Archive for the ‘Legal’ Category

SD gets a C on Barriers to Affordable Legal Help report card

November 30, 2015 Comments off
Lawyer in the office - © Ginasanders |

Lawyer in the office – © Ginasanders |

Responsive Law has recently released a report card grading each of the fifty states in regards to Barriers to Affordable Legal Help.  Responsive Law has this brief summary of the report card in its press release:

The report card grades all 50 states and the District of Columbia on how their regulations regarding the practice of law restrict consumer access to the legal system. Unfortunately, the news is not good, with no state receiving a grade higher than a C.

The report card graded three areas:

  1. barriers to affordable help from lawyers (45% of total grade),

  2. barriers to affordable help from non-lawyers (40%), and

  3. support for self-represented litigants (15%).

The good news for South Dakota is the report gives the state a C, which puts the state at the head of the class. Of course there are plenty of areas to improve upon for South Dakota to better serve the legal needs of its residents. Ronald Nielson over at the LiveFree blog gives a pretty good explanation of why the report is important and why no state received a higher grade than a C. But for now I want to focus purely upon the South Dakota grades.

The South Dakota report card can be viewed here. As noted above, there are only three areas graded, with one overall grade then established:

  • Barriers to Lawyer Help (45%): Grade D, SD ranks 28/51
  • Barriers to Non-Lawyer Help (40%): Grade B, SD ranks 8/51
  • Treatment of Self-Represented Litigants (15%): Grade C, SD ranks 27/51
  • Overall Grade: C, SD ranks 14/51

Barriers to Lawyer Help – SD gets a D

Most of the grade in this category comes from whether the state allows competition of ownership within the state. Specifically it grades if non-lawyers are allowed to own a law firm. Allowing non-lawyers to own a law firm would allow competition and innovation within the industry. That competition would then allow the prices of certain legal services to become lower, and more affordable to the average SD resident. The report points out that most law firms consist of few lawyers, and therefore legal services are tailored for the client. A more innovative approach would be to allow non-law firms to hire lawyers  and offer their legal services to clients.

An appropriate place where this might work in Sioux Falls, SD, is Sams Club. Sams Club already offers a plethora of products and services for small business owners. Just think if Sams Club would be able to keep a lawyer on hand that could do basic Articles of Incorporation or basic contracts. Too often new small business owners go to a law firm and pay hundreds of dollars for this very basic legal service that could easily be offered at rates where a firm (such as Sams Club) could still make money and legal customers could save money. Theoretically in a competitive industry Sams Club could hire a lawyer that would provide a service drawing up Articles of Incorporation and other basic legal contracts for their clients. That simple change would allow new businesses to spend more of their startup money on actually getting their business going, instead of paying lawyers to fill out standard legal forms. This method would also give clients the ability to utilize a lawyer at prices they can afford.

I looked at SD codified law and confirmed that lawyers in SD must be the only owners of a law firm. The South Dakota Rules of Professional Conduct, which is an Appendix to SDCL Chapter 16-18, includes Rule 5.4: Professional Independence of a Lawyer. Here are a few take-out from Rule 5.4:

     (a) A lawyer or law firm shall not share legal fees with a nonlawyer…

(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.

     (d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:
             (1)      a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;
             (2)      a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or
             (3)      a nonlawyer has the right to direct or control the professional judgment of a lawyer.

Basically Rule 5.4 means that nobody but a lawyer can own a law firm. I don’t think there is any better example of protectionist policy creating a codified monopoly than this. In guise of being independent, the legal industry has ensured there can be no competition within their industry. That is one of the reasons even basic legal services cost much more than they should. South Dakota appears to deserve its D grade in this area.

Barriers to Non-Lawyer Help – SD gets a B

South Dakota actually did good in this category. Half of this grade has to do with whether consumers are allowed to use non-lawyers for various areas such as preparing certain legal forms, legal advice in certain areas, real estate closings, certain contract negotiations and free advice from family and friends.

The other half of the grade comes from how strictly the state enforces regulations from the first half of the grade. South Dakota’s B grade appears to come from this paragraph included in the report:

South Dakota is one of only 19 states where the attorney general, rather than the bar, enforces unauthorized practice regulations. While these regulations still prohibit services that could be helpful to consumers, the attorney general is less likely than the bar to use them to protect the bar from competition.

I didn’t realize the AG’s office had this role in South Dakota. That is good to hear. Technically it still makes me a bit nervous that a lawyer is in charge of this area. But at least the Attorney General is elected by the people, so if the AG’s Office misuses the oversight of unauthorized legal practices there can be a change made during the next election.

Treatment of Self-Represented Litigants – SD gets a C

This area of the report card looks at how user-friendly the court system within the state is for people who choose to proceed without a lawyer. The Justice Index, released by the National Center for Access to Justice, is the basis for this score. I really think this is an area the states Judicial Branch should focus on (instead of the misguided judicial reform known as PSIA). As the Justice Index notes in its section on Support for Self-Represented Litigants:

In our states, more than 80% of the litigants appear without lawyers in matters as important as evictions, mortgage foreclosures, child custody and child support proceedings, and debt collection cases. Making courts user-friendly for these self represented litigants is imperative if we are to keep the promise of equal justice for all.

This isn’t about people trying to represent themselves in murder trials or nominating petition hearings. Rather it is about the ability of the average person to be able to deal with basic court cases that most likely impact the poorer residents within the state. Perhaps Chief Justice David E. Gilbertson should look at this area and work with the legislature to find ways to make the court system more user-friendly to the average SD resident.

Overall Grade – SD gets a C

Overall SD getting a C isn’t too bad. As I noted before, that puts us at the head of the class. It would be interesting to see the debate in Pierre if a bill were introduced to remove the protectionist ownership of law firms from codified law. I feel that change above anything could bring down the costs of legal services in SD. That reduction in cost would do a lot to provide affordable legal help to the resident of SD.

Categories: Legal Tags:

House Oversight Committee joins SCOTUS in diminishing the Fifth Amendment

June 28, 2013 1 comment

AP_Documents_BillofRightsThe House Oversight & Government Reform Committee just voted on a resolution to declare  Lois Lerner waived her Fifth Amendment rights during her last IRS hearing appearance. The Committee voted 22-17 to pass the resolution. This was a bad decision.

This is a topic I have blogged about before. As an American taxpayer I am quite pissed-off at Ms Lerner. I feel she should have been immediately fired for refusing to answer questions from the House Oversight Committee. By refusing to answer their questions she has decided the American people have no right to know what she as a public servant knows. I defer to my previous words on the subject of her employment:

It is hard to comprehend how she still has her job. As a high-level manager she is accountable for her actions and for those that work in her division. By choosing not to take accountability she has proven herself unfit as a manager and should be excused from her job immediately.

Due to labor regulations Ms Lerner is on paid administrative leave. It is mind-boggling that Ms Lerner could keep her job after such an action.

However whether Ms Lerner should keep her employment is not the topic of today’s vote in the House Oversight Committee. Rather today’s vote is about whether Ms Lerner waived her Fifth Amendment protected rights by providing a statement under oath before pleading the 5th. I feel the same on this subject as I did a little over one month ago: Don’t trample on the 5th Amendment going after Lerner. There are other paths that can be taken.

Representative Lynch (D-MA) provided a short testimony before the vote this morning. His testimony was a direct attack upon the way Representative Issa (R-CA) has handled this resolution. Lynch agreed that the ability of Congress to call witnesses for testimony is important. However it is imperative that Congress recognize and respect the Fifth Amendment rights of witnesses. Lynch also attacked Issa for not allowing debate. Many (including myself) thought this mornings vote would be debated. Issa allowed very little time for discussion and acted quite condescendingly to those that did.

Then Representative Horsford (D-NV) was allowed to speak briefly. He best summed up the situation when stating that he was not sent to DC by his constituents to take away the rights of citizens. Any small-government constitutional Republican should agree with Rep Horsford’s statement.

Sadly Rep Issa  has taken an anti-liberty approach going after Ms Lerner. There are other ways of investigating the IRS scandal that don’t involve trampling constitutionally protected rights. By taking these actions Rep Issa has joined SCOTUS in further diminishing Constitutionally protected Fifth Amendment rights. The sad irony of this situation is not lost one me. Two weeks ago SCOTUS decided silence before pleading the Fifth could be used against a person; now the House Oversight Committee has decided speaking before pleading the Fifth waives that right. A couple of more actions like that and a very important constitutionally protected right will be gone forever.

Going forward I can only hope the court sides with Ms Lerner and agrees that she did not waive her Fifth Amendment protected rights. Previously Rep Meehan (R-PA) mentioned Ms Lerner has worked as an attorney in the Justice Department. As such she understands the legal system well and I give her a good chance of getting the House Oversight Committee’s resolution declared invalid. Its ironic, Rep Issa has left me in the position to cheer on a government bureaucrat I feel has acted immoral. If only Issa had taken a true constitutional Republican approach…

South Dakota had a chance to pass nullification of unconstitutional gun control Executive Orders

May 14, 2013 2 comments


Updated: Read Rep Nelson’s remarks in the comments. I missed the fact he went before the house and tried to smoke the bill out. It failed.

Earlier today I blogged about nullification gaining mainstream support. As I look back at the 2013 South Dakota Legislative Session I see an example of an attempted nullification law: House Bill 1222. The description of this bill is:

provide that any federal law that attempts to ban firearms, to limit the size of firearm magazines, or to impose other limitations on firearms is unenforceable in South Dakota, to provide a penalty, and to declare an emergency.

On February 13 Representative Nelson went before the State Affairs committee to submit an amendment and speak about this bill. The amendment (which is not listed on the bill’s website) would have changed this bill to apply only in cases of Presidential Executive Orders. This is because most of this bill already exists in South Dakota Codified Law and this new bill was meant to expand the current law so they apply to executive orders. As Rep. Nelson stated during his testimony, Executive Orders have been used extensively during the last fifty to sixty years as a way for Presidents to get around constitutional limits. Bills such as this are a way for states to tell the President that such behavior is not OK.

I personally like one part of the original bill and think it should have been passed by itself: “The attorney general may defend a citizen of South Dakota who is prosecuted by the United States government for violation of a federal law relating to the manufacture, sale, transfer, or possession of a firearm, a firearm accessory, or ammunition owned or manufactured and retained exclusively within the borders of South Dakota.”

Ironically the Governors Office sent someone to testify against this bill. This goes back to a post I created a few months ago: South Dakota Governor Daugaard and US President Obama Agree: Balance of Power is Annoying. It’s also ironic that the opposition highlighted the fact the attorney general would be required to uphold the law? Isn’t that the job of the attorney generals office? Do we really want an attorney general’s office that does not wish to protect the rights of South Dakota citizens in court?

Unfortunately this bill was killed in committee by deferring it to the 41st legislative day. I think this issue deserved debate before the whole house, and not just within the State Affairs Committee. Perhaps we will see another attempt of this sort in the 2014 legislative session. It will be interesting to see a nullification law pass directed specifically at executive orders.

Nullification gaining support

May 14, 2013 1 comment

Boton_malOver the last few years nullification has been gaining more attention. The Tenth Amendment Center posted the results of a recent Rasmussen Poll asking questions about nullification. This poll shows nullification is quickly gaining support. How much support is nullification gaining? Here is what the article has to say:

A majority of everyday politically engaged Americans support the general principle of nullification. According to the Rasmussen poll, 52 percent of mainstream voters think states should have the right to block any federal laws they disagree with on legal grounds.

Wow, 52% of mainstream voters believe nullification is a good idea. This is despite the fact that mainstream media and politicians constantly demonize the very concept of nullification. Well, actually maybe this support of nullification is because of mainstream media and politicians demonizing nullification. Maybe people are tired of being treated like children by politicians and the mainstream media.

There are some key recent examples of nullification being used by the states.

  • In April Kansas passed the The Second Amendment Protection Act (PDF). This law basically says federal laws do not apply to guns that were made in Kansans and then sold and owned in Kansas. Since these weapons do not cross state borders there is no jurisdiction for the Federal government to get involved.
  • Earlier this month the House in South Carolina passed the Freedom of Health Care Protection Act. This bill is now in the South Carolina Senate, where it appears to have a pretty good chance of passing. If this bill becomes law it would basically say Obamacare is illegal in the state of South Carolina. State officials would not be allowed to enact provisions from Obamacare. Further South Carolina residents would receive tax deductions equaling any penalties paid to the IRS.
  • Many states have now passed laws to either legalize medical cannabis or decriminalize all cannabis  These laws are done in direct defiance with the Federal government. Just as with the gun law in Kansans, these laws are the states way of telling the federal government “we will decide what happens within our borders”.

It is clear that states are increasingly getting tired of the Federal government going beyond its power. As time goes on I expect more states to pass nullification laws. If the Federal Government chooses to ignore the rights of the states I believe more states will simply refuse to acknowledge the laws passed in DC.

PS. For anyone interested in the roots of nullification it is worth reading the Kentucky Resolutions of 1798 (written by Thomas Jefferson) and the Virginia Resolution of 1798 (written by James Madison). Together these documents are often called The Virginia and Kentucky Resolutions (or Resolves), of 1798. These two documents were the basis for the idea that the federal government is the creation of the states; therefore the states have final authority over whether the federal government is acting within the constraints set forth in the US Constitution.

Categories: Federal Power, Legal Tags:

Obama’s 23 Executive Orders were actually “Executive Actions”

January 16, 2013 10 comments

ryanlerch_thinkingboy_outlineDuring his gun control press conference this morning Obama signed a ‘document’. Like most people who watched I believed this was 23 Executive Orders. It’s easy to understand why we thought that. Throughout the week there have been rumors that he would issue  Executive Orders and he used the word ‘order’ at the end of his speech this morning. Here is an excerpt from the very end of the transcript located on the White House website:

Thank you. Let’s sign these orders. (Applause.)

(The executive orders are signed.) (Applause.)

All right, there we go. (Applause.)

I didn’t catch earlier in the speech when he said the following:

These are a few of the 23 executive actions that I’m announcing today.

What does that mean? Since there were rumors of the President going to use Executive Orders to move forward on gun control I had researched them. It never occurred to me that I needed to research what an Executive Action is. The best definition of ‘executive action’ I found comes from NBC news back in 2011:

“It just means something the executive branch does. The use of any of a number of tools in the executive branch’s toolbox,” said one administration official.

Executive actions can include “regulation, enforcement, statements of policy…and numerous other things,” the official continued.

So, basically, it’s anything the President does that doesn’t modify a law.

Does that mean Executive Actions are any less powerful than Executive Orders?

So far three of the Executive Actions have been carried out as Presidential Memorandums. NY Mag has a good story about the 23 executive actions. They have summed up Presidential Memorandums the best:

Basically, for all intents and purposes, a memorandum is an executive order. However, since executive orders are a particularly controversial and politically charged lever of presidential power (the mere mention of them has inspired talk of impeachment among some of Congress’s more firebrand Republicans), it’s important to note that they (or something exactly like them) comprised only three of the items on Obama’s list of 23 “executive actions.”

I think this leads me to the end of this post. It has come full circle back to the President issuing Executive Orders (under a different name).

In summary:

  • President Obama did not actually sign 23 Executive Orders, they were Executive Actions
  • And Executive Action is basically anything the President wants to do
  • At least three of the Executive Actions have been carried out as Presidential Memorandums
  • A Presidential Memorandum is the same thing as an Executive Order by a different name

If you want to see the 23 Executive Orders Actions, the Wall Street Journal has posted the list on their website.

Categories: Legal Tags: ,

Will the President and Congress get a budget passed in 2013?

January 15, 2013 1 comment

budgetThe Independent Institute posted an interesting solution for dealing with the debt ceiling going forward. A reminder of how the Federal Budget is supposed to be created under law is also included in the post. Creating the Federal budget is a joint effort involving the President, The US Senate, and the House of Representatives. All three of these entities must work together for a federal budget to be passed. There are even timelines provided in the law so a budget can be ready for each fiscal year.

Before proceeding with this post it is important to understand that the federal government budget operates under a fiscal year. The fiscal year begins on October 1 and is numbered according to the calendar year it ends. For instance the budget the President and Congress will work on this year will begin on October 1, 2013, and be called Fiscal Year 2014 (FY2014).

The first step comes from the President as set in the Budget and Accounting Act of 1921. The Presidential requirements portion of this Act were codified into law as 31 USC § 1105 – Budget contents and submission to Congress. The following excerpt from section (a) gives the timeline the law sets for the President:

On or after the first Monday in January but not later than the first Monday in February of each year, the President shall submit a budget of the United States Government for the following fiscal year. Each budget shall include a budget message and summary and supporting information..

According to this President Obama is required by law to submit his FY2014 budget proposal on or before February 4, 2013. In his first term President Obama only submitted his budget on time one out of four times. Because of the late fiscal cliff deal the President is not expected to submit his budget by the deadline in February.

The President does not create the actual budget himself. Instead the Executive Branch’s Office of Management and Budget is tasked with monstrous task. Input from the President along with budget requests from Federal agencies are used by OMB to create the actual budget (it’s a bit more complicated than that, but I’m simplifying for this post).

Now, once the budget has been created the President submits it to Congress. The Congressional Budget and Impoundment Control Act of 1974 was provided to give guidance to the House in Senate on their portions of the budget. A timetable was created in this Act and codified into law as 2 USC § 631 – Timetable. Here is the timetable provided for Congress to take action:

The timetable with respect to the congressional budget process for any fiscal year is as follows:

On or before: Action to be completed:

First Monday in February: President submits his budget.

February 15: Congressional Budget Office submits report to Budget Committees.

Not later than 6 weeks after President submits budget: Committees submit views and estimates to Budget Committees.

April 1: Senate Budget Committee reports concurrent resolution on the budget.

April 15: Congress completes action on concurrent resolution on the budget.

May 15: Annual appropriation bills may be considered in the House.

June 10: House Appropriations Committee reports last annual appropriation bill.

June 15: Congress completes action on reconciliation legislation.

June 30: House completes action on annual appropriation bills.

October 1: Fiscal year begins.

By early April the Senate Budget Committee should have completed its work. In reality the Senate has not adopted a budget since April of 2009. Since that time the federal government has operated on continuing resolutions due to a clack of formal budget. The steps that happen after April have largely remained irrelevant since 2009 because of the inaction of the Senate.

Back to the original question posed in this post: Will the President and Congress get a budget passed in 2013? I doubt it, neither the Executive or Legislative branches of the Federal Government seem inclined to follow the timetables set in law for them to follow. I just thought it was worth doing this post to show that the President and Congress have clearly defined timelines set in law. Sadly there is no recourse set in the law for when the lawmakers ignore their own legally bound budgetary duties…

The Fourteenth Amendment – a way for the President to raise the debt ceiling?

January 5, 2013 2 comments

458px-14th_Amendment_Pg1of2_ACPolitico posted an interesting story about Democrats asking Obama to raise the debt ceiling via power granted in the Fourteenth Amendment. The Fourteenth Amendment was passed after the Civil War. Together the Thirteenth, Fourteenth, and Fifteenth Amendments are called the Reconstruction Amendments.

Since this issue has come up I think its important for citizens to actually ready the Fourteenth Amendment. I will continue my thoughts below the text of the Fourteenth Amendment.



All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.


No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.


The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.


The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

This is actually a pretty powerful amendment. It gave citizenship to the slaves and forbids States from depriving any person “of life, liberty or property, without due process of law”. In addition the Civil Rights Act of 1964 and the Voting Rights Act of 1965 used the power from this Amendment to become reality.

It’s easy to understand how this is a landmark amendment. But how does it possibly give power to the President to raise the debt ceiling without Congress?

Here is the first sentence in Section 4:

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.

According to Democrats this gives the President authorization to raise the debt ceiling without question. This interpretation has been brought up before when the Federal Government hit the debt ceiling. I don’t agree the Fourteenth Amendment gives the President debt ceiling power.

As I understand Section 4 of the Fourteenth Amendment it was designed to do two important things:

  1. It ensured the Federal Government had to pay its Civil War debt. This is the first sentence of Section 4.
  2. It ensured the Federal Government was not responsible for debt incurred by the Confederation.  This is the second sentence of Section 4.

I do take this to mean that the Federal Government cannot default on legally authorized debt. But I don’t see how this gives power to the President to change the debt ceiling. Since I am not a law scholar I cannot say for certain my understanding is correct. Hopefully Obama will stick with his word and not invoke this amendment; and if he does decided I hope he asks the Supreme Court for an opinion.

No matter what I find it worth reviewing the Fourteenth Amendment. It’s always a good idea for citizens to read and understand our Constitution and all of its Amendments.

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