Monday, September 11, 2017

Tobi Needs Legal Help & Finding Dante

Tobi and Me in Kuelap
The next morning, Tobi said his parents had a problem: His village in Germany was charging a couple of households 20,000 Euros or $24,000 USD to fix the streets. Imagine if you had a bill from your local council that says you needed to pay $24,000 USD to fix the street adjacent to your house. Seeing that it was about fighting against local government, I said let's write a letter to your council why this is wrong. Of course, it was illegal for me to be practicing German law in Peru; I was practicing law without a license in two countries. But I didn't care. We all know how much I hate local governments, and this seemed wrong to me. You can take the lawyer out of America, but you can't take the lawyering out of this American.

Immediately, I knew that the best way to win would be to argue preemption also known as supremacy or federalism. Here's how the argument goes. If local law contradicts federal law - which is supreme in the land - the local law gets struck down. It gets wiped out. Federal law is supreme. And Germany is a federated country. There are a number of states all under the authority of Berlin. Like in the United States, we're 50 states under the power of Washington D.C.

I knew that preemption was an argument that worked in Germany. While visiting Volker in Goettingen, there was a big red "X" on a local speed limit sign that was by the German national freeway (or highway), also known as the autobahn. I asked Volker, "Why is there a big red 'X' on that sign?" He said Berlin came in and told Goettingen they had no right to set the speed limit, because it was a federal road. Therefore, Berlin "preempted" the Town of Gottengen from doing so. Federalism wins again. Federalism almost always wins. Go ask the Feds.

To prove the point back at home, Baldwin Park's sign law got wiped out of the books this year. That was because the sign law contradicted our U.S. Constitution on Free Speech. Originally, the City stated that it could control political signs. The federal court told the City - no you can't, that violates the First Amendment's clause on Free Speech. Government cannot regulate a citizen's expression of political speech. That's a good example of the legal theory of preemption, supremacy, and federalism.

So, I told Tobi: "We need to find the Bundestag (Federal) law that your village is contradicting." By searching through only Google - we had to go to the code section on roads and taxes. There was nothing.

Then, I showed Tobi, "Next we go to the Bavarian law. Cities, towns, and villages can't also make law that goes against state law. Your state is Bavaria."

It took a few hours, especially because I didn't have the proper tools, and I didn't know German well enough. Tobi had to help me translate a few words. Sometimes we used Google translator, but after a few hours, I had that Eureka moment, I so love. I found the answer.

I said, "I think we found it Tobi. Bavarian law can be interpreted to say that public streets must be repaired by the City's general fund and not from funds being taxed on selective households."

He asks me, "You think it'll work?"

"That's not how law is. It depends on who is making the decision. But we can try and threaten to sue them. It's a valid argument. You try and see if it works.

"The village cannot tax your parents specifically or the other households, because it goes against Bavarian law. And that Bavarian law says that the street repairs must come from the general fund."

He was excited. He liked the whole research process and learning law. I showed him it was like going down a rabbit hole in Alice in Wonderland. It's not a straight road to get the answer you want. You get one clue here and another clue there and then it leads to the treasure at the end of the rainbow.

I draft the letter in English to the town council stating our argument and to rescind the repair bill. I look at the letter and re-read it. It hits the sweet spot. I know it's right.

Later, Tobi and I go through it and start translating it in German. We write it up in German. He reads it, and knows it looks right too. When it's done, he gives me a big hug.

He texts his mother and tells her he met a lawyer who is writing a letter for their family.

She writes back, indicating she's happy for him, almost like saying "That's nice, Dear."

I think he feels like he needs to prove that this is a real story - that he really met a lawyer - and that I knew what I was doing. He also wanted to show his parents he cared about them by defending their property.

We send her the letter. She reads it. She writes back, "I need to show this to your father."

In the meantime, I tell Tobi, "Let's see what the council says. Let's see what their argument is. I have another argument lined up.

"They'll probably say that it's in their right to tax people to fix roads.

"We're going to say this violates the Equal Protection Clause. I'll explain more on that later. [Now, I know that Equal Protection usually applies to racial and gender discrimination claims, but I have something.]

"We're going to argue that it's not fair to tax only your parents. It's a public road. Everybody can use it. Not just your parents. Therefore, the public should pay for it, not just your parents. Therefore, the fee needs to come out of the town's general funds, and not just a few households."

(The German legal system also doesn't follow case law - meaning it doesn't follow case precedent - meaning the argument has a stronger chance of working in court. In fact, after Tobi left, I figured out another supremacy argument to get them out of paying this stupid tax.

Also this entire taxing of the roads problem showed me the sorry state all these local governments are in, all over the world. They're running out of money, and now they're becoming creative in stealing it from us. I can't stand local governments. They're all thieves, I tell you.)

Tobi is so happy to hear the arguments. He says if I come to the village, and I win, they'll throw me a big block party.

I start laughing and tell him, "It better be like the one on Pit Bull's music video, where they're throwing a big house party."

The mother texts back and says, "Your father says he needs to show it to the neighbors."

I guess they took the letter seriously.

After a few hours, the mother writes back that they already paid the tax.

We were so disappointed. Oh well, at least we tried.

I was so sad I wasn't going to have my block party. But I was happy to know that I had transferable skills to argue law in other countries.

* * *

The night before, I read Tobi my short story. We had time to kill. You can read it too here: Without Remedy.

While reading it, he said, "Wow, I can see everything in my head, what you wrote."

I thought it was long. And it wasn't as interesting to me, as I read it before. But he said, "Keep going. I want to know what happens next."

After I finish it, he was like, "That was a good story." He decides to stay one more night for me at the Cloud City.

* * *

Tobi had some ATM problems, but that's a story for next time. After solving them, I saw him off at the bus station. He was going North. I had to go South. We agreed we'd see each other again in South America. But we had to part.

I gave him a big hug. I waited, until he walked towards the back of the bus, until I could no longer see him through the bus windshield.

Then, I had to follow through with another appointment.

* * *

Remember, Dante? He was the guy who picked me up on a motorcycle on a rainy day. Here's the link to read about him again: Meeting Dante He gave me a clue that his partner or wife worked near the bus station. It wasn't really that much information to go off of.

But I found a restaurant that didn't have a sign, that was by the bus station. And I walked in and a pretty girl greets me. I think to myself, This would be his type.

I ask her in Spanish - "Is the wife of Dante here?"

She laughs and says, "Si."

I got it right on my first try! Yes!

Then she says, "I'm her sister."

"Ah. I'm the guy who got a ride from Dante. We both fell off the motorcycle."

She starts laughing and says, "I know the story. He told us."

"Tell him I'll be back tonight around 07:30 at night."

When I come back, I bring wine and see Dante there. His wife makes me chicken milanese. I bring them red wine. We talk and share our stories. They seem happy I found them.

Dante has the coolest Spanish accent I've ever heard. He sounds like an Italian speaking Spanish in a sing-songy kind of way. I try to copy it. I picked up a phrase here and there.

And that's the end of my stories in the Cloud City. Tomorrow, I'd have to move on. With Tobi leaving and saying good bye to Dante, I could feel that this chapter of my journey was ending. 

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