Author: JGL Law

More than 9,000 Victims Affected by Illegal Kickback Scheme

In U.S. District Court for the District of Maryland, Joseph, Greenwald & Laake, PA and Smith, Gildea & Schmidt, LLC filed a Motion to Approve the Settlement for the amount of $16.2 million on behalf of more than 9,000 consumers alleged to be victims of an illegal kickback scheme involving Genuine Title of Owings Mills, Maryland.

The lawsuit alleged that from 2009 through early 2014, Genuine Title provided kickbacks to Wells Fargo licensed mortgage brokers in exchange for referring borrowers to Genuine Title for title insurance and settlement services. Approximately 9,500 loans originated by the defendant, Wells Fargo, were involved in this settlement. Wells Fargo is responsible for the payment of settlement funds, which will be awarded within 90 days after finality of the settlement.

“Clients at the settlement table had no way of knowing about these kickbacks,” said Timothy Maloney, a principal with Joseph Greenwald & Laake, PA who represented the plaintiffs in this case along with Michael Paul Smith, from Smith, Gildea & Schmidt, LLC. “We are happy this lawsuit brought these practices to light and that we have been able to obtain a significant recovery for consumers of title services.”

Wells Fargo is the first lender to settle in the Genuine Title lawsuits. Joseph, Greenwald & Laake and Smith, Gildea & Schmidt currently have cases against nine banks/mortgage companies, Genuine Title and three of its sham marketing companies.

“It is gratifying to help those who were victimized unknowingly by Genuine Title. These types of back-room deals have no business in the real estate industry,” said Smith, from Smith, Gildea & Schmidt, LLC.

For more information on this case or other litigation matters, please contact Timothy Maloney at tmaloney@jgllaw.com or Veronica Nannis at vnannis@jgllaw.com.

David Bulitt and Rama Taib-Lopez recently addressed modern family law issues in an article they authored for the Daily Record’s Maryland Family Law Update. Entitled Commentary: Obergefell’s far-reaching impact on family law issues involving same-sex couples, the article discusses recent cases where same-sex couples face legal challenges resulting from divorce, including adoption, custody and visitation.

The law’s recognition of same-sex marriages following the U.S. Supreme Court’s ruling in June of 2015, has led to various scenarios that were previously not addressed in family law. Citing a same-sex divorce case, Conover v. Conover, where child visitation was in dispute, Bulitt and Taib-Lopez examine the legal implications of issues resulting from same-sex marriages and divorces. “In the era of marriage equality, Frosh’s opinion, followed by the evocations in Conover v. Conover, reflects the next wave in the area of law surrounding same-sex marriages founded on the principle of equal treatment in all aspects of marriage.”

As we move forward toward equal treatment under the law, the authors agree, “there is still much work to be done, adjusting the laws and adapting how the laws are applied, to accommodate all family types. But, as Nazarian so aptly stated, ‘We have to start somewhere.’”

For more information on family law matters, including divorce, child custody and visitation, contact David Bulitt at dbulitt@jgllaw.com or Rama Taib-Lopez at rtaiblopez@jgllaw.com.

Joseph, Greenwald & Laake, P.A. is pleased to announce that attorneys Matthew M. Bryant and Eleanor A. Hunt have been elevated to senior counsel at the firm.

“We are thrilled to recognize Matthew and Eleanor’s professional development and contributions to our firm,” said David Bulitt, assistant managing director of the firm.

Bryant has represented clients in matters involving employment disputes, professional licensing, civil rights violations and criminal defense. He also has an active appellate practice. Prior to joining the firm, Bryant clerked for the Honorable Kathryn Grill Graeff of the Maryland Court of Special Appeals and the Honorable Michele D. Jaklitsch of the Circuit Court for Anne Arundel County.

Bryant earned his law degree from the University of Maryland School of Law and holds an A.B., magna cum laude, from Kenyon College.

Hunt, a member of the firm’s Family Law practice, represents clients in divorces, adoptions, child custody and visitation disputes, domestic violence proceedings, and child and spousal support matters. Previously, she practiced as a transactional real estate attorney, working on residential real estate settlements, advising homeowners’ associations and condo associations, and drafting residential real estate contracts and leases.

Hunt holds a law degree from The George Washington University Law School and a B.A. from St. Mary’s College of Maryland.

JGL employment attorney, Brian Markovitz, spoke to Fox News yesterday regarding a recent religious and military discrimination case involving a DC police officer. As a practicing catholic and former marine, Officer Joe Tridico was subjected to daily harassment from his co-workers and superiors.

Representing Tridico, Markovitz describes the workplace harassment his client endured while serving in the Washington DC police’s Sixth District department. After praying and making the sign of the cross one day before lunch, he was subsequently mocked by his sergeant who shouted, “Look at him. That’s why he’s so weird. He believes in that weirdo Jesus sh%^.” Markovitz explains that the name calling “morphed itself into a nickname for him, which became ‘weirdo’ and they just continually called him that, and that was a direct reference to his faith and it was triggered by him praying.”

The workplace harassment persisted and “at one point, they hung up a picture of the Pope, John Paul II, right next to his desk and put the word ‘weirdo’ over it” said Markovitz.

The jury found that Tridico was retaliated against by the Sixth District department after reporting the harassment to his superiors. As Markovitz explains, “they essentially didn’t do anything to help him, and what they did eventually is they transferred him to another unit and left the individuals who were harassing him in place.”

Officer Tridico was awarded $20,000 and “was very pleased.  He’s glad he got some vindication,” said Markovitz. 

Since leaving the Sixth District department, Tridico has been transferred and promoted. He now serves in the Third District detective unit.

If you have filed for custody and/or divorce in Maryland, you’ve likely heard the term Best Interest Attorney. In fact, at your initial conference with the Court, the Magistrate conducting the conference may ask you if your case requires any “services.” That is court-speak for the appointment of a Custody Evaluator, Best Interest Attorney or Child Privilege Attorney. As such, you may want to familiarize yourself with the role of a Best Interest Attorney and his or her role in representing your child(ren).

Pursuant to Md. Ann. Code, Family Law Art. § 1–202, in actions concerning a minor child’s custody, visitation, or child support, “the court may: (1) appoint to represent the minor child counsel who may not represent any party to the action; and (2) impose against either or both parents counsel fees.” The appointed attorney may fill various roles, including reporting the children’s preferences to the court, investigating the reasons for the children’s preferences, and making an independent determination of their best interests. See Leary v. Leary, 91 Md. App. 26, 40, 627 A.2d 30 (1993).

One of the rationales for appointing an attorney for children is that they may become “pawns” in their parents’ fight to prevail on issues such as custody, visitation, or child support. See Lapides v. Lapides, 50 Md.App. 248, 250, 437 A.2d 251 (1981). The legislature has vested in trial judges the authority to appoint attorneys, or guardians ad litem, to serve the crucial function of representing children’s rights and interests in their parents’ custody disputes. See Md. Ann. Code, Family Law Art. § 1–202. In another decision, the Court of Appeals (the highest appellate court in Maryland) explained that this is rooted in ensuring the best interest of the child:

In resolving custody disputes, we are “governed by what is in the best interest of the particular child and most conducive to his welfare. This best interest standard is firmly entrenched in Maryland and is deemed to be of transcendent importance.” Ross v. Hoffman, 280 Md. 172, 174–75, 372 A.2d 582, 585 (1977) (footnote omitted). Keeping in mind “the best interest of the child,” we believe the appointment of an attorney to act as the guardian of the child in the instant matter is required. Furthermore, the appointment of a neutral third party would eliminate the very real possibility, as may exist in this case, of one of two warring parents exercising the power of veto for reasons unconnected to the polestar rule of “the best interests of the child.”

Nagle v. Hooks, 296 Md. 123, 128, 460 A.2d 49, 51 (1983) (footnote omitted).

“Thus, it has become the policy of this State, as enunciated in Nagle, that, when the parents are involved in a custody dispute and the child requires representation, the ‘best interest of the child’ may require appointment of a neutral attorney to act as the child’s guardian.” Auclair v. Auclair, 127 Md. App. 1, 16, 730 A.2d 1260, 1268 (1999) abrogated on other grounds by Fox v. Wills, 390 Md. 620, 890 A.2d 726 (2006).

In determining whether to appoint counsel, Maryland Rule 9-205.1(b) “Appointment of Child’s Counsel” states:

(b) Factors. In determining whether to appoint child’s counsel, the court should consider the nature of the potential evidence to be presented, other available methods of obtaining information, including social service investigations and evaluations by mental health professionals, and available resources for payment. Appointment may be most appropriate in cases involving the following factors, allegations, or concerns:

(1) request of one or both parties;

(2) high level of conflict;

(3) inappropriate adult influence or manipulation;

(4) past or current child abuse or neglect;

(5) past or current mental health problems of the child or party;

(6) special physical, educational, or mental health needs of the child that require investigation or advocacy;

(7) actual or threatened family violence;

(8) alcohol or other substance abuse;

(9) consideration of terminating or suspending parenting time or awarding custody or visitation to a non-parent;

(10) relocation that substantially reduces the child’s time with a parent, sibling, or both; or

(11) any other factor that the court considers relevant.
[…]

In Garg v. Garg,[1] the Court of Special Appeals discussed the importance of appointing counsel for the minor child:

The relevance of the child’s position and the fundamental importance of counsel’s role are underscored by the function of the child’s counsel in an acrimonious custody dispute. To that end, Md.Code, F.L. § 1–202 authorizes the circuit court to appoint counsel for a child to provide the court with an “independent analysis” of the child’s position. John O. v. Jane O., 90 Md.App. 406, 436, 601 A.2d 149 (1992). Indeed, “[t]he purpose of § 1–202 is to afford the court an opportunity to hear from someone who will speak on behalf of the child.” Id. at 435–36, 601 A.2d 149 (citation and internal quotation marks omitted). The statute thus recognizes that the interests and positions of the parents in these cases are not necessarily congruent with those of the children, and that the child is entitled to an advocate who will champion the child’s position. See Levitt v. Levitt, 79 Md.App. 394, 403–04, 556 A.2d 1162 (concluding that trial court should have appointed counsel for child in custody modification proceeding, although no party had apparently ever moved for appointment of counsel), cert. denied, 316 Md. 549, 560 A.2d 1118 (1989).

To be sure, [the child] was not a casual bystander in these proceedings. Yet, without the presence of counsel, his voice was not clearly heard. …

Given that [the child] will be profoundly affected by the outcome of the case, fundamental fairness suggests that he should have had a lawyer to articulate his interest and to assist on the critical and complex issues that were determinative of his future. Because [the child’s] interests were not represented below, and the outcome of the case will have a colossal impact on his life and that of his parents, we cannot overlook the failure to appoint counsel for him.

Garg v. Garg, 163 Md. App. 546, 577-78, 881 A.2d 1180, 1198 (2005) rev’d, 393 Md. 225, 900 A.2d 739 (2006) (bold emphasis added) (first alteration in original).

Many times, where there is a highly contested custody dispute, the best interests of the children require appointment of a neutral attorney to act as the child’s guardian and represent their rights and interests. See Auclair v. Auclair, 127 Md. App. 1, 16, 730 A.2d 1260 (1999). In Auclair, a guardian ad litem was appointed to represent the minor children in their parent’s contested divorce. While many parents may lobby to gain the Best Interest Attorney’s favor or his or her ultimate recommendation, the appointment of a best interest attorney is solely for the child’s benefit and support. In re Blaemire, 229 B.R. 665 (D. Md. 1999).

It is never ideal to have children testify. The Court’s appointment of a Best Interest Attorney can meet the objective of considering the children’s preferences without subjecting the child(ren) to the scrutiny of being in court or the later ramifications of believing they may have played a part in the dissolution of their family.

David Bulitt, Esquire is a principal in this firm’s Family Law Group and is often appointed by the Judges of the Circuit Court to represent children. David is an excellent resource to attorneys and colleagues who have further questions regarding Best Interest Attorneys and their role in representing children.

Timothy F. Maloney was recently quoted as an expert source in a Washington Post article regarding the Freddie Gray case. The issue relates to Baltimore police officer William G. Porter being called as a prosecution witness against fellow officers Caesar R. Goodson Jr. and Alicia D. White while awaiting a retrial on charges of involuntary manslaughter. Porter was offered limited immunity for his testimony, which his lawyers say cannot be enforced.

“Maryland lawyer Timothy Maloney said he does not see how Goodson’s trial could move forward with Porter as a witness until judges consider an appeal. Maloney was a member of a commission reviewing the state’s criminal code in the 1980s and raised questions about the constitutionality of the type of immunity prosecutors are offering to compel Porter’s testimony.”

“There are real questions with the enforceability of that promise,” Maloney said of the proposed immunity. “It is a very important question, and it is one that has to be litigated now or never . . . because once he testifies, he loses his right to remain silent.”

Maloney said “transactional immunity,” which is broader, would be more appropriate but would prevent prosecutors from retrying Porter.

Joseph, Greenwald & Laake, P.A. is pleased to announce that 12 firm attorneys have been named Maryland “Super Lawyers” or “Rising Stars” for 2016. In addition, firm partner Timothy F. Maloney also was selected to the 2016 Maryland Super Lawyers Top 100 list.

The firm’s other 2016 “Super Lawyers” are David Bulitt; Jeffrey N. Greenblatt; Andrew E. Greenwald, Jay P. Holland; Burt M. Kahn; Walter E. Laake, Jr.; Timothy P. O’Brien and Steven B. Vinick. Matthew M. Bryant, Anne Grover and Veronica Nannis and are the firm’s 2016 Super Lawyers “Rising Stars.”

Published by Thomson Reuters, Super Lawyers recognizes only the top 5 percent of all Maryland attorneys who embody excellence in the practice of law. Regarded as among the state’s top up-and-coming attorneys, the Super Lawyers Rising Stars must be 40 years old or younger, or have been in practice for 10 or fewer years. Super Lawyers are chosen through statewide surveys of attorneys, independent research and peer reviews by practice area.

Maloney was honored for his work in the General Litigation practice category. He has obtained millions of dollars in recoveries for his clients in a wide variety of complex matters, including civil rights, employment discrimination, whistleblower actions and high-stakes business litigation. He also has successfully taken on the government in numerous high-profile police misconduct and criminal defense cases. Maloney earned his law degree from the University of Baltimore School of Law and holds a B.A. from Georgetown University.

Bulitt, who serves as the firm’s assistant managing director, was recognized for his practice in the Family Law category. He helps clients reach favorable divorce settlements that protect their rights, their assets and their children, as well as other family law matters. He has successfully litigated divorce cases throughout Maryland and the District of Columbia and has served as a court-appointed attorney on behalf of children in custody disputes. Bulitt earned his law degree from the University of Baltimore School of Law and a B.A. from the University of Maryland.

Greenblatt was listed in the category of Family Law. For more than 40 years, he has represented clients in matters including prenuptial agreements, divorce, alimony, child custody, visitation and support, complex marital property division, and domestic violence. Greenblatt earned his law degree from the American University Washington College of Law and holds a B.S. from Syracuse University.

Greenwald was recognized for his work in the category of Personal Injury – Medical Malpractice: Plaintiff. A founding member of the firm, Greenwald has obtained millions of dollars in recoveries for his clients. He is widely recognized as a leading birth trauma and obstetrical malpractice attorney and has been called upon by lawyers in many other states to evaluate and litigate medical malpractice cases. Greenwald earned his law degree from Georgetown University Law Center and also holds a B.S. from the University of Wisconsin.

Chair of the firm’s Labor, Employment, and Qui Tam Whistleblower practice, Holland was named a “Super Lawyer” in the Employment & Labor Law category. He counsels clients in individual and class action cases involving gender and race discrimination and sexual harassment, violations of the wage and hour laws, and wrongful termination. He also has an active qui tam practice, representing whistleblowers in actions under the federal False Claims Act. Holland earned his law degree from the Catholic University of America Columbus School of Law and holds a B.A. from the University of Massachusetts.

Managing director of the firm, Kahn was recognized for his work in the Medical Malpractice category. Over the past four decades, he has distinguished himself as one of the go-to litigators in Maryland and Washington, DC, for cases where law and medicine intersect. He has obtained millions of dollars in compensation for injured clients, often without going to trial. Kahn earned his law degree from the American University Washington College of Law. He also has a B.A. from State University of New York.

A founding member of the firm, Laake was honored for his practice in the category of Personal Injury – Plaintiff. He has more than four decades of experience and has obtained millions of dollars in verdicts and settlements for injured clients. His work also has established many important legal principles that protect the rights of injured people, including the first case in Maryland – in the 1970s – that applied strict liability to a product liability case. Laake holds a law degree from the University of Maryland School of Law and a B.A. from the University of Maryland.

O’Brien was honored for his practice in the category of Estate Planning & Probate. He has more than two decades of experience advising clients on a wide range of estate and trust issues. He has helped families recover estate assets that have been misused, settle tax liabilities with the IRS, and protect assets for future generations. He also assists with the administration of estates, trusts and guardianships. O’Brien holds a law degree from the University of Baltimore School of Law and a B.S. from Frostburg State College.

Vinick was recognized for work in the category of Personal Injury – Plaintiff. He has more than 20 years of experience in representing clients in matters including medical malpractice, personal injury and criminal defense. He has obtained numerous significant verdicts on behalf of his clients and has earned a reputation as a skilled litigator and highly effective courtroom advocate. Vinick holds a law degree, cum laude, from the University of Baltimore School of Law and a B.A., magna cum laude, from the University of Maryland at College Park.

Bryant was recognized for his work in the General Litigation category. He has represented clients in matters involving employment disputes, professional licensing, civil rights violations and criminal defense. He also has an active appellate practice. Bryant earned his law degree from the University of Maryland School of Law and holds an A.B., magna cum laude, from Kenyon College.

Grover was recognized for her practice in the category of Family Law. She has represented clients throughout Maryland, as well as in interstate jurisdictional matters and appeals. Her work has involved separation and divorce, child custody disputes, contempt and enforcement proceedings, drafting and negotiating prenuptial agreements, and obtaining protective orders. Grover earned her law degree, cum laude, from the American University Washington College of Law. She also holds a B.A. from Catholic University of America.

Nannis was honored for her work in the Civil Litigation category. She has represented clients in civil matters involving civil rights, employment law and commercial disputes. She also is a leader in the firm’s qui tam practice, representing whistleblowers who report misuse of government health care funds under the federal False Claims Act. Nannis earned her law degree, cum laude, from the Catholic University of America Columbus School of Law. She also holds a M.A., summa cum laude, from the Catholic University of America and a B.A., magna cum laude, from George Washington University.

Joseph, Greenwald & Laake’s, Jay Holland recently discussed noncompete clauses with Family Practice News. When reviewing employment contract language, Holland stresses the importance of understanding your state’s employment laws, since noncompete rules vary widely from state to state. 

Physicians should consider their, “career and lifestyle goals carefully prior to entering into a noncompete. The first approach should always be an attempt to exclude the noncompete from your prospective agreement if you are joining a practice. If a noncompete is unavoidable, then strive to make it the least onerous possible.” 

In general, he recommends that “noncompete clauses should be no greater in scope than is necessary to protect the business or goodwill of the employer.”

For more information on employment contracts or noncompete clauses, contact Jay Holland at jholland@jgllaw.com or 240-553-1198.

The full article can be found at Family Practice News – Noncompete clauses: Be wary, negotiate early.

 

This week, a judge in Los Angeles, California vacated a $7.1 million verdict in favor of former Los Angeles Times sports columnist T.J. Simers, who claimed that the paper discriminated against him because of his age and disability. Simers alleged that the discrimination began after he suffered a stroke and other health problems in 2013, when he was 62 years old. Among other things, the newspaper cut his column from three times a week to two, and suspended him for alleged ethics violations. The newspaper ultimately took his column away altogether and reassigned him to sports reporting, which Simers considered a demotion. After the demotion, Simers resigned.

Or was he terminated? In a lawsuit against the Times, Simers argued that the newspaper’s actions against him were discriminatory and that his resignation was effectively a termination—a constructive discharge. After a six-week trial in October, a jury agreed with Simers, and awarded him $7.13 million dollars in damages.

Unfortunately for Simers, the judge disagreed. On Monday, the judge vacated a substantial part of the jury’s damages award, and yesterday he vacated the remainder of the award—stripping it down to nothing. According to news reports, the judge ruled that Simers had failed to prove he was constructively discharged, rather than having voluntarily resigned, explaining: “An employee who is demoted is not simply permitted to quit and sue because they do not like the new assignment . . . . While it may be a difficult experience to be criticized and demoted, an employee’s embarrassment and hurt feelings do not transform a resignation into a constructive discharge.”

Simers’ case raises one of the thorniest issues in employment law—the difference between a resignation and a constructive discharge. Generally, there are three ways that an employment relationship can end: (1) resignation, (2) termination, or (3) constructive discharge. A resignation is considered to be a voluntary act by the employee, for which the employer cannot be held liable. A termination is an adverse action by the employer, for which the employer can be held liable if it terminated the employee for an unlawful reason, such as the employee’s age, disability, race, or religious beliefs.

Constructive discharge involves elements of both a resignation and a termination, but is neither. Constructive discharge occurs when an employer discriminates against or harasses an employee so severely that the employee’s working conditions become intolerable. In such a case, if the employee resigns because of the severity of the workplace discrimination or harassment, the law views this resignation as actually being a termination. Even though the employer did not directly terminate the employee, courts have said that the resignation amounts to a “constructive” termination, or “constructive discharge.”

There are sound policy reasons for the constructive-discharge doctrine. If the doctrine did not exist, an employer could avoid liability for discrimination or unlawful harassment by making simply making an employee’s working conditions unbearable, driving the employee to resign.

As Mr. Simers discovered, a constructive discharge can be difficult to prove, however. Maryland courts have said that to succeed on such a claim, an employee must prove that the employer “deliberately caused or allowed the employee’s working conditions to become so intolerable that a reasonable person in the employee’s place would have felt compelled to resign.”[1] Courts have said that “[d]issatisfaction with work assignments, a feeling of being unfairly criticized, or difficult or unpleasant working conditions are not so intolerable as to compel a reasonable person to resign.”[2] As the judge in Simers’ case said, “an employee’s embarrassment and hurt feelings do not transform a resignation into a constructive discharge.”

If, however, the employer’s actions rise to the level that “a reasonable person in the employee’s position would have felt compelled to resign,” the resignation might constitute a constructive discharge.[3] As the Fourth Circuit Court of Appeals put it, “[t]he doctrine of constructive discharge protects an employee from a calculated effort to pressure him into resignation through the imposition of unreasonably harsh conditions, in excess of those faced by his co-workers.”[4]

An employee who is constructively discharged may sue for damages, including back pay and compensation for mental and emotional suffering. Any employee who believes that he or she is being discriminated against or unlawfully harassed faces a challenging legal situation and should immediately consult with an employment attorney.

In a recent Washington Post article, The legal maneuver that allows corporations to pretend that state laws don’t exist, Jay Holland addresses how companies are dodging Maryland Employment laws by including “choice-of-law” provisions in their employee contracts. These provisions essentially allow businesses to pick which state will govern their employment related matters. While this standardizes agreements for companies who operate nationally, it also allows them to protect their own interests.

As Jay Holland stated in the Washington Post article, “These laws — wage and hour laws, discrimination, consumer protection —  are intended to be broadly interpreted, broadly construed, to provide protection to individuals who did not necessarily have the power to individually negotiate their contracts. The courts seem to be losing sight of that, in my view.”

For more information on employee contracts or other employment related legal matters, contact Jay Holland at 240-553-1198 or jholland@jgllaw.com.

On September 17, 2015, the U.S. District Court for the Eastern District of Virginia dismissed the Title IX claim of G.G., a transgender junior at Gloucester High School in Virginia who was born female but identifies as male.[1] G.G. alleged that the school board’s policy prohibiting him from using the boys’ bathroom violated the Equal Protection Clause and Title IX of the Education Amendments of 1972.[2] G.G. recently appealed the court’s decision to the Fourth Circuit on October 21, 2015.[3]

At the start of his sophomore year, G.G. was permitted by school administrators to use the boys’ restroom at his school.[4] However, some members of the community began to complain, and two months after granting G.G. this permission, the school board instituted a policy requiring students to use the restrooms and locker rooms that correspond to their “biological genders.”[5] The school board also required schools to provide transgender students with an “alternative appropriate private facility.”[6] The school subsequently installed three unisex, single-stall restrooms and made adjustments to its communal bathrooms, such as raising the doors and walls of bathroom stalls.[7] But G.G. has protested these requirements, arguing that he cannot use the girls’ restroom as girls and women would react negatively to his masculine appearance and that the use of the single-stall restrooms would cause undue stigmatism and isolation.[8]  

On behalf of G.G., the American Civil Liberties Union (“ACLU”) and the ACLU of Virginia filed suit against the Gloucester County School Board, alleging that the bathroom policy is unconstitutional under the Fourteenth Amendment and discriminates on the basis of sex in violation of Title IX. They also filed a motion for preliminary injunction to enjoin the school from enforcing its policy and thereby permitting G.G. to use the boys’ restrooms at the start of the 2015-2016 school year.

In G.G. v. Gloucester County School Bd., the Eastern District of Virginia denied G.G.’s motion for preliminary injunction and dismissed the Title IX claim.[9] Title IX prohibits discrimination on the basis of sex in education programs or activities by recipients of federal financial assistance.  Specifically, G.G. argued that the school board’s resolution violated Title IX by differentiating “between students who have a gender identity congruent with their birth sex, and those who do not.”[10] The court found that a Department of Education regulation, 34 C.F.R. § 106.33, permits schools to provide separate bathroom facilities on the basis of sex as long as the facilities are comparable, and a clear reading of the term “sex” includes biological sex.[11] It explained that this regulation “effectuate[s] Title IX’s provision allowing separate living facilities based on sex.”[12] The court held that because the school board’s policy of providing separate bathrooms based on biological sex was permissible under § 106.33, it did not need to determine whether the term “sex” in § 106.33 includes “gender identity.”[13]  Furthermore, the court denied G.G’s motion for preliminary injunction, finding that he had failed to prove adequate proof of hardship.[14]

On October 21, 2015, the ACLU filed its appeal to the U.S. Court of Appeals for the Fourth Circuit.[15] The United States Government filed a friend-of-the-court brief in support of G.G..[16] A hearing is scheduled for January 27, 2016.

An “increasingly contentious issue”[17]

The Eastern District of Virginia is not the only jurisdiction considering the rights of transgender students to use the school bathroom or locker room associated with their gender identity, rather than their biological gender. Currently on appeal in the Third Circuit is a decision by the U.S. District Court for the Western District of Pennsylvania which held, in part, that a transgender college student did not have a Title IX discrimination claim because Title IX’s prohibition on discrimination “on the basis of sex” only refers to one’s biological sex.[18] The U.S. Department of Education clearly set forth its position on what has been called an “increasingly contentious issue” when it recently issued a finding that an Illinois school district violated Title IX by denying a transgender student athlete, who identifies as female, access to the girls’ locker room.[19] 

Has Maryland weighed in?

On October 27, 2015, the Maryland Department of Education issued guidelines on non-discrimination and providing safe spaces and supportive environments for transgender and gender non-conforming students across the state,[20] which were lauded by the National Center for Transgender Equality.[21] The Department of Education acknowledged that “[p]erhaps the most difficult and sensitive issue school administrations will face is the bathroom and locker rooms.”[22] The guidelines suggest that schools systems permit access to the bathroom and locker room that corresponds to the student’s gender identity and that schools designate a unisex or gender-neutral single stall bathroom that may be used by all students. The Department also suggests that schools provide private, non-stigmatizing space for students who are uncomfortable with shared locker rooms or who desire increased privacy.

Maryland Senate Bill 212: The Fairness for All Marylanders Act, which went into effect last October, added “gender identity” to the list of protected classifications under the Civil Rights Law of Maryland and prohibits discrimination by places of public accommodation on the basis of gender identity.[23] However, schools are not considered “places of public accommodation” under the Act.[24]

The Maryland Department of Education acknowledged that the law has not settled on whether it is discriminatory to require transgender students to use a particular bathroom or locker room.[25] These policies are likely to develop and change over the next few years as the law develops not only in Maryland but across the country.

 

As previously discussed in this blog, in the spring of 2014, the Maryland Court of Special Appeals in State v. Hailes,[1] made important rulings regarding several evidentiary issues. The Hailes court held that a “hard blink” can be a statement, that a “Dying Declaration” does not require actual imminent death, only a belief of imminent death, and that the Confrontation Clause of the Sixth Amendment does not suppress a dying declaration.[2] After further appeal, the Court of Appeals of Maryland recently affirmed that decision.

On November 22, 2010, Melvin Pate was shot once in the right side of his face. The bullet passed through Pate’s neck and severed his spinal cord. Pate lost the ability to speak and to could no longer move any of his extremities. Two days after Pate was shot he was transferred to the Shock Trauma Center at the University of Maryland Medical Center in Baltimore. Immediately after Pate arrived at Shock Trauma doctors told him that he had twenty-four hours to live. His eyes welled up with tears.

Two days later, on November 26, 2010, detectives showed Pate a photographic array that included a photo of Hailes. Pate “blinked hard” when shown a photo of Jermaine Hailes, thereby identifying him as his assailant. When Pate blinked, his prognosis had not changed, he was on medical life support, and “by all indications, believed that his death was imminent.”[3] Nonetheless, Pate survived for two more years, eventually passing away on November 27, 2012 as a result of complications caused by the gunshot wound. Hailes was indicted for first-degree murder on December 11, 2012.[4]

In the trial court, Hailes moved to suppress Pate’s out-of-court identification, alleging that Pate could not “communicate,” that Pate’s hard blink was not a dying declaration, and that such an identification violated Hailes’ rights under the Confrontation Clause of the Sixth Amendment.[5] Hailes prevailed on his motion and the State took an interlocutory appeal.[6] For the first time in Maryland, the court had to determine whether a hard blink was an admissible Dying Declaration and whether its use violated Hailes’ Sixth Amendment Rights.

The Court of Special Appeals first held that blinking “is a legally acceptable mode of communication.”[7] The Court of Special Appeals then went on to say that the actual time of death is immaterial, and that the necessary element is a subjective one – the declarant’s expectation of imminent death.[8] After recognizing that Pate’s hard blink amounted to a dying declaration, the court turned to whether its admission would violate the Sixth Amendments’ Confrontation Clause. After analyzing the Supreme Court’s decision in Crawford v. Washington,[9] the court held that the Confrontation Clause does not apply to Dying Declarations so the Clause’s various requirements need not be addressed, let alone satisfied.

In affirming the Court of Special Appeals, the Court of Appeals agreed that Pate’s identification was a “communication”; it agreed that Pate’s hard blink amounted to a Dying Declaration; and that a Dying Declaration was indeed an exception to the Sixth Amendment.

The Court of Appeals reviewed the factual evidence for clear error. It held that the trial court was correct in determining that Pate’s identification of Hailes was a dying declaration. The Court stated that it was undisputed that: Pate was shot in the face, that pate lost the ability to speak and move, that a doctor told his mother in front of him that he “wouldn’t make it,” and that Pate’s eyes welled up with tears.[10] The Court of Appeals was, likewise, “unconvinced” by Hailes’ reliance on the fact that Pate died two years after he identified Hailes.

The Court then moved on to its analysis of the Confrontation Clause. In reviewing historic precedent, the Court of Appeals affirmed the Court of Special Appeals and ruled that “we reach the same conclusion that Supreme Court has consistently endorsed for more than a century, and hold that the Confrontation Clause does not apply to dying declarations.”[11] The Court then went on to say that “although it is accurate that, in Crawford and its progeny, the Supreme Court has not yet held that the Confrontation Clause does not apply to dying declarations, our holding is entirely consistent with Crawford and its progeny.”[12] Dying declarations were an exception to the common law Right of Confrontation when the Sixth Amendment was ratified, and remain so today. The Court, like the Court of Special appeals then declined to address whether Pate’s identification of Hailes was testimonial or non-testimonial.[13]

The law in the State of Maryland is now settled.