By Robert Bruss
Tribune Media Services

In response to a new village ordinance, the Watchtower Bible and Tract Society (Jehovah’s Witnesses) sued to stop enforcement of the law as an interference with exercise of free speech rights protected by the First Amendment.

The mayor replied the ordinance merely requires no-fee registration of “canvassers, solicitors, peddlers and hawkers” who go on private, residential property within the village. Residents who post “no soliciting” signs on their front doors are not to be approached by registrants, he explained. Violation of the ordinance is a misdemeanor.

The Jehovah’s Witnesses argued this law is unconstitutional because it limits canvassing to between 9 a.m. and 5 p.m., as well as being aimed primarily at their members. The mayor agreed to allow canvassing during all daylight hours.

If you were the judge, would you rule the ordinance is unconstitutional?

The judge said no!

“The First Amendment to the U.S. Constitution provides ‘Congress shall make no law’ prohibiting the free exercise of religion; or abridging the freedom of speech, or of the press,” the judge said. Through the 14th Amendment, these prohibitions also apply to the states, he noted.

“We believe the ordinance is neutral on its face, and the village’s purpose in promulgating it was content neutral,” the judge said. “There can be little doubt that the governmental interests the village seeks to promote — protecting its residents from fraud and undue annoyance in their homes — are sufficiently significant,” he said. “And the harm the village seeks to prevent — criminals posing as canvassers in order to defraud its residents — is a real threat,” the judge said.

“A Jehovah’s Witness is more likely to respect the resident’s wishes not to be canvassed when a criminal penalty — albeit a light penalty — is connected to such conduct in addition to the threat of civil action,” the judge said. “The ordinance’s registration requirements also likely deter Jehovah’s Witnesses from canvassing homes with “no solicitation’ signs because they are aware that the village now has information — name, address, organization or cause — helpful in apprehending someone who ignores a resident’s wishes,” he commented.

Since the ordinance is neutral in its operation and imposes the same burdens on all individuals or organizations seeking to canvass door-to-door, it is constitutional, the judge ruled. It does not violate the First Amendment and is valid, the judge concluded.

Based on the 2001 U.S. Court of Appeals decision in Watchtower Bible and Tract Society vs. Village of Stratton, 240 Fed.3d 553.

Can lease-purchase home buyer deduct interest and taxes?

Andrew and Cynthia signed a lease-purchase contract to buy a residence. They paid $4,100 option money and agreed to pay $1,000 per month rent for a year, with a $250 per month rent credit toward the purchase price.

But they failed to buy the house at the end of their year’s lease. They continued renting for $1,000 per month. Eventually, they agreed with the owner to buy the house “as is” in its current condition by assuming its existing mortgage.

However, on their income tax returns, Andrew and Cynthia deducted the mortgage interest and property taxes before they acquired the title although at the time they only had a lease-purchase contract with the sellers. They also claimed a casualty loss tax deduction for swimming pool repairs.

Upon audit by the IRS, which denied these deductions, Andrew and Cynthia took their tax deduction dispute to the U.S. Tax Court. They argued entitlement to the deductions since they were making all the monthly payments to the sellers.

If you were the U.S. tax court judge, would you allow Andrew and Cynthia to deduct the mortgage interest, property taxes and casualty loss as lease-purchase home buyers?

The U.S. Tax Court judge said no!

During the lease-purchase period, the judge said, Andrew and Cynthia were just potential buyers of the home. They did not yet hold legal title, he said.

Andrew and Cynthia had no legal obligation to make the mortgage payments and to pay the property taxes until they eventually acquired the legal title, the judge said. Although the swimming pool repairs became necessary before they acquired title, he said, they were not entitled to a casualty loss deduction for property they didn’t own.

It is basic tax law that renters cannot take itemized income tax deductions for mortgage interest and property taxes they are not obligated to pay as either legal or equitable owners, the judge ruled.

Therefore, Andrew and Cynthia are not entitled to income tax deductions on their lease-purchase home for mortgage interest, property taxes and the swimming pool casualty loss since they were neither legal nor equitable owners of the house before they acquired title, the judge said. Based on the 2001 U.S. Tax Court decision in Blanche vs. Commissioner, T.C. Memo, 2001-64.

Is city housing authority liable for lead-based paint level?

Between 1991 and 1997, Brandon Smith, a child, lived in a Section 8 housing authority subsidized rental unit with his mother. In 1996, Brandon was tested for lead-based paint poisoning. He was found to have an “elevated blood lead level” (EBL) of 32 mg/dl. The next year, Brandon and his family moved to nonsubsidized housing, and his blood lead level dropped to 11 mg/dl, which does not constitute an EBL.

Darryl Brandon, another child, lived in Section 8 government-subsidized housing between 1996 and 1999 when the family moved to another residence. In 1999, Darryl had an EBL of 47 mg/dl. After his family moved, his blood lead level was tested at 10 mg/dl. This is not considered an elevated blood lead level under HUD regulations for Section 8 subsidized housing.

The parents of Brandon and Darryl sued the city housing authority for alleged violations of Section 8 housing quality standards. The housing authority argued that since the children have moved to other housing and their EBLs are now acceptable, the housing authority has no liability.

Also, the housing authority noted the private property landlord, not the housing authority, is responsible for minimizing lead-based paint damage, and individual tenants have no private cause of action under the Lead-Based Paint Poisoning Prevention Act.

But attorneys for the tenants replied the housing authority has liability for inspecting the premises rented under HUD’s Section 8 subsidized housing program for low-income tenants. The parents felt there could be long-term effects of the EBLs while the children lived in the Section 8 housing.

If you were the judge would you rule the city housing authority is liable for the past elevated blood lead levels of these children?

The judge said no!

Federal jurisdiction is limited by the U.S. Constitution to “actual cases and controversies,” the judge said. That means there must be a current dispute, he said, where the issue is not moot.

A plaintiff must prove (1) there was an “injury-in-fact” that is not conjectural or hypothetical, (2) a causal connection between the injury and the action of the defendant, and (3) it is likely the injury will be redressed by a decision against the defendant, the judge said.

The facts of this case show Brandon is no longer a Section 8 resident, the judge said. Darryl has moved to another Section 8 residence where there is no evidence of lead-based paint, he added.

“In order for an injury to be redressable, it must be more than merely speculative that the relief requested will remedy the harm to the plaintiff,” the judge ruled. Because there is no evidence either child suffers with an EBL condition due to residential status, the housing authority is entitled to dismissal of the lawsuit, the judge concluded.

Based on the 2001 U.S. District Court decision in Smith vs. St. Louis Housing Authority, 132 Fed.Supp.2d 780.

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