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Update on Trump’s Travel Ban

Acker + Associates P.C. Newsletter

 

Update on Trump’s Travel Ban

As forecast in the last Legal Bits (see Challenges to President Trump’s Travel Ban), President Trump’s executive order is being kicked around in the courts.

What Happened Yesterday?
Yesterday afternoon, the Ninth Circuit Court of Appeals heard oral argument on whether to uphold the suspension of the ban.  The ban was suspended by the temporary restraining order (TRO) entered by Judge James Robart of the U.S. District Court for the Eastern District of Washington.  The three-judge appellate panel asked questions but did not render a decision.

What is Being Decided?
The issue is not whether the ban is constitutional but whether or not Judge Robart abused his discretion in granting the TRO.  Typically, TROs are not appealable.  They last for 14 days unless the court makes them permanent during the pending case by issuing a preliminary injunction, usually after a hearing.  The Department of Justice (DOJ) is arguing that Judge Robart’s TRO resembles a preliminary injunction and is appealable.  The judges will likely decide whether to overrule the TRO and reinstate the travel ban or punt the case back to District Court for the preliminary injunction hearing.

Highlights
Although not as thrilling as the Patriot’s Super Bowl comeback, the hearing had some sparks.

•  DOJ lawyer August Flentje was mostly on the defense.  Judge Friedland asked if the government introduced any evidence of terrorist threats to justify the President’s actions.  Flentje responded, “these proceedings had been moving very fast.”

•  Judge Canby asked Washington State lawyer Noah Purcell what irreparable harm the state of Washington will suffer if the travel ban is reinstated.  Purcell responded that the burden is on the DOJ to show irreparable harm and then cited the negative impact on schools and hospitals.

•  Judge Canby tried to get Purcell to acknowledge that the travel ban only impacted a small percentage of Muslims, suggesting that it is not discriminatory.  Purcell responded that he had not done the math but Trump’s comments demonstrate the intent to discriminate.

•  Judge Canby asked Flentje whether Trump has the authority to impose a ban on all Muslims entering the country.  Flentje avoided the question and remarked, “I’m not sure I’m convincing the Court.”  He proposed a middle ground–a stay that applies to only foreign nationals who have not been to the United States.

Next
The decision of the Ninth Circuit should be announced before the end of this week.  I predict that the appeals judges will reject the DOJ’s motion and the matter will return to Judge Robart for a preliminary injunction hearing to determine if the suspension of the ban will continue.  Regardless, the losing side will likely appeal to the Supreme Court to rule on the constitutionality of the ban.

Trump’s Comments
Trump referred to the Judge Robart as a “so-called judge” and his decision as “ridiculous.”

In response to yesterday’s hearing, Trump suggested that the Court of Appeals is biased and political.  He insisted that his order is within his executive powers and even “a bad high school student would understand this.”

Trump’s personal attacks on the judiciary are puzzling and counter to the usual decorum, at least for those of us that have appeared before the Ninth Circuit Court of Appeals.  I recall a judge stating that he could not hear an attorney because the attorney was not wearing a suit and tie.  I remember another judge stating that the courtroom is his living room and that those present will conduct themselves accordingly.  Even Trump’s Supreme Court nominee, Neil Gorsuch, said today that Trump’s remarks about the judiciary are “demoralizing” and “disheartening.”

Governor Bullock

This last weekend, I traveled to Montana to join my buddy, Governor Steve Bullock, in celebrating his election to a second term as a Democrat.  This was a significant victory in a state where 55.6% voted for Trump as opposed to 35.4% for Clinton.  I have yet to meet anyone in Montana that does not love Governor Bullock.  The woman next to me on the plane spoke highly of him and his interest in their education system.  The owner of a bar I visited told me how the governor helped their hospitality industry and bought me a drink when I told him I am a friend of the governor.  If only someone like Governor Bullock could take the helm of our country…

Challenges to President Trump’s Travel Ban

Acker + Associates P.C. Newsletter

 

Challenges to President Trump’s Travel Ban:

What Is Being Banned and Is It Legal?

Photo: Randal Acker’s view of riot police assembling in anticipation of protests at PDX airport Sunday evening (January 29, 2017).

On Friday, President Trump signed an executive order that bars nationals from seven Muslim-majority countries (Iraq, Syria, Iran, Libya, Somalia, Sudan, and Yemen) from entering the United States, bans refugees from entering from any country for four months, and bans refugees from Syria indefinitely.  It also suspends the Visa Interview Waiver Program–which had allowed nonimmigrant visa seekers to forego an in-person interview–and requires a review of nonimmigrant visa reciprocity agreements with other countries.

Trump relies on the executive powers of the Immigration and Nationality Act (INA).  The INA allows the President to suspend entry of aliens or a class of aliens if the President finds such entry to be detrimental to the interests of the United States.  (The seven countries were first identified by Obama in 2015 when he imposed travel restrictions under the INA.)

Discrimination
While the INA is broad, it also prohibits discriminating in the issuance of an immigrant visa because of a person’s nationality, place of birth, or place of residence.  Arguably, Trump is violating all three.  In addition, U.S. and international law prohibit deportation of non-citizens who will likely face torture or persecution if returned home.

Religion
If the ban is viewed as targeting Muslims, it arguably violates the First Amendment freedom of religion clause.  However, nowhere in the order does it reference religion.  A successful challenge on such grounds would likely require proving the intent behind the order.  The order singles out countries with Muslim majorities.  Also, in his campaign rhetoric, Trump declared his intent to limit, if not bar, Muslims from entering the United States.

Due Process
Arguably, those detained in U.S. airports are being denied procedural due process.  By being placed on an airplane and sent back to one of the seven countries, they are being denied a hearing.  Courts usually balance the interests of the individual and the government in deciding such due process challenges.

What’s Next
At least five courts have already granted temporary relief against the order.  (However, many government agents have defied the courts as they continue to detain and deport individuals.)  Despite the backlash from members of Congress, Trump has defiantly stood by his order.  Ultimately, our judicial branch will need to decide upon the constitutionality of the order.  Despite the seemingly egregious unconstitutionality of the order, courts tend to defer to the President on immigration issues that involve national sovereignty and foreign relations.

Changes in Oregon Law

Acker + Associates P.C. Newsletter

 

CHANGES IN OREGON LAW

From minimum wages to wolves to weed bankers, the following changes to Oregon law took effect on or before January 1, 2017.

Minimum Wages
Oregon’s minimum wage is increasing, but leave it to the legislature to make it complicated. Not only is it increasing in stages but it varies depending on where one works in Oregon. One rate applies within the urban growth boundary of the Portland Metropolitan Area, another to 18 designated non-urban counties, and then another for the rest of the state. If you live in Portland, you can expect the minimum wage to increase from $9.75 to $14.75 over the next six years. The bill also requires employees to provide additional information on itemized pay stubs and to maintain employee time and pay records.

Drones
Do not attach a gun to your drone, and be careful where you fly it. It is now illegal to weaponize a drone or operate it over a power station, chemical plant, dam, or prison.

Gray Wolves
Wolves beware. They were removed from Oregon’s endangered species list (although they are still listed as endangered under the federal Endangered Species Act).

Death & Digital Assets
Estate law now recognizes the importance of digital assets (online banking, Facebook and email accounts, photos stored on the cloud, etc.). Access to these accounts, when a user dies, is no longer limited to the companies that store these assets. Users can now dictate who shall have access to their accounts upon death. They can either use an online tool provided by the company or designate someone in their estate planning documents. (As an example of an online tool, Facebook allows users to designate “legacy contacts” to manage their accounts after they die.) A personal representative or other fiduciary can now also apply to the court to acquire access to digital assets.

Marijuana & Financial Service Industries
Despite the legalization of marijuana, financial institutions faced possible criminal conspiracy charges for providing financial services to those involved in the industry. Oregon now exempts, under Oregon criminal laws, most financial institutions that provide financial services to such marijuana businesses. In addition, state agencies are now required to provide certain documentation on marijuana businesses to financial institutions to help them comply with federal requirements.

Rent Increase Limits
Landlords of residential month-to-month tenancies can no longer raise rent during the first year of the tenancy. In addition, they must provide a 90-day notice prior to any rent increase after the first year.

UPDATE: Federal Judge Blocks Overtime Pay Rule Change

Acker + Associates P.C. Newsletter

 

UPDATE:
Federal Judge Blocks Overtime Pay Rule Change

Santa’s sleigh screeched to a halt or Christmas came early–depending on whether you are an employee or employer.

Texas Federal Judge Amos L. Mazzant III has granted a nationwide preliminary injunction stating that the Department of Labor’s rule, which was suppose to go into effect this Thursday, is unlawful and exceeds the authority that the agency was delegated by Congress.

The rule would have more than doubled the required salary of manager and supervisor employees that are exempt from overtime pay.

The rule was an executive order signed by Obama and never went before Congress for consideration. An appeal of the injunction could mean that the fate of the rule is decided by a Trump administration or a Supreme Court with Trump appointees. Trump has previously indicated that he would like to see a delay in the implementation of the rule or a carve-out for small businesses.

Oh what fun it is to ride in a one horse open sleigh.

New Overtime Pay Rules

Acker + Associates P.C. Newsletter

 

New Overtime Pay Rules
Effective 12/1/16

Early holiday cheer for employees and perhaps some coal for employers.

If you are an employer, you may need to change how/what you pay your salaried employees.  If you are an employee, you may find a raise or reduced hours in your stocking.

Federal law permits employers to treat executive, administrative, and professional salaried employees as “exempt” from overtime requirements (such as paying one and a half times regular pay).

As of December 1, salaried employees who earn less than $913 per week ($47,476/yr.) must be paid overtime if working 40 or more hours per week.

For example, if you are an employer paying your manager $40,000 per year, you must either increase her salary to $47,476 or start paying her for overtime.

So you better watch out…I’m telling you why…an employee bringing a claim for failure to pay overtime would be entitled to not only the unpaid wages but recovery of attorney fees and a statutory penalty.

Please contact us if you have any questions or need help developing new compensation plans.

Better Watch Out… I’m Telling You Why

Acker + Associates P.C. Newsletter

 santa 2

Better Watch Out…
I’m Telling You Why

This week, A+A obtained a judgment from the Multnomah County Circuit Court extending liability to an owner for his company’s $450,000 business debt.

The dispute began with that all too familiar situation–someone owes you money, he hides behind his corporate veil, he liquidates his corporate accounts, and you cannot collect the debt.

In this dispute, between two former partners of a car dealership, we pierced the corporate veil and convinced a judge to hold the individual liable along with his company.  We also prevailed on our claim that the transfers out of his company were fraudulent.

As part of the judgment, we had the Court forbid the defendant from transferring money out of his accounts, to prevent the cat-and-mouse game of debt collection.  The defendant may bury his head in the snow and ignore the Court’s order.  If so, we have plowed the way for a contempt of court determination, an arrest warrant, and possible jail time.  Now that’s a naughty list to avoid.

On the other side of the snow bank, last month we successfully defended against an attempt to extract money from our client, a prominent local business.  A commercial contractor sought approximately $200,000 for alleged work performed on behalf of our client.  After a week-long jury trial in the other Milwaukie (Wisconsin), we were able to reduce/offset the claims to only a few thousand dollars.  Christmas does not come early, and you have to make Santa’s list if you expect a gift.

Portland Timbers as Champions of Major League Football…Soccer

As the Timbers hoist the top prize yesterday, the MLS Cup Trophy, Portland has cemented its position as Soccer City USA. Liam Ridgewell, Timber’s center back from England, calls the sport “football.” Why do us Americans use a different name?

Actually, the British were the first to use the word “soccer.” An Oxford student, Charles Wredford Brown, is credited with coining the name in 1863. British schoolboys liked to nickname everything and often added an “er” to such names. At the time, soccer and rugby were both commonly known as “association football” and “rugby football,” respectively. “Association football” became “soccer.” The “soc” was taken from “association” and an “er” was added. “Rugby” became “rugger.” Charles was asked if he would like to play a game of “rugger” and responded that he preferred “soccer.”

Rugby and soccer were originally sports for gentlemen, primarily played by the upper echelons of society. As they spread to the masses, “association rugby” did not catch-on and “association football” became known as just “football.” Other countries, such as the US, had meanwhile developed other popular sports that were being called “football,” and kept the prior name of “soccer” to avoid any confusion.

Congratulations Association Football City USA.

The End of Litigation

Apple’s announcement on Wednesday, of its latest version of gadgets, garnered the attention of the public.  However, a more significant technological advancement–at least in law–came today from the son of an attorney, Bill Gates. Microsoft has launched a new program that will essentially eliminate the need for litigation. No more juries, judges, or courtroom drama. Say hello to LOS (Legal Operating System).

How does it work? Whenever there is a legal dispute, the two parties simply enter their information into the system and LOS spits out a result. Years of development have gone into LOS, which allows it to handle, as boasted by Microsoft, any kind of dispute. Past cases and decisions for each separate jurisdiction have been entered into LOS, allowing it to access such and ensure consistent outcomes for future disputes.

The parties interface with “Ati,” a virtual person similar to Apple’s Siri. However, unlike Siri, Ati usually asks the questions. Ati will assist the user in obtaining helpful documents and electronic records. Ati may also want to “talk” with witnesses so that it can assess and process their information.

LOS, however, does not eliminate legal costs. You pay upfront. To begin a case in LOS, both parties must pay the full amount in dispute. At the conclusion of the case, LOS deposits any award into the account of the party it determines to have prevailed. LOS deducts and keeps a percentage from the award.

LOS is based on the premise that litigation can be reduced to a mechanical application of law to facts. However, this is not reality–at least in the present day. And, yes, for now, this blog is pure fiction. Maybe someday computer programmers will replace us lawyers.

Fighting for His Piece of the American Pie

Acker + Associates P.C. Newsletter

 TaxiCab

Fighting for His Piece of the American Pie:

A + A Obtains Jury Award for Green Cab Owner

Awelew Belete arrived in the United States in 1989 as a penniless refugee from Ethiopia. He and the other two current owners of Green Transportation Company immigrated together. They left behind their one-room house, which they shared with their respective families.

For his first seven years in the United States, Awelew worked sweeping floors in a warehouse in Portland. He worked 12-hour shifts, 7 days a week, so that he could earn money to support his family and himself. With his earnings, Awelew purchased a house. He also invested with several others in a taxi business that became known as Green Cab.

By 2007, Awelew was one of the three remaining owners of Green Cab. Over the years, Awelew grew concerned with and disputed the aggressive business decisions made by the other two members. He complained when company loans were obtained without his approval.

The other two members demanded that Awelew pledge his house as security for company refinancing purposes. Awelew requested copies of company financial records. Tensions flared between Awelew and the other two members.

The dispute culminated with a decision by the other two members, on December 23, 2013, to expel Awelew from the company. They claimed that Awelew’s conduct justified his expulsion from the company.

On behalf of Awelew, Acker + Associates filed suit in early 2014, claiming wrongful expulsion. Over a year later, and after a three-day jury trial, the jury awarded judgment in Awelew’s favor.

The jury determined that the expulsion of Awelew and the borrowing of money constituted a breach of the company’s operating agreement and the fiduciary duties owed to Awelew, and awarded him approximately a quarter of a million dollars. After the jury rendered its verdict, the judge gave Awelew a choice between receiving the jury’s monetary award or being deemed a one-third owner. Awelew selected the latter option, and the judge granted Awelew’s request for a declaration that he is still an owner of the company.

In a heartwarming victory, Acker + Associates helped Awelew reclaim his piece of the American pie.