Legal FAQ Part IV

As always, before reading this post, please review my disclaimer by following the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

Well, it's Thursday and I haven't had time to put together a post yet this week.  Now that I sit down to do so, I'm realizing my time is short, and I am again having a little bit of writer's block.  Now that I realize I haven't done a "Legal FAQ" since October, I figure I'm due for one.  As with my previous ones, today I will answer a few questions that I am frequently asked by friends, family members and clients about the legal system, but which, in my opinion, don't warrant a full blog post on their own at this time.  You can find my previous FAQ's here:

FAQ Part I
FAQ Part II
FAQ Part III

Will Amanda Knox get extradited to Italy?

I've been getting this question a lot recently from friends who follow the very controversial, very public Amanda Knox case.  Now that she's been convicted again, presumably our extradition treaty with Italy would kick in.  In my opinion, however (and in the opinion of most legal experts I've seen interviewed), Amanda Knox is in no danger of being extradited to Italy - at least not from the United States.

While we do have an extradition treaty with Italy that would seem to require us send her to Italy, to some extent treaties are similar to any other law - they must be constitutional.  Further, there are two ways to challenge the constitutionality of a law - facial challenges, and "as applied" challenges.  An "as applied" challenge says "this law is constitutional on its face, so the law can survive, but as applied in this particular case, the application of this law is unconstitutional."  I believe Amanda Knox has, essentially, a bullet-proof "as applied" challenge to the extradition treaty.

Essentially, while the treaty itself is constitutional, using it in her case would not be.  This is because sending her to Italy would subject her to a violation of her rights under the U.S. Constitution.  Specifically, the 5th Amendment bars someone who has been acquitted of a crime from being re-tried for that same crime (known popularly as "double jeopardy").  While double jeopardy is actually a very complicated area of constitutional law, it's applicability here is pretty clear.  Knox was tried and acquitted by a jury, then re-tried and convicted.  That is a violation of double jeopardy, and as such, Knox could make a strong challenge to any extradition effort.  So strong, in fact, that I believe the State Department will not even try to extradite her.

Now, I would note that Knox is protected from extradition from the U.S.  If she travels to another country that has an extradition treaty with Italy (for example, almost any E.U. country), and that country does not have the same protections, she could be extradited from there.  As a result, unless her conviction is overturned, Knox will have to spend the rest of her life being very careful about where she travels if she ever leaves the country.

Why doesn't Congress ask the Courts if a law is constitutional before it's passed?

Over the years, I've gotten a few questions about this one - and it makes some sense.  Why do we have Congress pass laws, put them into force, and possibly actually affect people before there can be a constitutional challenge?  If a law's constitutionality is in question, why not just ask the courts to rule on it first?

Well, the answer to that lies in the Constitution itself.  Article III, Section 2 of the Constitution gives our courts the authority to decide various forms of "cases" and "controversies."  This is, fittingly enough, known as the "cases and controversies" doctrine.  In other words, for our federal courts to take action, they are constitutionally required to have before them an actual "case" or "controversy," meaning a live dispute between two or more parties.  This has long been held to mean that the federal courts cannot issue "advisory opinions," which is what answering a question about a hypothetical law would be.

Interestingly, many other doctrines you may have heard about also arise from the "cases and controversies" doctrine.  These include "standing" (the requirement that the party bringing an action actually suffers harm from the alleged breach of law), "mootness" (the requirement that the issue must be ongoing), and "ripeness" (the requirement that the issue must have already started to cause problems).  These doctrines also come from the perspective that if standing or ripeness is lacking, or an issue is moot, then the court is really just issuing an advisory opinion.

Finally, I would note that this only applies to federal courts.  Different states have different rules, and there are several states that do allow advisory opinions - and in those states the state legislatures frequently apply to the state supreme court for advisory opinions on hypothetical laws.  Virginia is not one of those states, however - Virginia also has a state constitutional "cases and controversies" requirement.

As a tenant, how much money will I owe if I just break my lease early?

This is another question I hear often from tenants who don't have a problem with their landlord, but have a situation that has caused them to wish to move before their lease has ended.  The answer to this question is one that depends almost entirely on which law applies to your lease.

As an initial point, most contract law includes a doctrine known as "mitigation of damages."  This requires that when one party to a contract becomes aware that the other party intends to breach the contract, or has breached the contract, the aggrieved party must take all reasonable action to reduce the damage that party suffers from the breach.  Then, whether the aggrieved party has met his obligation or not, the breaching party is only liable for the damage the aggrieved party would have suffered if he mitigated his damages properly.  As a quick and dirty example, contractor agrees to build a home, with payment of 1/3 before work begins, 1/3 when work is halfway done, and 1/3 when work is finished.  The first 1/3 is paid, but when work is halfway done, the buyer refuses to pay the second 1/3.  The contractor cannot then finish the home and sue for the full 2/3 remaining.  Instead the contractor must stop work, and make a reasonable effort to find new work to make up the anticipated money he'd have earned to finish the house.  As a result, the contractor can only sue for the 1/3 he was owed at the halfway mark, plus any difference between what he would have earned for the final third and what he actually earned with his replacement work.

So, it would seem this should apply to leases as well.  After all, rentals are contracts, and so a landlord would seem to be required to find a new tenant and you should only be responsible for rent between when you leave and when a new tenant is found.  It's not that easy, however.  For more than a century, the common law in Virginia (as it had been in most states) held that because a lease involved the conveyance of land, even on a temporary basis, the full contract had to be honored.  As a result, a landlord had no obligation at all to mitigate damages, and as such, a tenant would be responsible for the full amount of rent owed to the end of the lease.  The only exception would be if the landlord on his own mitigated damages and got a new tenant, then the old tenant's obligation ended there.

Well, if you're a regular reader of this blog, you probably know where I'm going with this.  If you want to know the current rule, you need to know whether or not the Virginia Residential Landlord and Tenant Act applies to your lease.  My post breaking down figuring that out can be found here.  If the VRLTA does not apply to your lease, then the old rule is in force, as nothing in Virginia Code Title 55 Chapter 13 changes the common law rule.  If the VRLTA does apply, however, then Virginia Code Sections 55-248.33 and 55-248.35 apply.  These two code sections provide that a landlord is required to mitigate damages after a lease is breached.  In these situations, you can expect to pay rent for the amount of time it would take for a reasonable effort to find a new tenant (probably 1-2 months), plus the costs of re-renting (advertising, cleaning up, showing, etc.).

Conclusion

While I realize I've handled fewer questions than my previous FAQ's, my answers seem to be longer than usual.  As a result, I'm going to wrap it up here.  As usual, if you have a legal issue you think I can help you with, please feel free to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to half an hour!