Case of the trespassing toddler heads to trial

Top court sends pool-fence case back for trial

By: Steve Lash Daily Record Legal Affairs Writer

WASHINGTON (April 28, 2014) – Thirteen attorneys from Joseph, Greenwald & Laake have been chosen as Washington, DC, “Super Lawyers” and “Rising Stars” for 2014 by Super Lawyers magazine.

The following attorneys were selected in their respective practice areas this year:

Washington, DC Super Lawyers 2014

• Andrew Greenwald: Personal Injury – Medical Malpractice Plaintiff
• Walter Laake, Jr: Personal Injury – General Plaintiff
• Burt Kahn: Personal Injury – Medical Malpractice Plaintiff
• Steve Pavsner: Personal Injury – Medical Malpractice Plaintiff
• Timothy Maloney: General Litigation
• David Bulitt:  Family Law

Washington, DC Rising Stars 2014

• Veronica Nannis: Civil Litigation Plaintiff
• Matt Bryant: General Litigation

Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The publication names exceptional attorneys annually in all 50 states and Washington, DC, using a rigorous selection process that begins with peer nomination. Once attorneys have been nominated, they are evaluated on 12 indicators of peer recognition and professional achievement through a third-party researcher.

You’re not planning board, P.G. council told

Court of Special Appeals says authority to reverse zoning rulings is limited

The Prince George’s County Council has limited authority to overturn zoning decisions of the county planning board, a Maryland appeals court held this week — to the delight of a developer whose plan to build a shopping center in Adelphi won board approval but was rejected by the council.

In a 3-0 decision, the Court of Special Appeals said council members may not overturn a planning board decision because they disagree with it. The council may reject the board’s decision only if it was “arbitrary, capricious, discriminatory or illegal,” the intermediate court said, citing state and county law.

The court’s decision, unless appealed, clears the way for Wilmington, N.C.-based Zimmer Development Co. to begin building retail shops on a 4.14-acre property along Powder Mill Road near Riggs Road.

The council will meet next week to decide whether to seek review of the decision by Maryland’s top court, the Court of Appeals, said Rajesh A. Kumar, principal attorney for the District Council, the name given to the County Council when it sits to review planning board actions.

“The District Council will take this matter up promptly next week to discuss their appellate options because of the public policy implications of the Court of Special Appeals’ decision, including divesting the District Council of original jurisdiction in zoning matters,” Kumar said Thursday.

Zimmer Development’s attorney, Timothy F. Maloney, said the decision “fundamentally changes the way all zoning cases are held in Prince George’s County.”

The ruling “really protects the integrity of the planning board’s decisions and insulates them from political influence through the District Council,” added Maloney, of Joseph, Greenwald & Laake P.A. in Greenbelt.

The planning board consists of five members, including a chairperson, nominated by the county executive and confirmed by the council to four-year terms.

The Court of Special Appeals’ decision Wednesday addressed the scope of the Maryland Regional District Act, which created the county’s planning board, and of the Prince George’s County Code, which empowers the council to affirm, reverse or modify the board’s decisions.

The court said the act and code give the council the “appellate authority” to overturn the board’s decisions. The council has no authority to examine a developer’s plan anew, the court added in upholding a circuit court judge’s decision.

“Indeed, if the District Council were vested with de novo review, the planning board’s legal responsibility to engage in fact finding would be rendered meaningless,” Judge Stuart R. Berger wrote for the Court of Special Appeals. “The planning board’s thorough evidentiary processes could be simply discarded in favor of the review by the District Council, which neither conducts its own evidentiary hearing nor develops its own record.”

The Prince George’s County Planning Board initially approved Zimmer Development’s design plan in summer 2011, according to Berger’s opinion.

GREENBELT, Md. (June 18, 2014) – Joseph, Greenwald & Laake, P.A. is pleased to announce that founding firm member Walter E. Laake, Jr. has received the James H. Taylor Award from the Prince George’s County Bar Association (PGCBA) for his outstanding contributions to the bar and the community.

Laake, who currently serves as Of Counsel to the firm, was honored at the PGCBA’s June 10 Annual Meeting.

“Throughout his career, Walter has set a high standard of excellence through his talent and reputation as one of the region’s leading personal injury lawyers and as an ambassador for the local bar community,” said Burt M. Kahn, the firm’s president. “We congratulate Walter on this recognition and express our gratitude for his ongoing contributions to the firm.”

The PGCBA award is named after Judge Taylor, who was appointed to the bench of the Seventh Judicial Circuit of Maryland in November 1969 and served for 18 years, mainly handling family and juvenile cases. Judge Taylor was the first African-American circuit court judge in Prince George’s County.

Laake has more than four decades of experience as a personal injury lawyer, obtaining millions of dollars in verdicts and settlements for injured clients during his career. Among his recent victories, Laake obtained a $1 million recovery on behalf of a disabled father of four in a medical malpractice action, and a $4.5 million settlement with a Washington, DC hospital for the family of an infant who suffered brain injury due to a doctor’s negligence. In the 1970s, Laake litigated the first case in Maryland that applied strict liability to a product liability case.

Laake is a past president of the Maryland Association for Justice (formerly the Maryland Trial Lawyers Association) and the PGCBA.

Image source: http://eventityinc.com/blog/wp-content/uploads/2012/08/nov05-Sleeping-Beauty-prenup350.png

Introducing a prenuptial agreement shortly after getting engaged is not the most romantic way to celebrate the forthcoming union, but there are ways to make it easier for your future spouse to put up with your request, as well as ensure it is not later invalidated or nullified. A court can invalidate a prenuptial agreement if it finds that there was, among other things, fraud, duress, coercion, mistake, undue influence or unconscionability in the terms or circumstances surrounding the prenuptial, Cannon v. Cannon, 384 Md. 537, 573, 865 A.2d 563, 566 (2005), so make sure to be mindful of these things:

1. Full and honest disclosure of assets

Think you can get away with not telling your beloved about your government retirement fund and still have your prenuptial agreement enforced? You may have to think again. Not providing a “frank, full, and truthful disclosure” of all assets could lead a court to possibly find fraud in the prenuptial agreement and invalidate it on that ground because the concealment gives rise to the implication of fraud. Levy v. Sherman, 185 Md. 63, 73-74, 43 A.2d 25, 29-30 (1945). The general purpose behind requiring comprehensive disclosure is so the party who is agreeing to waive their rights or claims knows what they are giving up. Cannon, 384 Md. at 574. This relates to the next point about fairness.

2. Fair and equitable terms

Remember to be fair with your prenuptial proposal – try not to draw up terms that put your new partner in a position where they are left out in the cold with not even two sticks to rub together to keep him or herself warm should the marriage not stand the test of time. Courts have voided agreements that were “unjust or inequitable” when the agreements were completely lacking any reasonable consideration. For example, in one instance the wife signed a separation agreement that relinquished her rights to property that totaled more than $700,000 for only $10,000, and where between $200,000 and $250,000 worth of property was relinquished for $4,300. Bell v. Bell, 38 Md. App. 10, 15, 379 A.2d 419, 422 (1977) (citing Cronin v. Hebditch, 195 Md. 607, 74 A.2d 50 (1950); Eaton v. Eaton, 34 Md. App. 157, 366 A.2d 121 (1976)). Overall lesson: don’t give your loved one a really lousy deal.

3. Chance for negotiation

Try to avoid a “my way or the highway” mentality when it comes to presenting a prenuptial agreement to your future spouse. A court will look more favorably upon an agreement in which there was a chance for the other party to negotiate the terms for the prenuptial. In regard to showing undue influence or duress upon a party, evidence of negotiation between the parties may be an indicator of a valid contract between equals, while a lack of negotiation may show undue influence.  Cannon, 384 Md. at 572, 865 A.2d at 583-84. A chance for negotiation helps to show that the other party was not deprived of his or her free will in signing the agreement, so be open to conversation about your requests.

4. Opportunity to obtain independent legal advice

Similar to why it is best to provide a chance for negotiation of the agreement to show that it was entered into freely, voluntarily, and knowingly, it further helps to allow an opportunity for your partner to obtain independent legal advice about the proposed terms of the prenuptial. Asset distribution can get very complicated and the help of an attorney may be needed for your love to truly understand what he or she would be agreeing to.

5. No pressure, no manipulation, no tricks

Basically, this means anything along the lines of not waiting until the day of the wedding to spring a pre-nuptial agreement on your fiancée at the last minute. A court may set aside an agreement if it finds that it was unconscionable at the time the agreement was made. Martin v Farber, 68 Md. App. 137, 144, 510 A.2d 608, 611 (1986). When determining whether the agreement is unconscionable, the court is barred from examining the fairness of the agreement at the time of enforcement, and can only look at the conditions that were occurring at the time the agreement was made. Id. So even if the agreement has fair terms, a court could still invalidate it if your better half was under duress or there was trickery or manipulation at the time the agreement was signed. Also, try not to take your soon-to-be for a surprise or approach them in an infirmed condition – Sleeping Beauty above is in no condition to thoughtfully sign a prenuptial agreement!

Following these tips should help make it easier for your husband or bride-to-be to put up with your prenuptial request and potentially uphold the agreement if worse comes to worse, but it is always best to consult an attorney for specific help in your own situation, as every situation is different.

 

Even estate planning seems to go through stages and fads with discussion of new techniques making the cocktail party circuit and the “free” lunch seminars for discussion.  One popular topic these days is the use of Revocable Living Trusts.  Before you consider rushing in to visit your estate planner to “get one of these” you might want to understand the basics of it and see why it is not a “one size fits all” tool for everyone.

What A Revocable Living Trust IS:

• The Trust is your alter ego. At any time, you can easily add, remove, buy or sell Trust property at any time. Further, the Trust is “revocable” — you can change or end the Trust at any time.

• A Revocable Living Trust allows you to avoid probate (and the Courts) during periods of disability and upon death. Probate is avoided because a revocable trust is a separate legal entity, although you, as the creator of the trust, retain control over the assets of the trust during your lifetime and while you are able.

• Assets titled in the name of the Trust are transferable at all times, and probate is avoided. Thus, the management and administration of the Trust’s assets is not disrupted by the deceased’s death or disability.

• In order to create and effectuate a Revocable Living Trust, not only must the trust documents be executed but your property must be transferred to your trust.  This extremely important step is the one that fails to get completed – thereby defeating the purpose of the Trust altogether.

 What A Revocable Living Trust Is NOT:

• A Revocable Living Trust does not avoid estate taxes. Specific provisions must be included in a Revocable Living Trust (or in a Will) to reduce estate taxes.

• A Revocable Living Trust is not a substitute for a Will. You still need a Will. This type of Will is called a Pour-over Will and is used to make tax elections, appoint a Personal Representative, appoint a guardian for your minor children, and transfer assets you forget to title in the name of your Revocable Living Trust to your Trust.

There are plenty of good reasons to use a revocable living trust:

• avoid or minimize the costs of Probate and tying up assets during Probate;

• to possibly avoid will contests and keep the disposition of your assets private since your will becomes a matter of public record when filed for the opening of Probate which your trust is generally not;
• provide for immediate management of your financial affairs by a fiduciary selected by you in the event of your disability.  If something happens to you, your successor Trustee steps in “your shoes” and continues managing the Trust as long as necessary. If you and your spouse are Co-Trustees, or if your spouse is successor Trustee, either can act or instantly take control if the other becomes disabled or dies.

However, everybody does not need a Revocable Living Trust– some people do not feel comfortable with the concept of a trust, and no one should do anything that will make them lose sleep at night. Second, some people have a small enough (or simple enough) estate that probate may not concern them or their heirs.

Generally speaking, the Revocable Living Trust is an estate planning tool which should be considered only after careful discussion with your attorney about whether it is appropriate for you.

The next time someone tells you “you gotta get one” ask them why they needed one and whether they actually deeded their house over to the Trust and changed all of the names and signatures on their bank accounts. Don’t be surprised if they can’t give you a good answer!

Eight years ago, Maryland’s Reasonable Accommodations for Pregnant Workers Act (“RAPWA”) [1], which went into effect on October 1, 2013, did not exist, and the United Parcel Service (“UPS”) denied a pregnant Maryland employee’s request to lift no more than 20 pounds at work on the written advisement of her doctor.

Instead, she was given unpaid leave because her pregnant condition did not fall under one of the three categories eligible at the time for accommodations/light duty assignments under UPS’ collective bargaining agreement: (1) those who were injured on the job, (2) those who were eligible for accommodations under the Americans with Disabilities Act (“ADA”), or (3) those who had lost their Department of Transportation certification because of a failed medical exam, a lost driver’s license, or involvement in  a motor vehicle accident.

The issue of pregnancy discrimination has received a lot of attention in recent years. Circuits have been split on the issue [2], Congress passed 2008 amendments to the ADA to require employers to accommodate workers’ temporary disabilities, the Equal Employment Opportunity Commission (“EEOC”) is set to provide guidance about the amendments, and President Barack Obama has recently urged Congress to pass the Pregnant Workers Fairness Act introduced in the Senate last year. Now, even the Supreme Court of the United States has decided to hear the issue of “whether, and in what circumstances, an employer that provides work accommodations to non-pregnant employees with work limitations must provide work accommodations to pregnant employees who are ‘similar in their ability or inability to work.’” [3]

The case coming before the Supreme Court for the October Term is Young v. United Parcel Service, Inc., an appeal from Young v. United Parcel Service, Inc., 707 F.3d 437 (4th Cir. 2013). [4] Peggy Young, a part-time package delivery driver for UPS in Landover, Maryland, became pregnant in 2006 and asked for a light-duty assignment. Her supervisor denied her request, explaining UPS did not offer such accommodations for pregnancy-related limitations, so Young took an extended leave of absence without pay and ultimately lost her medical coverage. Young filed a discrimination claim with the EEOC in 2007 alleging violations of the ADA and the Pregnancy Discrimination Act (“PDA”) and sued UPS in the U.S. District Court for the District of Maryland in 2008.

After losing at the trial level, Young appealed to the U.S. Court of Appeals for the Fourth Circuit in 2013. Young argues that the PDA requires employers to provide pregnant employees the same accommodations as non-pregnant disabled workers who are similar in their ability or inability to work. But, both the district court and the Fourth Circuit found that UPS did not discriminate against Young under the PDA because its policy treats pregnant workers and nonpregnant workers alike in eligibility for accommodations. [5]

In an amicus curiae brief [6], the United States explains that a majority of circuit courts that hear claims similar to Young’s – including the Fourth Circuit – “erred in interpreting Title VII [of the Civil Rights Act of 1964]’s requirement that employers treat employees with pregnancy-related limitations as favorably as nonpregnant employees who are similar in their ability or inability to work.” [7]  However, the Justice Department nevertheless lobbied against the Supreme Court taking the case, stating that although the question presented is “important and recurring,” Supreme Court review is not needed at this time because: 1) Congress’s enactment of the ADA Amendments Act of 2008 “may lead courts to reconsider their approach to evaluating a pregnant employee’s claim that other employees with similar limitations on their ability to work were treated more favorably than she and may diminish the adverse effect of the courts of appeals’ error” and 2) the EEOC is currently considering the adoption of new enforcement guidance on pregnancy discrimination that should clarify the Commission’s interpretation of issues related to pregnancy under the PDA and the ADA. [8]

However, there may be another reason why courts may need to reconsider their stance on this issue: the increasing passage of state and local laws like Maryland’s RAPWA. Twelve states (Alaska, California, Connecticut, Hawaii, Illinois, Louisiana, Iowa, Maryland, Minnesota, New Jersey, Texas and West Virginia) and four cities (New York City, Philadelphia, Providence and Central Falls, R.I.) have similar pregnancy anti-discrimination laws and Maryland’s law seems to be directly applicable to this case. [9] Although the law is not retroactive, so it cannot be applied to Young’s case, if these same set of facts arose today, there would be a different outcome under RAPWA. Instead of requiring the comparison of non-pregnant and pregnant workers, Maryland’s RAPWA requires employers to make reasonable accommodations for pregnancy-related disabilities as long as such accommodations do not present an undue hardship to the employer. This provision addresses the language in the PDA requiring employers to treat pregnant workers the same as those “similar in their ability or inability to work,” which some courts have rendered meaningless by interpreting them to mean that accommodations do not need to be provided for pregnant employees that would have been otherwise unavailable for non-pregnant employees with similar disabilities.

With the recent passage of Maryland’s RAPWA and pregnancy discrimination being a hot topic in all branches of government, it will be interesting to see how this case with Maryland roots plays out in the Supreme Court. Stay tuned to JGL’s blog for updates on this issue.

*       *       *

[1] Read JGL’s “Quick Hit” blog post about the enactment of Maryland’s RAPWA here: https://www.jgllaw.com/blog/quick-hit-marylands-reasonable-accommodations-for-pregnant-workers-act/.

[2] A 1996 U.S. Court of Appeals for the Sixth Circuit decision allowed a similar pregnancy discrimination claim to move forward. See Ensley-Gaines v. Runyon, 100 F.3d 1220 (6th Cir. 1996)(concluding that, “instead of merely recognizing that discrimination on the basis of pregnancy constitutes unlawful sex discrimination under Title VII,” the PDA “provided additional protection to those ‘women affected by pregnancy, childbirth or related medical conditions’ by expressly requiring that employers provide the same treatment of such individuals as provided to ‘other persons not so affected but similar in their ability or inability to work.’” Id. at 1226 (quoting 42 U.S.C. § 2000e(k)).

[3] http://www.scotusblog.com/case-files/cases/young-v-united-parcel-service/

[4] The Fourth Circuit’s decision in Young v. United Parcel Service, Inc., 707 F.3d 437 (4th Cir. 2013) can be accessed here: http://www.ca4.uscourts.gov/opinions/Published/112078.p.pdf.

[5] See id. at 20.

[6] Read the Department of Justice’s amicus curiae brief here: http://sblog.s3.amazonaws.com/wp-content/uploads/2014/05/12-1226-Young-Invite.pdf.

[7] Id. at 8.

[8] Id.

[9] A Better Balance keeps a list of state and local laws protecting pregnant workers here: http://www.abetterbalance.org/web/ourissues/fairness-for-pregnant-workers/310.

The Duke of She told Confucius: “Among the upright men of my home, if the father steal a sheep his son will bear witness.”

Confucius answered: “Our people’s uprightness is unlike that. The father screens his son, the son screens his father. There is uprightness in this.”[i]

According to Confucius, a son should not be made to testify as to the crimes of his father. Morality considerations aside, the Fourth Circuit disagrees. On June 16, 2014, the federal appellate court in Richmond refused to recognize a parent-child testimonial privilege in Under Seal v. United States, where the government subpoenaed 19-year-old Doe Jr. to testify against his father, Mr. Doe, in a grand jury investigation regarding an unlawful possession of firearms charge against the father.[ii]

On November 20, 2012, officers from Harford County, Maryland responded to a 911 domestic assault complaint by Doe Jr.’s mother (Mrs. Doe). At the time, the Doe house was occupied by 18-year-old Doe Jr., his parents, and his two minor siblings. A search of the residence revealed approximately 40 assorted firearms, “including two assault-style rifles, a WWII-style pistol, a leaded semi-automatic handgun, and an AK-47 assault rifle” as well as “marijuana plants growing in five-gallon buckets and drug paraphernalia” in the basement.[iii]

Mrs. Doe eventually dropped the domestic abuse charges against Mr. Doe, and the government later referred the case to grand jury investigation for a potential charge pursuant to 26 U.S.C. § 5861(d).[iv] Doe Jr. was subpoenaed “to determine the ownership of the illegal guns” found in the home. In his motion to quash, Doe Jr. contended that compelling his testimony to “solidify a criminal case against [his] father” would cause incalculable “damage to the father-son relationship.”[v]

At the district court hearing on the motion to quash, Doe Jr. testified that although his father would not cut him off financially, and “would not hold it against” him for testifying, “he had significant anxiety about testifying against his father and provided doctors’ notes to the that effect.[vi] The government argued that Doe Jr.’s testimony was necessary to “fully explore all the evidence in this case to do a complete and thorough investigation,” because Mrs. Doe had invoked her spousal privilege, and the two minor Doe children would not be called as witnesses.[vii] Ruling from the bench, the district court agreed with Doe Jr. and explained that while the government had an interest in pursuing its investigation; it did not trump the individual privacy interests stemming from Doe Jr.’s relationship with his father.[viii]

The Fourth Circuit reversed on appeal, and in a unanimous opinion, declined to find a parent-child privilege. In support of its conclusion, it observed that in contrast to the “very small handful of federal district courts” that have recognized the privilege, “every federal appellate court that has considered adoption of the parent-child privilege – include our own – has rejected it.”[ix]  In particular, the court discussed two previous Fourth Circuit cases that also declined to adopt a parent-child privilege.

In United States v. Jones,[x] the Court held that no privilege existed where testimony would be limited to questions unrelated to his familial association with his parent, because a 29-year-old man was “not an impressionable young child.”[xi] The Court recognized, but did not address the possibility that the privileged may be recognized in cases with “changed factual circumstances” in which other considerations such as the age and emancipation status of the child may come into play.[xii]

In United States v. Dunford,[xiii] the father of two minor daughters was convicted of numerous counts of illegal possession of firearms and ammunition. The Fourth Circuit there refused to recognize the privilege and compelled the daughters to testify at their father’s trial because he had abused them and endangered them with illegal firearms. The court, nevertheless, left room for the possibility of adopting the privileges in certain circumstances where the intangible and tangible benefits of preserving the family unit would outweigh the government’s interest in compelling the child to testify.[xiv] As a corollary, the Court cautioned, “even if such a privileged were to be recognized it would have to be narrowly defined and would have obvious limits, perhaps such as where the family fractures itself or the child waives the privilege or where ongoing criminal activity would be shielded by assertion of the privilege.”[xv]

The Fourth Circuit held that the facts in Under Seal did not warrant application of the privilege because Doe Jr. was an adult college student who had truthfully testified that his father would not “cut him off” financially or “hold it against him” for testifying.[xvi] Furthermore, because Doe Jr. was the only individual in the Doe household who was available to testify, applying the privilege would undermine the U.S. Supreme Court’s admonishment that only limited exceptions should trump “the normally predominant principle of utilizing all rational means for ascertaining the truth.”[xvii] Thus, Doe Jr. did not provide a “strong showing that adoption of the parent-child privilege would promote sufficiently important interests to outweigh the need for probative evidence in the administration of criminal justice.”[xviii]

Interestingly, Under Seal does not represent a categorical rejection of the possibility of the parent-child privilege ever being recognized in the jurisdiction. The Court in Jones and Dunford had “declined to recognize a parent-child privilege, but stopped short of issuing a blanket rejection of the privilege.”[xix] The Fourth Circuit, again, in Under Seal left the door slightly cracked to the future possibility that, with the right facts, the privilege might be revived. It concluded that the “strong showing of need” for justifying the creation of a new privilege was simply not met in the circumstances of Doe Jr.’s case. Nevertheless, Under Seal adds to the strong weight of Fourth Circuit case law against the parent-child testimonial privilege, and absent legislation, there is unlikely to be a case in the near future that presents sufficient factual circumstances to warrant its recognition.

*          *          *

[i]Confucius, Analects, available at: http://www.bartleby.com/44/1/13.html.

[ii] Under Seal v. United States, 13-4933, 2014 WL 2699722 (4^th Cir. June 16, 2014).

[iii] Id. at *1.

[iv]26 U.S.C. § 5861 (West) (Providing that it is unlawful for any person “to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record”).

[v] 2014 WL 2699722, at *1.

[vi] Id. at *2.

[vii] The opinion by the Court merely states that the “government did not intend to call the two minor Doe children as witnesses”, but provides no further explanation for the basis of the Government’s decision not to do so.

[viii] 2014 WL 2699722, at *2.

[ix] Id. at *3.

[x] United States v. Jones, 683 F.2d 817 (4th Cir. 1982).

[xi] Id. at 819.

[xii] Id.

[xiii] United States v. Dunford, 148 F.3d 385 (4th Cir. 1998).

[xiv] Id. at 391.

[xv] Id.

[xvi] 2014 WL 2699722, at *6.

[xvii] Id.

[xviii] Id. at *7.

[xix] Id. at *5.

 

On June 24, 2014, the United States District Court for the District of Oregon ruled that the No-Fly list was unconstitutional because the government does not provide Americans who are on the list any meaningful opportunity to contest their inclusion.

The case, Ayman Latif et al v. Eric Holder et al, involved 13 American Muslims, four of who were veterans, who were not permitted to board flights in the U.S. or fly over U.S. airspace. The plaintiffs alleged that they did not know why they are on the list, and only some were told that are, in fact, on the list. Each plaintiff submitted applications for redress through the Department of Homeland Security Traveler Redress Inquiry Program.

When the DHS receives a complaint through its Redress program, it investigates the complaint and issues a determination letter. The determination letter simply states that an investigation was completed. It does not confirm or deny if an individual is on the No-Fly list; it does not state why a person may or may not be on the list; and it does not provide any reassurances of whether a person can fly again. Sometimes a determination letter will inform the individual that they can seek judicial review in the U.S. court of appeals under 49 U.S.C. § 46110. Plaintiffs’ alleged that this process violated their Fifth Amendment right to procedural due process because Defendants have not given Plaintiffs any post-deprivation notice nor any meaningful opportunity to contest their continued inclusion on the No-Fly List.

Judge Anna Brown agreed. (Opinion can be found here) She recognized that the government had a compelling interest in combating terrorism and held that while the government does not have to get rid of the list, it needs to come up with a better way for Americans on the list to challenge their inclusion. The government must also disclose to those on the list any unclassified information used to justify their inclusion. Judge Brown went on to say that the government could summarize that information or disclose it to an attorney with the proper security clearance. The Justice Department has not stated whether it would appeal the decision.

 

On Wednesday June 25, in a unanimous ruling the Supreme Court held that the police need warrants to search the cellphones of people they arrest. Courts have long allowed warrantless searches in connection with arrests, allowing officers to conduct a full search of the person being arrested as well as any property on or relatively near them at the time they are arrested.

However the majority opinion by Chief Justice John G. Roberts, Jr. brought the Fourth Amendment and its warrant requirement fully into the 21^st century, noting that the vast amount of data contained on modern cellphones must be protected from routine inspection.

The Court came to this decision after hearing arguments in two cases this past term. The first, Riley v. California, involved the arrest of David L. Riley, who was pulled over in San Diego in 2009. After finding firearms in his vehicle, the police searched Mr. Riley’s smartphone and discovered entries they associated with a street gang. A more thorough search of the phone led to information that linked Riley to a murder attempt for which he was later convicted and sentenced to 15 years in prison; a California appeals court said neither search of the phone required a warrant. The second case, United States v. Wurie (transcript of oral argument here), arose from a search of the call log of the flip phone of Brim Wurie, who was arrested in 2007 and charged with gun and drug crimes. Unlike the California court, a Boston appellate court threw out the evidence found on Wurie’s phone.

The Fourth Amendment protects the American people against unreasonable searches or seizures. Subject to a few well-defined exceptions, police ordinarily must obtain a warrant prior to conducting a search or seizure of a person or property. One of those exceptions is a search that is conducted incident to arrest –an officer may conduct a warrantless search of any person arrested. This search includes property located on the person – including pockets, purses, backpacks, even cigarette packs – as well as the surrounding area within the arrestee’s immediate control.[1] This expansive ability to conduct a search without a warrant has been long justified by a need to ensure officer safety and to prevent the possible destruction of evidence.

The Justice Department had argued that cellphones were not materially different from wallets, purses, and address books. Chief Justice Roberts disagreed: “That is like saying a ride on horseback is not materially indistinguishable from a flight to the moon . . . .” In sweeping language the Court determined that the old rules cannot be applied to modern cellphones, which “as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse . . . .” Unlike knives or guns that might be kept in pockets or backpacks, or razor blades that might be kept in cigarette boxes or wallets, Roberts observed that “digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape. . . . the data on the phone can endanger no one.”

The warrant requirement is an important aspect of the Fourth Amendment jurisprudence. While the Supreme Court observed that this decision would indeed make the job of law enforcement more difficult, in this day and age warrants may be obtained with increasing efficiency at essentially all hours of the day and night. Additionally, although the search incident to arrest exception no longer applies, this is not to say that case specific circumstances would not justify application of another exception to the warrant. The Court noted that, to the extent that a search of a cell phone might “warn officers of an impending danger, e.g., that the arrestee’s confederates are headed to the scene,” there may be another applicable exception such as the exigent circumstances exception.[2]

This opinion signals the Court’s increasing concern about government intrusion into Americans’ private lives through the use of technology. Noting that modern cellphones contain “a digital record of nearly aspect of their lives – form the mundane to the intimate,” Chief Justice Roberts proclaimed:  “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.” Constitutional law scholar and professor Stephen Vladeck opined that the Court’s ruling should “scare the bejesus” out of those who have vigorously defended the government’s ability to conduct warrantless search programs, such as the controversial NSA surveillance program that continues to make headlines across the country.[3]

The text of the Supreme Court opinion may be found at http://www.supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf.

 

 

[1] The extent to which officers may search property found on or near an arrestee is governed by three primary cases: Chimel v. California, 395 U.S. 752 (1969), requires that a search incident to arrest be limited to the area within the arrestee’s immediate control, where it is justified by the interests in officer safety and in preventing evidence destruction; United States v. Robinson, 414 U.S. 218 (1973), held that the risks identified in Chimel are present in all custodial arrests, even when there is no specific concern about the loss of evidence or the threat to officers in a particular case; and Arizona v. Gant, 556 U.S. 332 (2009), permits searches of a car where it is reasonable to believe that evidence of the crime of arrest might be found in the vehicle.

[2]

The exigent circumstances exception to the warrant requirement allows law enforcement to conduct a warrantless search or seizure where police are responding to an emergency or where there is a compelling need for official action and no time to secure a warrant.

[3] Robert Barnes, Supreme Court says police must get warrants for most cellphone searches, Wash. Post, June 25, 2014.

“A HOUSE DIVIDED AGAINST ITSELF CANNOT STAND”

– Abraham Lincoln, Republican State Convention (June 16, 1858), quoting Mark 3:25

Have you heard the one about the couple that split the house after their divorce? She got the inside, he got the outside. Or the story of this couple from Cambodia who cut their house in half after the wife refused to leave?

Bad jokes aside, typically the largest asset a couple has is their home and who gets ownership of the home after a divorce is a hot button issue. A client is often concerned about how long they may stay in the home during a divorce, how a court may divide the interest in the home, and how can they protect their interest in their home.

To answer that question you first have to determine whether the home is marital property. In a divorce proceeding, the court will equitably divide the marital property. Pursuant to the  Marital Property Act, the trial court is then charged with making an equitable distribution of the property. However, you should not confuse “equitable” with “equal.”See Alston v. Alston, 331 Md. 496, 629 A.2d 70 (1993).

The Maryland Family Law Code defines marital property as the property acquired by one (1) or both parties during the marriage, including any interest in real property held as tenants by the entirety. §8-201(e)(1)(2). The Court of Appeals has held that absent evidence to the contrary, it is presumed that spouses hold the family home, including goods and furnishings, as tenants by the entirety. Arbesman v. Winer, 298 Md. 282, 468 A.2d 633 (1983).

Even property purchased prior to the marriage may be considered marital property, or partially marital. For example, if one spouse “gifted” the home to the other during the marriage (i.e. added the other spouse’s name to the title), if the property was held as tenants by the entirety, if the property was comingled with marital funds, or if marital funds were used for its enhancement (i.e. remodeling the home) the court could consider this marital property. See Brodak v. Brodak, 294 Md. 10, 447 A.2d 847 (1982); Noffsinger v. Noffsinger, 95 Md. App. 265, 620 A.2d 415 (1993); Mount v. Mount, 52 Md. App. 538, 476 A.2d 1175 (1984).

The Court will consider the following factors in determining how to divide the marital property: “(1) the contributions, monetary and non[-] monetary, of each party to the well-being of the family; (2) the value of all property interests of each party; (3) the economic circumstances of each party at the time the award is to be made; (4) the circumstances that contributed to the estrangement of the parties; (5) the duration of the marriage; (6) the age of each party; (7) the physical and mental condition of each party; (8) how and when specific marital property or interest in the pension, retirement, profit sharing, or deferred compensation plan, was acquired …; (9) the contribution by either party of property described in [F.L.] § 8–201(e)(3) [ ] to the acquisition of real property held by the parties as tenants by the entirety;(10) any award of alimony and any award or other provision that the court has made with respect to family use personal property or the family home; and(11) any other factor the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.”

As discussed below, the Court then has three options: the court may 1) award a party use and possession for up to a period of three (3) years; 2) transfer ownership of the home to one (1) party; or 3) order the home sold.

• Use and Possession:

The Court may award a custodial parent use and possession of the family home for up to three (3) years after the divorce. The intent is to preserve stability for the minor child(ren) and allow them to continue living in a familiar community and environment. This remedy is available when the parties have a minor child (minor child includes a child under the age of 18 but may include a person over the age of 18 but is still a high school student. The use and possession term will terminate at the end of the month in which the child graduates). §8-206; §8-210; Kelly v. Kelly, 153 Md. App. 260, 836 A.2d 695 (2003).

The family home is defined as the property “(i) was used as the principal residence of the parties when they lived together; (ii) is owned or leased by 1 or both of the parties at the time of the proceeding; and (iii) is being used or will be used as a principal residence by 1 or both of the parties and a child.” This does not include property before the marriage, by inheritance or gift from a third party, or excluded by valid agreement. §8-201(c)(1).

However, in some circumstances, Maryland courts have determined that homes owned prior to marriage and even where the parties did not live there together, are family homes under the statute.

In Bledsoe, the Husband argued that the property was not the family home under the statute because he had acquired it prior to marriage. The Court of Appeals held that property purchased entirely by one spouse but titled in the names of both amount to a gift and that, because it was the principle residence of the family, it qualified as the family home pursuant to the statute. Bledsoe v. Bledsoe, 294 Md. 183, 448 A.2d 353 (1982).

In Maness, the Husband argued that the home could not be considered the family home because he and his wife had never lived in the home together. The Wife moved into the home prior to the Husband and then, after the Husband had moved in, they slept in separate bedrooms. When the marriage ended, Wife moved out of the home. Nonetheless, the Court held that the  home constituted a family home under the statute because it was the principal residence of the parties and a court could therefore award a party use and possession. Maness v. Sawyer, 180 Md. App. 295, 950 A.2d 830 (2008).

During the Use and Possession period the Court may order either or both parties to pay the rent/mortgage payments, including other debts associated with the home, maintenance, property taxes and insurance. §208(c). After the Use and Possession period has run, the court will order the property to be transferred or sold.

• Transfer:

 The court may transfer jointly owned property, used as the principal residence when the parties were living together, to the other spouse to avoid an inequitable division (the court cannot transfer the property of one spouse to the other. The Court will effectuate the transfer by ordering the transfer outright upon the release of the other party from any lien against the property, ordering that one party purchase the interest of the other, or a combination of both. The transfer of the property is subject to any lien (i.e. mortgage) on the property. § 8–202(a)(3),§8-205. The Court usually disfavors this method.

•  Sale:

In the more common occurrence, the court will order that the property be sold and proceeds divided.  In this situation, the court may also appoint a trustee to effectuate the sale of the home. A trustee is an attorney who will facilitate the sale of the home and will be compensated at the closing (in addition to closing costs, etc).

These are careful considerations and nuances that should be raised to your with skilled legal counsel who are not only aware of the various facets of the law and potential outcomes, but are equipped to present this evidence to the Court at the time of trial.