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Friday
Jan292010

Legal Pad: Guns and Domestic Violence a Loaded Issue

I spend a good bit of time in the Anderson County Family Court.  I see a lot of interesting things there.  Most are sad.  However, a recent Order of Protection Hearing, though somewhat routine on the surface, was thought provoking.

I have been a prosecutor, in one form or another, for almost two decades now.  I’ve also been involved in my fair share of nasty divorce cases.  As such, I am vehemently opposed to domestic violence in all its forms.  I am also, however, an ardent supporter of Second Amendment rights.  The Second Amendment states that “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”  Our Courts have interpreted this provision to apply to a citizen’s right to keep and bear arms.  

Patrick Henry might help us shed some light on this.  A fiery young Virginia lawyer, and great figure of the American Revolution, he is famous for saying “Give me liberty or give me death.”  He was also a proponent of the right to bear arms.  He said  “Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined.”  He also said “the great object is that every man be armed”.  He understood the need for a citizenry to bear arms.  Our roots as an armed nation go way back.  Without the shot heard round the world, we would all be British citizens today.  But I digress.  

The situation before the 21st century Family Court was something like this:  wife files for an Order of Protection, alleging that husband had shoved her and prevented her from leaving the residence.  She said that she hit her head during the scuffle.  She did not have any injuries and did not seek or need any medical attention.  She said she was afraid of her husband and that he had hit her before.  No allegations of any gun violence toward her or anyone else were made.  Both these parties appeared to reasonably nice people, with jobs, a nice home and good friends.  Upon questioning by the Court, the wife stated that she was afraid that her husband was going to shoot her.  She said that he had not threatened to shoot her, but she was still afraid of that.  Her husband, it turns out, is a hunter.  He has several firearms.  Husband’s lawyer raised the issue that the husband is a hunter.  Wife stated that “hunting season is over” and she did not think her husband should have a gun.  

The fourth page of the Family Court’s form order requires the Judge to answer three questions.  If the answers to those questions are “yes”, then the abuser cannot legally possess, transport, ship or receive any firearm or ammunition, pursuant to 18 U.S.C. Section 922.  All of this transpires in a hearing that takes about fifteen minutes.  By the end of this particular hearing, husband was prohibited from having his guns.  There are criminal penalties for the violation of this law.

So now what?  This Order of Protection will expire within six to twelve months of the order being issued.  What does the husband do with his guns right now?  If they are at home, he can’t go home.  He can’t put them in his car and take them somewhere else.  He can’t even ship them to someone else via UPS.  Is he obligated to call the Sheriff’s Office and tell them to come and get his likely very expensive hunting rifles?  If he does that, what happens to them when the Order of Protection expires?  Would the wife even want him to do that, as they are likely marital assets?  After all, a divorce is likely be filed soon.   Wife will want her fair share of the value of those guns.  Her attorney may want to leverage the guns against some asset the wife wants.  The possibilities are endless.  The questions many; the answers few.

The problem is that compounded by the statistics.  South Carolina Coalition Against Domestic Violence and Sexual Assault (SCCADVASA) reports that in 2003, 36 women in South Carolina were murdered by their domestic partner.  SC ranked sixth in the nation for men who murder women.  Domestic violence is the leading cause of injuries to women age 15 to 44, more common than auto-accidents, mugging, and cancer combined.  A woman is beaten by her boyfriend or husband every 12 seconds in the United States.   However, a relatively small percentage of these violent acts involve the use of firearms, according to the Violence Policy Center.  Yet, a woman is far more likely to be killed by her intimate partner.  So, while a woman is at a higher risk for being murdered by her intimate partner, the likelihood that she will be shot by him (as opposed to beaten or stabbed) is not significantly higher.  There does not seem to be a correlation between gun ownership and wife beating.   In the 40 states with concealed carry laws, other criminal activity has declined.  According to the NRA, gun ownership is at an all time high.  The nation’s violent crime rate has declined 40% since 1991.  States with right to carry laws have lower crime rates.  So there does seem to be a correlation between gun ownership and citizen safety, at least with regard to crimes committed on strangers.

The flip side of this is the argument that if an abuser is not in control of himself, he should not have a gun.  That makes sense.  If he can’t control his actions and has in fact injured his wife, can he be trusted to be responsible with that hunting rifle?  So the law takes the right to have the gun away.   But few are actually prosecuted for having the gun after an Order of Protection is entered.  So does this law work?  I don’t know.

But I return to my original conundrum.  What to do with the guns right now?  What happens when the Order of Protection expires?  By then, the couple has either filed for divorce or reconciled.  Reconciliations are extremely common among victims of domestic violence.  The reasons for that are not entirely clear to me.  Some of them were surely false reports to begin with.  Others seem to feel trapped by the relationship, with no other options.   But for whatever reason, they go home.  Some get killed, some do fine.  

So where do I stand on these issues?  A friend recently pointed out to me that anecdotal evidence is good for rallying the troops, but not so good as a basis for policy making.  Maybe he is right about that.  Maybe this should be addressed on a case by case basis.  Maybe the gun issue should get a separate, more in-depth hearing than a fifteen minute Order of Protection hearing.  I think that is probably the best answer.  I am against domestic violence.  I am a second amendment supporter.  I don’t think the two positions have to be inconsistent.  

I will leave you with two quotes:

“Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense?”  Patrick Henry.

“I’m afraid this man will kill me someday.”  Nicole Brown Simpson

Tuesday
Dec222009

Legal Pad: Making the Law Work for You

You’ve heard the one about the lawyer….right?  Everyone loves a good lawyer joke.   Personally,  I just love to hear that often misquoted Shakespearean reference “The first thing we do, let’s kill all the lawyers.”  But more about that later.  Lawyers are good fodder for making fun and the bane of society’s existence. That is, until you need one.  Then, all of sudden, in the middle of the night, the phone rings and you find your teenage son in jail.  Or, you come home to find your wife in bed with your best friend.  Who you gonna call?  I doubt it will be Ghost Busters.  No, you’ll call a lawyer.  And that’s a good call. 

Here’s why.  Think of life as a board game to navigate.  Lawyers are the only ones who have read and memorized the rules.  Added to that knowledge data base is the skill to manipulate the rules, within the rules themselves.  That is the key to making the law work for you.  It’s not a do it yourself proposition.

The world of do it yourself legal work is scary to me.  Commercial websites and even our own Supreme Court have forms that are designed to avoid the Bar.  But these forms have serious limitations, and in my opinion, do not serve the needs of most people.  Let’s take a look at the new uncontested divorce forms that are available online.  These forms are free.  Seems like a good deal, right?  Well, these forms are perfect if you and your spouse are in complete agreement on all points.  That is rarity in the world of Family Court. 

The instructions for the do-it-yourself forms are ten pages long.  The very first part of the instructions states in bold type:  “Warning:  You are strongly encouraged to seek the advice of an attorney before filing any legal matter.”  Yet, despite this warning, many people continue to file a “Self-Represented Litigant Simple Divorce Packet.”  They ignore the further caution in the instructions that states “While the self-represented litigant may not incur the attorney expense, the self-represented litigant does not have the expert guidance that an attorney can provide.” 

Here are just a few of the problems that I have seen arise in the filing of a “self-represented divorce.”  The first and most common problem is that the spouse who is served with these papers immediately goes and hires an attorney, who files paperwork that renders the case contested, thus defeating the purpose of the “self-represented divorce.”  In these cases, the Plaintiff, who is the filing party, finds him or herself in the position of being against a seasoned attorney.  Clearly, that is a disadvantage.  The only workable and sane solution is to get an attorney.  Another problem I often see is that the “self-represented litigant” either does not complete all the forms or does not complete them correctly.  There are nineteen (19) forms in the self-represented packet.   The forms contain terms like a vinculo matrimonii and in forma pauperis.  These are not every day terms.  If the forms are not done correctly, the Judge cannot grant the divorce on the day of the hearing.  This is a problem.  It takes several months to get a hearing date.  You don’t want to waste it!  If a divorce has to be rescheduled, that can add several weeks to the wait.  But I think perhaps the worst thing I see in the do-it-yourself divorce is a person who fails to realize what the law can do for him or for her.  For example, alimony is a complicated area of the law.  There is a Code section that sets forth the criteria for whether or not alimony is awarded.    Retirement accounts are another complex area.  Persons who are getting a do-it-yourself divorce often miss out on valuable benefits that they could have ordered, if they knew about them.   Child custody issues are also quite complex.  There are tax issues in divorces.  There are property issues in divorces.  I have practiced in the divorce arena for over fifteen (15) years. I continue to learn new things and new ways to benefit my clients.  Our law continues to evolve and change.   Just last year, the state legislature re-numbered the entire children’s code.  Last week, our state Supreme Court updated all of the forms used by our Courts.  New court opinions are posted weekly and have far reaching implications.  Only attorneys have the knowledge and skill necessary to get a case through any court.

Before you go to court alone, ask yourself one question.  If your gall bladder was full of stones, would you try to remove it yourself?  If that doesn’t decide it for you, then I don’t know what will.

So let’s go back to Shakespeare.  The play is the second part of King Henry VI.  The quote can be found at Act IV, Scene II.  The character who speaks the infamous line is Dick, the Butcher.   Dick is a repulsive and evil character.  At this juncture of the play, he is both encouraging and to a certain degree mocking Jack Cade, who is attempting to overthrow the government and become king.  Dick offers the suggestion to “kill all the lawyers” as a way to insure anarchy.  Immediately following this quote, Jack Cade and his mob brutally murder the Clerk of Chatham because he can write his name!   So clearly, this quote is not meant, by Shakespeare, as an insult to the legal profession.  To the contrary, even Dick the Butcher realizes that lawyers pose a threat to Cade’s revolution.  That is because lawyers know the rules and aren’t afraid to use them.  Shakespeare wrote this play in the late 1500s.  The need for lawyers has existed for a long time.  Taking the quote out of context is somewhat akin to taking Biblical quotes out of context.  All quotes have to be in context to be meaningful.  Sometimes it takes a lawyer to realize that.

 

So, the next time you have a problem like your son landing in jail or your best friend sleeping with your wife, who you gonna call?  I hope it’s a lawyer.  And be sure to tell the lawyer a good doctor joke at your first appointment!
**Disclaimer:  M. J. Goodwin, Attorney at Law, LLC, is located at 113 North Main Street, Anderson, SC 29621.  864-375-0909.  The information here is not intended as a substitute for specific legal advice for any given situation.  Only clients who have hired M. J. Goodwin, Attorney at Law, LLC, are receiving actual legal advice that pertains to their particular situation.**

Tuesday
Nov242009

Legal Pad: We All Have Civic Duty

By M.J. Goodwin

Being a lawyer has its perks.  I think one of the best of them is the “war stories.”  Two of the best places to hear “war stories” are in Family Court and Criminal Court.  Both places are filled with emotionally charged cases and interesting, flawed characters worthy of a spot in a Shakespearian play, both comedies and tragedies.  Some of these “war stories” make it to the daily news.  Most do not. 

I  heard about a couple who hated each other so much that the wife took all the light bulbs out of the house when she vacated.  The husband returned home to total darkness.  I have heard lurid tales of adultery, some with pictures!  I have represented criminals who called the police on themselves while reporting that the neighborhood drug dealer ripped them off.  Guess who went to jail?

I've heard (and told) my share of these stories over the years.  I hope this column will be a chance to share some of the better ones, with names and other facts changed to protect the guilty, of course.  I certainly want the reader to be entertained.  But I also think this column is an important venue to teach every day people about what goes on in Court.  I continue to be amazed at how little many otherwise well educated people actually know about what goes on in Court.

So today's “story” is about a woman we'll call Daphne.  Daphne has been married for 25 years.  She put her own career on hold to support her husband as a stay at home wife and mother.  I do not say that she “did not work” because that would not be true.  She worked very hard as a wife and mother.  She and her husband, John, are well liked in the community, active in their church and have a pretty good lifestyle, even during the recession.  Daphne showed up in my office for an emergency appointment after a particularly difficult evening:  her 16 year old daughter revealed that John, the child's father, has been molesting her for three years.  Daphne is understandably devastated.  She wants to call the police and have her husband arrested.  She also wants to file for divorce.  The first goal is easy.  We make the appropriate phone calls and John is arrested and confesses immediately.  The second goal, believe it or not, is more difficult. 

Daphne has no legal grounds for divorce.

This reality is unbelievable to most people, including me.  In South Carolina, there are a limited number of ways, also know as grounds, to file for divorce.  They are:  adultery, physical (not mental) abuse, habitual abuse of drugs and/or alcohol and abandonment.  There is also the “no fault” ground of irreconcilable differences.  However, to use that one, the parties have to have been separated for more than one year.  Daphne's only recourse is to file for an Order of Separate Maintenance and wait a year to get a divorce. 

The good news is that Daphne has a 25 year marriage and clearly it's an alimony case, if her husband can make bond, get of jail and go back to work.  The bad news is that he might not be able to make bond and even if he does, his employer may not want him back because of the charges against him. 

Daphne clearly has no choice but to report the abuse.  Failure to do so could result in her losing her children to the foster care system.  But the legal system affords her few options beyond that.  How will she pay the mortgage?  How will she buy groceries?  Who will want to hire a 46 year old divorcee with no real world work experience in this economic climate?

All these are questions that face the Family Court every day.  All these problems have only limited legal remedies.  Fortunately, Daphne has had a good outcome in her case.  Her husband did make bond and was allowed to return to work.  He is paying alimony and child support.  Despite this,  their standard of living has declined dramatically.   It is just a cold hard fact that two households cost more than one.  Their daughter is in counseling.  Criminal charges are still pending.  So the battle is far from over….and the “war stories” will continue.

So what can the average person do about these injustices?  Laws are enacted by our State Legislature.  If you have an idea about how to improve things, I believe it is your civic duty to talk to your elected officials about changing the laws.  I firmly believe that a credible case of child abuse should be a ground for divorce.  Daphne should not have to remain married to John for a whole year and file for divorce on irreconcilable differences grounds.  But for now, that is all she can do.

**Disclaimer:  M. J. Goodwin, Attorney at Law, LLC, is located at 113 North Main Street, Anderson, SC 29621.  864-375-0909.  The information here is not intended as a substitute for specific legal advice for any given situation.  Only clients who have hired M. J. Goodwin, Attorney at Law, LLC, are receiving actual legal advice that pertains to their particular situation.**

Thursday
Aug202009

Residents Say No to Dissolving Dist. 5

By Betty Bagley

Superintendent, Anderson School District 5


     Two things were clear after Monday’s night’s Anderson County Board of Education meeting in which its $58,000 redistricting study was discussed.

     One, the study’s proposal to dissolve Anderson School District Five is a solution in search of a problem.Betty Bagley is superintendent of Anderson County School District 5

     Two, most of the more than 200 residents who attended the meeting want no part of the redistricting scheme.

      Ironically, the best argument against dissolving District Five comes directly out of the Strom Thurmond Institute study that endorses the action.

      Page 50 of the study states: “Redistricting Anderson County school districts into three districts is unlikely to achieve cost saving, according to national research.”

      The study goes on to say, “Consolidation or redistricting is not the only or even necessarily the best way to contain cost, improve outcomes, and share educational resources more equitably.”

      The study also quotes a report from the Texas Public Policy Foundation which says, “Consolidation of districts and schools is one of the most thoroughly researched aspects of education reform, with research spanning 50 years” “. . . and in many studies there is evidence that consolidation worsened financial, academic and social outcomes.”

      In addition, the study quotes researchers from the Indiana University Center for Evaluation and Education Policy as saying: “Consolidation often becomes politically unpopular, reduces local control, and negligibly impacts education outcomes. As a result, consolidation may not be the most effective strategy to help drive more money into the classroom.”

      The study’s own authors further state, “Whether it is athletic competition, academic success, or just having a place for public meetings and where neighbors encounter each other, the identification with neighborhood schools extends to neighborhood districts. One’s voice is more likely to be heard in a smaller district. A large district, headquartered at some distance, is more likely to be unresponsive.”

      After this overview of the research into redistricting, the Strom Thurmond Institute study lists the drawbacks of redrawing district lines. They are, according to the study:

  • Loss of local ownership and control
  • Bureaucracy and unresponsiveness
  • Upheaval of Change

      One could summarize the report’s finding this way: There is strong evidence that the proposal to dissolve District Five will not save money, and it will not improve the academic achievement of our students. There is also a likelihood that such a drastic change will result in a loss of local control of our schools, an increase in bureaucracy and a decrease in responsiveness to parents.

      Those are not the findings of District Five. Those are the findings of the study requested and paid for by the Anderson County Board of Education.

      So, why is the Board of Education still considering a plan that would dissolve our district? Because, according to some of its members, this action would help divide our county’s resources and services in a more equitable way. The fact is, however, the difficulties of redrawing and dissolving districts are completely unnecessary if our purpose is to find better ways to share resources and services.

      Several multi-district counties in our state - namely, Greenwood, Laurens and Spartanburg counties - already share a tax levy. Indeed, for many years the Anderson County Board of Education has levied a 14.7-mill tax designed to help equalize the financial support available to all five school districts.

      The sharing of services among districts is also taking place. For example:

      District Five has partnerships with Tri-County Technical College and Anderson University, as do some of the other Anderson districts. These partnerships include dual-credit courses for which students may receive both high school and college credit.

      District Five share an Adult and Community Education Center with Districts Three and Four.

      All five Anderson County Districts share an Alternative School that provides a second chance for students who have had severe disciplinary problems.

      Districts One and Two share a Career and Technology Center.

      The Anderson County Board of Education provides food purchasing and counseling services for some districts.

      The superintendents of the five county districts are meeting next week to discuss additional ways we can share services, expertise and resources. I feel certain that these areas of cooperation will grow in the months and years ahead. I am equally certain that the majority of our residents want to keep their school districts intact. That message was sent, loud and clear, on Monday night. We all hope the County Board of Education members were listening.

Wednesday
Aug192009

City's Growth Requires Diligence

By Anderson Mayor Terrance Roberts

     The City of Anderson should have affordable housing available to all residence in safe, aesthetically pleasing neighborhoods with access to jobs, education, recreation, healthcare, and commercial goods and services. Downtown is taking off, which is a testament to the investment this community made in the last decade. One can easily identify the characteristics of private business taking the lead in its further development. Project after project is being proposed by private developers to enter a zone that was reborn due to the staunch commitment and public investment of the City Council, City staff, and tax payers. The City took the lead in providing infrastructure and encouragement, and it seems to have reached a tipping point. The same vision and investment must now be shifted to our neighborhoods.


    This is not to say we should ignore our downtown and other commercial zones as they continue to take off. Instead this is a shift that seeks to maintain our current growth and make the necessary investments to keep its momentum. While we continue to sustain our lead in the commercial game, it is time for the full court press in our neighborhoods. As our business citizens continue to progress, our investment will provide them with more customers living and workers in close proximity with the means and the desire to purchase their goods and services.

     We must have the vision and the tenacity to create affordable and accessible housing across the limits of our city. Let me be very clear what I mean because those things mean very different things to different people. Affordable does not mean low rents created by undesirability in areas plagued with poor economic conditions and high crime. Affordable means a home in a safe and welcoming neighborhood with a rent low enough to leave families with money to pursue other needs such as health care, transportation, and education. Accessibility to quality jobs, educational opportunities, health care, and recreational services are just a few of the other secondary factors on which we must focus to improve the quality of life for all our residents.

     We must protect our neighborhoods from commercial encroachment and traffic congestion. As development continues in downtown and along corridors like Main Street / Clemson Boulevard or Greenville Street, we must have the vision to provide the proper planning and programs to protect the values and accessibility of some of our most successful neighborhoods. We must also work to maintain the character of our historic neighborhoods. That character attracts residents and adds value to our city. We must not lose the essential character that is so vital to each unique neighborhood. A residential plan that includes zoning, traffic planning, and development planning must be enacted now to maintain the quality of life for the residents of these neighborhoods. 

Cit

     These trends have taken decades to develop and it will take a few years to bring the results we desire. It is also going to require more than the effort of the City Council and Staff. It will take a commitment from the citizens of Anderson to make a positive and lasting change. People said we could never do it downtown and we proved them wrong. The City will continue to put our creativity, energy, and money to work to do the same for our neighborhoods. Now is the time for all of us to take action, to stem the tide of unchecked development, and to make sure that our neighborhoods become and stay livable for years to come. It is the residents of our fair city that have made it great; it is up to US to protect their way of life.


 

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