When I was the head lobbyist for the Indiana Coalition for Religious Freedom for seven years back in the 80’s and 90’s, I had a box at the Indiana State House with my name on it. The State House staff would place in my box every bill concerning churches, day cares, Christian schools, and various and sundry Church/State relationships. I would get these bills at the end of the week and pass them out to my paralegal class on Legislation, who would read through them and determine if I needed to lobby for or against certain bills. The Marriage recodification bill in 1989 was basically rewritten by me so that it could include Church Covenant Weddings. This bill was presented by State Senators on the Senate committee in my behalf. I spoke before that committee, explaining that certain churches were already doing Covenant Weddings, and we wanted the language on the Statute to be loosely interpreted so that could continue. I showed the committee that all marriage statutes were to be “liberally construed” anyway, so this would fit the Judicial intent also. The committee voted unanimously for the changes in the bill and the bill ended up being passed by the state legislature.
…All to No Avail!
Years later, after I had moved out of the state, I was working on getting a military couple a pay increase who had a Christian Covenant Wedding Certificate. I read through the same statute that took me literally hundreds of hours and a process of buying lunches for Senators, speaking to sub-committees and standing committees to get the bill through. I was stunned to notice that all of my “liberally construed” language was changed and made “mandatory” for all couples married in the state of Indiana. My “may’s” were all changed to “must’s.” My “shall’s” were all changed to “must’s.” I realized a great truth. When any law is passed, the chances for it to be changed increase exponentially.
“Congress shall make NO LAW…”
Many Juris-Doctors over the last 200 years have argued in futility that the first ten Amendments of the Constitution were not helpful for individuals. Even the first Amendment states that “Congress shall make NO LAW respecting the establishment of religion, or prohibiting the free exercise thereof.” I understand the Federalists were attempting to bind down the government by the chains of the Constitution, but still, the first Amendment is A LAW MADE respecting the establishment of religion, AND prohibiting the free exercise of religion. We have first Amendment Supreme Court Opinions BECAUSE we have a first Amendment.
For anyone to say a law will not change is naïve on their part. Laws do not stay the same. Anyone who tells you the law they are relying on for their legal remedy will always be the same is “selling you something.” Do not trust them. I have taught college courses on several law topics. I have taught about a dozen classes on Common Law and about half a dozen on Constitutional Law. My favorite course from my students’ perspective has always been “The History of Anglo-American Law.” I usually start the course giving a test on certain laws passed legislatively, asking the students to comment on these laws as to whether they are Biblical or not. Then I proceed to mark each of their answers wrong (no matter how they answered them) and hand them back their test with a ZERO at the top. Then I proceed to teach the course, at least 40 hours in the history of Anglo-American Law. By the end of the course, the students progressed to where they find legislative statutes (malum prohibitum) repugnant. And it did not matter how many of them argued FOR making certain laws during the course; by the end they were completely understanding why NO LAW was better than “A” law, even if it was a perceived righteous law. Righteous laws can become unrighteous laws by adding or subtracting a single word.
A Trust is NOT a Legal Entity, Well… Maybe Not Much Longer.
Take for example, 76 Am.Jur. 2d, section 3 on Trusts. It states, “A trust is not a legal entity.” This statement relies upon a 2002 case, Stevens Family Trust v. Huthsing. Law Professor Edward Halbach, who was one if the writers of the Restatement Third of Trusts of 2009, wrote in the California Law Review the following: “Without abandoning the basic definition of a trust as a fiduciary relationship, there appear to be subtle but practical significant departures from the traditional concept that a trust is not an ‘entity’.” (Vol. 8, page 1882) Halbach’s next section, under the heading “B. Increasing Recognition as an Entity,” proceeds to give two pages worth of court decisions and changes toward “typical trusts.” He states, “The tax law, however, has long treated the typical trust as AN ENTITY separate from the person who serves as trustee.” (id. at 1882) (See, e.g., I.R.C. Sections 641-679, 1998, Subsection J)
In a lengthy footnote at the end of section B (Increasing Recognition as an Entity), Halbach quotes Jeffrey Schoenblum, “The Hague Convention on Trusts,” who wrote, “The Convention…requires recognition of the trust as a distinct legal entity….Article 11 sets forth certain attributes of the trust that must be recognized.” (Ellipses in the original, nothing taken out or added by me. -Ben)
But, I digress. It was there all the time. One only has to look at and read the paragraph AFTER the one furnished us by the Ordinary Attorney. That is the paragraph of 76 Am.Jur. 2d, section 3 on Trusts. AFTER that section is a paragraph from the book “Restatement (Third) of Trusts.” That paragraph starts out with the bold word Observation. The rest of the paragraph reads: “The Restatement states that increasingly modern common-law and statutory concepts and terminology tacitly recognize the trust as a legal “entity,” consisting of the trust estate and the associated fiduciary relation between the trustee and the beneficiaries. This is increasingly and appropriately reflected both in language (referring, for example, to the duties or liability of a trustee to “the trust”) and in doctrine, especially in distinguishing between the trustee personally or as an individual and the trustee in a fiduciary or representative capacity.”
I do not know much about Trusts, but I agree with Professor Halbach that laws are always changing.