In response to a commenter

Last month I noticed a lurking commenter on this site that also commented on one of Jeff Breinholt’s posts over at Mormon Matters. (Jeff is a DoJ attorney with a superb series of legal posts. If you haven’t read his stuff, I highly recommend it.) The commenter identifies himself as Frank Fox, who Jeff named as one of the pro se litigants who has filed multiple spurious lawsuits against the Mormon Church.

I got curious about these cases, and found several opinions dismissing two of Fox’s previous lawsuits. The first lawsuit, Fox v. Hawk, was dismissed sua sponte under F.R.C.P. 12(b)(6). (Cases filed pro se and in pauperis can be reviewed sua sponte under Hall v. Bellmon.) The Utah District Court gave Fox a chance to amend his Complaint, but the Amended Complaint still failed to state a claim and the case was ultimately dismissed on May 9, 2008.

Fox filed another pro se suit on February 27 of this year in the case Fox v. Eyring. Fox identified Henry B. Eyring as the leader of the Mormon Church, and alleged various claims, including that Eyring and the Church had violated his civil rights under 42 U.S.C. §1983 and §1985 and had cyberstalked him. Acting sue sponte, the Utah District Court again found Fox’s claims to be baseless and dismissed  the suit for failure to state a claim.

Not easily deterred, Frank G. Fox filed a new case in his home state of Louisiana a mere week after the dismissal of the Eyring case. In Fox v. Tippetts he again alleges civil rights violations by the Church of Jesus Christ of Latter-day Saints. Fox says that the Church hasn’t yet responded to the lawsuit, and I haven’t seen any of the filings. However, unless Fox’s pleadings have improved significantly since Eyring, this case may be doomed to a swift dismissal as well.

My guess is that almost any large institution or public figure continually face spurious lawsuits. In fact, Jeff Breinholt’s research seems to show that the Mormon Church faces more than it’s fair share of frivolous litigation. But these aren’t the sorts of cases that keep the Church Legal Department up at night.

No smooching allowed on Mormon Main Street Plaza

Last week two gay men were arrested in the Main Street Plaza portion of Mormon Temple Square. Derek Jones and Matthew Aune were walking through the Plaza when one kissed the other on the cheek. They were then approached by security personnel asked to cease their public display of affection or to leave the premises. Apparently the Mormon Church has a policy against PDA in the area. Jones and Aune reportedly refused the request, responded with profanity, and were arrested for trespassing.

The background of the Plaza has been contentious. The Mormon Church purchased the land from the city in 2003 in a land swap deal, but the exchange was plagued by lawsuits almost from the get-go. The ACLU sued along with other parties, challenging the deal as unconstitutional because the Church could then limit speech on the property that had formerly been a public forum. The LDS Church eventually won the lawsuit and prohibited a variety of activities in the plaza, including protesting, smoking, sunbathing, and offensive conduct of any sort. The prohibition against protesting didn’t stop a group on Sunday that participated in a “kiss-in, ” but they were promptly shooed off the property when police arrived. No citations were issued.

As a matter of legal rights, I think the Mormon Church or any other private or religious organization is free to set whatever silly rules it wants. My only concern in this case is the issue of notice. I have visited Salt Lake City, but I don’t know if any signs are posted in the area with a code of conduct. Particularly given that the Plaza was once public property, some signage seems appropriate. Nevertheless, even without signage, this restriction is probably safely on the side of legality, even though it’s terrible PR. It’s also worth noting that the PDA rule is apparently enforced on both heterosexual and homosexual couples, though that doesn’t enter into my analysis of the policy’s legality.

For a first-hand discussion of the Plaza and the enforcement of the PDA rule, I recommend Ryan’s post on the subject Right Juris.

Photo credit: Edgar Zuniga, Jr.

Study dispels myth of high Utah bankruptcy rate

I’ve heard several people cite the statistic that Utah has one of the highest bankruptcy law in the nation as evidence that members of the Mormon Church are falling into the consumerist trap and “living outside their means.” I’ve always thought that was a strange assertion; I don’t live in Utah, but I’ve traveled there on occasion and I never saw anything that indicated that Utah residents spent more or less of their incomes than residents of other states. Apparently I wasn’t the only one suspicious of this oft-quoted statistic — two Brigham Young University professors of economics have an article in The Journal of Law & Economics that at least in part dispels that myth.

In their article entitled “Explaining the Puzzle of Cross‐State Differences in Bankruptcy Rates,” Lars Lefgren and Frank McIntyre make the argument that the variation in bankruptcy rates is due primarily to differences in state laws. Specifically, they found that laws governing the garnishment of wages significantly impacted bankruptcy rates. This actually makes a lot of sense — if your state’s laws prevent your creditors from garnishing your wages, you are less likely to need the the protections afforded by filing bankruptcy. On the other hand, if your creditors can get at your paycheck, you have a strong incentive to file for bankruptcy as soon as possible. Lefgren and McIntyre also found, somewhat unsurprisingly, that rates of bankruptcy were highest in areas where the median household income was between $30,000 and $60,000.

So it appears that Utah’s relatively high rate of bankruptcy (7.05 per thousand households) has more to do with its laws allowing creditors to garnish the wages of debtors than it does a particular trend among Utah residents or a Mormon subset of that population. Utah allows up to the federal limit of 25% of wages to be garnished, although it does impose a 6-month limit. In the Southeastern United States where I live, many states use the federal garnishment limit and have similarly high bankruptcy rates. Tennessee leads the pack with 8.12 bankruptcies per thousand households, with Alabama (7.42) and Georgia (7.38) not far behind.

The article is a bit dense, but it does a good job at dispelling some of the myth that Utah residents are spending like there’s no tomorrow. The bankruptcy data doesn’t support that assertion, and in fact, it turns out that the state-by-state data isn’t very useful to map trends, due to the differences in state laws.

Lefgren and McIntyre’s article is currently available for free on the J.L. & Econ website in both HTML and PDF.

Photo credit: debaird™.

Problems (and some solutions) with student debt

his week the New York Times has run a series of articles on the increasing costs of a college education. In an article Sunday entitled “How Much Student Debt is Too Much?”, several student loan experts weighed in on the issues and costs of mounting student debt. One of those people was Robert Applebaum, a lawyer who advocates canceling student debts as a method for stimulating the economy. I thought his last two paragraphs were particularly good:

Until higher education becomes a safe investment again, prospective borrowers should give greater thought to the financial consequences of seeking an advanced degree. Community colleges and state schools are probably better places to “find oneself,” than expensive private institutions, particularly if the student doesn’t really know what he or she wants to do for a living. Associates degrees and trade schools are other avenues to consider.

None of this is to suggest that a liberal arts education isn’t good for the mind and spirit — but whether it’s as wise a financial investment as it once was requires serious consideration. 

I would be the last person to discourage a prospective law school student from pursuing that course. But given the uncertainty in the market and the changing face of the legal profession, any future lawyer should think long and hard about the costs associated with a legal education. This is particularly difficult for law students because the education costs are higher than almost any other discipline, and because school rank is such a large factor in finding employment.

There is a lot of frustration building with respect to student debt, especially since many colleges are raising tuition and slashing financial aid at the same time students and their parents feel the pinch from the economy. Some of the comments from the first NY Times article I mentioned were published yesterday in a collection entitled “Student Debt, Fool’s Gold?”

It isn’t all bad news, however. Beginning on July 1 of this year a new Income-Based Repayment program will go into effect for federal student loans. This will cap payments for borrowers based on income and family size. Previously, federal loans didn’t take into account a borrower’s number of dependents, which was especially hard on borrowers with larger families. There is also a new Public Service Loan Forgiveness program for borrowers of federal loans who work in the public sector or qualifying non-profits. Of course, these programs only apply to federal loans, which currently have a $18,500 per year cap. That isn’t enough to cover tuition at many law schools, which often exceeds $40,000. But if you have a family, a public interest job, and six figures of student debt, every little bit helps.

Photo credit: AMSA.

TIME Magazine on the Mormon Church

Next week’s issue of TIME Magazine has a pretty lengthy piece on the LDS Church.  Entitled “The Storm Over the Mormons,” the article discusses some of the fallout and criticism surrounding the California Proposition 8 campaign, as well as the mission and structure of the Mormon Church.  The main focus of the article isn’t legal, but it does touch on some topics such as religious political activism and the Mormon Church’s tax-exempt status.  The article cites at length the experience of Jay Pimentel, a lawyer and bishop in Almeda, California.  Nothing in the article is particularly earth-shaking, but it’s a fairly well-written and interesting piece with no major factual innaccuracies, which I can appreciate. The article is available here.

Recommended Reading: The Importance of the Right Question

The speaker materials from the last J. Reuben Clark Law Society Conference are now available online. When I spoke with people who attended, I heard the most buzz about an address by Harvard Business Professor Clayton Christensen entitled, “The Importance of the Right Question.” Professor Christensen argues:

Unfortunately, too many of us are so eager to debate and get on with the right answer and the solution, that we often forget even to think about whether the right question has been asked. Lawyers pride themselves on their ability to ask penetrating questions, but I honestly think that the only people who are worse than lawyers at asking the right questions are business managers; and that the only people who are worse than managers at asking the right questions are Mormons.

The rest of the address gives examples of business and church leaders who ask the right questions.  One of the legal examples he cited was the question of separation of church and state. A Chinese colleague of Professor Christensen pointed out to him how vital religion was in American democracy:

[A]s religion loses its power over the lives of Americans, we are living on momentum.  It is a momentum that was established by vibrant religions, and then became a part of our culture.  Today there are many people in America who are not religious, who still voluntarily obey the law, follow through on their contracts and respect other people’s rights and property.  This is because certain religious teachings have become embedded in our culture.  But culture is not a stalwart protector of democracy’s enabling values.  When people stop going to their churches, or if our churches lose their power over our culture, our system will not sustain itself.  What other institutions will teach these values to Americans with the power required to guide their daily behavior?

The debate on the extent to which religious expression can be allowed in public life has been vigorous, and religion is monotonically losing ground. Whether it is the Ten Commandments etched into the stone of state and court houses, nativity scenes in public squares, the ability of school choirs to sing religious songs or having prayers at public school graduation exercises, religion increasingly is being pushed out of public view and public discourse. We have let the enemies of religion frame this debate incorrectly. Somehow the advocates of separation of church and state can’t understand what my Chinese friend saw so clearly – that the religious institutions whose role on the public stage they hope to minimize are in fact among the fundamental enablers of the civil liberties that we all now enjoy.

It’s worth reading the whole thing. You can view the talk here or download it here.