MY PROJECTS
The only thing necessary for evil to prevail is for good men to do nothing. - Edmund Burke
I have been blessed in this life in many ways. Foremost among these is the fact that of the three things that I know how to do - farming/ranching, engineering, and practicing law - each of which allow me to be independent, and at the same time provide me with the ability to give back to the community. In the movie National Treasure, Nicolas Cage attributes the following quote to Thomas Jefferson , "Is there is something wrong, those who have the ability to take action to have the responsibility to take action." While Thomas Jefferson never actually said that, there's a lot of truth and those words. It is in that spirit, that I have picked out a handful of "pet projects" that I am working on in an effort to better the community and to make life better for all of those who live in it with me. The following list is not exclusive, and as new projects come to my attention, they will be added.
1. Volunteer Fire Departments should be allowed to charge for all of their service
Presently, volunteer fire departments protect the vast majority of the state. While it is true that many cities have a tax base that allows them to support a standing and paid fire department, is impossible to escape the fact that most of the state is rural, and much of that area is protected by volunteer fire departments. These volunteer fire departments are supported by contributions from the community, and the ability to charge for their services. Many of which charge a nominal fee for membership in the organization. Members are not charged for fire protection services. The however, the under a strict reading of 18 O.S. § 593 a fire department can only charge for "services in extinguishing fires". This limitation completely ignores the fact that many times volunteer fire departments are pressed into service to act as emergency responders to traffic accidents where life and limb are at stake, but thankfully, there is no fire. These volunteers, are the thing that ensures a traveler safety as they travel from one metropolis to another across the Great State of Oklahoma. They will often be the first people on scene in the event of a traffic accident and will often be the last to leave.
Even though their charges are often nominal, insurance companies are known for not paying for their services on the basis that there was no fire. I have been successful in convincing most insurance companies are downside risk is not worth the potential benefit of failing to pay a bill that often amounts to less than a couple of hundred dollars. However, our legislature should act to protect the role volunteer fire department and to use expressly permit them to charge a reasonable fee for responding to the scene of a traffic accident, and rendering assistance to the people involved . I am actively engaged in attempting to change the statute by encouraging their legislature to close this loophole and permit our fire departments to be compensated for the services they reader. You can join be by contacting your legislator and telling them to make this change to Oklahoma statutes.
2. The Department of Human Services should be reigned in and forced to honor their agreements made in the determination and collection of child support arrearages.
In Oklahoma, along with many other states, the the Department of Human Services is tasked with the business of supporting the poor. Many of these, are single parents and children. The state provides assistance to these parents by giving them both financial support, and by employing the administrative courts to establish paternity, child support, a child support arrearages. Oftentimes, once these orders are established, they are docketed with the district courts so they can be enforced through the power of contempt. These are noble endeavors . The problem is, in order to take on this daunting task, DHS relies upon computers that are not supervised by humans, which makes decisions that impact real people's lives. These computers automatically do things such as levy bank accounts, seize income tax returns, and take other actions without a human ever be consulted.
Typically, what happens is the potential father is located, and served with process. If he fails to appear, a default is entered against him and he is awarded a substantial child support arrearage, which is drawing interest at the rate of 10%, along with a present child support obligation. If he has a job, DHS will enter an income assignment and begin taking his money directly from his paycheck. If he does appear in court, and is unrepresented, he will probably never see a lawyer. Instead, he will see a "caseworker", who has no legal experience, and who will "negotiate" with him to enter a child support payments, and determine a child support arrearage, along with an arrearage payment. This order will then be signed off on by the administrative judge and entered in the record. At this point, an agreement has been made as to how much is owed, and at what rate this debt will be repaid.
A once these orders are entered, the DHS computer becomes aware of the obligor. If the total amount owed is greater than three months of current child support, the computer automatically began as a "seek and destroy" mission in which it seeks out bank accounts and other assets associated with the obligor and levees those accounts. Additionally, tax refunds are automatically seized. All of these things happen without the oversight of the human being, and without regard to the obligor's compliance with the administrative order. Essentially, even when one is compliant, and makes payments out of their paycheck, they may find that their bank account has been seized by DHS. Any checks that are outstanding will be returned for insufficient funds, any automatic pays will be handled in the same manner, and the obligor will accrue a number of bank fees as a result of the DHS computer's actions. The obligor has the opportunity to challenge the levy, which will call the computer's actions to the attention of a human. Sometimes the monies may be returned (although oftentimes, DHS will hold the funds hostage and refuse to return any unless there is agreement that they may retain some of the funds. In the most egregious cases I am aware of, DHS will seize bank accounts that are the property of minor children, but associated with the social security number of the obligor. DHS will refuse to return the bank accounts unless a substantial payment is made by the obligor.). This process results in needless costs to the obligor, as well as lost time at work, and attorney's fees, all in an effort to recover monies which the DHS had no right to seize to begin with.
At this point, my office is reviewing cases with an eye on a class action lawsuit in Federal court to recover both actual and punitive damages, interest, and all other remedies the law allows. Additionally, we will be seeking injunctive relief, which is an order from the court to force DHS to change the manner in which it does business in an effort to prevent others from suffering the same fate as many already have. If you believe you may be a member of this class, please contact my law office.
3. The so-called Leon "good faith exception" should be overturned.
In 1984, the United States Supreme Court rendered its opinion in the case of United States v. Leon, 468 U.S. 897 (1984). In that case, the United States Supreme Court found that the rule making evidence obtained in violation of the Fourth Amendment to the United States Constitution inadmissible (commonly called the exclusionary rule) was not applicable if the government agents were acting in "good faith". That case lowered the bar from the standard of "probable cause" required by the Fourth Amendment to the mere demonstration the officers "thought they were right". This relaxation of the bar has resulted in a decrease in the protection that the citizen is afforded by the Fourth Amendment. This decision marks the first in a long line of cases where the where the court allowed otherwise inadmissible evidence to be admitted against the accused because the officers were acting "in good faith", despite the fact the Fourth Amendment was found to be violated. This relaxation of the probable-cause standard has now become by rule throughout the United States in both states and Federal courts. With each passing case, its hold on American jurisprudence becomes stronger because of something that we call stare decisis. (Stare decisis is a legal term which requires that previous cases which are the subject law on an issue be regarded as the settled law. This gives American law some degree of stability because previous precedents may be relied upon in future cases to determine the outcome.) However, in 2009, United States Supreme Court offered a glimmer of hope that Leon could be changed. In the case of Arizona v. Gant, 556 U.S. 332 (2009), Justice Stevens writing for the majority held, "We have never relied on stare decisis to justify the continuance of an unconstitutional police practice. And we would be particularly loath to uphold an unconstitutional result in a case that is so easily distinguished from the decisions that arguably compel it." Arizona v. Gant, 556 US 332, 348 (2009).
It would seem, that the court is signaling the the willingness to overturn almost any precedent that does not conform to the standards set down by the United States Constitution. (In Gant the court all but overturned Belton and Chimel which were longstanding precedent allowing the a blanket search incident to arrest.) I believe now is the time to pursue such a case to the Supreme Court. The ideal case the would have to contain a search which was found unconstitutional under the Fourth Amendment, but was saved by the Leon "good faith exception". Ideally, this case would occur in a either Oklahoma, or the Tenth Circuit. The case could have originated in either Federal or state court, although a case in Federal court would present the shortest path to the U.S. Supreme Court. If you believe you may have such a case, please contact my law office.