Friday, January 10, 2020

No Conversion In Handling Entrusted Funds; New Jersey Rejects Non-Client Claims

The New Jersey Supreme Court rejected claims arising from Fox Rothschild's handing of entrusted funds per the court's head note

This appeal involves claims of conversion and breach of fiduciary responsibility leveled at an attorney, Anthony Argiropoulos, Esq., and his then-law firm, Fox Rothschild LLP (collectively, “the firm”), regarding funds wire-transferred to the firm’s trust account.

As alleged in this matter, an intermediary entity wired funds for plaintiff Moshe Meisels, a London-based real estate investor, to the firm’s trust account in connection with a real estate deal in which Eliyahu Weinstein, the firm’s client, was engaged. Prior to the commencement of this litigation, the firm was admittedly unaware of Meisels’s  existence. It is undisputed that Meisels did not speak to, or otherwise communicate with, Argiropoulos or Fox Rothschild.

In his pleadings, Meisels alleges that he had Rightmatch Ltd., an entity located in London, transfer over $2.4 million to the attorney trust account of Fox Rothschild, Weinstein’s attorneys at the time. Rightmatch wired the money in two transfers, executed by Cambridge Mercantile Group. Confirmations for each transfer were sent, “[f]or and on behalf of Cambridge Mercantile Corp.,” to Rightmatch, with a single line indicating “Attn: Moshe Meisels.” The transfers themselves did not identify plaintiff as the funds’ owner or include any instructions regarding limitations or conditions.

Defendants distributed the funds as their client directed. Meisels alleges that Weinstein instructed the firm to distribute the funds for purposes other than the agreed upon real estate transaction. According to Meisels, the purchase of the Irvington property was never consummated; Weinstein defrauded Meisels and his related co-plaintiffs.

Plaintiff commenced this action in 2012 and, after discovery and the filing of an amended complaint, defendants sought summary judgment on the grounds that (1) plaintiff did not produce evidence to support ownership of the funds that Rightmatch wired to Fox Rothschild and therefore lacked standing to sue; and (2) plaintiff had no contact with anyone from Fox Rothschild and, therefore, could not establish the essential elements of any of the claims.

The motion court granted summary judgment to the firm and dismissed the amended complaint with prejudice. The Appellate Division affirmed as to the fiduciary duty claim but reversed as to the conversion claim, rejecting defendants’ argument “that Meisels was required to show that he demanded the return of his property.”

The Court granted defendants’ petition for certification, seeking review of the Appellate Division’s judgment reinstating the conversion claim. 236 N.J. 67 (2018). The Court also granted plaintiff’s cross-petition, seeking review of the Appellate Division’s judgment dismissing the breach of fiduciary duty claim. 236 N.J. 44 (2018).

HELD: The firm did not breach any fiduciary duty where the firm was not made aware, nor did it have any basis on which it reasonably should have been aware, of plaintiff or of a claim by plaintiff to the funds. As such, there was no relationship between the firm and plaintiff on which a fiduciary duty was owed. On that issue, the Court affirms the judgment of the Appellate Division. However, defendants cannot be found to have engaged in conversion in this matter. Where, as here, a law firm lawfully holds in trust wired funds for its client’s real estate transaction, which funds are received with no limiting direction or instruction and for which the firm receives no demand from the nonclient, the firm’s disposition of the trust funds in accordance with the client’s instructions does not give rise to a claim for conversion. The Court rejects the reasoning that under these circumstances the obligation to make a demand is excused and reverses as to the conversion claim.

  1. As officers of the courts, attorneys owe a duty of care that finds helpful benchmarks in the Rules of Professional Conduct (RPCs). Standing alone, a violation of the RPCs does not create a cause of action for damages in favor of a person allegedly aggrieved by that violation. In this matter, the RPCs provide relevant information for assessing the claimed violation of a fiduciary duty with which the firm is charged. RPC 1.15 addresses an attorney’s obligation to safeguard property in his or her possession, including property received from a non-client third party. (pp. 12-14)
  2. Here, RPC 1.15 does not provide a pathway for finding a fiduciary duty that was breached by the firm. Meisels maintains that an attorney “owes a fiduciary duty to persons, though not strictly clients, who he knows or should know rely on him in his professional capacity.” However, case law extending an attorney’s duty to a third party not in privity with the attorney has been approached with care so as to be fair to all; generally stated, it is cabined by considerations of reasonableness. Meisels admits that defendants had no knowledge of his existence, had no contact with him, possessed no knowledge about any purported agreement between him and Weinstein, and made no representations to Meisels. It is simply not reasonable to expect a lawyer to have fiduciary obligations to an individual under such circumstances. Meisels produced no evidence to show that he relied upon defendants in their professional capacity. The circumstances of this case, moreover, offer no indicia that defendants endeavored to induce Meisels to rely on the firm. Inducement of reliance cannot be ascribed to the firm simply because the funds for its client’s commercial real estate transaction were permitted to be wired to and held in the firm’s trust account. In these circumstances, the firm’s disposition of the funds held in its trust account in compliance with the client’s instructions, as required by RPC 1.2, was not a breach of fiduciary duty. No fiduciary duty was owed by the firm to Meisels. (pp. 14-18)
    3. The Court traces the history of the tort of conversion. To determine whether a conversion has occurred, there must first be an assessment into whether defendant has independent dominion and control over the subject property. Additionally, where the defendant lawfully acquired plaintiff’s property, the plaintiff must show that he demanded the return of the property and that the defendant refused compliance. The demand is the linchpin that transforms an initial lawful possession into a setting of tortious conduct, if the demand is refused. Accordingly, in such circumstances, a demand is essential; a claimant must make a demand at a time and place and under such circumstances as defendant is able to comply with if he is so disposed, and the refusal must be wrongful. There are circumstances, to be sure, where demand may be futile, but that is and must be viewed as an exception. (pp. 18-22)
    4. Funds held in an attorney’s trust account for its client are the client’s funds, not the firm’s. Here, with no knowledge of a competing claim to the funds -- and, indeed, no knowledge whatsoever about Meisels and his role in the transaction -- the firm acted appropriately in adhering to the client’s directions. Meisels cannot prove that the firm itself exercised independent dominion and control over his funds. That requirement for a conversion claim is lacking in this matter. The lack of independent dominion and control, moreover, renders more serious the lack of demand here. The demand would have been the means to alert the firm that a competing claim existed and would have triggered the firm’s obligation to reasonably inquire further, and perhaps seek judicial assistance, before embarking on fulfillment of a client’s direction. Violation of the demand might then create the tort of conversion. Only when an attorney misdirects or misappropriates funds, or when an attorney has acted contrary to a known, competing claim -- or a competing claim that reasonably should have been known -- can there be an independent dominion or control over the funds by the firm to the repudiation of the rights of the proper owner. (pp. 23-25)

The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and the Court orders the conversion claim DISMISSED. CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE LaVECCHIA’s opinion.

Oral argument linked here. (Mike Frisch)

January 10, 2020 in Clients, Current Affairs | Permalink | Comments (0)

Tuesday, November 19, 2019

Orioles Defeat Nationals

Not on the field but in the courts.

The dispute between the two teams arising from their broadcast agreements was sent back to arbitration by the New York Appellate Division for the First Judicial Department.

This dispute between petitioner WN Partner LLC (the Nationals) and respondent Baltimore Orioles Limited Partnership (the Orioles) arises under a September 2005 partnership agreement pursuant to which Mid-Atlantic Sports Network has the exclusive right to broadcast the games of the Baltimore Orioles and Washington Nationals baseball teams. The agreement sets forth a multi-step dispute resolution process. Under section 19.1, the parties must first mediate any dispute. Should mediation prove unsuccessful, section 19.2 provides that the "dispute shall be arbitrated before the Commissioner of Baseball pursuant to the provisions of the Major League Constitution; provided, that [Major League Baseball] MLB does not have any ownership or financial interest in a Partner or the Partnership at the time that the dispute that is the subject of the arbitration arose." If that is the case, the dispute is to be resolved pursuant to section 19.3, which provides that if MLB had such financial interest at the time the dispute arose, the parties must arbitrate "any disputes" under the Partnership Agreement before the American Arbitration Association (AAA), pursuant to AAA Rules of Arbitration, "[n]otwithstanding any provisions of the Major League Constitution or any MLB documents, rules or customs." The logic of this provision is clear; to permit otherwise would, as the motion court observed, allow MLB, a potentially conflicted party, to determine whether it itself had a financial interest in one of the parties to the dispute at the relevant time. The question on this appeal is whether it is for the Commissioner, the AAA, or a court to determine the gateway issue of whether MLB had such financial interest at the time the dispute arose.

The Nats sought to stay the arbitration

The Nationals unpersuasively argue that the Orioles "waived" their right to arbitrate before the AAA. It is undisputed that the Nationals attempted to initiate an arbitration before the Commissioner without first complying with section 19.1, which provides that mediation before AAA or JAMS must precede any arbitration. The Orioles objected and asked that the demand be dismissed, including on the ground that the parties had not first engaged in mediation as required by the agreement, and reserved all of their rights. When the mediation failed, the Orioles promptly filed a demand for arbitration before the AAA. The record thus shows that the Orioles did not consent to any arbitration before the Commissioner, much less waive their right to arbitrate before the AAA in accordance with section 19.3. There is no basis in the record to find that the Orioles participated in the Nationals' prematurely filed arbitration in any meaningful way so as to hold them bound to such proceeding (see Skyline Steel, LLC, 139 AD3d at 647; Rush v Oppenheimer & Co., 779 F2d 885 [2d Cir 1985]).

(Mike Frisch)


November 19, 2019 in Current Affairs | Permalink | Comments (0)

Wednesday, October 23, 2019

Relief Denied

The United States Court of Appeals for the District of Columbia Circuit denied relief to Roger Stone

Roger Stone and members of his family petition this Court for a writ of mandamus vacating the District Court’s orders modifying Stone’s conditions of release, arguing that the orders infringe on their First Amendment right to free speech. Where a mandamus petitioner has an adequate alternative remedy, however, we lack jurisdiction to grant the petition. In re Asemani, 455 F.3d 296, 299-301 (D.C. Cir. 2006) (dismissing mandamus petition for lack of jurisdiction). Here, because Stone and his family members failed to avail themselves of adequate alternative remedies, we dismiss their petition.

Circuit Judge Wilkins authored the opinion. (Mike Frisch)

October 23, 2019 in Current Affairs | Permalink | Comments (0)

Monday, October 7, 2019

Georgia, Guns And The Garden

The Georgia Supreme Court has apparently upheld the right to carry a firearm in the Atlanta Botanical Garden.

A firearms ban is only effective on private property

Contrary to the rulings below, we determine that for purposes of OCGA § 16-11-127 (c), property may be considered “private” only if the holder of the present estate in the property is a private person or entity. In this case, because the City is a public entity, if it is the holder of the present estate, then the leased premises is not private property within the meaning of the statute because property owned by a municipality is not “private property.” If the City thus owns the property, then the Garden has no right to exclude the carrying of firearms on the leased premises because it is not “in legal control of private property through a lease.” If, on the other hand, by the terms of the 50-year lease with the City, the Garden holds the present estate in the property, then the property is “private property,” the Garden is a “private property owner,” and it had the right to exclude Evans from carrying a firearm on the premises. However, because the lease is not in the record on appeal and because this determination requires an examination of its provisions to determine whether it granted an estate to the Garden, summary judgment should not have been granted in favor of the Garden under the theory it asserted in its motion for summary judgment. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings.

(mike Frisch)

October 7, 2019 in Current Affairs | Permalink | Comments (0)

Wednesday, September 4, 2019

Guns On Campus: No Declaratory Relief

The Wyoming Supreme Court has dismissed a declaratory judgment action in a case brought against the University of Wyoming by a person charged with criminal trespass under these circumstances

Lyle Williams brought a handgun to the Wyoming Republican Convention at a University of Wyoming (UW) facility, despite a UW regulation barring firearms on the UW campus. He was cited for misdemeanor criminal trespass after he refused to either relinquish his handgun or leave campus. Mr. Williams pleaded not guilty in circuit court, and then obtained a stay of the circuit court criminal proceedings while he filed an action for declaratory judgment in district court. He contended that the regulation violated his right to bear arms under the United States and Wyoming constitutions; and that Wyo. Stat. Ann. § 6-8-401 (LexisNexis 2017) was not a part of the Wyoming Firearms Freedom Act and, thus, preempted the UW regulation prohibiting firearms on campus. A favorable declaration from the district court, or a favorable decision from this Court, would resolve the matter pending in circuit court.

Justice Fox for the majority

Mr. Williams’ declaratory judgment action is indeed an inappropriate “dress rehearsal” in that the district court issued a decision on “an issue to be tried in the main case.” Heilig, 2003 WY 27, ¶ 10, 64 P.3d at 738. Further, the parties’ factual stipulations in the declaratory judgment action will likely collaterally estop the parties to the criminal case from relitigating those factual issues in circuit court. See id. And, just as in Heilig, Mr. Williams’ declaratory judgment action improperly wrested control of the litigation “from the prosecution in the [] criminal case because neither the prosecutor nor [the county] was a party to the [district court] declaratory judgment action.” Id. at ¶ 11, 64 P.3d at 739. We find no support for the district court’s conclusion “that this declaratory judgment proceeding will maintain the integrity and efficiency of the judicial system, discourage redundant actions, and minimize their attendant problems.”

Further, forum shopping is the antithesis of judicial economy.

...We hold the district court abused its discretion in concluding that this declaratory judgment action served a useful purpose and entering declaratory relief. Accordingly, we reverse with instructions to dismiss.

Dissent of Justice Kautz joined by Chief Justice Davis

I cannot agree that the majority’s decision promotes judicial economy or demonstrates necessary judicial restraint. It simply avoids the primary issue and forces additional unnecessary litigation. This Court should consider Mr. Williams’ claims on their merits at some point. I see no reason that should not happen now.

(Mike Frisch)

September 4, 2019 in Current Affairs | Permalink | Comments (0)

"Basketball Is Not Fundamental To Democracy"

The Minnesota Supreme Court has held that a high school basketball coach is not a "public official" under the New York Times v. Sullivan malice standard. 

To strike this balance, we conclude that, for the “government duty” criterion to support the conclusion that someone is a public official, his or her duties must relate to the core functions of government, such as safety and public order. Although McGuire was employed by the school district, his coaching duties are ancillary to core functions of government; put simply, basketball is not fundamental to democracy.

Would an Indiana or North Carolina court agree?

The putative public issue in this case—the operation of a high school basketball team—is far afield from the public issue in Rosenblatt. We acknowledge that high school basketball is an important piece of the social fabric in many communities. And the wins and losses of a high school basketball team—as well as who plays and who does not—may lead to emotional highs and lows in the lives of the players and their families. Nevertheless, these issues are not the sort of issues that the public has “a strong interest in debat[ing].” Id. at 85. Rosenblatt therefore suggests that McGuire’s position is not that of a public official.

Hewitt argues that the public issue in this case is not the basketball team’s success, but rather McGuire’s specific conduct as coach. In doing so, Hewitt erroneously shifts the focus of the public-official inquiry from McGuire’s role to McGuire’s conduct. But the Supreme Court was clear in Rosenblatt that a person’s status as a public official does not depend on the particulars of the person’s conduct; instead, “[t]he employee’s position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy.” Id. at 86 n.13 (emphasis added). Looking solely at McGuire’s position, he does not have the ability to influence significantly the resolution of public issues.

The defamation defendants

While McGuire was coaching at Woodbury, respondents, all of whom were parents of players on the team, expressed concerns about McGuire’s conduct, most notably alleging that he swore at practices, touched players in inappropriate ways, and flirted with players. In January 2014, these concerns ultimately culminated in Bowlin, Szondy, and Hewitt meeting with (and Danielson writing a letter to) school administrators to discuss McGuire’s conduct. Two days after respondents met with the school administrators,
McGuire was placed on administrative leave from his coaching duties. Two months later, in March 2014, the school district decided not to renew McGuire’s coaching contract.

The court reversed the grant of summary judgment as to one defendant and affirmed as to three others because (as to those defendants) he had not appealed the trial court ruling against him on qualified privilege

Having reviewed the undisputed facts regarding McGuire’s duties as coach and regarding the lack of any controversy concerning his performance before the allegedly defamatory statements were made, we conclude that McGuire is neither a public official nor a public figure. However, because McGuire did not appeal the district court’s conclusion that the statements of respondents Joy Szondy, Chelon Danielson, and Cheryl Hewitt fall under a qualified privilege, we nevertheless affirm summary judgment as to those three respondents. Because the district court granted summary judgment to respondent Julie Bowlin solely on the basis of McGuire’s status as a public official, we reverse as to McGuire’s defamation claim against her and remand for further proceedings on that claim.

I thought (having learned from Coach Norman Dale in Hoosiers) that basketball was all about the fundamentals. (Mike Frisch)

September 4, 2019 in Current Affairs | Permalink | Comments (0)

Sunday, September 1, 2019

No Liability For Reporting On Law Firm Travails

Litigation arising from the New York Post's reporting on the breakup of a high-profile class action plaintiffs law firm (and an affair between a partner and associate that spawned its own litigation) has led to this decision of the New York Appellate Division for the First Judicial Department.

From December 2014

Prominent Manhattan lawyer Paul Napoli would stop at nothing to continue his sordid affair with a pretty auburn-haired associate even after his wife uncovered their 18-month dalliance, court filings charge.

Vanessa Dennis, who once worked as a junior lawyer at the 9/11 firm Napoli Bern formally filed a defamation complaint against her ex-boss and lover, his wife and the law firm last week, demanding at least $11 million.

Dennis, 33, who claims she was harassed by Napoli’s wife, Marie, after she discovered their affair in April 2013, now claims Napoli refused to end their relationship...

Dennis’ allegations come amid the epic unraveling of a firm that made tens of millions of dollars in fees by representing some 10,000 sick and dying Ground Zero first responders.

Bern and partner Alan Ripka are now also waging messy court battles against Napoli.

Last month, a judge named a receiver to oversee the financial affairs of the firm.

Co-founder Bern accused Napoli of “financial irregularities” after he took over Napoli Bern’s operations when Napoli was diagnosed with leukemia in May.

Napoli attacked Bern by sending an e-mail around saying Bern patronized prostitutes and cajoled a receptionist into oral sex at a company Christmas party.

The Post walks

The court properly determined that the Post defendants' reporting of the contents of an email concerning third-party conversations mentioning plaintiff were not actionable (see generally Brian v Richardson, 87 NY2d 46, 51-52 [1995]). The court also properly found that the intentional infliction of emotional distress claim was duplicative since the underlying allegations fall within the ambit of the defamation causes of action (see Akpinar v Moran, 83 AD3d 458, 459 [1st Dept 2011], lv denied 17 NY3d 707 [2011]), and that plaintiff failed to allege that she was placed in physical danger or was caused to fear for her personal safety as a [*2]result of the Post defendants' conduct in support of her negligent infliction of emotional distress claim (see Ferreyr v Soros, 116 AD3d 407 [1st Dept 2014]).

But the defamation action against the former partner survives

The court in the Bern action properly determined that collateral estoppel does not apply to bar plaintiff's defamation claims against the Bern defendants. The issues raised in the Bern action, in which plaintiff claims that the Bern defendants made sham filings and circulated them to the press for the sole purpose of defamation, differ from those raised in the New York Post action, in which plaintiff alleges that the New York Post defamed her by reporting on those filings (see Ryan v New York Tel. Co., 62 NY2d 494, 500-501 [1984]). The court also properly determined that issues of fact remained as to whether the litigation privilege extended to the Bern defendants' court filings (see Flomenhaft v Finkelstein, 127 AD3d 634, 638 [1st Dept 2015]). The court properly sustained plaintiff's prima facie tort cause of action against the Bern defendants, pleaded in the alternative, which did not rest on the same facts and allegations supporting the alleged defamation (see generally Curiano v Suozzi, 63 NY2d 113, 118 [1984]). Furthermore, plaintiff's allegations that Marc Bern disclosed confidential information obtained in the course of his representation of her and disclosed documents in violation of the attorney-client privilege state a cause of action against him for breach of fiduciary duty (see Keller v Loews Corp., 69 AD3d 451 [1st Dept 2010]). The court correctly found that plaintiff's allegations, along with two affidavits supporting her claim that Bern represented her sufficiently pleaded the requisite elements of a breach of fiduciary duty claim (see Burry v Madison Park Owner LLC, 84 AD3d 699 [1st Dept 2011]).

(Mike Frisch)

September 1, 2019 in Current Affairs | Permalink | Comments (0)

Tuesday, August 27, 2019

Florida Considers Parental Leave Continuances For Attorneys

An argument today before the Florida Supreme Court

This Court requested the Rules of Judicial Administration Committee submit a parental-leave continuance rule for consideration.  The Committee submitted Draft Rule of Judicial Administration 2.570 (Parental Leave Continuance), which addresses motions for continuances based on the lead attorney’s parental leave. The Committee recommends against the adoption of a parental-leave continuance rule because it believes such a rule would reduce judicial discretion to manage cases adequately.

Appearance for Opponents: Eduardo Sanchez, Past Chair of the Rules of Judicial Administration Committee, Miami, 305-961-9057 and Theodore F. Green of Law Office of Theodore F. Green, LC, Orlando, 328-720-9157

Appearance for Proponents: John M. Stewart, President of Florida Bar, Vero Beach, 772-231-4440; Susan V. Warner, Rules of Judicial Administration Committee Member, Miami, 904-293-0725; Lara B. Bach, Young Lawyers Division of the Florida Bar, Miami, 305-577-3135 and Jennifer S. Richardson, Florida Association of Women Lawyers, Jacksonville, 904-638-2655

Appearance for Statewide Guardian ad Litem Program: Thomasina F. Moore, Tallahassee, 850-922-7213 

Appearance for Juvenile Court Rules Committee: David Silverstein, Bradenton, 941-741-3706

From the Florida Bar majority opposition to the proposed Rule

Ultimately, the question comes down to whether it is prudent to delay the progression of a case due to one attorney’s personal situation, particularly if that delay may cause possible harm to any of the parties, opposing counsel, witnesses, and the court’s busy calendar. Considerations weighing on the discretionary call a judge must make in considering a continuance often include: the nature of the litigation, the age of the case, the established priority of the case, the history of the case that has proceeded the continuance request, the needs and rights (substantive and procedural) of the parties, the availability of court resources, the interests of the other attorneys involved in the case, and whatever broader needs may also exist in the court system at that time. The judge must carefully balance these and many other potential factors that might be implicated in a fair and unbiased way that endeavors to best preserve the integrity and reputation of the courts and the fairness of the process. That is the responsibility and authority bestowed upon a judge by Rule 2.545. No other rule is necessary—particularly not one of single purpose or use...

To the extent that there may be some members of Florida’s judiciary who in the past were not properly cognizant of the value that ought to be given parental leave, the committee respectfully suggests that the almost three-year debate about the adoption of some form of a parental-leave continuance rule in Florida has succeeded in elevating the discussion to a point where few judges, if any, will now ignore the issue. The very widely publicized robust debate over the issue has sensitized both practitioners and the judiciary. And while the committee supports action by the Court in its supervisory capacity to further educate and sensitize the members of the judiciary to the parental leave issue, the committee does not believe that the proposed Rule 2.570 is either the proper or best vehicle to achieve that laudable goal. In this area, as in most such areas that require the exercise of sound judicial discretion, it is the firm and definite belief of the committee that “less is more.”


The minority supported adoption of the proposed Rule 2.570 because it believed a parental-leave continuance rule would provide more predictability in the courts’ treatment of parental leave, reduce obstacles to career advancement faced by women who bear children, encourage male use of parental leave, and help alleviate the stigma of the “mommy track,” all of which would help close the workplace gender gap in the legal profession. In reporting its position in support of the adoption of Rule 2.570, the minority analyzed the existing rules and case law addressing continuances and how they impact the consideration of parental-leave continuances, as well as laws and policies concerning parental leave.

Link to the docket entries here. (Mike Frisch)

August 27, 2019 in Billable Hours, Current Affairs | Permalink | Comments (0)

Friday, August 16, 2019

No One Speaks For Beulah, Minnie And Karen

The Connecticut Appellate Court affirmed denial of habeas relief in a matter brought on behalf of three elephants

The petitioner, Nonhuman Rights Project, Inc., appeals from the judgment of the habeas court declining  to issue a writ of habeas corpus that it sought on behalf of three elephants, Beulah, Minnie, and Karen (elephants), who are alleged to be confined by the named respondents, R.W. Commerford & Sons, Inc. (also known as the Commerford Zoo), and its president, William R. Commerford, at the Commerford Zoo in Goshen.

The court

Only a limited number of courts have addressed the issue of whether a nonhuman animal who allegedly has been injured has standing to bring a claim in a court of law. There are even fewer cases addressing whether a nonhuman animal can challenge its confinement by way of a petition for a writ a habeas corpus. The petitioner asserts that this case ‘‘turns on whether [the elephants] are ‘persons’ solely for the purpose of the common-law right to bodily liberty that is protected by the common law of habeas corpus.’’ In its view, the elephants are entitled to a writ of habeas corpus as a matter of common-law liberty because the writ of habeas corpus is deeply rooted in our cherished ideas of individual autonomy and free choice. It essentially invites this court to expand existing common law. This case, however, is more than what the petitioner purports it to be. Not only would this case require us to recognize elephants as ‘‘persons’’ for purposes of habeas corpus, this recognition essentially would require us to upend this state’s legal system to allow highly intelligent, if not all, nonhuman animals the right to bring suit in a court of law. At this juncture, we decline to make such sweeping pronouncements when there exists so little authority for doing so...

There are profound implications for a court to conclude that an elephant, or any nonhuman animal for that matter, is entitled to assert a claim in a court of law. In the present case, we have little difficulty concluding that the elephants—who are incapable of bearing legal duties, submitting to societal responsibilities, or being held legally accountable for failing to uphold those duties and responsibilities—do not have standing to file a petition for a writ of habeas corpus because they have no legally protected interest that possibly can be adversely affected. See Gold v. Rowland, supra, 296 Conn. 207 (‘‘[a]ggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected’’ [internal quotation marks omitted]). Accordingly, we conclude that the court properly declined to issue a writ of habeas corpus on standing grounds.

(Mike Frisch)

August 16, 2019 in Current Affairs | Permalink | Comments (0)

Tuesday, August 13, 2019

Smell Test Fail

A decision of the Maryland Court of Appeals

“The times they are a-changin’.”

—Bob Dylan, The Times They Are a-Changin’

It is by now well known that the laws in Maryland and elsewhere addressing the possession and use of marijuana have changed. Those changes naturally have compelled examination of how the affected laws are to be interpreted and applied consistent with the dictates of other law including, here, the Fourth Amendment’s protection against unreasonable searches and seizures.

Presented in this case is a question of first impression. That question, as framed in the brief of Petitioner Michael Pacheco, is

whether police are authorized to arrest a person for the criminal offenses of possession of more than ten grams of marijuana and/or possession of marijuana with intent to distribute, based solely on facts indicating that the person is committing the civil offense of possession of less than ten grams of marijuana.

For reasons that follow, we answer that question in the negative.

The appropriately characterized Head Note

In the post-decriminalization era, the mere odor of marijuana coupled with possession of what is clearly less than ten grams of marijuana, absent other circumstances, does not grant officers probable cause to effectuate an arrest and conduct a search incident thereto. It is well established that individuals have a heighted expectation of privacy in their person as compared to their automobile, meaning the probable cause analysis for the search incident to arrest exception versus the automobile exception will often differ given the respective justifications for those exceptions and the facts and circumstances of each case. Thus, although Petitioner’s possession of a marijuana cigarette along with the odor of marijuana may have given the officers probable cause to search his vehicle, it did not grant them probable cause to arrest him and conduct a search incident thereto.

(Mike Frisch)


August 13, 2019 in Current Affairs | Permalink | Comments (0)

Tuesday, July 30, 2019

Nothing In Common

The South Carolina Supreme Court has imposed the death penalty on the institution of common law marriage going forward in the Palmetto state. 

Our review in this case has prompted us to take stock of common-law marriage as a whole in South Carolina. We have concluded the institution's foundations have eroded with the passage of time, and the outcomes it produces are unpredictable and often convoluted. Accordingly, we believe the time has come to join the overwhelming national trend and abolish it. Therefore, from this date forward—that is, purely prospectively—parties may no longer enter into a valid marriage in South Carolina without a license. Consistent with our findings regarding the modern applicability of common-law marriage rationales, we also take this opportunity to refine the test courts are to employ henceforth.

Nevertheless, the case before us remains. We do not believe Stone demonstrated the mutual assent required to prove a common-law marriage, and as a  result, we hold the parties were not married and reverse the family court on the merits and as to the issue of attorney's fees.

(Mike Frisch)

July 30, 2019 in Current Affairs | Permalink | Comments (0)

Sunday, July 14, 2019

The Nixon Offense: John McCain And Mormon Basketball

The Utah Supreme Court affirmed the grant of summary judgment to a defendant sued for (basketball) court injuries. 

At the outset of the oral argument in our court in this case, counsel for the appellee presented a quote from the late Senator John McCain. The quote alludes to the sport of mixed martial arts as a “dangerous and brutal exercise,” while then warning of a “sport, more vicious and cold-blooded, that takes place in Mormon meetinghouses across this great nation of ours”—“LDS Church Basketball.” This quote, sadly, appears to be a matter of internet apocrypha. We can find it attributed to a McCain floor speech on various pages of the world-wide web, but no such quote appears in the pages of the Congressional Record. Yet the apocryphal quote conveys an accepted view of “church ball” among many who have experienced this phenomenon—an athletic competition acclaimed on some local t-shirts as “the brawl that begins with prayer.”

At least one of the parties to this case seems to see it that way. Judd Nixon is the plaintiff in a tort suit that arose out of a basketball game at a meetinghouse of the Church of Jesus Christ of Latter-day Saints. Nixon sought to recover damages from the player he viewed as responsible for his injuries—Edward Clay. The issue on appeal is whether the district court erred in adopting a “contact sports exception” in the law of torts. The district court held that “in bodily contact games . . . participants are liable for injuries in [a] tort action only if [their] conduct is such that it is either willful or with a reckless disregard for the safety of the other player.” Applying this “contact sports exception” to the facts of this case, the district court determined that Nixon’s injury arose out of conduct that was not willful or reckless but was inherent in the game of basketball. On that basis the district court held that Clay owed no duty to Nixon. And it granted summary judgment to Clay.

We affirm but on a slightly modified basis. We endorse the idea of an exception to liability arising out of sports injuries. But we do not think the exception should turn on the defendant’s state of mind, or be limited just to contact sports. We instead hold that participants in any sport are not liable for injuries caused by their conduct if their conduct was inherent in the sport. Applying this exception to the facts of this case, we conclude that Clay’s conduct was inherent in the game of basketball. And we affirm the district court’s grant of summary judgment on this basis.

The incident

Judd Nixon and Edward Clay were playing on opposite teams in a church-sponsored recreational basketball game. Nixon dribbled the ball down the court to take a shot. Clay pursued Nixon to try to contest the shot. As Clay approached Nixon’s right side he extended his right arm over Nixon’s shoulder to reach for the ball. Nixon came to a “jump stop” at the foul line and began his shooting motion. When Nixon came to this sudden stop, Clay’s arm made contact with Nixon’s right shoulder. Nixon then felt his left knee pop. Both men fell to the ground.

The referee determined that the contact was not intentional and warranted only a common foul. Nixon unfortunately sustained a serious knee injury in the collision.

And sued.

Based on the court's description, I'd venture that then Senator Scott Brown and I exchanged more flagrant fouls in the 2011 Home Court charity basketball game. 

Title apologies to John Dean. (Mike Frisch)

July 14, 2019 in Current Affairs | Permalink | Comments (0)

Wednesday, July 10, 2019

Superior Claim To Art Looted By Nazis

Summary judgment has been affirmed on behalf of plaintiffs seeking recovery of art stolen by the Nazis

This controversy stems from art allegedly looted by the Nazis during World War II. We are asked to decide whether Supreme Court properly granted plaintiffs, Timothy Reif and David Frankel, as co-executors of the estates of Leon Fischer and Milos Vavra (collectively plaintiffs), summary judgment on their claims for conversion and replevin. We find that plaintiffs made a prima facie showing of entitlement to judgment as a matter of law that they have superior title to two pieces of art by Egon Schiele, "Woman Hiding Her Face (1912)" and "Woman in a Black Pinafore (1911)" (collectively the Artworks), and that defendants Richard Nagy and Richard Nagy Ltd. (collectively defendants) failed to raise a triable issue of material fact.

Plaintiffs are the legally declared heirs of Fritz Grunbaum (Grunbaum), a well-known Jewish Viennese cabaret artist and art collector. Grunbaum admired the Viennese modern artist, Egon Schiele, and amassed an 81-piece collection of his work before World War II. After the Nazi invasion of Austria on March 12, 1938, Grunbaum attempted to escape with his wife, Elisabeth "Lilly" (nee Herzl) Grunbaum (Elisabeth), to Czechoslovakia, but was apprehended and arrested by the Nazis on or about March 22, 1938. From the time of his arrest until his murder on or about January 14, 1941, Grunbaum remained imprisoned in various concentration camps, including Buchenwald and Dachau.

This little scheme failed to pass good title

On July 16, 1938, while Grunbaum was imprisoned at Dachau, the Nazis forced him to execute a power of attorney in favor of Elisabeth. Just four days later, pursuant to the purported power of attorney, Elisabeth was compelled to permit a Nazi official named Franz Kieslinger (Kieslinger) to inventory Grunbaum's property, including his art collection, which contained the 81 pieces by Schiele. Kieslinger determined Grunbaum's entire art collection of over 400 pieces to be valued at 5,791 Reichsmarks (RM). Kieslinger inventoried the Schiele pieces as follows: he first listed the five oils by name, then he listed together 55 sheets of "large hand drawings," 20 pencil drawings, and one etching, but gave no more details, nor their titles. Grunbaum's collection also included French watercolors and pieces by artists such as Rembrandt, Degas, Rodin and Durer, all identified by name in the Kieslinger inventory. Only Grunbaum's name appears on the inventory. Elisabeth had her own property and filed a separate declaration on behalf of herself on or about April 27, 1938.

Sometime after it was inventoried, Grunbaum's entire art collection was deposited with Schenker & Co., A.G. (Schenker), a Nazi-controlled shipping company, and marked for "export." On September 8, 1938, the company formally applied for an export license for "Lilly Grunbaum." The license, however, is devoid of customs stamps, meaning that the art collection never legally left Austria. In addition, a subsequently filed statement of assets dated November 12, 1938, lists Grunbaum, "formerly Vienna . . . now Buchenwalde," as still possessing 5,791 RM worth of "pictures and graphics."


Grunbaum was murdered at Dachau on June 9, 1941. Elisabeth signed a declaration before an Austrian notary in connection with obtaining her husband's death certificate, stating, "[T]here is nothing left," in other words, there is no estate. Therefore, "[b]ecause of a lack of goods or property, there [was no] estate proceeding for inheritance" before the Dachau Probate Court. On or about October 5, 1942, Elisabeth was murdered at Maly Trostinec death camp.

The defendant 

Defendant Richard Nagy, who has been an independent art dealer since 1980, first obtained a 50% share in "Woman in a Black Pinafore" from Thomas Gibson Fine Art on or around February 24, 2005, the day after its unsuccessful auction at Sotheby's . In October 2011, he "voided" his interest, given the ambiguity and problems with the provenance. However, he reacquired his interest in the piece on or around December 9, 2013, soon after the Second Circuit affirmed the dismissal of the plaintiffs' claims in Bakalar (see Bakalar, 500 Fed Appx at 6).

Nagy acquired "Woman Hiding Her Face" on December 18, 2013. The Art Sale and Transfer Agreement (the Agreement) for "Woman Hiding Her Face" states that "the heirs of Fritz Grunbaum claim ownership of the Painting on the theory that it was stolen from Mr. Grunbaum when he was deported to a German concentration camp during World War II." Nagy agreed that he would have no claim against the seller if title were declared invalid on that basis.


The tragic consequences of the Nazi occupation of Europe on the lives, liberty and property of the Jews continue to confront us today. We are informed by the intent and provisions of the HEAR Act which highlights the context in which plaintiffs, who lost their rightful property during World War II, bear the burden of proving superior title to specific property in an action under the traditional principles of New York law. We also note that New York has a strong public policy to ensure that the state does not become a haven for trafficking in stolen cultural property, or permitting thieves to obtain and pass along legal title (see e.g. Lubell, 77 NY2d at 320; Reif, 149 AD3d at 533). It is important to note that we are not making a declaration as a matter of law that plaintiffs established the estate's absolute title to the Artworks. Rather, we are adjudicating the parties' respective superior ownership and possessory interests. We find that plaintiffs have met their burden of proving superior title to the Artworks. Defendants raise no triable issue of fact.

(Mike Frisch)

July 10, 2019 in Current Affairs | Permalink | Comments (0)

Thursday, June 27, 2019

Snow White And The Naked Kiss

The Massachusetts Supreme Judicial Court affirmed a conviction for indecent assault and battery in an unusual fact context

While the defendant was naked, he kissed his girlfriend's sister on the mouth, without insertion or attempted insertion of the tongue, while she was sleeping and without her consent. The question is whether such circumstances present sufficient evidence for a conviction of indecent assault and battery on a person over the age of fourteen, in violation of G. L. c. 265, § 13H. We conclude that they do and affirm the judgment.

The victim had fallen asleep on a couch while fully clothed

At some point in the night, the victim awoke to the defendant kissing her on the lips. The defendant was naked, kneeling next to the couch, and hovering over the victim. The victim stood up and shouted, "What are you doing? Why are you doing this?" The defendant replied, "I couldn't help myself. I didn't know what I was doing."

A kiss on the hand may be quite continental; on the lips, quite illegal

Our case law recognizes the mouth is an "intimate part of the body," as "the vast majority of people are very discriminating in who they allow to touch . . . this bodily orifice." Commonwealth v. Rosa, 62 Mass. App. Ct. 622, 625  (2004), quoting People v. Rivera, 138 Misc. 2d 570, 571 (N.Y. Sup. Ct. 1988). See Commonwealth v. Colon, 93 Mass. App. Ct. 560, 562 (2018). Under certain circumstances, touching of the mouth, even without insertion of the tongue, may be considered an indecent act. See Commonwealth v. Vazquez, 65 Mass. App. Ct. 305, 307 (2005). We conclude that such circumstances exist here.

The victim awoke to the defendant hovering over her, naked, and kissing her on the mouth. The victim and the defendant were not in a dating relationship; the defendant was in a relationship with the victim's older sister. See Colon, 93 Mass. App. Ct. at 563 (whether there is existing relationship between victim and defendant should be considered when assessing indecent conduct). The defendant acted surreptitiously, as he acted in the night while the victim and the other occupants of the apartment were asleep, and the victim was unable to consent.


We need not get tangled in whether a fully clothed prince may kiss Sleeping Beauty or revive Snow White. At least while one is naked, when one is not in a preexisting intimate relationship, kissing a sleeping woman, a spellbound princess, or otherwise, is not consistent with our "contemporary moral values." Mosby, 30 Mass. App. Ct. at 184.

(Mike Frisch)

June 27, 2019 in Current Affairs | Permalink | Comments (0)

Tuesday, June 4, 2019

All Bets Are Off

Two questions certified by a federal court were answered by the New Jersey Supreme Court

In New Jersey and elsewhere, no one can procure insurance on a stranger’s life and receive the benefits of the policy. Betting on a human life in that way, with the hope that the person will die soon, not only raises moral concerns but also invites foul play. For those reasons, state law allows a policy to be procured only if the benefits are payable to someone with an “insurable interest” in the person whose life is insured. N.J.S.A. 17B:24-1.1(b).

In April 2007, Sun Life Assurance Company of Canada received an application for a $5 million insurance policy on the life of Nancy Bergman. The application listed a trust as the sole owner and beneficiary of the policy. Ms. Bergman’s grandson signed as trustee. The other members of the trust were all investors, and all strangers to Ms. Bergman. The investors paid most if not all of the policy’s premiums.

Sun Life received an inspection report that listed Ms. Bergman’s annual income as more than $600,000 and her overall net worth at $9.235 million. In reality, her income was about $3000 a month, and her estate was later valued at between $100,000 and $250,000. Although Ms. Bergman represented that she had no other life insurance policies, five policies were taken out on her life in 2007, for a total of $37 million.

.Sun Life issued the policy on July 13, 2007. At the time, the trust was the sole owner and beneficiary. The policy had an incontestability clause that barred Sun Life from challenging the policy -- other than for non-payment of premiums -- after it had been “in force during the lifetime of the Insured” for two years. About five weeks after the policy was issued, the grandson resigned as trustee and appointed the investors as successor co-trustees. The trust agreement was amended so that most of the policy’s benefits would go to the investors, who were also empowered to sell the policy.

More than two years later, the trust sold the policy and the investors received nearly all of the proceeds from the sale. Wells Fargo Bank, N.A. eventually obtained the policy in a bankruptcy settlement and continued to pay the premiums.

After Nancy Bergman passed away in 2014, Wells Fargo sought to collect the policy’s death benefit. Sun Life investigated the claim, uncovered the discrepancies noted above, and declined to pay. Instead, Sun Life sought a declaratory judgment that the policy was void ab initio, or from the beginning. Wells Fargo counterclaimed for breach of contract and sought the policy’s $5 million face value; if the court voided the policy, Wells Fargo sought a refund of the premiums it paid.

The court explores the history of life insurance in general and in New Jersey in particular. Notable in the discussion is the impact of the AIDS epidemic on the sale of interest in life insurance proceeds. 

 It's not just a vodka

The policy in question is known as a “STOLI” -- a stranger-originated life insurance policy. Because such policies can be predatory and may involve fraud, other states have adopted legislation that bars them. We now consider STOLI policies as a matter of first impression.


The first certified question poses a supplemental inquiry: If the policy procured violates New Jersey’s public policy, is it void ab initio? When an insurance policy violates public policy, it is as though the policy never came into existence. The policy would be void from the outset.

The second certified question asks, “If such a policy is void ab initio, is a later purchaser of the policy, who was not involved in the illegal conduct, entitled to a refund of any premium payments that they made on the policy?” The traditional rule -- that courts leave the parties to a void contract as they are rather than assist an illegal contract-- has evolved over time. Under the more modern view, equitable factors can be considered to determine the proper remedy. The Court reviews several decisions in which such factors were considered by courts assessing STOLI policies and observes that the fact-sensitive approach adopted in those cases is sound. To decide the appropriate remedy, trial courts should develop a record and balance the relevant equitable factors. Those factors include a party’s level of culpability, its participation in or knowledge of the illicit scheme, and its failure to notice red flags. Depending on the circumstances, a party may be entitled to a refund of premium payments it made on a void STOLI policy, particularly a later purchaser who was not involved in any illicit conduct. The Court notes that the District Court considered equitable principles and fashioned a compromise award but does not comment on the award itself.

(Mike Frisch)

June 4, 2019 in Current Affairs | Permalink | Comments (0)

Friday, May 31, 2019

Facebook Consent Decree Compliance Can Be Explored

The Delaware Court of Chancery has ruled that plaintiffs suing Facebook established a basis to inspect records relating to compliance with a consent decree

In July 2018, Facebook, Inc. (“Facebook” or the “Company”) experienced one of the sharpest single-day market value declines in history when its stock price dropped 19%, wiping out approximately $120 billion of shareholder wealth. This unprecedented misfortune followed news reports that, in 2015, the private data of 50 million Facebook users had been poached by Cambridge Analytica, a British political consulting firm.

Facebook did not disclose this security breach to its users upon discovery or at any time thereafter. Users first learned of the breach when they read or heard about it in the news.

At the time of the Cambridge Analytica breach, Facebook was subject to a consent decree entered by the Federal Trade Commission (the “FTC”) in 2011 (the “Consent Decree”) after the FTC determined that the Company’s data privacy measures were not protecting users’ private information. Among other things, the Consent Decree required Facebook to implement more robust and verifiable data security protocols.

Soon after news of the Cambridge Analytica breach broke, reports surfaced that Facebook’s business model included incentives to monetize its users’ data without their consent. These reports were followed by news that the FTC, Federal Bureau of Investigation (“FBI”), Securities and Exchange Commission (“SEC”), Department of Justice (“DOJ”), European Information Commissioner’s Office (“ICO”) and other European authorities had all opened investigations into Facebook’s data privacy practices.

On April 11, 2018, Plaintiff, Construction and General Building Laborers’ Local No. 79 General Fund (“Local No. 79”),served a demand to inspect Facebook’s books and records (the “Demand”) under Section 220 of the Delaware General Corporation Law (“Section 220”). As required by statute,  Local No. 79 stated that its purpose for inspection was to “investigate and assess the actual and potential wrongdoing, mismanagement, and breaches of fiduciary duties by the members of the Company's Board” in connection with the data privacy breaches and “to investigate the independence and disinterestedness” of the Company’s directors. In response, Facebook produced about 1,700 pages of significantly redacted books and records.

Negotiations over access broke down and suit was filed

Facebook asserted the Complaint failed to plead a credible basis to infer that Facebook’s directors breached their duty of oversight, or any other aspect of their fiduciary duties, because the Cambridge Analytica breach resulted from the unanticipated acts of third parties who had managed to compromise Facebook’s existing (and adequate) data privacy systems.


In the wake of the Consent Decree, Facebook was under a positive obligation to take specific steps to protect its users’ private data. That obligation was firmly in place at the time of the Cambridge Analytica breach. Delaware courts traditionally have viewed stockholder allegations that a board failed to oversee the company’s obligation to comply with positive law, or positive regulatory mandates, more favorably in the Caremark paradigm than allegations that a board failed to oversee the company’s efforts generally to avoid business risk. Plaintiffs have presented “some evidence” that the Board failed to oversee Facebook’s compliance with the Consent Decree resulting in unauthorized access to its users’ private data and attendant consequences to the Company. In other words, Plaintiffs have sustained their minimal burden to demonstrate a credible basis of wrongdoing justifying the inspection of certain of the Company’s books and records. 

Judgment is entered for Plaintiffs. Facebook shall produce for inspection the books and records designated herein as essential to Plaintiffs’ pursuit of their proper purpose.

(Mike Frisch)

May 31, 2019 in Current Affairs | Permalink | Comments (0)

Thursday, May 30, 2019

Unclean Hands: Beware The Bloomingdales Cosmetics Counter

The Maryland Court of Appeals applied the doctrine of "unclean hands" in rejecting the claims of the decedent's third spouse to estate benefits

Robert F. Watkins, Jr. (“the Decedent”) died on August 30, 2014 at the age of 82. He was survived by his third wife of less than two years, Emeline Wilson Watkins (“Emeline”), the appellant; his adult daughter from his second marriage and the personal representative of his estate, Shannon Watkins (“Shannon”), the appellee; and his adult daughter from his first marriage, Hannah Ink (“Hannah”). The Decedent’s second wife of 52 years, Jasmine Watkins (“Jasmine”) predeceased him in 2012.

Mr. Watkins' family had played a role in the development of College Park Maryland

The Decedent’s family owned and managed numerous apartment buildings in College Park, which he inherited. During his marriage to Jasmine, she managed the rental properties by collecting payments, advertising vacancies, paying taxes, and arranging repairs. The Decedent and Jasmine also owned thoroughbred racehorses and maintained an account with Maryland Thoroughbred Purse Account, Inc., in Laurel (“Purse Account”). Their income was derived from these business assets.

The tale turned sad

The Decedent and Jasmine were “snowbirds” who routinely traveled to Hollywood, Florida during the winter months, from December through March, to stay in a house at 937 Adams Street that Jasmine owned (“the Florida Property”). They made their last trip to the Florida Property together in early 2012, shortly before Jasmine died.

During his marriage to Jasmine, the Decedent was physically active and social. He played golf several times each week. He and Jasmine went to the racetrack together multiple times each week, went out to dinner, went to the movies, and hosted family for cookouts and celebrations. Shannon and Jeffrey have two children, and the Decedent was extremely close to them, spending time with them on a weekly basis.

In 2009, Jasmine was diagnosed with bladder cancer. The Decedent was her primary caregiver during her illness, taking her to all her medical appointments. By the end of 2011, Jasmine’s cancer had metastasized and she was terminally ill.

In early 2012, shortly before Jasmine died, the Decedent took her to Bloomingdales in Chevy Chase to buy makeup. Emeline worked at the cosmetics counter and assisted them. Emeline learned during that encounter that Jasmine was sick. Emeline also learned that the Decedent owned racehorses and she expressed interest in seeing his horses race. Emeline and the Decedent later arranged to meet for lunch at a P.F. Chang’s restaurant. Emeline denied that the Decedent disclosed that Jasmine was dying of cancer during their lunch.

Jasmine died on March 17, 2012. According to the Decedent’s longtime friend and lawyer, Mr. Green, the Decedent was “absolutely devastated.” Shannon described him as “despondent” and a “mess.” Jeffrey characterized him as “very depressed.” The Decedent told Jeffrey that there was “no need for [him] to be around anymore.” The day after Jasmine’s funeral, the Decedent drove to Florida alone. He stayed for just a day or two and then drove back. He later told Shannon that he drove “erratically and terribly” because he did not care if he lived or died.

Within weeks of Jasmine’s death, the Decedent was spending most of his time with Emeline. Emeline soon quit her job at Bloomingdales, where she had earned an annual salary of $45,000. Upon being questioned about their relationship, the Decedent told Shannon, Hannah, and other family and friends that he had no intention of marrying Emeline.

But he did

In mid-September 2012, the Decedent took a trip to Florida with Emeline. He stayed for about a week. On September 24, 2012, Emeline and the Decedent were married at the Broward County courthouse. None of their family or friends were present and no one knew about the marriage in advance. The Decedent did not tell Shannon that he had married Emeline for more than a month after they returned. At some point, Emeline called Hannah and told her about their marriage. Emeline was “kind of  laughing” during the phone call. Hannah spoke to the Decedent and he seemed “very matter of fact” about the news.

In late November 2012, the Decedent and Emeline met with Mr. Green, who as mentioned was the Decedent’s close friend and his attorney, at Mr. Green’s law office to discuss matters relative to closing out Jasmine’s estate. During that meeting, Emeline became irate and began screaming and calling Jasmine a “whore” and an “adulteress.” According to Mr. Green, the Decedent “just sat there and did nothing” looking like “a deer in the headlights.” Shannon was in the waiting room during part of the meeting. Mr. Green’s secretary asked Emeline to leave the office. Within days after that meeting, Emeline and the Decedent left for Florida.

The finding in the trial court

Applying Maryland law with respect to the elements of undue influence, the Orphans’ Court found that Emeline took undue advantage of the Decedent’s vulnerability in the immediate aftermath of Jasmine’s death and “physically and emotionally dominated [him]” to induce him to marry her. It concluded, based upon a Florida statute, that Emeline’s conduct deprived her of any entitlement to a share of the Estate.

Emaline did not appeal the undue influence finding but attacked subject matter jurisdiction

While the Florida statute is inapplicable, we may nevertheless affirm the Orphans’ Court’s ruling on any ground adequately shown by the record and which was raised below. The Florida statute, by barring a surviving spouse from receiving a benefit from the estate of a deceased spouse if he or she procured the marriage to the spouse through inequitable conduct, essentially codifies the well-established common law doctrine of unclean hands, recognized by Maryland. The doctrine of unclean hands was argued
before the Orphans’ Court. That doctrine “‘refuses recognition and relief from the court to those guilty of unlawful or inequitable conduct pertaining to the matter in which relief is sought.’” Hicks v. Gilbert, 135 Md. App. 394, 400 (2000) (quoting Manown v. Adams, 89 Md. App. 503, 511 (1991)). The doctrine “is not applied for the protection of the parties nor as a punishment to the wrongdoer; rather, the doctrine is intended to protect the courts from having to endorse or reward inequitable conduct.” Adams v. Manown, 328 Md. 463, 474-75 (1992). For that reason, “an important element of the clean hands doctrine is that the alleged misconduct must be connected with the transaction upon which the claimant seeks relief.” Id. at 475. In other words, “[i]t is only when [a party’s] improper conduct is the source, or part of the source, of his equitable claim, that he is to be barred because of this conduct. ‘What is material is not that the [party’s] hands are dirty, but that he dirties them in acquiring the right he now asserts.’” Id. at 476 (quoting D. Dobbs, Remedies § 2.4 at 46 (1973) (footnote omitted))

While our research reveals no Maryland cases applying the doctrine of unclean hands under similar facts to those before us, at least one sister court has held that a person who “procured [a] marriage . . . through overreaching and undue influence” “forfeited any rights that would flow from the marital relationship, including the statutory right she would otherwise have to an elective share of [her deceased spouse’s] estate.” Campbell v. Thomas, 897 N.Y.S.2d 460, 471 (N.Y. App. Div. 2010)

(Mike Frisch)

May 30, 2019 in Current Affairs | Permalink | Comments (0)

Monday, May 20, 2019

No Territorial Criminal Jurisdiction In New Jersey For Drug-Induced New York Death

The New Jersey Supreme Court has held that defendants cannot be convicted for a death in New York

In a criminal prosecution, the State must have territorial jurisdiction to enforce its laws against a defendant. Defendant Shameik Byrd sold heroin to defendants Noel Ferguson and Anthony Potts in Paterson, New Jersey. Afterwards, Ferguson and Potts returned to their home state of New York where they sold the heroin they purchased to Kean Cabral. Cabral died of an overdose after taking the heroin originally sold by Byrd. New Jersey criminalizes as a strict-liability offense illicitly distributing drugs that cause death to the user. New York does not. The issue is whether New Jersey has territorial jurisdiction to prosecute the three defendants under its strict-liability statute, N.J.S.A. 2C:35-9, for Cabral’s drug-induced death in New York...

Under N.J.S.A. 2C:1-3(b), courts cannot impute or infer a legislative purpose. A legislative purpose to extend the statute beyond New Jersey’s borders must “plainly” appear. Upon review of the legislative declarations codified as part of the Comprehensive Drug Reform Act of 1987, see N.J.S.A. 2C:35-1.1, the Court cannot discern a plain legislative purpose calling for Byrd’s prosecution for the strict-liability drug-induced death of Cabral, when New York, where the death occurred, would not prosecute such an offense.

(Mike Frisch)

May 20, 2019 in Current Affairs | Permalink | Comments (0)

Tuesday, May 14, 2019

Sweat Lodge In High Desert

A claim that a state prisoner was denied religious freedom found some favor in the Nevada Supreme Court

David August Kille, Sr., is incarcerated and in protective custody at High Desert State Prison (HDSP), which is operated by Nevada Department of Corrections (NDOC). While incarcerated, Kille filed several grievances with NDOC, arguing that he had been wrongly denied the right to participate in Native American sweat lodge and sacred pipe ceremonies. NDOC denied each grievance, concluding that Kille had no right to participate in the ceremonies because he failed to provide tribal affiliation paperwork or otherwise failed to demonstrate Native American association or ethnicity pursuant to the NDOC's Religious Practice Manual.

He sued and lost in the district court on summary judgment

As to the substance of Kille's equal protection claim, the State does not dispute that Kille is a sincere practitioner of a Native American religion. Therefore, Kille is similarly situated to Native American inmates who wish to engage in sweat lodge and sacred pipe ceremonies. However, the NDOC policy prohibits equal consideration of Kille's request for religious exemptions based solely on his inability to prove Native American association or ethnicity and the State acknowledges that Native American inmates are the only group required to demonstrate association or ethnicity in order to participate in ceremonies. Thus, the policy is facially discriminatory because it imposes differential treatment based on ethnicity or ancestry and, as applied to Kille, denies his right to have his religious request considered equally with those prisoners who can prove Native American heritage. See Morrison, 239 F.3d at 661-62. While safety and security are legitimate penological interests, the State fails to present any evidence that the association or ethnicity requirement is reasonably related to that interest. The State argues that it "provided admissible evidence of actual security concerns and destruction of property rather than hypothetical concerns," but it fails to point to any specific evidence in this regard. Calderin's affidavit stating that he is "familiar that there have been incidents at various institutions where Native American inmates have destroyed their lands or their sweat lodge because they believed it has been desecrated" by non-Native American inmates entering the lands is not sufficient to show that the ethnicity-based policy of denying sweat lodge and sacred pipe ceremony practices is rationally related to the goal of prison safety and security. As explained in Morrison, such evidence, at best demonstrates that some Native Americans at other institutions "were offended by white inmates practicing Native American rituals." 239 F.3d at 661. As the policy is facially discriminatory and is not reasonably related to legitimate penological interests, we conclude that the State's association or ethnicity-based policy violated Kille's equal protection rights.

The case is DAVID AUGUST KILLE, SR. vs. JULIO CALDERIN et al. (Mike Frisch)

May 14, 2019 in Current Affairs | Permalink | Comments (0)

Friday, April 26, 2019

Kansas Upholds Woman's Right To Choose

The Kansas Supreme Court upheld the right to choose 

Section 1 of the Kansas Constitution Bill of Rights provides: "All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness." We are now asked: Is this declaration of rights more than an idealized aspiration? And, if so, do the substantive rights include a woman's right to make decisions about her body, including the decision whether to continue her pregnancy? We answer these questions, "Yes."

We conclude that, through the language in section 1, the state's founders acknowledged that the people had rights that preexisted the formation of the Kansas government. There they listed several of these natural, inalienable rights—deliberately choosing language of the Declaration of Independence by a vote of 42 to 6. Included in that limited category is the right of personal autonomy, which includes the ability to control one's own body, to assert bodily integrity, and to exercise self determination. This right allows a woman to make her own decisions regarding her body, health, family formation, and family life—decisions that can include whether to continue a pregnancy. Although not absolute, this right is fundamental.

Accordingly, the State is prohibited from restricting this right unless it is doing so to further a compelling government interest and in a way that is narrowly tailored to that interest. And we thus join many other states' supreme courts that recognize a similar right under their particular constitutions.

Finally, we conclude that the plaintiffs Herbert C. Hodes, M.D., Traci Lynn Nauser, M.D., and Hodes & Nauser, MDs, P.A. (Doctors) have shown they are substantially likely to ultimately prevail on their claim that Senate Bill 95 violates these principles by severely limiting access to the safest procedure for second-trimester abortions. As a result, we affirm the trial court's injunction temporarily enjoining the enforcement of S.B. 95 and remand to that court for full resolution on the merits.

Biles, J. concurred

But to be clear from the outset, I join the other members of this court who unanimously agree section 1 of the Kansas Constitution Bill of Rights provides all Kansans, including pregnant women, with state-based, judicially enforceable protections against unwarranted government intrusion. Some cast this as a right to abortion, others as a limitation on state police powers, but the bottom line is the same: those challenging government conduct as an unlawful restriction on their protected section 1 interests may do so in a Kansas courtroom. The difference in our approaches is the standard used to measure where our state Constitution draws the line...

More disturbingly, consider how the dissent's standard perfectly aligns with this notorious passage from our American caselaw:

"In view of the general declarations of the legislature and the specific findings of the Court, obviously we cannot say as a matter of law that the grounds do not exist, and if they exist they justify the result. We have seen more than once that the public welfare may call upon the best citizen for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. [Citation omitted.] Three generations of imbeciles are enough." Buck, 274 U.S. at 207.

...All agree this court should interpret the Kansas Constitution in accordance with the framers' intent and the values expressed by its words. Both the majority and the dissent devote nearly 108 pages discussing historical lineage for those words. And it is a demanding read. I hope those reviewing my colleagues' history lessons will accept the exercise for what it obviously is—hard working judges trying to honestly answer the questions presented in good faith. But for me, an originalism search gets us only so far when divining meaning for words with such obvious open-ended qualities as "liberty" or "inalienable natural rights." The historical back-and-forth really just boils down to how much weight is given one selected fact over another.

I believe our framers had to understand this interpretative dynamic and picked those particular words because they require contemporary context. This means we must apply what "liberty" and "inalienable natural rights" mean in the real world today for a pregnant woman. In doing so, that necessarily demonstrates meaningful limitations on the government's ability to elbow its way into the decisions she must make concerning her pregnancy.

The district court did not abuse its discretion by temporarily enjoining S.B. 95's enforcement pending trial.

STEGALL, J., dissenting:

This case is not only about abortion policy—the most divisive social issue of our day—it is more elementally about the structure of our republican form of government. Which is to say, this case is about the proper conditions for just rule. At bottom, this case is about finding and drawing the sometimes elusive line between law and arbitrary exercises of power. Here we venture onto a battlefield as old as politics itself. And as we argue about the structure of government—and ultimately delineate the proper conditions for just rule—we must never forget that we are also actively engaged in ruling.

The structural idea that gave birth to Kansas as a political community, which has achieved consensus support across most of our history, is that the proper conditions for just rule are met via participatory consent to secure and promote the common welfare.

Today, a majority of this court dramatically departs from this consensus. Today, we hoist our sail and navigate the ship-of-state out of its firm anchorage in the harbor-of common good and onto the uncertain waters of the sea-of-fundamental-values. Today we issue the most significant and far-reaching decision this court has ever made.

The majority's decision is so consequential because it fundamentally alters the structure of our government to magnify the power of the state—all while using that power to arbitrarily grant a regulatory reprieve to the judicially privileged act of abortion. In the process, the majority abandons the original public meaning of section 1 of the Kansas Constitution Bill of Rights and paints the interest in unborn life championed by millions of Kansans as rooted in an ugly prejudice. For these reasons, I dissent.

Oral argument video linked here. The argument is 2 1/2 hours. (Mike Frisch)

April 26, 2019 in Current Affairs | Permalink | Comments (0)