None Dare Call It Unconstitutional.

No. 1,334

The State of California has a growing list of other states which it believes have enacted laws that discriminate against the LGBT. So says the Washington Post. One of the latest is Texas, which empowers adoption agencies to refuse to grant adoptions to persons believed to lack satisfactory religious convictions. The Texas provision is probably unconstitutional for a variety of reasons and will no doubt be tested in the Courts.

However, some Californians (in positions of power) can’t wait for the wheels of justice to grind. They have provided that State funds cannot be used to fund or sponsor travel to and certain other black listed States.

According to a press release dated June 22, 2017, California Attorney General Xavier Becerra announced that California will prohibit state-funded and state-sponsored travel to Alabama, Kentucky, South Dakota and Texas based on discriminatory legislation enacted in each state. Tennessee, North Carolina, Mississippi and Kansas are already on the list.

“Our country has made great strides in dismantling prejudicial laws that have deprived too many of our fellow Americans of their precious rights. Sadly, that is not the case in all parts of our nation, even in the 21st century. I am announcing today that I am adding four states to the list of states where California-funded or sponsored travel will be restricted on account of the discriminatory nature of laws enacted by those states,” said Attorney General Becerra. “While the California DOJ works to protect the rights of all our people, discriminatory laws in any part of our country send all of us several steps back. That’s why when California said we would not tolerate discrimination against LGBTQ members of our community, we meant it.”

Of course, it is old news that a host of professional and amateur sports organizations ganged up on North Carolina for its famous bathroom bill, HB2. But this is a state acting against other states. What if the target states started to make it reciprocal? This could get complicated very quickly.

But wait a minute! Haven’t we been here before? Isn’t there a Constitutional right of interstate travel?

In Shapiro v. Thompson, 394 U.S. 618 (1969), Mr. Justice Brennan, in considering a regulation requiring a one-year waiting period for welfare benefits, brought us up on the history of the concept:

“This Court long ago recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement. That proposition was early stated by Chief Justice Taney in the Passenger Cases, 7 How. 283, 492 (1849):

“For all the great purposes for which the Federal government was formed, we are one people, with one common country. We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States.”

We have no occasion to ascribe the source of this right to travel interstate to a particular constitutional provision. It suffices that, as MR. JUSTICE STEWART said for the Court in United States v. Guest, 383 U. S. 745, 757-758 (1966):

“The constitutional right to travel from one State to another . . . occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized.

“. . . [T]he right finds no explicit mention in the Constitution. The reason, it has been suggested, is 631 *631 that a right so elementary was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created. In any event, freedom to travel throughout the United States has long been recognized as a basic right under the Constitution.”

Thus, the purpose of deterring the in-migration of indigents cannot serve as justification for the classification created by the one-year waiting period, since that purpose is constitutionally impermissible. If a law has “no other purpose . . . than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it [is] patently unconstitutional.” United States v. Jackson, 390 U. S. 570, 581 (1968).”

The right of citizens to travel, and thus the prohibition of the states to impede that right, has been interpreted to flow from the Privileges and Immunities Clause, Article IV, Section 2. See Corfield v Coryell, 6 Fed. Cas. 546, No. 3230 C.C.E.D.Pa. 1823. In some cases, it may also be protected under the Fourteenth Amendment.

In addition, the provision is very likely a violation of Article I, Section 8, the Commerce Clause, per Edwards v. California, 314 U.S. 160 (1941). In that case, California had made it a crime during the Depression to transport a pauper into the state.

This is not new stuff. Yet as times and politics change, the old becomes new again. See you in court, California.

CLT

Category: Constitutional Law
Tags: Privilege and Immunities

Docu-phish!

No. 1,333

If you have been involved in a real estate transaction in recent times you have probably used Docusign or some equivalent electronic signature software. It is a real estate agent’s dream. They can obtain an electronic signature quickly and easily via the internet.

However, a well-known app that can be used for legitimate transactions can easily be impersonated for evil purposes. So watch out for this one or others like it. Stealing the logo is easy. However, composing a believable pitch to get you to click the link is another matter. If you get such an email, delete it. If it is real, the legitimate party who wants to sign will contact you.

Don’t be a phish. Don’t bite the hook.

Note: The name of the recipient (inserted here)has been deleted.

Would you fall for this? Why isn’t “your company” identified? Easy. It isn’t legit. If you get one that is a little more authentic looking, you can verify by alternate means.

Category: Phishing, Real Estate, Real Estate Contracts

Kicking the Canned Speech Down the Road.

No. 1,332

Here’s an item from Time that is worth sharing. A graduate gave his own commencement speech rather than read the one he was directed to give by the school administration. In retaliation, the school withheld his diploma, at least temporarily.

I was surprised that a school would do such a thing. After all, the purpose is to put on display the product of 12 years of learning. But upon reflection, we all know that schools typically reward compliance, rote memory and polly parrot answers.

CLT

Category: Pittsburgh Legal Back Talk

Mindfulness and Lawyering

No. 1,331

Gotta go. But before I do, I want to leave you a link to a great blog. Its about lawyering. Lawyering is hard. It is painful. Too often our best efforts end in defeat. So here’s the link to a post that hits a chord. More about it later.

CLT

Category: Lawyering

Happy Father’s Day, Phil Mickelson!

No. 1,330

Image: frost snow.com

Fortunately for Phil Mickelson, he had the power to make the choice. Passing up the US Open to attend the high school graduation ceremony where his daughter would speak as valedictorian was, in his words “a no brainer.”

Nice of him to say it that way, but the truth is that it involved a conscious choice, one that his family will always remember.

I heard a sports talk host suggest that he might have been able to attend the graduation and hop a jet as soon as the speech was over. That’s the “Solomonic splitting the baby” logic that sends the wrong message. Phil knew that he should give the whole day to this event.

That’s what being a champion is about. Happy Father’s Day to all fathers who have quietly put their family first when nobody else knew.

CLT

Category: Pittsburgh Legal Back Talk

Happy Father’s Day! Now Drop Dead!

No. 1,329

The most thoughtful gift since Andy Capp bought his wife a mop for her birthday in the funny papers.

The name of the sender of this Father’s Day Card been deleted.

Category: Advertising

What is the Value of a Friend?

No. 1,328

According to FIOS, its One Hundred Dollars! But, of course, you presumably get to keep the friend, even after you facilitated the purchase of a package of time-wasting, mind numbing TV that he didn’t need. Selfish? Perhaps.

But its not like you sold your friend into bondage for a Benjamin.

“Thanks for breakfast,” my friend said. “You’re welcome, but I really wasn’t buying food,” I replied. “I am buying conversation.”

Friendship is not purchased on the open market, like bacon and eggs. But it does cost something. Fortunately, we pay for it on the installment plan, primarily with our time. It is impossible to gain a friendship without investing time. That’s lucky, because its a currency we all happen to have on hand.

Many of our best and strongest friendships happened by chance. In school, in the military service, in the neighborhood. I heard the story (possibly apocryphal) about two men who met when they had an automobile accident with each other and ended up as business partners. According to the story, they both had the bad habit of reading the newspaper while driving. This was long before the advent of texting.

A few of my friends have become clients. But many more of my clients, people who were strangers when I took their case, have become good friends. Its the most natural thing in the world and I am sure all other lawyers have had the same experience. After all, you’ve been through a lot together.

I read that personal relationships, friendships, are one of the keys to happiness and even longevity. Not surprising, is it?

But what about making money through friendship? Well, consider what my boss of many years ago, L. Robert Kimball, a pioneer in marketing of professional services once told me. “First they must be your friend.”

What’s the value of a friend? Everything.

CLT

Category: Advertising
Tags: friendship

Victory!

No. 1,327

Yes,Greek, ancient Greek, that is (Î½Î¯ÎºÎ·).

Yes, it means victory or conquest.

Yes it is the same word as the Greek Goddess that we call Nike.

But which victory is referenced on this particular carving?

If you think you know, give me the answer in the comment box in the right hand column of this blog.

No, I won’t give you the correct answer until then.

CLT

Category: History
Tags: NIKA

Challenge to CFPB Constitutionality to be Reconsidered by Court en Banc

No. 1,326

As had been expected for some time, the challenge to the constitutionality of the Consumer Financial Protection Bureau will be reconsidered by the full court of the DC Circuit Court of Appeals in a suit brought by mortgage lender PHH. A panel of the Court had ruled that the agency, as constituted with a single director, was unconstitutional. Here’s a good short summary of the issues involved by DS News.com.

CLT

Category: Case Update, Civil Litigation, Constitutional Law, Consumer Protection, News Commentary

Cold War Nuclear Attack Provisions for the Supreme Court

No. 1,325

Back in bad old days of the Cold War, the United States Government had a plan to bunker down the essential parts of the government. You may have heard that Congress was to relocate to the Greenbriar resort in Southern West Virginia, where a secure underground bunker was prepared.

The Supreme Court, on the other hand, would be relocated to the mountains of Western North Carolina at a resort called the Grove Park Inn. Unfortunately or fortunately, however you see it, Justice Warren didn’t take the matter very seriously and nothing was done — except for the signing of the contract. Here’s an interesting article about the place where the Supreme Court never had to go.

Category: Legal History

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Welcome

CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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Legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus.

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