute is the beginning of a good process. The Act contains other protection for homeowners.
A frequent cause of problems are changes in the construction plan after work has begun. Very often the homeowner and contractor have very different ideas about what the changes will cost or how long they will take to complete. If you decide to alter the original plan, insist that you and the contractor sign a memorandum which spells out in detail the cost of the change and how much, if at all, it will delay the completion of the contract. This memorandum must spell out every detail. If your contractor cannot tell you how much the change will cost, you should not proceed with the change.
As you can see, the key to a stress free home improvement process is putting things in writing with as much detail as possible. If you follow this rule, you and your contractor will both understand each other’s expectations.
To vote in Indiana, you must present a photo identification. However, not just any photo identification will work. Your photo identification must meet four requirements: (1) must have your photograph; (2) have your name in a form that is at least substantially similar to how your name appears on the voter registration; (3) have an expiration date that is current or has expired since the last general election (11/2/10); and (4) be issued by the State of Indiana or federal government. An ID issued by a private college will not work.
If you do forget to bring your ID on election day, YOU CAN STILL VOTE. Ask to cast a provision ballot. You must then present your photo ID to the county election board by noon ten days after election day.
There are also exemptions to the photo ID requirement for the indigent and those with a religious objection to having their picture taken. If you fall within one of these exemptions, you will not need to present a photo ID. However, you will need to visit the county election office to affirm that you meet the exemption. You can provide this affirmation while picking up an absentee ballot or after casting a provisional ballot.
I provide free advice to anyone who needs protecting their right to vote. Please contact me if you have any questions.
For many start-ups, the most pressing problem is financing, especially for those businesses without a record of profits. The JOBS (“Jumpstart Our Business Start Ups”) Act of 2012 was signed by President Obama in April and offers a new avenue for entrepreneurs: selling equity via the internet through crowd source funding.
“Crowdsourcing” is an internet technique used in a wide variety of areas. For businesses, the process would allow an entrepreneur to offer an investment in the business to the public through an internet listing. An entrepreneur would list the investment on a crowd source funding web site explaining the investment opportunity. An investor could then act on the opportunity.
Prior to the JOBS Act, an entrepreneur could not utilize this technique because offering an equity investment to the general public would require registration with the SEC. The costs of this registration are very large, making it impractical for a start-up.
The JOBS Act creates a new exemption to the registration requirement for certain crowd funded investments. As you might expect, the investment opportunity must meet a number of qualifications to fall within the exemption. The SEC has not issued the final rules explaining the full requirements for the exemption. However, the SEC is scheduled to meet again on August 29 to consider the issuance of the final rules.
Please contact me if you have questions about crowd source funding or the JOBS Act.
On July 12, 2012, the Senate Judiciary Committee approved the Guardian Accountability and Senior Protection Act (“Act”). The purpose of the legislation is to provide assistance to states in overseeing guardians and conservators. The Act provides funding to the states to study their systems for guardians and conservators and make improvements to their systems. The Act also provides funding to help states improve or create systems for background checks on potential guardians and conservators. The Act now goes to the full Senate for consideration.
If you have a member of your family who has special needs and receives government benefits, you may need to consider adding a special needs trust to your estate plan. For example, a parent with a special needs adult child would want to leave assets to that child. The problem is that leaving assets directly to that child could disqualify the child for government benefits. Government benefits received by the child will be lost if the disabled individual has assets over a certain limit.
The solution to this problem is a special needs trust. The parent can create a special needs trust in the estate plan. The special needs trust would receive the assets after the parent’s death, instead of the disabled individual receiving the assets directly. The assets held by the trust would not count for the asset test to determine eligibility for government benefits. The trustee would be able to use the assets for the special needs individual. A special needs trust can also be established by the parent prior to death and individuals other than the parents can create the trust.
There are a number of technical rules for establishing a special needs trust. You should consult an attorney with knowledge of this area to create one. Please contact me if you would like to set up a free consultation to discuss a special needs trust.
John Adams and Thomas Jefferson both died on July 4, 1826, the 50th anniversary of the Declaration of Independence. Adams’ last words were “Thomas Jefferson still survives.” In fact, Jefferson had died earlier in the day.