Legislative News

Title loan interest rate cap gets hearing

Brian Lyman, Montgomery Advertiser

A House committee Wednesday morning heard arguments for and against a bill to regulate interest charged on title loans.

No vote was taken on the measure, sponsored by Rep. Rod Scott, (D) Fairfield, and its chances of passage are slim with only a handful of days left in the session. That point was noted by advocates of the bill, which has almost two-thirds of the House membership signed on as cosponsors.

“We’re looking at a long off-season,” Stephen Stetson, a policy analyst for Alabama Arise, a group that works on poverty issues, told the House Financial Services Committee. “It’s a shame 67 cosponsors, which is enough to get (a bill) passed on the floor, wasn’t enough to get it through committee.”

Scott’s bill, similar to legislation aimed at payday loans, would cap title loan interest rates at 36 percent APR and provide for regulations for the disposition of property pledged under loans.

Under current law, title loan companies can charge upwards of 300 percent APR on title loan transactions. Critics of title loan and payday lending consider the practice usury and say it preys on the poor. The industries say they provide credit in areas generally under-served by traditional lenders and cannot survive under the strict rate cap.

“The most difficult part of this issue deals with interest rates and the amount that should be financed or considered,” Scott said. “We were very diligent in working with the Banking (Department) in coming up with a framework.”

Industry representatives, however, said the 36 percent rate cap was a deal breaker.

“It’s not reform,” said Gina Dearborn, speaking on behalf of Title Max. “It would completely put us out of business. 36 percent is not something we can live with.”

Advocates of reform say that the short-term loans trap the poor in a cycle of debt.

Joe Godfrey, executive director of the Alabama Citizens Action Program, a socially conservative group, said bad title loan operators “preyed” on individuals.

Godfrey said government has a role “to protect (citizens) against foreign and domestic enemies. This would be a domestic enemy.”

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What to Do With a Lawless Legislature?

A. Eric Johnston, Attorney at Law

Telephone: (205) 408-8893
Address: 1200 Corporate Drive, Suite 107, Birmingham, Alabama 35242
Facsimile: (205) 408-8894
email: eric@aericjohnston.com

FROM:  A. Eric Johnston
DATE:  December 2014

RE:  What to Do With a Lawless Legislature?

The case of Glenn Bynum and Larry Gipson v. City of Oneonta was argued before the Alabama Supreme Court on November 6, 2014.  The case involves a question of a wet/dry municipal option election and an important principle of law.  

In 1984, the Legislature passed § 28-2A-1, 1975 Code of Alabama, a “general law” applicable to all 67 counties, providing that municipalities with 7,000 or more population could decide through municipal option elections whether to sell alcohol within their city limits.  Subsection 3 of the statute explained the cutoff was to protect the public welfare due to complications that arise from alcohol consumption, viz., domestic abuse, DUI, crime, etcetera.
The facts of this case demonstrated a history of willful legislative abuse in passing the statute at issue.  In 2002, the Alabama Legislature passed a local law providing that towns in Cherokee County with populations of 1,300-1,500 (only the Town of Cedar Bluff qualified) could have wet/dry elections.  This law was in conflict with the general law.  The Legislature asked the Alabama Supreme Court if the bill was constitutional, who explained that it was not.  Nevertheless, the Legislature passed the law.  A lawsuit was filed and the trial court held it unconstitutional.  On appeal, the Supreme Court found a jurisdictional issue and sent it back to the trial court.  The issue was resolved and the case was renewed.  Before the second effort could be tried again, in 2009, the Alabama Legislature amended the general law providing that in every county except Blount, Clay and Randolph Counties, towns with 1,000 persons could have wet/dry elections.  This mooted the Cherokee County case.  

In passing the 2009 amendment to § 28-2A-1, the Legislature violated several Alabama constitutional provisions, viz., though introduced as a general law, it was passed as a local law due to excluding three counties, it was not advertised as a local law and the bill had two subjects.

Notwithstanding the Governor’s veto for the latter reason, the Legislature passed the law.  During the legislative process, the law was amended eight times, most of which had to do with what counties to include and the population of a qualifying city.  It was clear the bill would not pass without limitations.  The most egregious violation of law was the excluding of three counties without a proper reason from being able to vote as the other 64 counties would.  This was a violation of citizen’s equal protection rights under the United States Constitution.

From 2002 until 2009 the Alabama Legislature  was acting at the behest of big alcohol interests to establish the sale of their products in every nook and cranny in the State of Alabama, without regard to the health, safety and welfare of the public, and in disregard of the laws mentioned.  The Legislature knowingly acted unlawfully in this concerted and protracted effort.  As a result, the law was challenged in court by Bynum and Gipson.  
These issues were presented to the Blount County Circuit Court who followed the usual rules of statutory construction, ordering removal of the offensive constitutional language, viz., deleting the three counties who had been omitted, thereby making the law applicable to all 67 counties, and upholding the statute.  In other words, alcohol could be on the ballot of every small town in every county of Alabama.  The injustice of this is that the rule of statutory construction is oblivious to the intentionally unlawful legislative acts to achieve something through the court that the Legislature could not achieve on its own.  

The arguments presented to the Alabama Supreme Court requested the court to mitigate that rule so as to recognize the unlawful intentions of the Legislature.  The only way the Legislature could pass this bill was to exclude the three counties.  If that is unconstitutional (which it is) and the legislative intent was to exclude them (which it was), then the law is unconstitutional.  Put another way, there were only three options for the possibility of this law:  (1) pass it excluding the three counties [which it should not do]; (2) not pass it due to the opposition by the three counties [which it would not do]; or (3) pass it in its unconstitutional condition and let the court correct the unlawful action [which it did].  The latter is not a legitimate option, but it is the reality of the existing rule of statutory construction.

The circuit court is not to be blamed, because it ruled in conformity with existing law.  There appears to be no legal precedent for guidance to courts in situations like this.  On appeal, the Alabama Supreme Court was requested to find the entire law unconstitutional.  The court was asked not to do what the Legislature could not do and, certainly, not to be complicit through a judicial slight of hand to participate in the denial of equal protection rights to voters.  We are hopeful the Alabama Supreme Court will further define the rules of statutory construction so that a travesty like this will not happen again.  We are a nation of laws, not men.

Finally, if this law is found unconstitutional, we will go back to the previous law, that is, only municipalities with 7,000 or more citizens can have alcohol municipal option elections.  All of the small towns who have voted under this unconstitutional law to authorize alcohol sales must stop those sales. That will be a good thing.  Otherwise, any changes to the law must completely start over in the Legislature.  It is unlikely the current
Legislature would go down this path again. 

I represented Messrs Bynum and Gipson in this case and also parties in the second Cherokee County case.  I appreciate the opportunity to work with these fine citizens who are standing up for their communities. They are to be commended.

What the Election Reveals About Us, and Why We Vote as We Do

Campaigning over the weekend, President Obama said, “The American people are with us on all the big issues.” He continued, “You know it. I know it. The polls show it.”
Yet the midterm election yesterday did not affirm President Obama’s statement. In fact, yesterday’s election is what political scientists classify as a “wave election.” The “wave” became evident early on Tuesday evening and it continued throughout election night as Republicans won key seats in the Senate. Even as some elections are still yet to be called, it is clear that the Republican Party has gained control of the United States Senate and now holds control of both the House and the Senate for the first time in eight years .
Furthermore, the pickup in the Senate was even beyond what most Republican analysts had estimated. With Senatorial elections in the states of Louisiana and Alaska still pending, the Republican Party has already picked up seven seats. This is a massive change for America’s political system. Coming in the sixth year of President Obama’s administration, this midterm election is a massive check upon his presidential power and will inevitably be seen as a political judgment upon the President’s leadership. This is due to the fact that the President of the United States is also seen as the symbolic head of his political party – in this case the Democratic Party.
Key Senate elections were won by Republicans in the states of West Virginia, Arkansas, Colorado, Georgia, Iowa, Kansas, Kentucky, and also in the state of North Carolina. The change of party control in the Senate will mean that the Republicans now hold key decision-making positions, especially in terms of the key committee chairmanships. Furthermore, the Senate’s very important constitutional role in the confirmation of presidential appointees will also be a major factor in the last two years of the Obama administration. In short, the next two years are going to be very politically interesting.
Claiming victory last night in his own Senatorial contest in Kentucky, Senator Mitch McConnell, who is also now the majority leader, pledged to work with President Obama in a bipartisan consensus where that is possible. Today President Obama is expected to address the nation with his response to the midterm elections. Americans are going to be watching in order to see if indeed the President of the United States and a Republican-controlled Congress can govern together on issues in which there might actually be common concern.
Yet yesterday’s election results also point to the continuing and deepening partisan divide in America. Christians watching this must understand that this partisan divide is not merely a political issue—it is a worldview issue. What divides these two parties is not primarily personalities or regionalism. Instead, what divides these two parties are their visions of political stability, morality, and even what it means to aim for human flourishing. Both parties represent competing worldviews and the most loyal members of each party recognize this reality. What separates these parties from one another are the answers they provide to such basic questions as the meaning of human life, our understanding of morality and even our understanding of marriage.
In last night’s wave election, several very strategic governorships were also on the line. Republicans won key contests in states including Florida, Iowa, Kansas, and even the state of Massachusetts—one of most deeply democratic states in the entire nation. Yet there were other very important issues faced by voters in respective states. In the state of Oregon, for example, voters supported a measure legalizing marijuana. This comes even after the Governor of Colorado warned other states that they should avoid the kind of reckless experimentation that he suggested his own state had engaged in by legalizing recreational marijuana two years ago. In Washington, D.C. voters approved an initiative legalizing recreational marijuana. Yet this vote will not affect the vast areas within the district that are controlled by the federal government. Further, since the D.C. government is ultimately under the control of Congress, Congress may also intervene in this situation. Voters in Alaska also passed a similar proposition known as Measure 2. Meanwhile, an effort to legalize so-called medical marijuana narrowly failed in the state of Florida. It gained more than 50% of the vote but that was short of the 60% that was necessary in order to affect the change.
On the issue of abortion, the states of Colorado and North Dakota turned back personhood amendments—amendments that would have criminalized any assault upon an unborn fetus. In the case of both states, this was a significant setback for the pro-life cause. But the pro-life cause won a huge victory in the state of Tennessee where voters approved Amendment 1—an amendment to that state’s constitution that would allow significant restrictions upon the availability of abortion. This is especially important since Tennessee had become a so-called ‘destination state’ for abortions in the American Mid-South.
The vote in Tennessee, however, was also was deeply revealing. The vote on Amendment 1 demonstrated a very significant moral divide, political divide, and thus a worldview divide between rural and urban voters in that state. Urban voters overwhelmingly voted against Amendment 1 and thus in favor of unrestricted abortion rights. On the other hand, voters in rural Tennessee overwhelmingly voted for Amendment 1. This simply affirms something that political scientists have known for a very long time—rural voters generally vote in a far more conservative pattern than urban or Metropolitan voters. This is in some respects due to the fact that cities tend to draw together persons with more liberal worldviews. At the same time, it also reflects the fact that cities have a liberalizing effect. Sociologists regularly indicate that persons who move from a rural to a more Metropolitan environment also shift their political opinions. This tells us that worldview is also at least partly dependent upon context.
In response to the election, Jason Weeden and Robert Kurzban published a rather amazing article in the op-ed pages of the New York Times. They began that article stating,
“As America completes another costly, polarized and exhausting election cycle, it’s commonplace to characterize our society as being divided into warring tribes of liberals and conservatives. But this view oversimplifies the causes of our political differences.”
Their argument continues,“Most people aren’t ideologically pure, and most don’t derive their opinions from abstract ideologies and principles. People are more strongly influenced by the effects of policies on themselves, their families and their wider social networks. Their views, in short, are often based on self-interest.”What should Christians think about their argument? Should we accept the fact that self-interest actually guides political decisions? From a biblical perspective, Christians ought to recognize that this is indeed the case. We should expect that in a fallen world it would be nearly impossible for any of us to escape the type of moral calculus that includes our own self-interest. And as these researchers make very clear, self-interest is not limited to an individual perspective, but to our family, to our group, or to our community. 
Weeden and Kurzban continue:“This point may seem obvious, but it is overlooked by many political scientists who focus on other explanations: parents and peers, schools and universities, political parties and leaders, and that abstract and nebulous catchall, ‘values.’ But the most straightforward explanation, demographics, is also the most persuasive.”
These observations should deeply interest Christians as we consider how political opinions and political decisions are formed. The authors further state,
“Self-interest is not limited to economics. People who want to have sex but don’t at the moment want babies are especially likely to support policies that ensure access to birth control and abortion. Immigrants favor generous immigration policies. Lesbians and gay men are far more likely to oppose discrimination based on sexual orientation. . . . Those who do best under meritocracy — people who have a lot of education and excel on tests — are far more likely to want to reduce group-based preferences, like affirmative action.”
Further:“A focus on self-interest helps explain why three-quarters of people who went to church as children don’t attend church in their 20s. The young people most likely to abandon the church are those engaging in the kinds of lifestyles — involving alcohol, recreational drugs, premarital sex and nonmarital cohabitation — that religious conservatives condemn.”
Weeden and Kurzban are pointing to something that every Christian leader, parent, or pastor must understand. On the one hand, we recognize that worldview determines behavior—what we believe is inevitably played out in our lives. But we must also recognize, as Weeden and Kurzban point out, that not only does our worldview determine behavior but the contrary is also true – our behavior often affects our worldview.
The illustration used by Weeden and Kurzban is very instructive. Young people who are involved in premarital sex, non-marital cohabitation, and recreational drugs develop a worldview to justify their activities. Of course, this is what all sinners do. Sinners want to justify their sin and in order to accomplish this they try to realign their worldview in order to create moral justification for their behavior. Christians need to understand that Weeden and Kurzban are onto something real here; not only does worldview determine behavior but behavior can determine worldview.
These two researchers are primarily interested in how this plays out in the political sphere. But Christians looking at the same article need to understand that something deeply biblical is being affirmed here. As the researchers very specifically point out, when young people get involved in what the Bible identifies as sinful activities, their worldview often shifts in an attempt to justify their actions—thus leaving the worldview commitments they may have inherited from their church and from their parents and adopting a new set of worldview presuppositions that are at peace with their behavior. As Weeden and Kurzban write, “Despite their early socialization, as adults start making their own decisions, their religion and politics usually align with their interests.”
The results of this midterm election will give intelligent Christians a great deal to think about. But when it comes to the larger issues at stake, the midterm election is simply one episode in a very long story, a story of political engagement that should lead Christians to continue to think ever more seriously about the issues that are really at stake.                                                                                                                                                                   The following article originally appeared in the Baptist Messenger, a publication of the Oklahoma Baptist Convention, and was later adapted by the Ethics and Religious Liberties Commission (ERLC) of the Southern Baptist Convention for one of their publications. It is reprinted here by permission of both the ERLC and theBaptist Messenger.

VIEWPOINT: Cowardly Clergyman?

Since when does a church or its pastor have to remain silent when addressing moral and social issues from a biblical worldview? There is no shortage on those who would like to squelch the voice of the church, especially during a political season.

Now is not the time for the church and its pastor to turn passive with regard to addressing critical social and moral issues from the pulpit. The pastor must speak with conviction based on the authority of the Scripture, not with results from the latest opinion poll. The pastor must challenge his congregation with the truth of God’s Word without regard to the views and opinions of political parties or candidates.

The pastor must do all he can to provide insight to moral and social issues based on God’s Word. Shying away from or avoiding certain issues for fear of offending a particular political candidate or political party member is acting as a cowardly clergyman.

Pastors have every right to preach on moral and social issues and to encourage their congregations to become active in civic affairs. Pastors should never endorse a candidate on behalf of the church. Nor should they use church funds or services to contribute directly to candidates or political committees. The pastor should never distribute materials on church premises that favor any one candidate or political party. However, the pastor does have the right to address moral and social issues being addressed by candidates and political parties.

The church has every right to encourage members to voice their opinions in favor or against legislative issues. A church should never endorse or oppose a political candidate or make contributions to a Political Action Committee. Nor should churches conduct fundraising for political candidates. However, the church is an excellent place for the community to learn more about the political process and legislative issues.

Unfortunately, too many churches and pastors are standing on the sidelines allowing those with a secular worldview to dominate public affairs and critical legislation. Our silence has been perceived as agreement. We must clear our throats and be heard without concession.

We are not skating on thin ice when it comes to taking a stand regarding moral and social issues. We must not be intimidated by those who desire to silence the church. We are called to proclaim the truth. May Joshua 1:9 serve as our guide as we seek to address the moral and social issues of our day. “Have I not commanded you? Be strong and courageous. Do not be terrified; do not be discouraged, for the LORD your God will be with you wherever you go.” May the Lord find us strong and courageous as together we seek to make a difference within our culture.

It is time to speak up, pastor. Take a stand with God’s Word as your guide! Churches, stand with your pastor as he proclaims the truth of God’s Word with regard to sensitive social and moral issues of the day.

Church members, beware of allowing your political persuasions to compromise your biblical convictions. Know where candidates stand on the issues and support those who share your values as a believer and follower of Jesus Christ.

This editorial is adapted and reprinted with permission from the April 10, 2008 Oklahoma Baptist Messenger.The Ethics & Religious Liberty Commission works to educate Americans about the importance of voting, among many other moral and social issues we face in today’s society. To learn more about this important issue, please visit our Web site at iVoteValues.org.

The following statement came from the Focus on the Family’s “Pastor’s Weekly Briefing,” dated October 4, 2007:

“This week, a coalition of five Christian organizations released a joint letter to help educate pastors and churches on how to speak on issues relevant to the 2008 elections while staying within the lawful boundaries set for nonprofit organizations. Focus on the Family — along with the Family Research Council, Alliance Defense Fund, Concerned Women for America, and the James Madison Center for Free Speech — is encouraging pastors and churches to become acquainted with their free-speech rights, and to not be intimidated by threats from liberal watchdog groups.” [Click here to read the letter.]