Saturday, March 29, 2014
Proper exercise of law enforcement power is respectful, and appreciated. Improper use of law enforcement power is terrifying.
Law enforcement officers in our country are vested with great power. Used correctly, this power can keep our communities safe. When used incorrectly, however, our civil liberties are lost.
Civil liberties are what allow us to be who we want to be. Freely speak, freely choose our own religion or none at all, freely move state to state, among other rights. These rights should be respected and the loss of these rights should be feared.
Exercising civil rights and raising civil rights violations should be applauded, not punished. Equally so, law enforcement who recognize, protect, and refuse to violate civil rights should be applauded.
Civil rights belong to each of us – including those who serve as law enforcement officers. We have to work together to preserve our civil rights. That includes law enforcement having the courage to admit when civil rights are violated and putting measures into place to ensure that civil rights are not violated again. Protecting our civil rights also includes having the courage to speak out in support of civil rights and having the courage to raise civil rights violations so that, hopefully, the violations will not happen again. For law enforcement and citizens alike, civil rights are worth fighting for – they give each one of us freedom of choice and the right to be free from persecution because of such choice.
Recently, Idaho gained national attention when its legislature voted to allow guns on college campuses. Whether you own a gun or not, and regardless of whether you agree or disagree with guns on campus, the national attention that the guns on campus bill received has branded you, as an Idahoan, as carrying a gun. Now, how would you like to be pulled over while traveling in another state just because you have an Idaho license plate on your car and the officer is convinced that you are carrying a firearm illegally through their state? Is the civil right to travel state to state without being harassed because an officer associates your license plate with something illegal a right worth fighting for? Darien Roseen thinks so.
Mr. Roseen is a seventy year old retiree. He was traveling through Idaho following his daughter’s baby shower in Washington. Upon crossing from Oregon to Idaho his Colorado license plate was spotted and he was immediately pursued by an Idaho State Trooper. Mr. Roseen was stopped, detained, was deprived of his property, and was extensively searched because the Idaho trooper who stopped Mr. Roseen was certain that Mr. Roseen’s Colorado license plate meant he was in possession of marijuana. He was not. But, he was, and still is in possession of the courage to fight for civil rights and has filed a lawsuit to do that very thing.
I no more wish to be stopped by law enforcement outside of Idaho because an officer believes my Idaho license plate believes I am in possession of a firearm, than I wish Idaho police to stop interstate travelers based on a perceived profile associated with their license plate. License plate profiling is not worth fighting for. The civil rights that such profiling violates are, however, and Jones & Swartz PLLC is honored to be fighting for the same.
Posted by eswartz at 3/29/2014 9:38:00 PM
Sunday, March 9, 2014
All too often a disagreement quickly turns into an unnecessary lawsuit. The root of the problem can sometimes be a hungry lawyer who is more interested in feeding his or her family than assisting their client with resolving a simple dispute. Yes, that’s right. Lawyers have to make a living too. But, lawyers who encourage battles only to line their own pockets are the kind of lawyers you should avoid.
If your lawyer is not cautioning you about the costs and uncertainty of letting a dispute blow up into a lawsuit, but is instead encouraging you to fan the flames of the fire, find a new lawyer. If your lawyer seems to be doing everything possible to stall a settlement by insisting on unreasonable deadlines and complex documentation, find a lawyer who can get it done without giving you excuses about how complex it needs to be. Chances are, it does not have to be that complex. Chances are that if your lawyer is making it that way it is because he or she is running up your bill, helping feed his or her friends in the firm by having them draft unnecessary documents, and, perhaps, more interested in seeing settlement fail so that they can keep you in litigation and keep the churning out bills.
Search for a lawyer who you can speak to. Search for a lawyer who asks you whether you really want to scorch the earth in litigation versus offers to do it for you. Search for a lawyer who is trying to keep you focused on what you do for a living, not keep you focused on what the lawyer does for a living.
Posted by eswartz at 3/10/2014 12:45:00 AM
Sunday, March 2, 2014
You want what yours and you want it now. We all do.
When it comes to real property, you may be getting more, or less than you bargained for - depending on what sellers and buyers agreed upon. In Idaho, it is important to have a property lines surveyed to ascertain the correct boundary lines before undertaking any project involving boundaries of real property. Assuming to know where the boundaries lie could result in one party losing some property and another gaining some property. In Idaho, if two adjacent landowners agree on the boundary line between their property, that may become the permanent boundary - even if it is not the actual property line. Even if the landowners do not know where the actual property line is located, and guess, it may constitute a binding agreement for the actual property boundary.
The mutually agreed boundary may become the permanent for all future purchasers. A simple survey could easily ensure that the boundary line is correct.
If you are buying property, hire a surveyor, first. If you have a dispute about your property lines, hire an attorney, first, and a surveyor, maybe, next.
Posted by eswartz at 3/3/2014 12:24:00 AM
Friday, February 21, 2014
Deciding whether or not to file a lawsuit involves more than answering “yes” to whether you have been wronged. Many other factors must be considered before you pull the litigation-trigger. For starters, how much money are your really out because of someone's wrongful action? How much money do you have that you are willing to put into fighting a legal battle? How much time and energy do you really have available to commit to litigation? How much time and energy does your family have available to commit? What are your goals? What are the risks? Is there a solution other than litigation that could meet your goal?
It is natural that you would be really angry shortly after being wronged. But, jumping head-first into lawsuit may not be the best option. Your frustrations caused by someone else doing you wrong will not go away just because your find an attorney willing to file a lawsuit. It may be that such an attorney wants your more than they want to help you resolve your situation.
Litigation is intrusive, time consuming, expensive, and unpredictable. And, it may not be the answer you are really looking for.
Get help deciding whether pursuing a lawsuit is the best thing for you. There are other options. Contact the attorneys at Jones & Swartz PLLC today to discuss what options may be the most productive for your end goals.
Posted by eswartz at 2/21/2014 11:49:00 PM
Saturday, February 1, 2014
The passage of time has the universal affect on memory – details fade and people remember things differently. Legal battles often arise and center on parties fighting over what actually occurred way back when. Archiving events of the past play a pivotal role in avoiding, or prevailing in, legal proceedings. Simple steps such as drafting and sending letters or emails to follow up and summarize phone conversations at the time they occur, or preserving important documents can help you avoid a legal dispute.
And, if the dispute cannot be avoided, properly captured history will help a judge or a jury understand what occurred way back when. Properly captured history helps takes the guess work out of faded memories. It also helps a judge or a jury to re-live the event. If you become a party to a lawsuit, you stand a better chance of winning if you can show and tell a judge or jury what occurred.
Posted by eswartz at 2/1/2014 4:55:00 PM
Saturday, January 18, 2014
Did you see that? If so, there is a chance that you can be dragged into someone else’s lawsuit. Just because you are not a party to a lawsuit, do not assume that participating as a witness is without its risks.
Before answering any questions, contact your personal attorney or corporate attorney, to inform them of the fact you have been contacted by another attorney. If you do not have a personal or corporate attorney, you should seek legal counsel and avoid proceeding on your own. Involving an attorney, even for the most basic request, helps ensure that you understand the full scope of the issues involved. Having your own counsel is also a good idea because your attorney will be looking after your best interest and help you avoid certain pitfalls of providing testimony.
The last thing you want to do is get dragged into someone else’s lawsuit. Going from witness to party is, sometimes, easier than people think. Giving testimony also potentially implicates your Fifth Amendment Right against self incrimination.
Depending on the nature of the lawsuit in which you are being asked to give testimony, and your level of involvement, there may be no avoiding being a witness or brought into the lawsuit as a party. But, consulting with an attorney can help you state just the facts while guarding against sinking your own ship.
Posted by eswartz at 1/18/2014 5:27:00 PM
Friday, January 10, 2014
Tough times are sometimes made worse by the loss of your job or your partner’s job. One public benefit available to many folks who have lost their job is unemployment compensation. It is the public policy of the state of Idaho that:
Economic insecurity due to unemployment is a serious threat to the well-being of our people. Unemployment is a subject of national and state concern. [Idaho Code Title 72, Chapter 13] addresses this problem by encouraging employers to offer stable employment and by systematically accumulating funds during periods of employment to pay benefits for periods of unemployment. The legislature declares that the general welfare of our citizens requires the enactment of this measure and sets aside unemployment reserves to be used for workers who are unemployed through no fault of their own. I.C. § 1302.
In order to receive unemployment compensation you must satisfy certain qualifications. Three of the most prominent qualifications are that: 1) your job loss cannot be due to quitting or leaving voluntarily; 2) being fired cannot be a result of your own misconduct; and 3) you must actively look for a new job following the loss of your job. I.C. §§ 72-1366(5) and (6). Several other criteria must also be met. Contact the Idaho Department of Labor for help filing a claim for unemployment benefits: www.labor.idaho.gov.
If your claim for unemployment benefits is denied, you have the right to appeal that decision. You must file an application for appeal within fourteen days after you receive the denial of benefits. I.C. § 72-1368(3)(c). After filing for the appeal, you will be afforded a reasonable opportunity to a fair hearing. I.C. § 72-1368(6). Both you and your former employer have the opportunity to submit evidence and testimony to the appeals examiner at the hearing. I.C. § 72-1368(6). If you disagree with the decision of the appeals examiner, you would have the opportunity to request a rehearing. But, you must file that request within ten days from receiving the appeals examiner’s decision. I.C. § 72-1368(6).
As an individual claiming unemployment benefits, you have the right to be represented by an attorney, if you so choose. I.C. § 72-1375. However, that attorney would have to be hired by you personally on terms agreed to between you and your legal counsel. The deadlines for filing for an appeal or rehearing are short. If you need legal assistance do not delay in hiring an attorney.
Posted by eswartz at 1/10/2014 10:30:00 PM
Friday, January 3, 2014
In Idaho, two or more people can create legal duties toward one another through their joint actions to make money. A “joint venture” is created when two or more people associate for the purpose of carrying out a business enterprise with the objective of realizing a profit. Costa v. Borges, 145 Idaho 353, 356, 179 P.3d 316, 319 (2008) (quotation omitted). No formal business document has to be created in order for the “joint venturers” to create a fiduciary relationship. The joint venturers do not have to register with the Secretary of State in order to have liability to the other. “[A] joint venture is not an entity separate and apart from the parties composing it.” Costa, 145 Idaho at 357, 179 P.3d at 320 (citation omitted). Through two people’s agreements and course of conduct they can (intentionally or unintentionally) create a business enterprise known as a joint venture, which obligates each with duties that cannot be disregarded or unilaterally altered.
Joint venturers are in a fiduciary relationship. A fiduciary relationship is one where an individual places complete confidence, trust, and reliance in another person who has the fiduciary duty to act for that individual’s benefit. In a joint venture, each venturer owes a fiduciary duty to every other venturer.
As mutual fiduciaries, any action taken by one joint venturer must be for the benefit of the other, and for the benefit of the business. Therefore, a venturer cannot unilaterally change or terminate an agreement between the venuterers. One venturer cannot withhold profits from the other without a mutual agreement. One venturer cannot claim for his own property that was purchased for the business. “Property is presumed to be [joint venture] property if it was purchased with [business] assets.” Costa, 145 Idaho at 358, 179 P.3d at 321. Each joint venturer has legal rights that may be enforced against their fellow venuterers or the joint venture itself. Such claims include, but are not limited to: claims of accounting, breach of contract, breach of fiduciary duties, and breach of the covenant of good faith and fair dealing, etc.
A joint venture cannot continue if even one venturer leaves. “[E]ven if the joint venture had three members it could not continue doing business after the withdrawal of one member. Because ‘a joint venture is not an entity separate and apart from the parties composing it,’ a joint venture cannot continue in business as a separate legal entity after one joint venturer withdraws,” dissociates, or where attempts are made to force a member out of the venture. Costa, 145 Idaho at 357-58, 179 P.3d at 320-21 (internal citation omitted). This means that without all of the members, a joint venture cannot legally continue doing business for a profit.
If you have a great idea to make money and want to partner with someone, give consideration to defining what your business is. Establish the roles of each member. Determine who will get paid what and how. And, agree on what will happen to the business and its members if all does not go as planned. Best approach is to hire an attorney to help in reducing your agreement to writing.
Posted by eswartz at 1/3/2014 11:40:00 PM
Saturday, December 21, 2013
In the chaos following an accident, preservation of evidence is one of the last things that you will probably think about. But, if there is a lawsuit, preservation of what happened is the best way to reconstruct and tell an accurate story. Pictures, videos, and journals at the time of an accident or very soon following are the best way of preserving the story. As time goes by, memories fade or become inaccurate through countless retellings. If too much of the story is forgotten, there is too much guess work for the responsible party to be held accountable. Accurately preserving the story can create a powerful case.
In the recent Idaho Supreme Court case, Liberty Northwest Mutual Insurance Co. et al. v. Spudnik Equipment Co., LLC, the Court affirmed a grant of summary judgment for Spudnik by the trial court in a claim for product liability against one of the manufacturers. In Liberty Mutual, a worker was injured by a series of potato conveyor belts, but the insurance company did not accurately capture which conveyor or the condition of the conveyor. In reaching its conclusion, the Court determined that Liberty was unable to show which of the potato conveyors actually caused the injury that gave rise to the lawsuit. Liberty was also unable to show the configuration of the particular conveyors on that day that caused injury.
Liberty only recorded the serial number of one of the seven potato conveyors on site and failed to accurately document which conveyor actually caused the injury. Specifically, there was no evidence to show whether the conveyor that caused the injury was new, used, modified by a previous owner or current owners. Therefore, the court concluded, there was no way to show that there was a design problem with Spudnik's potato conveyor.
With a complex accident, as demonstrated in Liberty Mutual or even a basic fender bender, an accurate preservation and documentation of what actually caused the injury is important. Had photos been taken of the actual configuration of conveyors that caused injury, the proper question could have been possible presented to the jury: Did the design of this particular conveyor injure the plaintiff. Instead, Liberty Mutual tried to present a vague story: one of these conveyors injured the plaintiff and one of them was manufactured by Spudnik. Preservation of a story can remove the speculation when trying to later apportion fault. It can clearly show a jury what caused the injury and who was responsible for that injury.
Posted by eswartz at 12/21/2013 7:47:00 PM
A Conditional Use Permit (“CUP”) issued by a government agency is a property right. Any decision made by a local land use board that affects property, or any individual having an interest in that property, must be made in accordance with due process constraints. Meaning, that in order for a CUP to be amended or terminated, the agency must give the holder notice and a right to respond. If notice and a right to respond are not granted before changes to the CUP are made, a violation of the holder’s civil rights may have occurred.
The Constitutions of both the United States and the State of Idaho prohibit deprivation of “life, liberty, or property, without due process of law.” U.S. Const. amends. 5 and 14; Idaho Const. art. I, § 13. Once granted, “[a] permit is a valuable property right and can only be revoked as provided by statute.” Allied Van Lines, Inc., 79 Idaho at 225, 312 P.2d at 1053 (1957). “[C]ounties have the authority to grant new conditional use permits which modify existing permits.” Chambers v. Kootenai County Board of Comm’rs, 125 Idaho 115, 117, 867 P.2d 989, 991 (1994). However, the basic tenets of due process are applicable to the modification of an existing CUP. Chambers, 125 Idaho at 118, 867 P.2d at 992. And, before a CUP may be revoked, “[t]here must be a definite charge that the permit holder has violated or refused to observe some order or regulation of the Commission or some applicable state law.” Allied Van Lines, Inc., 79 Idaho at 225, 312 P.2d 1053. After the permitee is provided notice of violation, all remaining due process requirements must also be afforded. Allied Van Lines, Inc., 79 Idaho at 225, 312 P.2d 1053; Angstman, 128 Idaho at 578, 917 P.2d at 412.
In Idaho, “a decision by a zoning board applying general rules or specific policies to specific individuals, interest or situations, are quasi-judicial in nature and subject to due process constraints.” Chambers v. Kootenai County Board of Comm’rs, 125 Idaho 115, 118, 867 P.2d 989, 992 (1994). As such, due process safeguards apply to proceedings conducted by local zoning boards regarding whether to grant a CUP, or to review and grant a new CUP that modifies an existing permit. Chambers, 125 Idaho at117, 867 P.2d at 991; Angstman v. City of Boise, 128 Idaho 575, 578, 917 P.2d 409, 412 (Idaho Ct. App. 1996). At a minimum, due process requires: a hearing and notice of each proceeding; an opportunity to be present and rebut evidence; a transcribable verbatim record of the proceedings; specific, written findings of fact and conclusions upon which a decision is based; and right to appeal. I.C. §§ 67-6512, 67-6519 and 67-6535(4); Allied Van Lines, Inc. v. Idaho Pub. Utilities Comm’n, 79 Idaho 220, 225, 312 P.2d 1050, 1053 (1957); Angstman, 128 Idaho at 578, 917 P.2d at 412. To ensure due process constraints are respected, a municipality will be liable for “‘systemic’ injuries that result not so much from the conduct of any single individual, but from the interactive behavior of several government officials, each of whom may be acting in good faith.” Chalmers v. City of Los Angeles, 762 F.2d 753, 757 (9th Cir. 1985) quoting Owen v. City of Independence, 445 U.S. 622, 652 (1980).
Posted by eswartz at 12/21/2013 7:43:00 PM