Author: JGL Law

 (One of the trademarks registered to Pro Football, Inc. d/b/a/ The Washington Redskins)

On Wednesday, the United States Patent And Trademark Office (Trademark Trial and Appeal Board or “TTAB”) canceled the Washington Redskins’ trademark registrations in the start of what is likely to be a lengthy legal battle.

In Blackhorse v. Pro-Football, Inc., the TTAB concluded that the team’s trademarks were disparaging to Native Americans at the time they were registered, in violation of the Trademark Act of 1946. As a consequence of the violation, the TTAB ordered that the team’s trademark registrations be canceled.

At the heart of the TTAB’s ruling was its finding that the meaning of the team name “‘may have disparaged’ a substantial composite” of Native Americans at the times of the trademark registrations. [1] In making this finding, the TTAB relied heavily on a 1993 resolution issued by the National Congress of American Indians. The 1993 resolution condemned the use of the word “redskins,” labeling the term as “pejorative, contemptuous, disreputable, disparaging and racist.” [3]

The TTAB noted that it was reasonable to infer that the NCAI represented approximately one-third of Native Americans between 1967 (the year of the Redskins’ first trademark registration) and 1993. [2] But to adequately ensure that the resolution reflected the views of Native Americans at the times of each of the registrations, the TTAB pointed to a 1972 meeting between the NCAI president and Redskins’ team owner Edward Bennett Williams. [4] At the meeting, the president had represented to Williams that Native Americans found the term to be a racial slur. [5] Additionally, the TTAB noted that trends in dictionary usage from the 1960s through the 1990s reflected a general consensus that the term was disparaging. [6] Relying on this data, the TTAB concluded that the petitioners had shown that “a substantial composite of Native Americans” found the term offensive during the relevant time periods. [7]

While Blackhorse might appear to represent new ground broken in the ever-growing controversy surrounding the Redskins’ team name, it is not really a new case. In fact, a nearly identical action was brought before the TTAB in 1992, when Suzan Harjo and six other Native Americans filed a petition to cancel the registrations. In 1999, the TTAB reached the same conclusion that it did on Wednesday – that the Redskins’ trademarks were disparaging to Native Americans at the time each of the trademarks were registered.

In 2003, however, the U.S. District Court for the District of Columbia reversed the TTAB, concluding that 1) the TTAB’s decision was not supported by substantial evidence and 2) the doctrine of laches applied. [8] In 2009, the DC Circuit ultimately affirmed the District Court solely on the laches issue and never addressed the TTAB’s ruling on the merits. [9] The Redskins thus were able to preserve their trademark registrations.

In 2006, during the pendency of the Harjo case, six new Native Americans filed a petition with the TTAB to cancel the trademark registrations. After the disposition in Harjo, the TTAB incorporated the entire Harjo record into evidence for the Blackhorse case. The TTAB thus made its legal and factual conclusions on what was essentially the same evidentiary record as the Harjo case.

So in light of the DC Circuit’s final disposition in Harjo, why the different result? A new court.

In Wednesday’s ruling, the TTAB pointed out that the America Invents Act, enacted in September 2011, vests judicial review of USPTO inter partes proceedings to the U.S. District Court for the Eastern District of Virginia as an alternative to filing an appeal with the U.S. Court of Appeals for the Federal Circuit. [10] Previously, the alternative venue was the U.S. District Court for the District of Columbia, as seen in the Harjo case. As a result of the change in alternative venues, the TTAB explained that “the passage of the America Invents Act sufficiently changes the circumstances in this case so as to justify revisiting the issue.” [74] Accordingly, instead of following DC Circuit precedent, the TTAB followed its own case law and that of the Fourth Circuit in concluding that laches did not apply to the new petition. Specifically, the TTAB concluded that the petitioners had not unreasonably delayed in bringing their petition, because the Harjo litigation served as an excuse to their inaction. [11] Further, the TTAB reasoned that the Redskins had not shown economic prejudice as a result of the delay. [12]

The lone dissenting judge in the 2-1 decision saw no reason to distinguish this case from Harjo, reasoning that “[t]he consequence of petitioners’ decision to rely on the same evidence previously found insufficient to support cancellation without substantial augmentation is that the evidence before the Board in this case remains insufficient as well.”  [13]

The team is expected to file a petition in the Eastern District of Virginia in the next 60 days. Team trademark attorney Bob Raskopf anticipates that the appeals process will be much quicker this time around, given the Eastern District of Virginia’s (“the rocket docket”) penchant for swiftly issuing decisions. [14]

While the case is on appeal, the Redskins will maintain their trademark registrations.

For other current race-conscious legal issues, see JGL Associate Vijay Mani’s article from May 23. For another opinion on this issue, click here.

 

 

[1] Blackhorse v. Pro-Football Inc. at 1.

[2] Id. at 65.

[3] Id. at 67.

[4] Id. at 70.

[5] Id.

[6] Id. at 70-71.

[7] Id. at 72.

[8] Pro-Football, Inc. v. Harjo, 284 F. Supp. 2d 96 (D.DC 2003).

[9] Pro Football, Inc. v. Harjo, 565 F.3d 880 (DC Cir. 2009).

[10] Blackhorse at 74.

[11] Id. at 78.

[12] Id.

[13] Id. at 83.

[14] Dan Steinberg, Redskins lawyer explains what will happen next with trademark case, Washington Post (June 19, 2014), http://www.washingtonpost.com/blogs/dc-sports-bog/wp/2014/06/19/redskins….

 

In March of 2014, the Court of Appeals considered whether an adult sibling seeking visitation rights with her minor siblings, contrary to their parents’ wishes, should be held to the same standard as third parties seeking visitation.[i] The factual circumstances of In re: Victoria C. presented a ripe opportunity for the Court of Appeals of Maryland to produce a more forgiving standard that recognized the importance of familial relationships other than parent-child. The Court of Appeals, however, declined to take that route.

In an earlier decision, Koshko v. Haining, the Court of Appeals recognized that parents of minor children have a fundamental right to make decisions regarding the upbringing of their children, including third parties seeking visitation.[ii] Consequently, third parties seeking visitation contrary to the parents’ wishes must first prove “exceptional circumstances” or show parental unfitness.[iii] In a 5-2 opinion, the Court of Appeals in Victoria C. strengthened the presumption afforded parental decision-making and extended its holding in Koshko to include siblings as “third parties.”[iv]

If any case were ripe for an exception to the third party standard, it was Victoria C. In 2009, the Department of Social Services investigated an allegation of abuse against George C., Victoria’s and her half-siblings’ biological father, which resulted in a finding of “indicated.”[v] The Family Law Article defines an “indicated” finding as “a finding of credible evidence, which has not been satisfactorily refuted, that abuse, neglect, or sexual abuse did occur.”[vi] Victoria C. was sent to live with her aunt in Texas, who returned her to Maryland one year later.[vii] When George C. refused to allow Victoria back into his home, Victoria became a ward of the State and was declared a Child in Need of Assistance (“CINA”) in 2010.[viii]During her CINA proceedings, Victoria requested visitation rights with her siblings.[ix]

The Circuit Court applied principles from the Court of Special Appeals case In re Tamara R.,[x] and found that Victoria met her burden “as required by Maryland’s common law presumption in favor of siblings seeking visitation of their siblings in contested settings” by proving evidence of “harm to herself resulting from the denial of visitation to her minor siblings.”[xi] After this presumption was rebutted by George C. and his wife, the Circuit Court applied Koshko and inferred that Victoria’s half-siblings may suffer deleterious harm if they were separated from their older half-sister.[xii] Accordingly, the Circuit Court authorized supervised visitation between Victoria and her half-siblings.[xiii] While the Circuit Court had no statutory authority to grant visitation rights to siblings, like that which exists for grandparents, it grounded its authority in common and constitutional law bases derived from Tamara R.[xiv]

The Court of Special Appeals reversed the Circuit Court’s decision, with which the Court of Appeals agreed.[xv] The Court of Appeals concluded that the Circuit Court misapplied the “exceptional circumstances” test because it is limited to the “deleterious effects” on the minor children at issue, not the party petitioning for visitation rights. [xvi] The Court of Appeals remanded the case back to the Circuit Court with instructions to focus its inquiry on Victoria’s minor half-siblings.[xvii] While the Court of Appeals assumed the Circuit Court had a jurisdictional basis for granting visitation rights to siblings existed for purposes ofdeciding the merits, it mandated that the parties explore whether that jurisdiction truly exists upon remand.[xviii]

This holding is notable for several reasons. As Judge Adkins emphasized in her dissent in Victoria C.,[xix] this decision diverges from several jurisdictions which hold the right to associate with one’s sibling is a constitutional right.[xx] Notably, Maryland Court of Special Appeals recognized the importance of the sibling relationship in the case In re Tamara R., where the court observed:

[T]he sibling relationship has been widely recognized as an important one, which
will be given significant consideration and protection by courts in cases involving
the family. Recognizing the value in sibling relationships puts in perspective the
importance of the evidence that [an individual] would be harmed by
the denial of sibling visitation.[xxi]

Instead of following the trend from its sister courts, the Court of Appeals determined that siblings should not be accorded a different standard and overruled Tamara R. to the extent that it was inconsistent with its holding in Victoria C. [xxii]

Moreover, this decision may have far-reaching implications. When faced with Victoria C.’s unique factual circumstances, the Court of Appeals still categorized siblings as “third parties” who must first satisfy Koshko before obtaining visitation rights with minor children contrary to parental consent. Consequently, individuals who leave home because of abuse risk severing ties with any minor siblings who remain should they fail to satisfy Koshko.

Importantly, even if Victoria could prove that exceptional circumstances or parental unfitness exists, the Court of Appeals indicated that the Circuit Court may lack jurisdiction to grant such visitation. Indeed, by overruling Tamara R. to the extent it is inconsistent with Victoria C., the Court of Appeals may have overruled the only jurisdictional bases upon which the Circuit Court could grant visitation rights to siblings.[xxiii] The Court of Appeals’ decision in Victoria C., therefore, may make it impossible for any individual, CINA or otherwise, to maintain relations with his or her minor siblings absent parental consent.

*   *   *

Title: A play on words, this title is derived from Judge Adkins’ use of a similarly-titled journal article in her dissent. See In re Victoria C, 437 Md. 567, 595, 88 A.3d 749, 766 (2014) (citing Paige Ingram Castañeda, Comment, O Brother (Or Sister), Where Art Thou: Sibling Standing in Texas, 55 Baylor L. Rev. 749, 774 (2003)), available at http://www.mdcourts.gov/opinions/coa/2014/15a13.pdf.

[i] See id. at 587-88, 88 A.3d at 762.

[ii] See Koshko v. Haining,398 Md. 404, 441, 921 A.2d 171, 192-93 (2007), available at http://mdcourts.gov/opinions/coa/2007/35a06.pdf.

[iii] See id.

[iv] See In re Victoria C., 437 Md. at 592, 88 A.3d at 764.

[v] See id. at 570, 88 A.3d at 750-51.

[vi] See id. at 570 n.4, 88 A.3d at 750.

[vii] See id. at 570, 88 A.3d at 751.

[viii] See id. at 572, 88 A.3d at 752.

[ix] See id.

[x] In re Tamara R.,136 Md. App. 236, 764 A.2d 844 (2000).

[xi] See id. at 581, 88 A.3d at 757.

[xii] See id.

[xiii] See id. at 581, 88 A.3d at 758.

[xiv] See id. at 587, 88 A.3d at 761.

[xv] See id.

[xvi] See id.

[xvii] See id. at 593, 88 A.3d at 765.

[xviii] See id. at 587, 88 A.3d at 761-62.

[xix] See id. at 595, 88 A.3d at 766-67.

[xx] See, e.g., Rivera v. Marcus, 696 F.2d 1016, 1026 (2d Cir. 1982) (determining that children have a liberty interest in maintaining familial relationship with siblings); Aristotle P. v. Johnson, 721 F. Supp. 1002, 1005 (N.D. Ill  1989) (holding that “children[’s] relationships with their siblings are the sort of ‘intimate human relationships’ that are afforded ‘a substantial measure of sanctuary from unjustified interference by the State’”) (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984)); L. v. G., 203 N.J. Super. 385, 398, 497 A.2d 215, 222 (Ch. Div. 1985) (“[T]his Court finds that siblings possess the natural, inherent and inalienable right to visit with each other.”).

[xxi] 136 Md. App. at 259, 764 A.2d at 856.

[xxii] See In re Victoria C., 437 Md. at 593, 88 A.3d at 765.

[xxiii] See id. at 592, 88 A.3d at 764(overruling Tamara R. to the extent that it was inconsistent with Victoria C.).

Everyone has heard that “Nothing is certain except death and taxes.” And, we also know that when you pay your taxes late, there is another certainty: penalties and interest. Now, let’s say you pay your taxes late, you are assessed with penalties and interest, you pay the penalties and interest, but later discover that, in fact, you never owed the tax in the first place. You would then expect to have the tax, along with the penalties and interest, which you paid, to be refunded to you. Right?

Well, if you paid Maryland estate tax, not so fast.

The Comptroller of Maryland’s official position is that interest that accrues due to a late payment of Maryland estate tax is not refundable, even if the estate tax that generated the interest is refundable.

For example, an estate tax return is filed on behalf of a decedent’s estate. The return reflects a tax due in the amount of $400,000. As a result of an innocent error by the Personal Representative, the Maryland estate tax return is filed late and thus incurs penalties and interest. The Personal Representative pays the amount due, which includes interest of $50,000. Subsequently the Personal Representative realizes that the return included property that did not belong to the decedent and as a result the estate actually owed no tax at all. An amended estate tax return is filed, reflecting no tax due and requesting a refund of the tax, penalties and interest previously paid in error. The Comptroller, following the current policy, would refund the tax paid, have the authority to make a determination about whether to refund the penalties paid, but, under these circumstances, retain the interest paid, even though the tax for which the interest was generated, was never actually due. In other words, while the taxes will be refunded, the Comptroller will always keep the interest even if it never should have been paid to the State.

The Comptroller of Maryland’s policy relies on a Maryland Court of Appeals decision from 1972, Comptroller of the Treasury v. Campanella[1]. In Campanella, a timely estate tax return was filed on behalf of the estate. During an audit of the return, it was determined that additional estate tax was due; however by the time the determination had been made and the additional tax paid, the filing deadline had passed and thus interest was due on the additional tax. Subsequently, additional inheritance tax was paid, which reduced the estate tax due. As result, the Personal Representative requested a corresponding refund from the Comptroller along with a refund of the interest paid on that portion of the tax. The Comptroller refunded the tax but refused to refund the interest. The taxpayer appealed the decision to the Maryland Tax Court and the case ultimately came before the Maryland Court of Appeals.

The Court of Appeals found that while the interest assessed on estate tax paid after the statutory deadline was referred to as “interest” and calculated as interest generally is, it was in fact a “penalty” used to ensure timely payment of taxes due. “However, the example cited by the taxpayer and the argument sought to be drawn therefrom, dismisses too lightly the need for the State, in the orderly administration of its fiscal affairs, to establish definite filing dates for tax returns and tax payments which are meaningful. To accomplish this, it is an almost universal practice for governments to impose charges which are incurred when filing or payment is delinquent. This practice serves as an inducement for the taxpayer to be prompt in payment or otherwise incur a penalty in the event that he is tardy.”[2]

The Court then stated that, “All refunds of State taxes are matters of grace with the Legislature,” and went on to review the Maryland statute regarding the imposition of estate tax as well as any refunds. The Court stated that it was unable to find any authorization in the statute that would allow for a refund of interest paid under these circumstances. The Court  closed with, “Should the feeling generally persist that an inequity to the taxpayer exists under Section 5, although it is not all that apparent to us, we suggest that, insofar as future taxpayers are concerned, relief may lie with the Legislature.”[3]

So, be warned, when it comes to estate tax, the Comptroller of Maryland has no intention of refunding any interest you may have erroneously paid, because it is actually a penalty; however they may very well refund the penalty you paid, because well, that is a penalty.

 

[1] Comptroller of the Treasury v. Campanella, 265 Md. 478 (1972)

[2] Campanella at p. 483-484

[3] Campanella at p. 487-488

  This past  January, I wrote about the University of Maryland v. ACC legal saga.  As you may recall, in November 2012, Maryland announced it was leaving the ACC for the Big Ten.  In response, the ACC brought suit against Maryland in North Carolina state court seeking a declaratory judgment that a withdrawal payment provision in the ACC Constitution was a valid liquidated damages clause enforceable against the university.  The ACC alleged that Maryland’s withdrawal from the ACC subjected the university to a mandatory penalty in the amount of $52,266,342.  My previous post concluded with the news that that Maryland had just filed a 53-page counterclaim alleging antitrust violations by the ACC.  The counterclaim was widely interpreted as an application of serious and resolute settlement pressure. It is becoming increasingly clear that both sides would like to see this lawsuit resolved prior to Maryland’s July 1 departure date.  On that day, the ACC will welcome the University of Louisville into its conference, and Maryland will officially become a member of the Big Ten.  To that end, the two adversaries have mutually agreed upon a mediator to explore the possibility of settlement.  The ACC’s willingness to participate in arbitration suggests that the conference is willing to accept less than the $52 million and that they recognize considerable risk in moving forward with further litigation. The Honorable John R. Jolly, Jr., the Chief Special Superior Court Judge for Complex Business Cases for the North Carolina Business Court, signed the order appointing Bethesda, Maryland based neutral, Jonathan B. Marks, Esq., as the arbitrator.  According to the order, mediation must be completed no later than July 10, or nine days after Maryland is scheduled to depart the conference.  Mr. Mark’s decision will likely provide final resolution to this matter, as time is of the essence and there will only be substantially curtailed appeal opportunities. Like Mr. Marks, Joseph, Greenwald & Laake represents individuals and businesses when submitting disputes to arbitration or mediation.  The Firm’s lawyers have appeared before all major arbitration tribunals and have represented clients in hundreds of mediations. Final resolution appears to be on the short term horizon.  The attorneys at JGL are following this matter closely.  Be sure to check back frequently for updates.  Feel free to contact Jarrod Sharp with any questions at jsharp@jgllaw.com.

On May 27, 2014, in State v. Hailes,the Maryland Court of Special Appeals 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.[1]

Melvin Pate was shot in the face on November 24, 2010. His injuries were severe; Pate was told he would live a few days at most. On November 26^th and 27^th, detectives showed Pate photo arrays. Pate blinked hard when shown a photo of Jermaine Hailes and another individual, identifying them as his assailants. Miraculously, Pate survived for several more years, but eventually passed away on November 27, 2012 as a result of his injuries. Hailes was indicted for first-degree murder on December 11, 2012.[2]

Hailes moved to suppress Pate’s out-of-court identification, alleging that Pate could not communicate and that it violated Hailes’s rights under the Confrontation Clause.[3] Hailes prevailed on his motion and, in an unusual twist of procedure, the State took an interlocutory appeal.[4] For the first time in Maryland, the court had to determine whether Pate’s hard blink was an admissible Dying Declaration, and whether its use violated Hailes’s Sixth Amendment rights.

Prior to Hailes, “Maryland ha[d] not yet directly ruled on blinking as a form of communication by a witness.”[5] While hard blinking is not the traditional means of communication, the court said, this does not make it an ineffective means. It was clear that “Pate understood the questions asked and communicated the answer the only way he could.”[6] Without further ado, the court concluded that, “we now hold that blinking is a legally acceptable mode of communication.”[7]

A Dying Declaration is a statement made by a victim who believes his/her death is imminent.[8] To be admissible, the statement must concern the cause or circumstances giving rise to the impending death.[9]

Somewhat uniquely, Pate made his Dying Declaration, but lived for two more years. The court determined that it is the belief of imminent death that determines whether it is a Dying Declaration.[10] What occurs thereafter is of little significance. Pates’ subsequent survival did not negate his belief that he would die soon at the time he made the identification.

The court declared Pate’s Dying Declaration “in robust health” before turning its analysis to Crawfordv. Washington and the Confrontation Clause.[11] Crawford requires “a prior opportunity for the cross-examination of all out of court declarations that [are] ‘testimonial’ in nature.”[12]

After a foray into the history of dying declarations, the court determined that the Confrontation Clause does not apply to Dying Declarations, and so the Confrontation Clause’s requirements need not be satisfied. The court found a nearly unanimous approach, beginning with Crawford[13]and expanded by Giles v. California,[14] and sixteen other jurisdictions,[15] The court quoted Giles and reasoned that, “the statements were admissible only if the witness apprehended that she was in such a state of mortality as would inevitably oblige her soon to answer before her Maker for the truth or falsehood of her assertion.”[16]  The Hailes Court found this “juggernaut of persuasive authority irresistible,” and Maryland “join[ed] the ranks” and declared that a “Dying Declaration…is exempted from the coverage of the Confrontation Clause.”[17]

Because the Confrontation Clause does not apply in the first place, further related analysis is unnecessary. A court considering a Dying Declaration need not analyze whether the statement is testimonial, the purpose of the statement, whether it is an excited utterance, or other indicia of the reliability of the identification process.[18]

Hailes may appeal this ruling.

[1] State v. Hailes, No. 2384, Sept. Term, 2013, 2014 WL 2191405 (2014).

[2] Id.

[3] Id.

[4] The court determined that the State’s appeal is authorized because it arises from constitutional grounds. Id. at p 2, citing to Md. Code, Courts and Judicial Proceedings § 12-302(c)(3).

[5] Hailes at p. 9.

[6] Hailes at p. 10.

[7] Hailes at p. 10.

[8] Md. Rule 5-804(b)(2).

[9] Id.

[10] Hailes, supra.

[11] Id.at p. 11.

[12] Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004).

[13] Crawford, 541 U.S. at 56. (“The one deviation we have found involves dying declarations. The existence of that exception as a general rule of criminal hearsay cannot be disputed. Although many dying declarations may not be testimonial, there is authority for admitting even those that clearly are.”)

[14] Giles v. California, 554 U.S. 353, 128 S.Ct. 2678 (2008).

[15] Hailes at p. 17.

[16] Giles, 554 U.S. at 362.

[17] Hailes at p. 18.

[18] Hailes at p. 19-23.

In my previous postI talked about the Islamic concept of Mehr, Mehrieh or Dowry.  This post will discuss how Maryland Courts may address the issue of Mehr or Mehrieh when an Iranian family, married in Iran, and now living in Maryland, files for divorce in Maryland.

My Iranian divorce clients, who were married in Iran, almost always ask me: “Can I get my Mehr or Mehrieh when I file in Divorce.”  The Answer is: it depends.

And it depends on how a Maryland Court looks at the concept of Mehr or Mehrieh.  There are many good arguments for and against the concept of Mehrieh under Maryland divorce laws.

Arguments for Mehr or Mehrieh

1. It is a Gift.  Maryland divorce laws treats an engagement ring as a gift before the marriage and therefore cannot be divided in a divorce.  So, it could be argued, that there is little difference between giving spouse a 5 carat diamond engagement ring as opposed to a promise (or gift) for 100 gold coins, which is what happens under the Muslim Faith and is referred to as Mehr, Mehrieh or Dowry.

2. It is a Contract.  In many Middle Eastern cultures, the Mehr, Mehrieh or Dowry is in writing.  Therefore, if held to be valid contract under Maryland law, a spouse can enforce her right in civil court under contract laws rather than in family court under divorce laws.

Arguments against Mehr or Mehrieh

1. Same as Alimony:  Maryland law provides an income dependent spouse (the spouse that has no money or doesn’t work) the right to obtain support from his or her spouse.  That support is referred to as Alimony.  Depending on the length of the marriage and other factors, alimony can be for determined period of time or indefinite.  The purpose of alimony is to provide monetary support to the other spouse so that he or she can maintain a certain living standard.  The purpose of alimony is very similar to Mehr, Mehrieh or Dowry.  In Middle Eastern countries, the Mehr or Dowry serves as a form of security or money the wife could use in the future for her own benefit upon marriage breakdown.  Therefore, an Iranian spouse cannot get her Mehr and Alimony.

2. Fairness:  That one cannot apply for divorce under Maryland Law and obtain all the benefits of the marital rights in Maryland and go back to her home country and attempt to collect her Mehr, Mehrieh or Dowry.

Other jurisdictions have also taken a similar approach.  The common approach is that if Dowry is treated as gift on top of the 50% presumptive entitlement to family assets, most often men are left with less than 50% of the family assets and a large ‘gift’ they have to pay the wife at the time of marriage break down, which doesn’t appear to be fair.

In general, Courts acknowledge the concept of Mehr, Mehrian or Dowry as a religious right or a tradition, but cancel or void it due to the following factors:

• 1) The total family assets may be worth less than the amount of the Mehr.;
• 2) The Mehr contract was negotiated shortly before marriage and therefore not enough thought or negotiation took place before the signing;
• 3) The parties did not seek independent legal advice;
• 4) The contract was negotiated between the parents and not the parties and is therefore not binding;

Notwithstanding the above arguments, in most cases, given the uncertain outcome, most litigation on this issue are costly.  Therefore, the majority of cases resolves where the woman decides to go for a 50/50 split on the family assets and obtain alimony in the United States and then go to Iran and sue for their Mehr. This means that the husband, upon entering Iran, Iraq or any country that enforces Mahr, has to pay it before being able to exit the country.

The best way to prevent the above is to enter into a Marital Settlement Agreement in the United States that specifically addresses the issue of Mehr, Mehrieh or Dowry.  This way each party is protected.

There are international development on this issue, particularly in Canada which has a high population of Iranian immigrants.  Any new developments on this issue will be further updated on our Blog.

Reversed summary judgment, reinstated case by parents of trespassing child who drowned in apartment complex pool). Blackburn Limited Partnership v. Paul (Md. 2014)

Last year, Chief Justice John Roberts, in ruling with the majority that Section 4 of the Voting Rights Act was unconstitutional, wrote “Blatantly discriminatory evasions of federal decrees are rare.” Even if true, this statement does not speak to the prevalence of subtly discriminatory actions, often based on hidden, deep-seated prejudices, such as those demonstrated recently by Los Angeles Clippers owner Donald Sterling.  Sterling showed the world that an outward appearance of racial neutrality may serve to mask inner bigotry that may affect actions taken by an employer.

The Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing Title VII of the Civil Rights Act of 1964, which prohibits race discrimination in the workplace, has noted that race discrimination may take less-than-obvious forms.  This includes race discrimination that involves disparate treatment based on an individual’s association with a person of a certain race (or status in another “protected class”―discussed in previous JGL blog posts here and here―such as those with disabilities), referred to as “association discrimination”. 

While Title VII does not include provisions explicitly prohibiting association discrimination, it has been interpreted broadly by the courts to protect individuals victimized by employment decisions based in whole or in part on an individual’s association with someone of a particular race. For example, in Holcomb v. Iona College, the employer terminated a white head basketball coach, claiming that the removal stemmed from a poor-performing team that needed an overhaul.  Coach Holcomb, however, claimed that he was fired because his wife was black, and Iona’s athletic director had openly disclosed his dislike of interracial marriages and even expressed his desire to decrease the presence of African-Americans at basketball events.  Iona argued that even if the latter were true, the Plaintiff’s own race was not at issue, and thus, he had no standing under Title VII. 

The Second Circuit Court of Appeals disagreed, noting that when an adverse employment action arises out of an employer’s disapproval of interracial association, the employee is being subjected to the adverse action due to his own race.  As such, he has a cause of action for racial discrimination cognizable under Title VII. As explained by the EEOC, Title VII’s protection against association discrimination is not limited to situations involving the race of a spouse; it also protects against discrimination based on association with friends of a certain race, as well as memberships in or association with a race-based organization or group. 

In the case of Donald Sterling, even if he somehow manages to retain ownership of the Clippers, he likely could face other individual causes of action based on race discrimination, and perhaps association discrimination.  After clearly expressing his disapproval of the association with African-Americans he may be subject to claims by all Clippers employees, regardless of race, who have been adversely affected by Sterling’s employment decisions, provided they can prove that the decision was based, at least in part, on their association with African-Americans. Whether blatant or subtle, such claims may be on the rise, and justifiably so.

Once a divorce matter has been filed and the Court sets a trial date, most clients mistakenly mark their calendar with the belief that upon conclusion of the trial, every aspect of their divorce case will be over.  However, if the client or their spouse has retirement or pension accounts that constitute marital property and are ordered to be distributed from one party to another (in full or in part), then there will most likely be several post-trial steps associated with the distribution that must occur before the case can be officially considered concluded.

If the proper steps are not taken, then beware, contentious proceedings can, and have been known to, occur post-divorce associated with the distribution of retirement and pension funds. In a nutshell, if  the retirement or pension plan that is to be distributed is governed by The Employee Retirement Income Security Act of 1974 (hereinafter referred to as ERISA), then the appropriate Qualified Domestic Relations Order (“QDRO”), or its counterpart, will need to be drafted, agreed upon and executed by counsel, filed with and executed by the Court, and then filed with the retirement or pension plan’s Plan Administrator and subsequently approved, prior to the separation or disbursement of funds. What is ERISA? ERISA (codified at  29 U.S.C. §1001 et seq.) was enacted, in part, to protect the interests of employees who participated in employer-sponsored pension plans.  This federal law sets forth minimum standards for most voluntarily established, private sector, pension or retirement plans, which standards include but are not limited to the following: (1) plans must provide each participant with plan information; (2) plan managers and those who control plan assets are subject to specific fiduciary responsibilities; (3) plans are required to establish a grievance and appeals process in order for participants to get benefits from their plans; and (4) participants are provided with the right to sue for benefits and breaches of fiduciary duty. What has been termed the “anti-alienation” provisions of ERISA prevent the assignment or distribution of the proceeds of an ERISA qualified plan to third parties.  29 U.S.C. § 1056(d)(1).  Furthermore, when Congress enacted ERISA it was intended that this law would be preemptory in nature and that it would “supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in 29 U.S.C. § 1003(a) . . .”  29 U.S.C. § 1144(a).  See also Potts v. Potts, 142 Md. App. 448, 455, 790 A.2d 703, 708 (2002).  The combination of the anti-alienation and preemption provisions raised a question with the courts as to “the validity of orders entered in State domestic relations proceedings requiring that pension benefits be paid to a person other than the plan beneficiary.”  See id. (citing to Rohrbeck v. Rohrbeck, 318 Md. 28, 32, 566 A.2d 767, 769 (1989)). While considering what eventually became enacted as the Retirement Equity Act of 1984, Congress provided clarification regarding both issues, stating that

if a domestic relations order requires the distribution of all or a part of a participant’s benefits under a qualified plan to an alternate payee, then the creation, recognition, or assignment of the alternate payee’s right to the benefits is not considered an assignment or alienation of benefits under the plan if and only if the order is a qualified domestic relations order.  Because rights created, recognized, or assigned by a qualified domestic relations order, and benefit payments pursuant to such an order, are specifically permitted under the bill, State law providing for these rights and payments under a qualified domestic relations order will continue to be exempt from Federal preemption under ERISA.

See Rohrbeck, 318 Md. 28 at 33 (citations omitted) (emphasis added).  In other words, courts were provided with the authority to execute orders allowing benefits to be paid to someone other than the plan beneficiary through the means of a QDRO.  “From a practical point of view, a QDRO allows divorcing parties to avoid a lump sum payment and the tax consequences that accompany such a payment.”  See Freedenburg v. Freedenburg, 123 Md. App. 729, 751, 720 A.2d 948 (1998). For a broad overview of the historical development of QDROs, refer to the following Maryland case law: Rohrbeck v. Rohrbeck, 318 Md. 28, 566 A. 2d 767 (1989); Potts v. Potts, 142 Md. App. 448, 790 A. 2d 703 (2002); and Dennis v. Fire & Police Employees Ret. Sys., 390 Md. 639, 651, 890 A. 2d 737 (2006). What is a Qualified Domestic Relations Order (QDRO)? And What Language Must Be Included Within the QDRO? The law defines a “qualified domestic relations order” as a domestic relations order that meets certain requirements that are set forth in the statute.  First, the order must constitute a “domestic relation order,” which is defined as: any judgment, decree, or order (including approval of a property settlement agreement) which- (i) relates to the provision of child support, alimony payments, or marital property rights to a spouse, child, or other dependent of a participant, and (ii) is made pursuant to a State domestic relations law (including a community property law). 29 U.S.C. § 1056(d)(3)(B)(ii). The order must also meet three additional requirements: (1) It must create or recognize the existence of an alternate payee’s right to, or assign to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan (29 U.S.C. § 1056(d)(3)(B)(i)); and (2) Procedurally, in order to be recognized as a QDRO by the QDRO Plan Administrator, the QDRO must clearly specify the following: (i) the name and last known mailing address of the alternate payee and the participant; (ii) the amount or percentage of the participant’s benefits to be paid by the plan to the alternate payee (or the manner in which the amount or percentage is to be determined); (iii) the number of payments or the period to which the order applies; and (iv) each plan to which the order applies. (29 U.S.C. § 1056 (d)(3)(C)).[1] And, (3) It: (i) does not require a plan to provide any type or form of benefit, or any option, not otherwise provided under the plan, (ii) does not require the plan to provide increased benefits (determined on  the basis of actuarial value), and (iii) does not require the payment of benefits to an alternate payee which are required to be paid to another alternate payee under another order previously determined to be a qualified domestic relations order. 29 U.S.C. § 1056(d)(3)(D). At a minimum, the QDRO must be in compliance with the aforesaid provisions. Practically speaking, a QDRO is typically a separate Order, executed by counsel for both parties, and submitted to the Court post-divorce.  However, note that ERISA does not require that a QDRO be part of the actual judgment of absolute divorce, but if counsel is able to prepare and have opposing counsel approve the QDRO in advance of trial or the uncontested divorce proceeding, then the QDRO may be filed with the Court at the time the judgment of absolute divorce is granted, as a way to expedite the process. How Do I Know if my Pension Plan or Retirement Account is Governed by ERISA? If your pension or retirement plan is governed by ERISA, then your employer is required to provide participants and their beneficiaries with the following specific documents about the plan: (1) the summary plan description; (2) the summary of material modification; (3) an individual benefit statement; (4) if the plan allows the participant to direct their own investments, then, on a regular basis, the plan is required to make participants aware of their rights and responsibilities under the plan regarding directing their investments, which includes information about fees and expenses; (5) an automatic enrollment notice (if applicable); (6) a summary annual report; and (7) any applicable black out period notices. The summary plan description is given to employees after they join the plan (and to beneficiaries after they first receive benefits) and this document will contain language related to whether the plan is governed by ERISA.  Furthermore, the summary plan description is supposed to provide a plain language description of the plan, describes plan features, what to expect of the plan, and it is required to be comprehensive enough to apprise participants of their rights and responsibilities under the plan.  A copy of the plan is also required to be provided upon request. What Are The Procedural Steps For Filing a QDRO and Obtaining Approval? If the parties reach a settlement of their case, which involves the distribution of retirement or pension funds from one spouse to another, or the trial court issues an opinion ordering the same, and it is clear that the plan is governed by ERISA, then the proper QDRO needs to be prepared, signed by counsel (and sometimes the parties), filed with the Court, executed by the Judge, and then submitted to the plan administrator for approval along with a certified copy of the QDRO, the Parties’ Judgment of Absolute Divorce (and settlement agreement, if applicable). Each plan governed by ERISA is required to have a clearly defined process for handling the submission of QDROs.  Therefore, counsel should contact the plan administrator in advance of submitting the QDRO in order to obtain the specific details regarding this process. What Happens After the QDRO Has Been Submitted to the Plan Administrator? As the Court of Appeals made clear in Rohrbeck,

The law requires each plan to establish ‘reasonable procedures to determine the qualified status of domestic relations orders and to administer distributions under such qualified orders.’ 29 U.S.C. § 1056(d)(3)(G)(ii); [I.R.C.] § 414(p)(6)(B).  Upon receipt of a domestic relations order, the plan administrator must notify the participant and the alternate payee of the receipt of the order and the plan’s procedures for determining its qualified status.  The administrator has ‘a reasonable period’ of up to 18 months in which to determine that status and inform the parties of the decision.  See  29 U.S.C. § 1056(d)(3)(G)-(H); [I.R.C.] § 414(p) (6)-(7).

Rohrbeck, 318 Md. at 35, 566 A.2d at 771.  From a practitioner’s perspective, once the QDRO has been sent to the plan administrator, if counsel or his or her client has not received confirmation that the QDRO has been received by the plan administrator within a month from the date it was mailed out, then counsel should follow up with the plan administrator to confirm receipt, as well as to obtain a time estimate for how long the review and approval process will take. Do QDRO’s Apply to All Retirement or Pension Plans? No. IRA’s, tax-sheltered annuities under Internal Revenue Code § 403(a) and (b), governmental plans and church plans are not governed by ERISA in this regard.  As a result, the terms of the plan and applicable law govern what documents are required to be executed in order for these funds to be distributed post-divorce. Can QDRO’s Be Used For Purposes Other Than Distributing Pension/Retirement Funds in a Divorce Case? The use of QDRO’s is not limited to divorce matters. QDRO’s can also be utilized for purposes of collecting child support or spousal support, which includes the collection of past-due child support or spousal support arrearages.

* * *

[1] Note that ERISA, 29 U.S.C. § 1056(d)(3)(K) states that the term alternate payee means “any spouse, former spouse, child, or other dependent of a participant who is recognized by a domestic relations order as having a right to receive all, or a portion of, the benefits payable under a plan with respect to such participant.” Section 1056(d)(3)(J) indicates that “a person who is an alternate payee under a qualified domestic relations order shall be considered for purposes of any provision of this Act a beneficiary under the plan.”

 

Can an employer be liable for racist and sexist comments by a client or business partner—someone who does not even work for the employer—toward one of its employees?

Under a recent decision by the Fourth Circuit Court of Appeals, the answer is “yes.” In Freeman v. Dal-Tile Corp., a decision issued on April 29, 2014, the Fourth Circuit recognized that an employer can be liable for harassment perpetrated by a third-party against one of its employees.

Title VII, as well as Maryland state law and some county laws, prohibits harassment on the basis of race, color, religion, sex, or national origin (i.e., “protected classes”). The law is well-established that an employer may be liable for harassment perpetrated against an employee by a supervisor or co-worker. (See related JGL posts here and here.)  Until the Freeman decision, it was unclear under what standard in the Fourth Circuit whether an employer could be held liable for harassment based on one of these protected classes[1] perpetrated against an employee by a third-party who does not even work for the employer.

Lori Freeman was employed by Dal-Tile as a customer services representative. In that role, she frequently interacted with Timothy Koester, a sales representative for another company that did business with Dal-Tile. On numerous occasions, Koester made racially and sexually-offensive comments to and in the presence of Freeman. Among other egregious actions, Koester used the N-word towards and in the presence of Freeman, who is African-American. He also loudly and lewdly bragged about his sexual partners and activities. Ms. Freeman complained about the harassment to her supervisors, but largely to no avail. She eventually resigned and brought suit against Dal-Tile.

The U.S. District Court for the Eastern District of North Carolina granted summary judgment in favor of Dal-Tile, but the Fourth Circuit Court of Appeals reversed that ruling. For the first time, the Fourth Circuit ruled that an employer may be liable for harassment committed by third parties under a negligence standard. As explained by the Court: “an employer is liable under Title VII for third parties creating a hostile work environment if the employer knew or should have known of the harassment and failed to take prompt remedial action reasonably calculated to end the harassment.”

For employers, the most important point of this decision is that they must respond to complaints about harassment of their employees by third parties. Employers are not insulated from liability simply because the harasser does not work for them. If an employee complains about offensive comments or actions by a customer, client, business partner, or anyone else, the employer must investigate and, if necessary, take action to stop the harassment. As the Fourth Circuit said, “an employer cannot avoid Title VII liability for [third-party] harassment by adopting a ‘see no evil, hear no evil’ strategy.” Any employer who is unsure about their legal obligations or potential liability for third-party harassment should consult with an attorney right away.

For employees, the message is clear—the law does not force them to endure harassment by third parties. There is a clear right to sue for harassment not only by supervisors and co-workers, but also by third parties. However, it is imperative that any employee who is subjected to a hostile work environment make a prompt complaint to a supervisor or other appropriate person in management. Any employee who feels they are being harassed and is unsure of their legal rights or responsibilities should contact an attorney immediately.

 

 * * *

[1] As the courts tend to look to Title VII jurisprudence when interpreting liability under the Americans with Disabilities Act, it is possible that this standard could also extend to instances where harassment is based on an employee’s disability.

In a unanimous decision, the Court of Appeals of Maryland recently held in Blackburn Ltd. Partnership v. Paul,[1] that all Maryland public pools have a duty to comply with Maryland’s swimming pool barrier safety regulations.[2] The Court recognized that the pool barrier safety regulations were designed for the protection of young children from accidental drowning and near-drowning by limiting or delaying their access to swimming pools, spas and hot tubs.

Therefore, under the Statute or Ordinance Rule, a public pool owner may be liable for such an injury to a child irrespective of his or her legal status on the property when the incident occurs.

The tragic events that led to this decision occurred on June 13, 2010.  On that day, three-year-old Christopher Paul lived with his parents, Alicia Paul, Junior Christopher Paul, and his ten-year-old half-brother, Andre, at Country Place Apartments in Burtonsville, Maryland. Andre and Christopher went outside to play and twice returned to the apartment and then returned outside again, each time for only a few minutes. During their third trip outside, Christopher threw a toy down the hill next to the playground and Andre went to retrieve it. When Andre walked back up the hill, he could not find Christopher so he alerted his mother. Knowing that he had been to the pool with his father the day before, Andre and Mrs. Paul immediately began looking for Christopher, including at the pool area, which was supposed to be closed and locked at that time. When she arrived at the pool gate, she saw Christopher’s shoes and shirt on the pool deck just inside the gate. A lifeguard arrived at the pool at that moment and retrieved Christopher from the pool, who was not breathing and had no pulse. Rescue efforts began, paramedics arrived, and they too continued rescue efforts on the unresponsive Christopher. As a result of this near-drowning, Christopher sustained a severe anoxic brain injury. He now has multiple, complex medical conditions, which require continuous care.

Although the gate was supposed to be locked, it had a loose opening of at least 18 inches. At closing, a padlock and chain would be affixed to the upper half of the gate. However, the chain would only loosely fit around the upper half of the gate, and the lower half of the gate would be unlocked There was a lot of play in the gate and that the bottom portion bowed out significantly. As a result, while the pool was supposed to be closed, the gate doors could easily be pushed in either direction to create a large opening – approximately 18 inches wide. There were also multiple 6-inch gaps in the fence, which Christopher also could have fit through. Christopher’s head was measured by a physician to be 5.1 inches wide and he stood at just over three-feet tall.

Christopher’s shirt and shoes were found on the pool deck just inside the only pool gate, and there was no evidence of any forced or other methods of entry except through the large openings in the fence and gate. Christopher would have easily been able to pass through the 18-inch gap in the “closed” gate. Investigation concluded that Christopher had entered the pool through the large opening in the lower portion of the gate.

The defendants in the case argued that: 1) they had no duty to Christopher because he was a trespasser at the pool; 2) pool safety regulations do not create a duty to one who is a trespasser; and 3) they were not required to retrofit or change their barriers because the pool safety regulations in COMAR do not apply to them as their pool was constructed in 1978 – before the newer pool safety regulations were enacted.[3]

The Court of Appeals, in affirming the decision of the Court of Special Appeals,[4] held that the common law trespass analysis is wholly inapplicable in this instance. Rather, “another strand of law is relevant” under the “Statute or Ordinance Rule.” Under that rule, to prove a negligence case, a plaintiff need only show: “(a) the violation of a statute or ordinance designed to protect a specific class of persons which includes the plaintiff, and (b) that the violation proximately caused the injury complained of.”[5] Although the pool owners argued that this rule is limited to lead paint cases, the Court clarified that “the Statute or Ordinance Rule has never been confined to the context of lead paint cases . . . has broad applicability, and need not be cabined by common-law rules that are unique to the premises liability context.”[6]

The Court recognized that COMAR has specific gate and barrier requirements, including that, except when open, an opening in the barrier may “not allow passage of a sphere 4 inches in diameter”[7]—a measurement based specifically on general understandings of the size of heads and chests of small young children—as the regulation was “intended to prevent a young child from passing through an opening.” The Court rejected the property owners’ argument that this requirement did not apply to them based on a plain language reading of the regulations, common sense, the purpose of the regulatory scheme as a whole (pool safety), and a separate provision requiring that if a pool “has a condition that jeopardizes the health or safety of the public,” it must be corrected to meet the pool regulations.

Moreover, the Court found persuasive that COMAR adopts Appendix E of the Model Barrier Code for Residential Swimming Pools, Spas, and Hot Tubs. The Model Barrier Code is clear that the purpose of the barrier requirements is to protect young children from accidental drowning and near-drowning. Therefore, “in the event of a lapse in adult supervision, and particularly for the protection of children in the most at-risk age group, less than five (5) years of age, who cannot yet appreciate or be instructed as to the risk of drowning, supplemental layers of protection are established. They limit or delay child access to” a pool.[8] The Court therefore concluded that all Maryland public pools are required to comply with the gate and barrier requirements set forth in COMAR.

Finally, returning to the Statute or Ordinance Rule, the Court found that it is applicable here. The pool barrier safety regulations were designed for the protection of a particular class of persons such as Christopher – namely, children under the age of five. Additionally, for part (a) of the Rule, a violation of the statute or ordinance, there was sufficient “evidence concerning the state of the fence at the time of the incident [which] could prove that Petitioners’ enclosure failed to meet the requirements of COMAR 10.17.01.21A(3).” For part (b) of the Rule, causation, the Court had little trouble detailing the numerous factors displaying circumstantial evidence sufficient to show that the pool barrier was not sufficient and that Christopher entered the pool by slipping through the defective gate. In sum, the Court concluded that, irrespective of Christopher’s legal status at the pool, a reasonable trier of fact could find that the property owners violated their duty to have an adequate barrier and that such violation was the cause of Christopher’s injuries.[9]

This case is extremely important in establishing safety standards for those in and around public pools in the State of Maryland. No longer will older public pools be permitted to argue that they are not required to protect the public, particularly children in and around pools, from the well-documented dangers of deficient pools and barriers. Additionally, this case is significant in that it firmly rejects limiting the Statute or Ordinance Rule to only lead paint cases. If a plaintiff can show the defendant violated a statute or ordinance designed to protect that class of persons, and that violation was a proximate cause of the injury, he or she will be permitted to assert a claim for negligence.

___________

 

Levi S. Zaslow is an attorney in the civil litigation department at Joseph, Greenwald & Laake, P.A. He, along with Timothy F. Maloney, Veronica B. Nannis, Peter C. Grenier, and Andre M. Gregorian, briefed Blackburn Ltd. Partnership v. Paul in the Court of Appeals and Court of Special Appeals. The opinion of the Court of Appeals is available here, and the opinion of the Court of Special Appeals is available here. Mr. Zaslow is licensed to practice in Maryland and the District of Columbia. He handles cases at each Maryland court level, from the Court of Appeals of Maryland to the Maryland district courts, in addition to agency-related matters. He also routinely practices in federal court in Maryland and the District of Columbia representing both plaintiffs and defendants.

 

[1] No. 55, Sept. Term, 2013, __ Md. __, __ A.3d __, 2014 WL 1672388 (Md. Apr. 28, 2014). The opinion of the Court of Appeals is available here.

[2] This includes “recreational pools,” which are pools at “[a]n apartment complex, housing subdivision, or mobile home park with more than ten units.” COMAR 10.17.01.01; 10.17.01.05B(19)(f)(v).

[3] Paul, slip op. at 6-7, 2014 WL 1672388, at *3-4.

[4] Paul v. Blackburn Ltd. P’ship, 211 Md.App. 52, 63 A.3d 1107 (2013). The opinion of the Court of Special Appeals in available here.

[5] Paul, slip op. at 10-11, 2014 WL 1672388, at *4-5.

[6] Paul, slip op. at 15-16, 2014 WL 1672388, at *7.

[7] COMAR 10.17.01.21A

[8] Paul, slip op. at 18-26, 2014 WL 1672388, at *8-12.

[9] Paul, slip op. at 27-31, 2014 WL 1672388, at *12-14.

This past session, the Maryland legislature enacted a number of changes that affect both victims and perpetrators of domestic violence. Although certainly not a comprehensive overhaul, the new legislation touches on several important areas that affect the public’s ability to obtain and extend both peace and protective orders, as well as enhanced penalties for those who violate such orders.

Peace and Protective Orders are civil orders that an individual may obtain against another individual for committing a prohibited act, such as assault, stalking, or some other form of general harassment (in common parlance, a “restraining order”). These orders are often obtained before criminal charges are formally brought, and provide a measure of protection to victims of abuse or harassment while charges are pending. Whether an individual is able to obtain either a peace or protective order depends on the underlying conduct and the relationship between the persons involved.[1]

 Permanent Final Protective Orders

Ordinarily, Final Protective Orders are only effective for one year. However, under certain circumstances a Court may issue a permanent protective order. As the law presently stands, a court is required to issue a permanent final protective order against an individual if

(1) the individual was previously a respondent against whom a final protective order was issued and

(2) the individual was convicted and served a term of imprisonment of at least five years for attempted murder in the first or second degrees, first degree assault, first or second degree rape, first or second degree sexual offense, or attempted rape or sexual offense in the first or second degree.

Bills passed by both the Senate and the House this termexpand the circumstances under which a permanent final protective order may be obtained.[2]

Instead of requiring an individual to serve at least five years before a permanent order may be obtained, the legislature has changed the language to permit the issuance of an order when an individual is sentenced to serve a term of imprisonment of at least five years for specified underlying acts of abuse, and has served at least 12 months. Now, rather than requiring that the respondent actually serve five years in jail – something that will not always occur due to jail overpopulation and credit for good time served – the respondent will only have to have served at least 1 year in jail before the petitioner is able to request a permanent order.

The bills also add the crime of second degree assault to the list of crimes, the commission of which subjects an individual to the issuance of a permanent final protective order. This is an extremely important addendum, as it allows many petitioners to obtain permanent protection before the violence escalates further.

Extensions of Protective Orders

If a petitioner (the person seeking to obtain the peace or protective order) wants to extend a protective order, they have to file a motion and go before the court to do so. However, if a hearing is not held on the motion to extend before the order actually expires, the court cannot do anything – even when the motion was timely filed. In La Valle v. La Valle, 432 Md. 343 (2013), the Court of Appeals held that if a motion to extend a protective order is filed before its expiration, but, for any reason, the hearing on the motion is delayed beyond the expiration of the protective order, that order can no longer be extended.

Senate Bill 434 and House Bill 647, both passed during this past term,require a court to extend a final peace order or a final protective order if, during the term of the order, the petitioner or person eligible for relief files a motion for extension, and to hold a hearing within 30 days after the motion is filed. Given the many snow days we experienced this winter, this provision will help ensure that petitioners are able to obtain the necessary relief even if mother nature causes the courts to close unexpectedly.

Child Witnesses to Domestic Violence

More than 3 million children each year witness domestic violence in their homes.[3] In addition to an increased likelihood that a child will themselves be subject to violence, a number of studies have shown that children who witness domestic violence may suffer emotional and developmental difficulties that are similar to those suffered by children who have been directly abused. Additionally, children who witness domestic violence are far more likely to follow the same path once they become adults; the American Psychological Association has noted that a child’s exposure to the father abusing the mother is the strongest risk fact for transmitting violent behavior from one generation to the next.[4]

Attempting to strike a blow to this continuing cycle of violence, Senate Bill 337 and House Bill 306 add an enhanced penalty for those individuals who commit a crime of violence when the person knows or reasonably should know that a minor, who is at least two years old, is present in a residence within sight or hearing of the crime of violence. Anyone who commits a crime of violence under these circumstances is subject to an enhanced penalty of imprisonment for up to five years in addition to any other sentence imposed for the crime of violence. Importantly, any enhanced penalty imposed under these bills must be separate from and consecutive to any sentence for the underlying crime of violence.

 Burden of Proof to Obtain Protective Orders

 As the law currently stands in Maryland, in order to grant a final protective order a judge must find by “clear and convincing evidence” that the respondent has committed, and is likely to commit in the future, one of several prohibited acts against the petitioner. According to a 2012 report from the Department of Legislative Services, Maryland is the only state that specifically requires by statute that a petitioner must meet the higher burden of “clear and convincing evidence” to receive a final protective order; 29 other states utilize the “preponderance of the evidence” standard in determining whether to grant a final protective order.[5]

After many years, and amidst widespread criticism from the domestic violence community, the Maryland State Senate and House both recently passed legislation which lowers the standard of proof from clear and convincing evidence to a preponderance of the evidence standard that must be met before issuing or extending final peace orders.

What is a Burden of Proof?

 A “burden of proof” is the duty or obligation a person has in a court proceeding to prove their case. There are several different burdens of proof that are used in various court proceedings. Perhaps the most well-known standard is that used in criminal cases, whereby a person must be found guilty “beyond a reasonable doubt.” That means that in order to find someone guilty of a crime, the state must essentially prove that the evidence demonstrates the defendant committed the crime to a certain degree of certainty, and that there is no other logical explanation to explain the underlying event; if the jury has no doubt as to the defendant’s guilt, or if their only doubts are unreasonable, then the burden has been met. If we were to set up the burdens of proof on a football field, to meet this burden you would basically have to score a touchdown; it is the highest burden of proof.

At the other end of the spectrum is the “preponderance of the evidence” standard. This is the standard that is applicable in most civil cases. This standard requires just enough evidence to establish that a fact is more likely true than not true, or more probable than not. If we use the football analogy, to meet this burden you would only have to take the ball just over the 50 yard line. This is the lowest burden of proof one must meet.

In between those extremes lies the “clear and convincing” standard. This standard requires more than just a preponderance of the evidence, but less than would be required to prove something beyond a reasonable doubt; there must be a high probability that something is true in order to meet this burden. Basically, we’re looking somewhere between the 50-yard line and the goal line, although where that line lies is very difficult to determine.

 

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For more information on peace orders and protective orders in Maryland, please visit the Maryland Courts website at http://mdcourts.gov, or the Maryland Network Against Domestic Violence website at http://mnadv.org.

 

 

[1] For a great checklist to help you determine if you are able to file for a peace or protective order, see the Brochure titled “How to File for a Peace or Protective Order” produced by the Maryland Judiciary, located at http://www.courts.state.md.us/courtforms/joint/ccdcdvpo001br.pdf.

[2] Senate Bills 334 and 434; House Bills 309 and 647.

[3] Safe Horizon, https://www.safehorizon.org. Safe Horizon is a victim services agency providing assistance to victims of domestic violence, child abuse, human trafficking, rape, and sexual assault.

[4] American Psychological Association, Violence and the Family: Report of the APA Presidential Task Force on Violence and the Family (1996).

[5] Department of Legislative Services, How States Address Domestic Violence in Selected Areas (2012), available at http://dls.state.md.us.