Hogwash Volume 46

Hogwash! Issue No. 46


Issue #46 ~ February 2016  


Rosi and Gardner

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Another “Birther” Tale: Ted Cruz and the Natural-Born Citizenship Clause

The U.S. Constitution spells out the minimum qualifications necessary to serve as the President: 35 years of age, 14 years of U.S. residency, and “a natural born Citizen.”
But the Constitution does not define who, precisely, is “a natural born Citizen.” Today, there is general consensus that most persons born in the United States satisfy the requirement. A quick look at our past, however, yields obvious examples where persons born within the territory of the United States were denied the rights of natural-born citizens. Hint: February is Black History Month.
Exhibit B? Women. At various points in U.S. history, women could lose their U.S. citizenship if they married “aliens ineligible to citizenship,” and children born abroad to U.S.-citizen women did not obtain U.S. citizenship unless their father was a U.S. citizen.
Indeed, constitutional law scholars are still divided on how the natural-born-citizen clause applies to certain U.S. citizens born abroad. Using a practical example to illustrate an abstract concept: there is widespread disagreement within the legal field on whether Ted Cruz is eligible to serve as president.
Ted Cruz is not the first candidate for president to have been born abroad; one only has to look back to the 2008 election cycle, when John McCain ran as the GOP nominee. Senator McCain was born in the Panama Canal Zone, on a U.S. military base, to two U.S.-citizen parents. There was little argument that McCain was-and still is-“a natural born Citizen.” In fact, the chronically-divided U.S. Senate unanimously agreed in 2008 that McCain was eligible for the presidency, bolstering the interpretation that natural-born citizenship is not limited to those born within the United States.  

Cruz’s eligibility rests on a different set of facts, however. He was born in Calgary, Canada, not on a U.S. military base or territory, to a U.S.-citizen mother and a Cuban-born father (who would go on to become a Canadian citizen, and later a U.S. citizen). At the time of his birth, Cruz acquired dual Canadian-American citizenship: the former because he was born in Canada and the latter through his U.S.-citizen mother. Cruz renounced his Canadian citizenship in 2014.

The strongest argument in favor of Cruz’s eligibility: although he was born outside of the U.S., he was deemed a U.S. citizen at birth with no need to go through a naturalization proceeding at some later time. Citizenship at birth distinguishes Cruz from, for example, Arnold Schwarzenegger-born in Austria as an Austrian citizen, the “Gubernator” obtained U.S. citizenship (“naturalized”) in the 1980s but, barring a constitutional amendment, does not qualify for the presidency.

Back to Cruz: is he or isn’t he? Does the natural-born-citizen clause sound like hogwash? To quote prominent constitutional lawyers Neal Katyal and Paul Clement (often found on opposite ends of the political spectrum): “There are plenty of serious issues to debate in the upcoming presidential election cycle. The less time spent dealing with specious objections to candidate eligibility, the better.”

Probably the most famous family member accused of killing her family members Lizzy Borden was acquitted on the changes of murdering her father and stepmother.
The Slayer Statute – Creative Estate Planning?

As we at Hogwash tramp though the vineyards of the law, seeking low hanging fruit to interest our readers, on a recent site of Wealth Management.com we came across a story out of Florida that should give one pause when engaged in estate planning.
While not suggesting that any of our loyal readers have plans to follow in the steps of such luminaries as Henry the Eighth with six wives: two divorced, two beheaded at the Tower of London, one who died in childbirth and one who survived; Bluebeard, the subject of a French folktale about a violent nobleman in the habit of murdering his wives; or Edward Teach, aka Blackbeard, the pirate who, notoriously, had fourteen mostly Common Law wives and 13 children, of whom documentation is lacking as to what happened to any of them, the following story may be food for thought.
It appears that in July 12, 2009, Narcy Novack, wife of Ben Novack – heir to the famed Fontainebleu Hotel, had arranged for his brutal killing in a hotel room in Rye Brook, New York. She had also arranged for the killing of her mother-in-law, Bernice, a few months earlier at her home in Fort Lauderdale, Florida. It has been reported that according to Ben’s estate plan, if he survived his mother, his fortune would go to Narcy.
Convicted of both crimes, Narcy was sentenced to life in prison where, presumably, she resides to this day. In subsequent court proceedings it was ruled that Narcy had arranged for the murders to assure that her children would inherit Ben’s fortune.
And so the question arose, what about Ben’s fortune and the Fontainebleu hotel? The matter was fought out in the Broward County Florida Probate Court and Florida’s Fourth District Appellate court.
The central issue decided by the Probate Court was the application of Florida’s Slayer Statute. Following the common law rule that no person should be permitted to benefit from his own wrong, reportedly the Florida’s Slayer Statute prohibits the person who killed from receiving any benefits under the victim’s will or through intestate succession; the estate of the victim passes as if the killer had predeceased the decedent. Florida’s law is not unlike Michigan’s Slayer Statute that provides, in part:
An individual who feloniously and intentionally kills or who is convicted of committing abuse, neglect, or exploitation with respect to the decedent forfeits all benefits under this article with respect to the decedent’s estate, … If the decedent died intestate, the decedent’s intestate estate passes as if the killer or felon disclaimed his or her intestate share.
Over the objections of certain of Ben’s cousins, the Florida Probate Court ruled that under the terms of the Florida statute, Narcy was presumed to have predeceased Ben and that according to Ben’s will, the balance of Ben’s estate was to go to Narcy’s daughter and her four children. Ben’s cousins objections and their appeal to the Appellate Court focused on their view that Narcy could benefit, albeit indirectly, from as much Ben’s fortune as her daughter and the daughter’s children would choose and who could simply transfer funds or other property directly to Narcy or to her account.
Reportedly the Appellate Court affirmed the Probate Court decision, ruling that Narcy’s daughter and her grandchildren were not barred from taking under Ben’s will because under the clear and unambiguous language of the Florida statute, only the surviving person who . . . kills is prohibited from benefiting from the act of killing, and further that the property of the victim passes without exception as if the killer had predeceased the descendant.
The Appellate Court observed that the language in similar statutes in other states had been construed more broadly, for example:
  • Rhode Island’s Slayer Statute provides that neither the slayer nor any person claiming through him or her shall inherit from the decedent.
  • The Illinois Slayer Statute provides that a slayer shouldn’t receive any property, benefit, or other interest by reason of the death, whether as heir, legatee, beneficiary . . . or in any other capacity.
It does not appear that Michigan’s Slayer Statute has language that is subject to an interpretation broader than that found in Florida. So if one is disposed to seek to plan accordingly, one might consider incorporating in his or her estate plan language similar to that found in either the Rhode Island statute or the Illinois statute.

Who Should You Pick as Your Executor?

Selecting your Executor (Michigan law calls her a “Personal Representative”) is one of the most important decisions you will make in your estate planning.
Your Executor must be someone you can rely on to carry out your wishes.  Those instructions are contained within your Last Will & Testament, but the “nitty gritty” tasks of closing out your accounts, gathering up your assets, and paying your creditors (including things like the funeral bill) are important as well and are largely left to the discretion of your executor.  Naming someone that you can trust and rely upon allows you to leave many such discretionary tasks to this person, and give you the peace of mind that she will take care of it, no matter what the actual details of your situation require, after you have walked on.
Your Executor is not necessarily the person that you are giving the bulk of your assets to (though it can be).  It is the person that you are trusting to follow your instructions, including things like following your handwritten list of particular items of personal property (family heirlooms, antique furniture, items of jewelry, etc.) that you want to go to particular people.  If your will refers to such a list, and you make one, it is legally enforceable.  But, if your executor does not follow the list or share it with others, how could it be enforced in a court of law?  Your executor must be trustworthy, and you should discuss your wishes with her.  
We recommend making a short list (three is usually sufficient) of people that you trust to carry out these tasks for you.  If the first person is not willing and available (geographically, for instance), the second-listed person can fulfill the responsibilities.  Whoever serves can receive compensation for her service, and you can specifically provide for reasonable reimbursement in your will.  If it would be helpful to her, she can retain a lawyer to represent and guide her through the process.
Selecting your personal representative is an important estate planning decision.  You should not make it lightly, but you should also not let it prevent you from doing your estate planning at all!  Make an estate plan, including naming an executor.  Give some thought to what you want to happen to your things after you are gone, and to whom you should ask to carry out those wishes.  Then, plan your estate!

What the Heck is a Lien Anyway?

A lien is a claim for money, placed on or against something of value, by a non-owner.  Think of it as a great big “HOLD” stamp put on the asset.
A mortgage is one type of lien, against real estate.  The finance company to whom you make a monthly car payment has a lien, a security interest, against that car.  With both of these,  you have signed something (a “note”) granting that lien against the asset.
Other types of liens can arise without a written agreement.  A government authority, whether it’s city, township, county, etc., can record a tax lien against your property, for failure to pay the real estate taxes (and this one can quickly cause you to lose the property).  A mechanic can claim a lien against your car, if he has performed work on it, but has not been paid.  A construction laborer, or a construction materials supplier, can claim a lien against the property that is being improved, if he is not paid.  If you have a court judgment against someone, you may be able to record a judgment lien against their real estate.
If the lien is not based on a note or voluntarily granted, the owner of the asset may challenge the lien.  For a construction lien, the owner could file an action to quiet title or a lawsuit for slander of title, in some circumstances.  Or, if the lien claimant takes no action to foreclose a construction lien, within 12 months, the claim of lien could be deemed “stale” and unenforceable.   

In short, a lien prevents the owner from disposing of an asset, until that claim against the asset is resolved (think “security for payment”).  If there is a lien recorded against your real estate, you cannot give clear title to a buyer, so you probably cannot sell it.  If, on the other hand, you are owed money for work you did to improve an asset, or to repair it – like a car – asserting a lien can help you collect what is owed to you.  Liens can be intimidating, both to receive, and to use effectively to collect.  For either case, we recommend caution and care.  But now perhaps you have just a little bit better idea of what the heck a lien really is and does.  

Random Acts of Kindness

February 17 has been increasingly celebrated around the world by localities, organizations and even some nations as Random Acts of Kindness Day. The goal — to encourage acts of kindness. Facebook reported 1,725 likes for February 17, 2015.
If you’re unable to determine what you might do to meet the obligations of the day, Google has twelve ideas that you may find helpful. However, one must not forget the wry adage that no good deed goes unpunished.   As Elphaba in Wicked is quoted as saying,
No good deed goes unpunished
All helpful urges should be circumvented
No good deed goes unpunished
Sure, I meant well… well, look at what well-meant did!    
Sometimes good intentions bring unjust punishment, but sometimes good intentions result in very bad results because the good-intentioned person was also foolish, incompetent, ignorant, or just mistaken. Franklin P. Adams (1881- 1960) poem, No Good Deed Goes Unpunished ends with
   There was a man in our town who had the perfect plan
   To do away with poverty and other ills of man,
   But he feared the public jeering, and the folks who would defame him,
   So he never told the plan he had, and I can hardly blame him.
Who can forget the recent brouhaha, reported in the New York Times, when several cities in Florida, responding at least in part to efforts of local businesses and the chambers of commerce, that wanted the homeless population to be less visible, adopted ordinances prohibiting the feeding of homeless persons in public? To carry out the ordinance police ordered Arnold Abbott, a 90 year old World War II veteran who had, for years, run a non profit dedicated to feeding the homeless in Fort Lauderdale to “Drop that plate right now.” Abbott didn’t stop and ended up with five citations each carrying a $500 fine and 60 days in jail. The backlash that ensued ended up with a Florida circuit court judge temporarily halting the ordinance that banned feeding the homeless in public.

Or who can forget the two teenagers who were ticketed for playing music on the street, not for money but for pleasure?
So, what to do? As Jiminy Cricket said so many years ago “Let your conscience be your guide.” Perhaps simply follow the lead of the Good Samaritan ( Luke 10:29 – 37) and don’t worry about the consequences. But be warned! If you see an expired meter in Traverse City and are tempted to drop a coin, beware. If Big Brother from the Parking Violations Bureau observes your Random Act, like the characters in the Franklin Adams poem, your kindness may have unanticipated consequences. Locally we have an ordinance makes that act of kindness a civil infraction.

Yes, Traverse City’s Ordinance 484.04 Sections A-C, Meter Violations and Overtime Meter Violations provides in part
(b) Overtime parking. … . No person shall deposit or cause to be deposited in a parking meter coin for the purpose of increasing or extending the parking time of any vehicle beyond the legal parking time which had been established for the parking space adjacent to the parking meter.
(c) A person who violated this section is responsible for a civil infraction subject to the fine indicated in Section 488.06.

Jokes, Quotes, and a Little Love and Lore

One morning Emma woke up with a start. Her husband Jim asked what was the matter, she told him, “I just had a dream that you gave me a diamond necklace for Valentine’s day. What do you think it means?”
“You’ll know tonight,” Jim said.
That evening, Jim came home with a small package and gave it to his wife. Delighted, Emma opened it – only to find a book entitled “The meaning of dreams”.
As Mike walked into a post office just before Valentine’s Day he couldn’t help noticing a middle-aged, balding man standing in a corner sticking “Love” stamps on bright pink envelopes with hearts all over them. Then the man got out a bottle of Chanel perfume from his pocket and started spraying scent over the envelopes.
By now Mike’s curiosity had got the better of him, and so I asked the man why he was sending all those cards. The man replied, “I’m sending out 500 Valentine cards signed, ‘Guess who?'”
“But why?” asked Mike.
“I’m a divorce lawyer,” the man replied.
For more humor check out the other Valentine’s Day jokes where we found these.  
“Late February, and the air’s so balmy snowdrops and crocuses might be fooled into early blooming. Then, the inevitable blizzard will come, blighting our harbingers of spring, and the numbed yards will go back undercover. In Florida, it’s strawberry season- shortcake, waffles, berries and cream will be penciled on the coffee-shop menus.”
– Gail Mazur, The Idea of Florida During a Winter Thaw
“February is merely as long as is needed to pass the time until March.”
– Dr. J. R. Stockton
The Legend of St Valentine
St. Valentine’s Day history goes back to Roman times. The emperor Claudius II was a student of human nature and way back in AD 287 he calculated that single men made braver soldiers than married men. Therefore, as Claudius had absolute power, he dictated than no soldier should marry. A Roman called Valentinus thought that this was rough justice and secretly married soldiers who had a sweetheart.
When Claudius discovered that Valentinus had defied his decree he threw Valentinus into jail. While incarcerated, Valentinus fell in love with the jailer’s daughter and sent her the first ever card – from your sweet Valentine.  For more history about Valentine’s Day, click here.

Gary’s Favorite Hot Toddy

Fresh lemon

Powdered sugar
Bourbon (Wild Turkey 101 is hard to beat here)
Star anise
Hot water
Start the water heating.
Drop a generous spoonful of powdered sugar into a large mug, and squeeze the fresh lemon (⅛ – ¼ of a lemon) over the sugar, swirl them together and let stand while you bring the water up to boiling.
Just short of a boil, add enough water to the mug to blend the sugar and lemon into a thick simple syrup.  Add a generous shot (or so . . . ) of the bourbon and stir.  Fill the mug with hot water, drop in the star anise, and grate the nutmeg on top, to your taste.  Inhale the vapors, sip, and feel the cold and flu being driven right out of your system . . .

Marcelo’s in the Kitchen!

Not-Yo-Mamma’s Mac N’ Cheese

Caution: this winner of the First Inaugural Mac N’ Cheese Superbowl Party Cook-Off is not for the faint of heart.
1 box medium shell shaped pasta
1 pint heavy cream
4 oz Parmesan cheese, coarsely grated
4 oz white cheddar cheese, coarsely grated
4 oz brie cheese, in small chunks
1 C Panko crumbs (Japanese breadcrumbs)
2-3 Tbsp olive oil (if you feel like splurging, mix in a little truffle oil)
Smoked paprika
Black pepper
1. In a small saucepan, warm heavy cream in medium-low heat, stirring frequently. Once the cream is warm enough to melt cheese, gradually add the three cheeses, whisking constantly to prevent clumping. Add a pinch of nutmeg and smoked paprika to taste, plus salt and pepper.
2. Meanwhile, cook pasta in a separate pot. Drain. Transfer cooked pasta to buttered serving dish. Pour sauce on top of pasta and mix.
3. In a small saucepan, heat oil in medium-high heat. Add breadcrumbs, mixing constantly for even toasting. Once perfectly brown (you decide!), top pasta-and-sauce mixture with toasted breadcrumbs.
4. Eat at once. Serves 4 to 8, depending on appetite and lactose tolerance! 

Baked Walleye for the Lenten Table

From our friend Jacqueline Wilson comes a wonderfully tasty, original recipe that’s perfect for a Lenten meal

Baked Walleye in Fennel Shallot Butter
8  6-oz Walleye fillets, boned
Salt and pepper, to taste
Milk or cream 
Fennel Shallot Butter
1 fresh fennel bulb, halved, core removed
1 shallot, peeled and chopped coarsely
1 tsp fennel seed
4 Tbsp butter, cut into small pieces
1 tsp freshly grated lemon zest
Preheat oven to 400 degree F.
Roast fennel bulb in covered baking dish for 20 minutes until fork tender. Allow to cool for about 20 minutes, then chop coarsely.
Place fennel seed in food processor. Process until coarsely ground. Add roasted fennel, shallot, and lemon zest. Process until smooth.
Add butter and process until the consistency of a smooth paste. Keep out at room temperature. (Makes smearing easier.)
Place walleye in shallow roasting pan. Season with salt and pepper and smear with fennel butter. Pour milk or cream into roasting pan. You need enough liquid to cover bottom of pan and edges of fish.
Bake uncovered for 12 – 17 minutes. Test for done by flaking with fork.
Remove to serving plate. Discard baking liquid.

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