Attorney at Law

Ken Tableman Law Blog

What does the law mean, or one fish, two fish, red fish, blue fish.

Lawyers and judges have the recurring task of interpreting laws that Congress has enacted. You would think that after writing laws for more than 200 years that Congress would figure out how to write understandable laws, but not so. Much of the Supreme Court's docket this year consists of cases requiring it to construe the meaning of statutes.

The Court provided an example of how it goes about this task late last month when it decided that a fisherman who destroyed an undersized grouper had not violated a federal criminal law enacted after the Enron accounting scandal that prohibited the knowing destruction of or making of false entries in any "record, document or tangible object" with the intent to obstruct an investigation. In context a closely divided Court said the law did not reach fish. In disent, Justice Kagan referrred to, among other things, the book "One fish, Two fish, Red Fish, Blue" by Dr. Seuss. She thought the law was clear.

The opinion is worth reading and may give a preview of how the Court will approach the currently pending challenge to the subsidy provisions of the Affordable Care Act.

Yates v. United States, No. 13-7451, decided February 25, 2015.

Search and Seizure -- How long can the police detain me for a traffic violation?

Last month the Supreme Court heard oral argument in Rodriguez v. United States, No. 13-9972. The issue is whether an officer may extend an already completed traffic stop for a canine sniff without reasonable suspicion or other lawful justification. The government argues for a rule that would permit delaying the release of a citizen after writing a traffice ticket to allow for a canine sniff, even though it may take some time for the dog to get to the scene. The government points to cases that have upheld police questioning and even canine sniffs, not strictly related to the traffic stop, so long as the traffic stop itself is not extended. See Illinois v. Caballes, 543 U.S. 405 (2005). 

Search and seizure issues implicate the Fourth Amendment with its requirement of reasonableness. The Amendment is a check on official conduct. Viewed in that light, it seems that a bright line rule prohibiting suspicionless extension of traffic stops is in order, even if it makes officer's job a bit harder. Unless the officer has an objective reasonable basis to detain someone, he violates the Fourth Amendment if he prolongs the stop to get more information. Delaware v. Prouse, 440 U.S. 648, 655 (1979).

But who knows what the Court will say? Not too long ago the Court said that an officer's mistake of law, if reasonable, could provide reasonable suspicion to stop someone under the Fourth Amendment.  Heier v. North Carolina, 135 S. Ct. 530 (2014). The Court should decide the case by June.



Interpretation of Criminal Statutes -- Who decides?

Should the courts defer to an executive agency's interpretation of a law that can lead to civil and administrtive enfocement?

There is a long-standing rule that Courts will defer to agency interpretations of laws that they are charged with administering, at least for civil purposes.  This doctrine is known as Chevron deference after a Supreme Court case, Chevron U.S.A v. National Resources Defense Council, Inc., 467 U.S. 837 (1984). This doctrine has spilled over to the criminal law, with some courts deferring to agency interpretations of laws with criminal applications. This conflicts with another rule, the rule of lenity, which holds that only Congress can define crimes. In a recent statement two Justices of he Supreme Court said they think the Court in a proper case presenting the question the Court should resolve this conflict. Whitman v. United States, 574 U.S. ___(No. 14-29, November 10, 2014).

Talk to Ken -- Free Consultation

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My firm handles many kinds of problems, from claims for money damages to review of real estate documents, to defending criminal charges. We prepare wills, settle estates, and handle business disputes. I go to court and have handled many jury trials and appeals in state and federal court. 

Come see me to talk about your problem. The initial consultation is free.


Easements in real estate

An easement is the right of a nonowner of a parcel of land to use the parcel under specified conditions.

Every easement should describe the use of the easement, access, how long it will last, what event or events will terminate it, who pays for maintenance or repairs and when, indemnification of the person granting the easement, can it be assigned, and whether the rights and obligations pass to successors and assigns.

This office negotiates, drafts, enforces, records and otherwise deals with easements.


Thank you for considering Kenneth P. Tableman, P.C. We look forward to beginning a relationship with you and earning your business. 



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