Tag Archives: Rights

Barefoot Drivers in Massachusetts

Barefoot drivers in Massachusetts

By Ginger B. Kelly, August 1, 2018

As most of you know already, I am a Facebook user. Click Here to see my Facebook page.  I also post on Twitter, Instagram and other things like, Linkedin and AVVO.com.  Because of my strong Social Media presence, it’s not unusual for people ask me interesting legal questions.

One of my dearest friends posed a very general question on Facebook regarding driving barefooted in Massachusetts.  He wanted to know whether or not it was legal to drive with no shoes or footwear, in the Commonwealth of Massachusetts. Although I am primarily a bankruptcy and consumer defense attorney, I sometimes handle a few criminal and civil cases, including traffic citations.  I told my friend that I would do a little quick research on this interesting general topic.

This is what I found…

I started with the Massachusetts laws, or statutes, regarding driving while impaired.  As most of you already know, driving while impaired means a lot of things, but it doesn’t mean driving without shoes.  Impaired driving has to do with defendants who ingest, smoke or take substances that “impair” their ability to drive.  In other words, don’t drink and drive or don’t drive while intoxicated or when taking drugs or substances, whether or not those substances are legally permissible.  If they cause you to drive unsafely, it’s illegal.  Although driving barefooted may be fun, it’s probably not exactly intoxicating.  Thereby, barefooted driving would not qualify as an offense or apply to the law, under the impaired driving statutes in Massachusetts.  Arguably, if driving without shoes induces an impaired driving intoxication, then for the sake of argument, there may be some remote chance there is a legal situation or offense.  I said remote.  If this happened, such a strange situation would be handled by a judge on a case by case basis.

Moving right along…

There are a similar set of statues in Massachusetts called the distracted driving statutes.  Distracting driving is similar to driving while impaired in that a driver can not allow certain things to interfere with safe driving, but these are different because they don’t involve substances that impair driving.  Under the distracted driving statutes, all drivers who drive in Massachusetts are prohibited from doing things that prevent them from keeping their “eyes on the road,” such as text messaging and cell phone use, using technology and other devices. One part of this law, for example, is that all drivers under the age of 18 are prohibited from all cell phone use.  These kinds of things are considered “distracted” driving but there is no mention of barefoot driving or driving without footwear.

For the sake of argument, if driving with no shoes is distracting to you and you can’t keep your eyes on the road, or perhaps the shoes or flip flops you just kicked off your feet are getting under your foot pedals, causing you to drive in an unsafe manner, this would be a matter that could be considered distracted driving.  However, this sort of barefoot driving case would be a matter that should be settled by a judge or jury at court.  I don’t suggest doing this.  But for sake of this research, there is nothing per se, in Massachusetts, that would prohibit one from driving without shoes, according to the impaired or distracted driving statutory laws. But there are other laws pertaining to driving.  Let’s take a look.

Taking a look at the new Safe Driving laws of Massachusetts, one can see that there are a lot of restrictions regarding mobile phones, devices and driving over the age of 75 and older.  However, I found nothing in the safe driving laws of Massachusetts regarding barefoot driving.  So there you have it!  Let’s move on to regulatory law.

I began my quick regulatory law research by taking a look at the Massachusetts Driver’s manual.  The Massachusetts Driver’s Manuel states, “In your vehicle, nothing should get in the way of your ability to see, react, or drive.”  In other words, you can not have distracting objects in your vehicle, like wearing both head phones, a television visible to the driver or anything that could get in the way of your feet, and use of the vehicle pedals, while driving.  Again, this sort of thing implies that it’s not permissible to simply kick off your shoes and let the shoes interfere with safe driving.  However, the RMV manual mentions nothing about driving without shoes.  So, RMV regulatory law isn’t a big help here, other than giving us a better idea of what it means to drive safely, not distracted and not intoxicated or under the influence of substances. Never the less, we still don’t really know whether or not there is anything in Massachusetts law that says it is not permissible to drive without shoes.

I ran a search on Mass.gov to see if I could find anything further in the regulations regarding driving barefoot.  I found something interesting regarding footwear guidelines in the UK, but I found nothing for  driving while barefoot in Massachusetts.

I also ran a case law search on my legal search engine.  I found nothing regarding case law in Massachusetts.  Since I could not find any recent case law regarding barefoot drivers in Massachusetts, it is safe to assume there is no law or precedent regarding barefoot driving in Massachusetts.  Therefore, it is highly probable that it is legal to drive without shoes, with only socks or barefoot in Massachusetts, provided that driving without shoes is safe and does not distract one’s driving ability to drive safely.

Drive safely with naked tootsies or just socks in Massachusetts. Just be careful and be sure that your naked foot driving is free from intoxication, distraction and that kicking off your shoes never gets in the way of driving safe.  Good luck!

If you have any comments or questions on this topic, or law in general, I invite you to post your comments, below.  It’s interesting to see what others have to say.

If you have other legal questions, especially if you are contemplating bankruptcy or dealing with collections or debt collection law suits, Attorney Ginger Kelly is now accepting clients in the Dudley, Webster, Sturbridge, Fiskdale, Southbridge, Saundersdale, Oxford, North Oxford, Charlton, Charlton Depot, Auburn, Leicester, Rochdale, Spencer, Brookfield, East Brookfield, West Brookfield, North Brookfield, Warren, Brimfield, Wales, Palmer and Holland.  We can explore whether or not bankruptcy is the easy way out for you.  Our office is a quiet and comfortable place to talk, and a free pot of coffee will be waiting for you when you arrive.

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ABOUT ME: Attorney Kelly is an attorney in good standing, licensed to practice in both the Federal District and State Courts of Massachusetts and Rhode Island. Her law practice is focused on consumer debt, finance, bankruptcy and District Court matters. Attorney Kelly is experienced in both criminal and civil trial work. On a personal note, Attorney Kelly enjoys writing and other things, like conservation and agriculture. To find out more, visit our website, or call us at (508) 784-1444.

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NOTICE: This is an Advertisement. This post is not legal advice. Consult your attorney. Attorney Kelly does NOT provide legal advice to anyone via social media or anywhere over the Internet. Any and all electronic posts and writings, by Attorney Kelly, does NOT establish any type of attorney-client relationship, whatsoever, neither perceived, actual, material, implied or other. We cannot stress enough, if you need personal legal advice, always see your attorney. Do not rely upon Attorney Kelly’s posts, writings or any Internet information on websites or social media for your own personal legal advice. Seek legal advice and representation from your own personal attorney.

Copyright © 2018 by Ginger B. Kelly, Esq., all rights reserved

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Filed under Empowerment, Law, Lawsuits, Legal, Legal Rights, Massachusetts, Massachusetts law, Minimalism, practical stuff, Trending, Uncategorized

Lien Removal via bankruptcy

MortgageLaw

Lien Removal via Bankruptcy

By Ginger B. Kelly, Esq. May 23, 2018

Judgment liens on residential real estate or automobile titles can become a big problem for owners who want to sell or refinance. A lien is a type of instrument that secures a debt, similar to the way a mortgage secures a loan or note or a lien on a title can secure an automobile loan. Liens can be created for a number of reasons, like  to pay a judgment on a credit card debt, unpaid taxes, mechanic’s liens for unpaid services or water or sewer charges or any judgment in a lawsuit to pay a debt of any kind, even unpaid car loans or leases.

In Massachusetts, a lien from a judgment in a lawsuit is called an execution. The execution secures the amount that was awarded to the plaintiff and enforces the judgment awarded.  For example, credit card companies like Discover, Synchrony, Citi Bank or Bank of America, debt buyers like Midland Funding, and auto loan companies, like Wells Fargo and Ford Motor Credit, commonly record executions after receiving a judgment. Some companies even record liens before a judgment, if there is reason to believe the property will be sold or encumbered in any way.

There are only a few ways that a defendant may remove an execution, in Massachusetts. One way is if the debtor pays the creditor/plaintiff the amount owed on the execution. Then the creditor may ask the court to release the execution or lien. The other way is to pay the creditor a lesser amount owed, also known as a “settlement.” If the creditor agrees to a lesser amount, the creditor or the debtor can ask the court to remove the execution after the debt is satisfied by payment. Another option is if the judgment secured by the lien is vacated (i.e. thrown out). Without the underlying judgment, the execution can be released.  The only problem with this is that even if the execution is released, the debt won’t necessarily go away. The creditor might be able to re-file the lawsuit. A third option is to have the lien avoided in a bankruptcy.

When a homeowner files for bankruptcy in Massachusetts, he or she can claim a homestead exemption that protects between $125,000 and $500,000 in equity in their personal residence. The Bankruptcy Code allows filers to remove liens, also known as “avoiding” liens, like executions that impair this exemption. Once avoided, the lien can be cleared from the title by recording or registering orders from the bankruptcy court at the registry of deeds.

At the Law Offices of Ginger B. Kelly, we often obtain orders to clear liens from many of our client’s real estate, automobile titles and other personal property.  By obtaining and recording or registering orders from the bankruptcy court, we help many of our clients refinance or sell their homes and other property without problems stemming from a lien. If you have a lien that poses a problem for your property, talk to us (free of charge) and we will evaluate your options.

The Law Offices of Ginger B. Kelly is now accepting clients in the Sturbridge, Southbridge, Dudley, Webster, Oxford, Charlton, Auburn, Spencer, Brookfield, Warren and all of the Worcester County Area. We can explore whether or not bankruptcy is the easy way out or not.  We have a comfortable place to talk and a fresh cup coffee waiting for you.

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ABOUT ME: Attorney Kelly is an attorney in good standing, licensed to practice in both the Federal District and State Courts of Massachusetts and Rhode Island. Her law practice is focused on consumer debt, finance, bankruptcy and District Court matters. Attorney Kelly is experienced in both criminal and civil trial work. On a personal note, Attorney Kelly enjoys writing and other things, like conservation and agriculture.

To find out more, visit, http://www.attorneykelly.com or call us at (508) 784-1444.

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NOTICE: This is an Advertisement. This post is not legal advice. Consult your attorney. Attorney Kelly does NOT provide legal advice to anyone via social media or anywhere over the Internet. Any and all electronic posts and writings, by Attorney Kelly, does NOT establish any type of attorney-client relationship, whatsoever, neither perceived, actual, material, implied or other. We cannot stress enough, if you need personal legal advice, always see your attorney. Do not rely upon Attorney Kelly’s posts, writings or any Internet information on websites or social media for your own personal legal advice. Seek legal advice and representation from your own personal attorney.

Copyright © 2018 by Ginger B. Kelly, Esq., all rights reserved.

 

 

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Filed under Auto Loans, Bankruptcy, Chapter 7, Collection, credit card debt, Debt, Debt Collection, Empowerment, Execution, Filing, Judgements, Law, Lawsuits, Legal, Legal Rights, Liens, Massachusetts, Massachusetts law, Mortgages, Rhode Island, Short Sale

Bankruptcy Without My Spouse

Spouses

By Attorney Ginger Kelly, January 24, 2018

Bankruptcy is a great way to get a fresh start, but how will it affect your spouse if you want to file individually? Attorney Kelly investigates a few common questions about dealing with a bankruptcy when a spouse might be involved.

Am I required to file bankruptcy with my spouse?

The short answer to this question is no. If only one partner in a marriage owes debt, then only that partner should file for bankruptcy. Debts where spouses are joint and severally liable for payment will remain with the spouse who has not filed for bankruptcy. The exception is in states that follow community property law.  In community property states, single spouse bankruptcy for joint debts may in some situations be advantageous.

What happens to my credit or property if my spouse files bankruptcy?

As a general rule, one spouse filing for bankruptcy will not affect the other spouse’s credit rating or financial situation. Because a debt is a contract between a debtor and a creditor, each debtor must sign the contract to be liable for payment. The spouse not signing the contract would not be liable for the debt.  This is why the bankruptcy of one spouse doesn’t affect the other spouse or cause the other spouse to become bankrupt too.

What happens to joint debts when one spouse files for bankruptcy as an individual?

Under a Chapter 7 bankruptcy, when one spouse’s debts are discharged, or wiped clean, the creditor can go after the other spouse jointly responsible for the debt.  But, in a Chapter 13 bankruptcy, joint debtor spouses have a major advantage.  When the debtor spouse plans to re-pay his or her debts, over the time of the 3 or 5 year plan, the creditor will generally not bother the other spouse, as long as bankruptcy plan payments are deposited on time.

What are the exceptions?

There are some notable exceptions to co-debtor spouses when only one is filing for bankruptcy. For example, there is a possibility that the bankruptcy of one’s spouse may show up on the other’s credit report, but only if joint debt is involved.  If joint debt is involved, your bankruptcy may affect your spouse’s credit scores.  But not paying the debt will also affect your spouse’s credit scores. Another issue might involve applying for a joint loan in the future.  The bankruptcy of one spouse will affect the creditworthiness of both spouses applying for a loan jointly, or together.

Another exception deals with jointly held property. In a regular bankruptcy, the US Trustee may take non-exempt property and sell it to use it to pay creditors.  Even jointly held property can be taken if not exempted.  This is of vital importance in community property states, states where both spouses in a marriage own and are responsible for all the debt and property acquired during the marriage. The community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. Massachusetts and Rhode Island are not community property states but rather, common law property states.

In common law property states, like Massachusetts and Rhode Island, your individual assets and your interest in any property you own jointly with your spouse (typically half unless otherwise noted) are considered part of your bankruptcy estate. In other words, they split the baby, so to speak. But your spouse’s half or portion is protected, generally. The property your spouse owns in his or her name alone is normally not at risk.

However, it is important to know that in Chapter 7 bankruptcy, the appointed US Trustee may be able to sell the entire jointly owned asset if you can’t exempt the value of your interest, provided that the property can’t be divided. If the trustee sells the property, he or she will pay your spouse the value of her interest and use your portion of the nonexempt proceeds to pay back your creditors. This is what I mean by “split the baby.” Keep this in mind.

What if my spouse gets calls and letters from my collection agencies?

Sometimes collection agencies will pursue both spouses even though only one spouse owes debt. If you feel that the calls and letters asking for payment are only meant for your spouse you can do something at this point. First, ask the collector to prove the debt by requesting proof of responsibility for those debts.  If the debt is solely to your spouse’s name, you can ask the collectors to stop calling you or sending you letters, but you must do this in writing (via letter).  If your spouse has already filed for bankruptcy, the collection agency can be stopped if his/her attorney would motion the court and ask to court to enforce the automatic stay.

Can I file for bankruptcy without my spouse knowing?

Yikes! Yes you can, but no don’t do it. Theoretically and in a legal sense, yes, you can file without your spouse knowing. However, because a Chapter 7 uses household income as part of the Means Test, you will need to report your spouse’s income. Also, in some extreme cases, some bankruptcy courts use income garnishment for debt repayment. Since you don’t want your spouse discovering their paychecks have been garnished, after the fact, it’s a really good idea to let them know from the beginning. Hiding bankruptcy is just a temporary solution, at best, and isn’t a good idea. Besides, secrets like this may wreak havoc on a marriage.

When do I need an attorney to file?

If you are considering bankruptcy, it always best to consult with a lawyer. A bankruptcy attorney will advise you to many things critical to your bankruptcy success. For example, fraudulent transfers come to mind.

Just the other day, while waiting for my client’s meeting of the creditors, I couldn’t help but to notice a pro-se debtor speak to the US Trustee at a subsequent meeting.  It’s an open floor.  Everyone can hear what’s going on.  This poor young man did not realize that he made a fraudulent transfer by giving a sum of cash money to his father within a certain period of time before he filed.  Not only can the US Trustee unwind transfers, quite often a discharge in matters like this are not permissible.  I felt sorry for that debtor.  He worked so hard to get to this point on his own, only to be met with a very unsettling outcome.  This is why most debtors need a good bankruptcy attorney.

A bankruptcy attorney will advise you as to whether bankruptcy is your best course of action, based on your situation. Also, your attorney can advise you as to whether or not your spouse will be affected if you file or whether or not they should file with you.

Filing for bankruptcy is a great way to get a fresh start, but it may affect your spouse if they aren’t filing with you. Find out more about joint debt, keeping your spouse’s property and more by contacting a skilled bankruptcy attorney in your local area.

The Law Office of Ginger B. Kelly is a boutique type law firm located in central Massachusetts. We are not Big Law.  We only handle a small number of clients at one time.  Each client gets personal attention and care.  Each client gets hours and hours of time devoted to their particular case. Our office is in an easy to find location in Charlton. This means you don’t have to drive to the big city of Worcester or Boston and pay for parking. We not only offer free parking, but free coffee in a calm and peaceful place. Your discussion with our senior attorney is very confidential. Your first consultations will last about an hour in a stress-free, homey type atmosphere.

As one client put it, “This is like an old fashioned law office, very comfortable.”

Book your appointment now to explore your best options for this New Year.  We’ll have a nice pot of coffee waiting for you when you visit.

Also, keep in mind that it’s tax return season. Many people use their tax refunds to help pay for their bankruptcy.  There is no better time than now (tax refund season) to talk for free and find out more about ways you might be able to get the bankruptcy that you need now.

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ABOUT ME: Attorney Kelly is an attorney in good standing, licensed to practice in both the Federal District and State Courts of Massachusetts and Rhode Island. Her law practice is focused on consumer debt, finance, bankruptcy and District Court matters. Attorney Kelly is experienced in both criminal and civil trial work. On a personal note, Attorney Kelly enjoys writing and other things, like conservation and agriculture. To find out more, visit, http://www.attorneykelly.com or call us at (508) 784-1444.

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NOTICE: This is an Advertisement. This post is not legal advice. Consult your attorney. Attorney Kelly does NOT provide legal advice to anyone via social media or anywhere over the Internet. Any and all electronic posts and writings, by Attorney Kelly, does NOT establish any type of attorney-client relationship, whatsoever, neither perceived, actual, material, implied or other. We cannot stress enough, if you need personal legal advice, always see your attorney. Do not rely upon Attorney Kelly’s posts, writings or any Internet information on websites or social media for your own personal legal advice. Seek legal advice and representation from your own personal attorney.

Copyright © 2018 by Ginger B. Kelly, Esq., all rights reserved.

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Filed under Bankruptcy, Chapter 7, Collection, credit card debt, Debt, Debt Collection, Filing, Financial, Financial Planning, Joint Property, Law, Massachusetts, Mortgages, Spouse, tax refund, tax return, Uncategorized

Gone to the Dogs in Massachusetts

Herbie, Acrilic Portrait by Artist Annie Salness http://www.anniesalness.com/herbie.html

Herbie, Acrilic Portrait by Artist Annie Salness http://www.anniesalness.com/herbie.html

Gone to the Dogs: Service Animal Law and Leash Law in Massachusetts

Sometime last year, in the small town of Oxford Massachusetts, a Veteran with a service dog entered a restaurant. The restaurant was very small and very local. The restaurant owner was also a local business man. The restaurant owner didn’t know the Veteran and visa versa. Neither did the restaurant owner know why the dog came into the restaurant with the Veteran, a very average looking man. The Veteran wasn’t blind.  He didn’t appear physically disabled.  The Veteran had no physical impairments, visible to most people.  Unfortunately, this is where the trouble started.

Apparently, the service dog was not appreciated inside the restaurant owners place of business.  People were eating there.  Food was prepared there.  The restaurant owner was so concerned, that he asked the Veteran to remove his dog.  The Veteran protested.  The Veteran tried to explain his situation and the circumstances.  The restaurant owner didn’t believe him.  Others chimed in. It all turned into one big mess. According to local news stories, the restaurant owner did not understand why the service dog was required by the Veteran or what the Veteran’s motivation for having the dog inside was.

Even so, this one simple transaction turned into a situation. It wasn’t pretty. The restaurant owner and the Veteran exchanged words. People were angry. The Veteran was asked to leave. Then, the police were called in. The Restaurant owner was upset, very upset. Patrons left the restaurant.

The next day, all the nasty details were reported in the local news paper. The news sparked even more interest. Dog owners, people with disabilities and Veterans from far and wide formed groups to protest the tiny restaurant in Oxford. Dogs dogs and more dogs, come with dog owners to voice their opinion. A few people sided with the restaurant owner. Even so, bad publicity is never a good thing. The restaurant owner lost customers. The bad publicity was not good for business and embarrassing to say the least.

In this instance, the service dog was used as not only a companion for the Vet but a tool to help him manage his disability, post traumatic stress disorder. The Veteran’s PSTD was a medical condition, directly related to his service. The restaurant owner never heard of this before. The restaurant owner made an incorrect assumption that the Veteran was not disabled.

Eventually, after a few very emotionally charged discussions, the restaurant owner apologized.  His apology was made public.  The public apology was a newsworthy story of success and communications, based on the efforts of the Veteran and the restaurant owner.  The Veteran accepted the apology.  They both shook hands. The Veteran and his service dog were welcomed back into the restaurant. The two became friends.

Eventually, life went back to normal in this sleepy little Massachusetts town in Southern Worcester County. People stopped protesting. Newspapers stopped reporting. Oxford returned to its regular state of normalcy.

This story sheds a little light into various legal reasons why someone would need to have a dog in a public place. It also sheds light as to a few things a dog owners must consider, before they bring their dogs into public places. Every town or jurisdiction in Massachusetts has important local rules or regulations pertaining to health, housing, service dogs and pets.

Other important laws regarding dogs or “service animals” can be found in the Americans with Disabilities Act (“ADA”) the Fair Housing Amendments Act (“FHAA”) and the Air Carrier Access Act (“ACAA”). It’s important to have a good understanding about these laws, especially if you are a dog owner and a business owner.

The Federal Code of Regulations (“CFR”) provides an understand of terms like, public accommodations and service animals. According to Title 28 CFR Section 36.302, business owners must make public accommodations to serve people with disabilities and those with limited capacity to access services. Subsection (c) talks about Service Animals. Service “animals” includes service dogs. The Veteran’s dog, who entered the Oxford restaurant with the Veteran, was a licensed service dog. Generally, people with disabilities have documentation that shows a dog is a service dog. If need be, service dog handlers should be able to present service dog identification to public business owners.

Generally, a public accommodation is the modification of policies, practices or procedures that allows people with disabilities to use their service animal on the premises. Under the CFR, a store or business owner should do whatever is reasonable to permit service animals onto their business premises so that the service animal can help the disabled person shop and conduct business as best they can. This is the right thing to do.

There are only a few exceptions as to why a business owner may exclude a service animal, under CFR law.  First, a service animal can be excluded if the service animal is out of control. If the animal’s handler does not take effective action to control the animal, the business owner may ask the service animal and the handler or owner, to remove the animal. In this situation, the business owner is not required to make a public accommodation for the service animal.

Next, if a service animal is not housebroken, for example a dog urinates or defecates in unacceptable areas, the store owner is not required to accommodate that service animal. This makes sense. Another exception is that a business or store owner is not required to accommodate the disabled person in caring for or supervising the service animal. In other words, the owner/handler is responsible for supervision of their own service animal if they want to take the service animal in public places.

Another key aspect of service animal law is that a service animal under must be on leash, harness, or other tether. If the handler is unable to put the animal on a leash or harness or tether, because it is not safe for the service animal, then the service animal must be under the handlers control by some other means. Again, in another sense, this means that if the owner/handler can not control the service animal, the animal may be excluded from the business premises. Examples of this sort of legal control are voice, hand signals or some other effective means of control. There is lots of guidance and case law on means of control.

For dog owners in general, it is important to note that federal law does not always trump local leash laws or ordinances. Many Massachusetts town ordinances and state laws regarding leash laws differ and are dependent upon each situation. This means that each fact pattern, or individual situation, can be different and may involve alternative duties, responsibilities and liabilities. If you are unsure about the leash laws and dog ordinances in your particular jurisdiction and situation, ask an attorney. Your attorney should be more than happy to research the laws for you and help you to understand how to obey your local laws in your area.  Taking to your attorney is a good way to become a more informed and responsible dog owner.

When I was growing up, I had the opportunity to watch service dogs being trained in the streets and on the sidewalks in Morristown, NJ. A school for service dogs for the blind was nearby.  Watching service dogs being trained was a beautiful sight. The dogs were harnessed and steady. They peered into the eyes of their handlers. The dogs were lively, yet always sat when asked and at the appropriate times.  The dogs walked quietly. They always stayed close to their handler. Unlike most dogs I’ve ever seen, these dogs didn’t randomly sniff at people and bark at things. The service dogs did not jump. There was no dog feces or urine in any public places. Never did these dogs intimidate or scare people or children. They didn’t even bark at other dogs.

Service dogs at work ignore all sources of stimulation, like other dogs, children and food. Service dogs are attentive, only to their handlers and the work they do in each moment.  Watching service dogs and their handlers is a treat.

I remember once walking up to a service dog, wanting to pet the dog.  I was about 10 years old at the time.  My mother told me, no.  I was a bit crushed, because I really love dogs, so I asked my mother why?  My mother explained to me that often handlers of service dogs ask visitors not to touch or pet the service dog. I understood and listened to my mother. I also wanted to encourage the dogs to be good. From that point on, I never touch a service dog unless I first get permission from the dog’s handler or owner.  I do this for all dogs now, hoping to help all dogs mind their manners.

Because I am an adult now, and an attorney, I understand most laws and policies of service dog handlers.  When service dogs are “at work,” they must be allowed to remain quiet and attentive to their handler. Petting the dog is a big distraction. This is important to know, for both dog owners and non dog owners.

The CFR discusses what to do when a store owner or business owner, for good reason, is unable to make a reasonable accommodation for the disabled person’s service animal. According to the Code, if a public accommodation properly excludes a service animal under 28 CFR Section 36.302(c)(2), the business shall give the individual with a disability the opportunity to obtain goods, services, and accommodations without having the service animal on the premises. This means that the store owner has a legal duty to assist and accommodate the disabled person, reasonably, even if store owner or handler must keep the service animal off the premises for whatever reason.

Appropriate, respectful and lawful exclusion or inclusion of dogs in and out of business is the right thing to do. This does not mean all dogs must be legally accommodated in all places. Each situation is different, under the law. It is not always appropriate, lawful or prudent to take your dog shopping in most public places. Massachusetts state and local health and housing regulations may prohibit pets, animals and dogs from many public places. Likewise, not all dogs can be excluded from public places and businesses, with only a few exceptions.

In Massachusetts, civil laws may impose strict liability onto dog owners for any and all harm to others or property, caused by the dog they own. This means that if a dog causes harm or damage to people or property in Massachusetts, the owner of the dog will be held liable for any damages. Dog owners also have a legal duty to prevent their dogs from harassing or frightening others. This includes not permitting your dog to frighten children with sensitivities and people with disabilities. It is also important for dog owners to know, property owners are not legally obligated to accommodate dogs, unless they are service animals.  Then, there are local leash laws.

The town of Charlton Massachusetts is the town my law office is located.  In Charlton, dogs are not permitted to be outside without a leash or a harness.  Dogs must be on a leash, even when the handler or owner is not the property owner. Property owners have a duty to keep all dogs visiting their property on leash, even when property owners don’t own any dogs. Property owners failing to keep all dogs on-leash, visiting or otherwise, may face legal consequences. Although it may seem different or strange, obeying leash laws in Charlton is the responsibility of property owners in Charlton. The same type of leash law ordinance applies to West Brookfield, Oxford and Dudley, Massachusetts and other cities and towns.

Leash laws are one reason why it’s a good idea for dog owners to talk to the host or property owner when visiting, before bringing dogs on the premises. Before allowing your dog off-leash in any area, communicate with host or check the policy of the property owner. Good dog owners not only genuinely care for their dogs, they care about people. Responsible dog owners learn what to do in each situation, before bringing their dog.

Personally, one of my favorite past-times is walking near the Buffamville Dam in Oxford. This is a good spot for me to get my doggie fix.  Almost always, someone is walking their dog.  I ask if I can pet most all dogs on leash.  This is fun, to me.  It’s also fun for families and children to play at the park and at skateboard parks in Charlton and Oxford. Wherever permitted, dogs are found on-leash.  Attending local football games or taking a child to the YMCA playground in Southbridge is an awesome experience.  Keep in mind, however, it’s not always wise or permissible to bring a dog.

If it isn’t permissible, reasonable, healthy or legal to take your dog to a public place, think twice. Summer is upon us. I’ts time to enjoy the outdoors.  Bring your dog to outdoor places only when it makes sense.  Show respect for others.  Showing respect is not only good for you, it’s best for your dog.

If you are a business owner or a pet owner, and you do not fully understand your legal rights, the health regulations, the story of the Oxford restaurant owner and the Veteran is a very good lesson. Local leash laws and dog ordinances, and laws about service dog accommodations are important to know. Please, talk to your attorney if you need help in any of these areas of the law. Being concerned about others is good for business. Knowing the law and our responsibilities under the law is our duty and a good way to gain trust and respect from others. Trusted and respected business owners in Massachusetts are such a great benefit.

If you are a pet owner or dog owner or have been harmed in some way because of an out-of-control animal or a dog, please call your attorney right away. Consider the statute of limitations law in your jurisdiction. Plan to contact your attorney before the time to take legal action runs out.

If you need an attorney, and need experienced and approachable help, feel free to call our office. We are here for you. All consultations are confidential. First consultations are free.

Enjoy your spring.  Enjoy your summer.  Enjoy your dog and the great outdoors!

About Artist Annie Saliness 

The artist who painted the featured illustration “Herbie” is Annie Saliness.  Annie is an Artist full of hope, grit and true artistic talent. During her career, Annie had a stroke which took away her ability to use her right hand and more.  Annies’ struggles, triumphs and victories over her disability and other things, is a wonderful story. Annies story is as beautiful as her art. To read more about Annie, her triumph over adversity and more, follow this link > http://www.oregonlive.com/north-of-26/index.ssf/2012/10/cedar_mill_artist_annie_salnes.html

More of Annie’s artwork can be found on Annie’s website at http://www.anniesalness.com.  Take a look at Annie’s art and things. You’ll be glad you did.

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ABOUT ME:  Attorney Kelly is an attorney in good standing, licensed to practice in both the Federal District and State Courts of Massachusetts and Rhode Island.  Her law practice is focused on consumer finance and bankruptcy.  However, Attorney Kelly is experienced in both criminal and civil trial work.  On a personal note, Attorney Kelly enjoys writing and other things, like conservation and agriculture.  To find out more visit, www.attorneykelly.squarespace.com or http://www.attorneykelly.wordpress.com, or call us at (508) 784-1444.

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NOTICE:  Attorney Kelly does NOT provide legal advice to anyone via social media or anywhere over the Internet.  Any and all electronic posts and writings, by Attorney Kelly, does NOT establish any type of attorney-client relationship, whatsoever, neither perceived, actual, material, implied or other.  We can not stress enough, if you need personal legal advice, always see your attorney.  Do not rely upon Attorney Kelly’s posts, writings or any Internet information on websites or social media for your own personal legal advice.  Seek legal advice and representation from your own personal attorney.

Copyright © 2015 by Ginger B. Kelly, Esq., all rights reserved.

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Filed under animal law, business law, civil law, Massachusetts law, Massachusetts town ordinance law

Hidden Truth, Legal Rights for Chimps

Photo Credit: Reuters

Photo Credit: Reuters

The hidden truth about legal rights for Hercules and Leo, the NY Chimpanzees making history 

There is great speculation that two Chimpanzees from Long Island NY have been given special human legal rights by a Supreme Court Justice.  The Court issued a Habeas Corpus.  Does this now mean that the chimps are legal persons?  Are the chimps legally obligated to comply with the court order?  There’s a hidden secret, a secret truth, which will tell us the answer about how human legal rights can work for chimpanzees, under the law. The secret is hidden in the law of the Habeas and by the nature of how the Court works.

This case involves an animal rights type of legal action involving the question of protection for two chimpanzees, Hercules and Leo.  Animal rights activists, the Nonhuman Rights Project, are the plaintiffs.  Stony Brook University, Long Island NY and the president of Stony Brook University, Samuel M. Stanley Jr., MD, are the named defendants.  The defendants are the legal owners of the chimps and are holding them in captivity, the crux of the legal issue for the animal rights activist plaintiffs.

On April 20, 2015, a Writ of Habeas Corpus (“Habeas”) was issued by the Supreme Court Justice in this case, Barbara Jaffee.  The legal question involves why the University should be legally permitted to hold in captivity, the chimpanzees Hercules and Leo.  The Habeas was intended to serve justice in this matter.

A Writ of Habeas Corpus is a court order, mandating or commanding that the custodian of a prisoner (person/human) must release the prisoner and bring them up into court and show cause why the prisoner should remain in lawful imprisonment. In Blacks Law Dictionary and other Law Dictionaries, Habeas Corpus is a Latin legal term of art meaning, “bring up the body.”

In the case of Hercules and Leo, the Habeas compels their captor, Stony Brook University, not the chimps, to release the chimps from captivity.  It allegedly hails the chimps, the “alleged” prisoners to bring them into Court (as a practical matter, they are to be released from “bondage”, or captivity).   The Habeas also compels the defendants to show cause (give a good reason) why they should continue to hold Leo and Hercules in captivity.  This is what the Habeas means, in the context of this trial.

The Habeas gives the defendants a choice.  Bring up the prisoners, by releasing them from bondage, or show the court why the chimps should continue to be legally held. This is what must be done.  The Habeas is a tool, typically used in criminal trials when prisoners need to be hailed into court for things like arraignment, suppression hearings and other hearings and at trial.

In order to understand whether or not the Habeas imparts some special human right upon chimps, we must examine the intent of Justice Jaffee, the nature of the Habeas and a few other things, discussed by the following three points.

Point #1:  If animals were given human legal rights, consider the practical and legal impact upon the US court system.

If one small human right was given to any animal, like a train with many cars, others will follow.  Giving animals a Habaes is one thing, but giving them legal rights to be treated like prisoners doesn’t mean giving them the right to vote the right to a fair trial or other things reserved for humans.  There’s the legal right to a jury of one’s peers to face your accusor, and on and on and on.  These issues are not likely a Pandora’s box of legal and practice problems Justice Jaffee intended to open.

It’s a dangerous slippery slope.  Would a jury box full of chimpanzees be something Justice Jaffee had in mind? What would be the cost?  Are we to re-invent the ballot box, making it suitable for chimpanzee fingers and toes? How would a fish take the witness stand?  Then there is the matter of a fair and impartial court interpreter. Imagine, a chimpanzee court interpreter, wearing pants – not so easy to unthink.

Indulge your imagination.  Should dolphins be given the right to a fair trial, simply because they are intelligent and highly social creatures?  Where would an Elephant sit in the jury box?  You got it.  An elephant would sit anywhere he wants!  All kidding aside, if animals were given legal rights, our court system and legal system would be a mess.  Government would become chaotic and obsolete. Furthermore, giving animals human legal rights is nothing short of tyranny for animals.

Point #2:  If animals were given human legal rights, the intent of lawmakers would be abolished.  

Human rights, basic and essential legal rights, are provided for humans by humans.  The courts were made by humans for humans. Animals did not create our legal system.  The legislative intent of our court systems, our law, is to keep order and maintain justice for humans, not animals.  Our legal system was made to provide justice, not chaos.  Chaos is quite the opposite of justice.

The human interpretation and concept of courtroom is important. Chimpanzees and other animals stand a good chance of not behaving like humans in court.  Chimps, like most animals, tend to have great difficulty controlling their urges and behavior.  Seldom do animals conduct themselves like humans. Seldom do animals behave like humans would expect or require, in a courtroom situation, to maintain order.  Animals are unpredictable, to varying degrees.  Lack or order is chaotic.  Humans need courtroom decorum and order, to perfect justice. Animals, maybe not so much.

Chimpanzees, if they were forced to comply with our court system, could not do so without severe and potentially bazaar legal outcomes. For example, in the matter of Travis the Chimp from Connecticut, a 200 lb. Chimpanzee decided to brutally rip the face and hands off of Charla Nash, his owner’s friend. If Travis the Chimp were still alive, should Travis have been given a jury of his peers? Would justice be served if  Travis was sentenced to death or life in prison? Would Travis be eligible for parole or appeal after appeal? Bringing chimps to court is not likely beneficial nor the intent of our legislatures. Giving chimps legal rights was not the likely intent of Justice Jaffee.

Furthermore, animals do not need humans. Animals govern themselves, however cruel we may think nature can be. Animals have basic ways of establishing their own social order. In the context science, animal social order is amazing. Groups of primates great each other in a certain way to invoke peace. Dolphins swim together in schools to catch fish. Gorillas groom each other to stay healthy and show acceptance.

Intelligent creatures like dolphins, primates and gorillas do quite well, without human intervention. This is essentially why Justice Jaffee probably does not intend to interfere with the social order of primates. In essence, justice is served best by allowing creatures to just be themselves.  Humans have done enough damage to animals.  As a matter of justice, humans have no business giving human legal rights to chimps.  Human intervention is one reason why it is said that Travis the Chimp did what he did and a big reason why why the law suit regarding Leo and Hercules is underway.

Furthermore, history has shown that it’s not always a good idea to tamper with the social order of other societies, unlike ours. This holds true for people as well as animals. Animals do a good job of establishing their own social order.

In the context of our human government, humans are expected to care for animals, that’s pretty much it. Humans have no obligation to create social conditions where animals are expected to conform to human behaviors, duties and expectations. Placing animals outside of their own animal-based social order places animals at risk. When humans take chimps outside of their own social order, law suits ensue, and animal rights activists get involved. Animal rights activists contend that humans have destroyed the chimps Hercules and Leo and they deserve a better life, outside of confinement.

But in the context of human government, laws were not intended to place animals on the same legal playing ground as humans.  This is not humane or sound.  Cruelty toward animals not only involves captivity but capacity.  Animals, like children, for varying reasons lack legal capacity.  Indeed, maintaining the intent of the law, designed by humans for humans, is inline with the intent of Justice Jaffee.

Point #3:  If animals were given human legal rights, the NY Habeas would not serve justice or invoke a correct result.  

The essential “secret” why Justice Jaffee ordered the Habeas for Hercules and Leo is in the way she used the Habeas.  She used the Habeas like a tool, a legal instrument.  This tool, if you will, insures that justice will be served.  Justice Jaffee used the Habeas to command the release of the chimps, probably into an animal sanctuary.  Because of the Habeas, unless the Defendants prove there is any legal and permissible exception to the release, Leo and Hercules will remain free in a safe place. The Chimps will remain precisely where Justice Jaffee believes they should be, for now.  She used the Habeas as a tool to invoke justice and compel a correct result.  The Habeas is a very powerful legal instrument, indeed.

Even so, granting the Habeas seems a little unorthodox, especially in a matter involving chimpanzees.  Justice Jaffee is quite clever.  If her intent was to use the Habeas to give the chimps some special human legal right.  If she did, the result would be unjust. On the contrary, Justice Jaffee used a legal tool within her power to compel the defendants do the right thing. Justice Jaffee used the Habeas as a tool to insure that justice is served.  In this way, the Habeas was used like an instrument, a tool to ferret out truth and compel legal order.

It’s reasonable to assume that Hercules and Leo will be in a better place, like an animal sanctuary.  The Chimps probably will not be hailed into court. They won’t be asked to testify. Justice is served by the Habeas, nothing more.  If the Chimps are not released, the defendants go directly to jail, do-not-pass-Go, end of story.

This is the other reason why Justice Jaffee used the Habeas.  The Habeas switched the burden of proof off the plaintiff’s shoulders and onto the defendants.  Now, the defendants must now show the court why it is legal for Leo and Hercules to be held in captivity by the University.  If Justice Jaffee didn’t use the Habeas, the plaintiffs bear this burden.  Legal tools, like a Habeas, are used all the time to create an environment to do what must be done.

Obviously, Justice Jaffee wanted to hear Stony Brook’s side of the story first and have the chimps released, for a time. The real issue is not whether Hercules and Leo have been given a legal right, just like humans.  Animal rights laws protect animals from cruel treatment by humans. This is how it is.  This is how the law works. The real issue has to do with the truth and the spin some would place on this subject.

The Nonhuman Rights Project (NhRP) and Science Magazine and others want people to think chimpanzees have been given legal rights reserved for humans.  For readers, this sort of story is delightfully strange.  It is an unusual and newsworthy story about animals.  Unfortunately, it’s not about the truth. Statements like, for the “first time in world history,” a judge has recognized two chimpanzees being used for research purposes as “legal persons” and granted them a Writ of Habeas Corpus, are simply untrue. Statements like these put a spin on court case news. It’s a matter of news hype. News hype is intended to draw attention and stir our emotions.  News hype also invokes discussions and raises eyebrows. Discussions are not all that bad.  In fact, news is good.

So now you know the big secret. The truth is out.  It’s not about Chimps being given human legal rights. We aren’t reinventing our entire legal system. It’s not all that sensational. The secret is about the truth and how a New York Supreme Court Judge chose to use a legal instrument, the Habeas. The truth is found by the nature of the Habeas.  The truth lies in how the Habeas was used. The Habeas hopefully, will produce a fair and just result for everyone. This is truth.

Truth is good.  Rooting out the truth is what courts are all about.  Law is about truth. Law is what I do. Visit the about page of my website to find out more, www.attorneykelly.squarespace.com/about/ 

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ABOUT ME:  Attorney Kelly is an attorney in good standing, licensed to practice in both the Federal District and State Courts of Massachusetts and Rhode Island.  Her law practice is focused on consumer finance and bankruptcy.  However, Attorney Kelly is experienced in both criminal and civil trial work.  On a personal note, Attorney Kelly enjoys writing and other things, like conservation and agriculture.  To find out more visit, www.attorneykelly.squarespace.com or http://www.attorneykelly.wordpress.com, or call us at (508) 784-1444.

~~~~~~~~~~~~

NOTICE:  Attorney Kelly does NOT provide legal advice to anyone via social media or anywhere over the Internet.  Any and all electronic posts and writings, by Attorney Kelly, does NOT establish any type of attorney-client relationship, whatsoever, neither perceived, actual, material, implied or other.  We can not stress enough, if you need personal legal advice, always see your attorney.  Do not rely upon Attorney Kelly’s posts, writings or any Internet information on websites or social media for your own personal legal advice.  Seek legal advice and representation from your own personal attorney.

Copyright © 2015 by Ginger B. Kelly, Esq., all rights reserved.

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Filed under Law, Legal, Legal Rights, Trending