The Lawletter Blog

ELECTION LAW: Government Regulation—Gaming—Constitutional Law

Posted by Gale Burns on Mon, Oct 27, 2014 @ 16:10 PM

The Lawletter Vol 39 No 8

Tim Snider, Senior Attorney, National Legal Research Group

     We live in an increasingly politicized and polarized country. With elections occurring at least every other year and political activity ongoing, the states are struggling to contain or define the limits of political advocacy. Texas, like most states, licenses nonprofit charitable organizations to conduct games of chance, such as bingo, for fund-raising purposes. The net proceeds of those games, however, must be devoted exclusively to the charitable purposes for which the entity has qualified as a tax-exempt, charitable organization. The Texas Bingo Enabling Act ("the Act") provides, in pertinent part, that

the net proceeds derived from bingo and any rental of premises are dedicated to the charitable purposes of the organization only if directed to a cause, deed, or activity that is consistent with the federal tax exemption the organization obtained under 26 U.S.C. § 501 and under which the organization qualifies as a nonprofit organization as defined by Section 2001.002.

Tex. Occ. Code Ann. § 2001.454(b).

     Certain tax-qualified charitable organizations in Texas, licensed to conduct bingo games, used the proceeds of the games for purposes of advocating political causes and positions, specifically to lobby in support of, or in opposition to, certain ballot initiatives. The Texas Lottery Commission ("the Commission"), which is tasked with administering and enforcing the Act, entered an enforcement order prohibiting the organizations from using the proceeds for those purposes, concluding that doing so violated the Act. The organizations brought suit, alleging that the Commission's action amounted to an unconstitutional limitation on free speech. The district court, relying heavily on Citizens United v. FEC, 558 U.S. 310 (2010), agreed with the plaintiffs.

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Topics: games of chance and government regulation, nonprofit charitable organizations fundraising, use of gaming proceeds for political causes, restricting use of proceeds unconstitutional

FAMILY LAW: Equitable Distribution of the Family Pet

Posted by Gale Burns on Mon, Oct 27, 2014 @ 15:10 PM

Brett Turner, Senior Attorney, National Legal Research Group

     Disputes over division of family pets pose difficult problems for courts in divorce cases. Courts are often asked to treat pets as they treat children, awarding custody and visitation rights. But such treatment would make divorce cases harder to resolve, and supervising pet visitation rights would be a material burden upon judges. With great regularity, therefore, courts have held that pets are treated as property under equitable distribution statutes, and not as children under custody and visitation statutes. See generally 1 Brett R. Turner, Equitable Distribution of Property § 5:9 (3d ed. 2005).

     But equitable distribution statutes are not especially well suited to divide pets, either, as most equitable distribution factors focus upon property with economic value. Pets have little economic value, but their personal and sentimental value can be very substantial.

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Topics: pets as property under distribution statutes, equitable distribution, ownership of family pet in divorce cases

CRIMINAL LAW: Juvenile Sentences—Retroactivity of Miller v. Alabama

Posted by Gale Burns on Fri, Oct 24, 2014 @ 14:10 PM

The Lawletter Vol 39 No 8

Mark Rieber, Senior Attorney, National Legal Research Group

    There is a split of authority in federal and state courts over whether the Supreme Court's ruling in Miller v. Alabama, 132 S. Ct. 2455 (2012), applies retroactively to cases on collateral review. In Miller, the Supreme Court held "that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." Id. at 2469. The Court stated that the decision "require[s the sentence] to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." Id. Miller then provides substantial details regarding what must be considered as part of the individualized sentencing process before a sentence of life without parole can be imposed on a juvenile.

    Federal and state courts across the country "have considered whether Miller announced a new rule that should be applied retroactively, with varying outcomes." Malvo v. Mathena, No. 2:13-cv-375, 2014 WL 2808805, at *10 (E.D. Va. signed June 20, 2014); see also id. at *10-13 (collecting cases). "Indeed, there is no consensus among lower courts whether Miller is retroactively applied to cases on collateral review." Id. at *10.

    Recent cases have followed this trend and have reached different conclusions on the issue. In In re State, No. 2013-556, 2014 WL 4253359 (N.H. Aug. 29, 2014) (not yet released for publication), "[a]fter thoroughly reviewing the decision in Miller and the jurisprudence on both sides of the matter," id. at *4, the court agreed with the reasoning of those courts finding the Miller rule to be a "new, substantive rule which should be applied retroactively on collateral review," id. (collecting cases).

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Topics: no consensus among courts, Miller v. Alabama, retroactivity of sentencing, juvenile sentences

CONSTITUTIONAL LAW: Florida District Court Weighs In on Preemption by Title VII

Posted by Gale Burns on Tue, Oct 21, 2014 @ 13:10 PM

The Lawletter Vol 39 No 8

Dora Vivaz, Senior Attorney, National Legal Research Group

     It is not uncommon for more than one federal statute to address the same matter. In such a situation, the courts are called upon to determine whether one provision preempts another or whether the remedies provided are intended to be cumulative, additional, or alternative. The overlap between Title VII and Title IX presents just such a situation.

   Title VII generally addresses unlawful discrimination on the basis of a number of characteristics, including sex, in employment. Title IX specifically addresses unlawful discrimination on the basis of sex in federally funded educational institutions. In a recent case, a Florida district court addressed the question of whether Title VII preempts claims brought under Title IX when the claim is based on discrimination in employment. Torres v. Manatee County Sch. Dist., No. 8:14-cv-1021-T-33TBM, 2014 WL 4185364 (M.D. Fla. Aug. 22, 2014).     

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Topics: Torres v. Manatee County School District, Title IX addresses educational institutions, Title VII preempts Title IX, Title VII preemption

TAX: IRS Announces Its Position on Bitcoin

Posted by must include fair market value in computing gross income on Mon, Oct 20, 2014 @ 17:10 PM

Jim Witt, Senior Attorney, National Legal Research Group

     The virtual currency known as "Bitcoin," created by anonymous computer programmers, has been traded on online exchanges as an item of investment, subject to few fees and no government regulation. The price has fluctuated wildly, from a few cents to more than $1,000 per Bitcoin unit. Programmers are able to obtain new coins through a computer technique known as "mining."

     With a growing number of merchants now accepting Bitcoin as payment and general pressure on governments to regulate virtual currency (especially in view of the collapse of the largest virtual currency exchange, Mt. Gox), the Internal Revenue Service ("IRS") has announced its position on the income tax treatment of Bitcoin. I.R.S. Notice 2014-21, 2014-16 I.R.B. 938.

     The IRS defined "virtual currency" as "a digital representation of value that functions as a medium of exchange, a unit of account, and/or a store of value," id. sec. 2, and noted that Bitcoin fit this definition as a form of currency convertible into legal tender.

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Topics: IRS will treat as property rather than currency, Bitcoin, virtual currency, Bitcoin subject to capital gains tax

CREDITORS' RIGHTS: Fair Debt Collection Practices Act Disclosure Notice Could Be Given Orally

Posted by Gale Burns on Tue, Sep 30, 2014 @ 09:09 AM

The Lawletter Vol 39 No 7

Alistair Edwards, Senior Attorney, National Legal Research Group

     The Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692–1692p, is a consumer protection statute that protects consumers from unfair, deceptive, and harassing collection practices, while leaving debt collectors free to employ efficient, reasonable, and ethical practices in pursuit of their profession. Among other things, the FDCPA requires a debt collector to give certain notices to the consumer. For example, § 1692g provides:

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Topics: legal research, Alistair Edwards, creditor's rights, The Lawletter Vol 39 No 7, Fair Debt Collection Practices Act, consumer protection statute, initial § 1692g information may be oral

CONTRACTS: Memorandum of Understanding Was Not a Binding Contract

Posted by Gale Burns on Mon, Sep 29, 2014 @ 15:09 PM

The Lawletter Vol 39 No 7

John Stone, Senior Attorney, National Legal Research Group

     An architectural firm and two developers sued a City after the City abandoned its plan, under a "Memorandum of Understanding" ("MOU") into which the parties had entered, to develop a publicly funded hotel. The plaintiffs asserted claims for breach of contract and quantum meruit. The Supreme Court of South Carolina granted summary judgment for the City on both claims. Stevens & Wilkinson of S.C., Inc. v. City of Columbia, No. 27434, 2014 WL 4087936 (S.C. Aug. 20, 2014) (not yet released for publication).  

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Topics: legal research, S.C. Supreme Court, John Stone, The Lawletter Vol 39 No 7, contracts law, memorandum of understanding, nonbinding, Stevens & Wilkinson of S.C. v. City of Columbia, only intention to enter future agreements, document terms indicated nonbinding, quantum meruit requires unjust enrichment

TAX: "Material Participation" Required to Avoid Passive Activity Loss Rules

Posted by Gale Burns on Thu, Sep 25, 2014 @ 09:09 AM

The Lawletter Vol 39 No 7

Brad Pettit, Senior Attorney, National Legal Research Group

     A recent decision by the U.S. Tax Court illustrates the difficulties that can be encountered by taxpayers who want to avoid the special rules that apply with respect to the deductibility of losses from "passive" business or investment activities. In Schumann v. Commissioner, T.C. Memo. 2014-138, 2014 WL 3408198, the Tax Court ruled that since an individual who invested in rental real estate was not a "real estate professional," the deductibility of losses that he sustained in connection with his rental property activities and investments was subject to the passive activity loss rules that are set forth in § 469 of the Internal Revenue Code.

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Topics: legal research, Brad Pettit, tax, The Lawletter Vol 39 No 7, deductibility of losses, passive business or investment activities, includes rental activity, Schumann v. Commissioner, 26 U.S.C. § 469, loss disallowed in taxable year it occurred, documentation time involved to establish time spen

CIVIL PROCEDURE: Federal Court Jurisdiction

Posted by Gale Burns on Thu, Sep 25, 2014 @ 08:09 AM

The Lawletter Vol 39 No 7

Anne Hemenway, Senior Attorney, National Legal Research Group

     The Rooker-Feldman doctrine, developed by the U.S. Supreme Court, provides that because the jurisdiction of the federal district courts "is strictly original," Rooker v. Fid. Trust Co., 263 U.S. 413, 416 (1923), a federal district court "has no authority to review final judgments of a state court in judicial proceedings[,]" D.C. Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983). The doctrine is consistent with, and serves to implement, 28 U.S.C. § 1257, which allows only the U.S. Supreme Court to review final judgments and decrees rendered by the highest court of a state.

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Topics: legal research, Anne Hemenway, civil procedure, The Lawletter Vol 39 No 7, federal court jurisdiction, Rooker-Feldman doctrine, 28 U.S.C. § 1257, Great Western Mining & Mineral Co. v. Fox Rothschi, Truong v. Bank of America defining terms "ine

PERSONAL INJURY: Comparing Compensatory Damages Awards to Evaluate Excessiveness of Punitive Damages Awards

Posted by Gale Burns on Tue, Aug 26, 2014 @ 09:08 AM

The Lawletter Vol 39 No 6

Fred Shackelford, Senior Attorney, National Legal Research Group

     When a jury awards different amounts of compensatory damages to multiple plaintiffs in the same case but also awards each plaintiff the same amount of punitive damages, can a court compare the compensatory damages awards to determine whether a punitive damages award is excessive? That was the issue before the Virginia Supreme Court in the case of Coalson v. Canchola, 287 Va. 242, 754 S.E.2d 525 (2014). There, an intoxicated motorist (Canchola) caused an accident that injured another driver (Coalson) and the other driver's passenger (Stemke). In an action by both injured parties against Canchola, the jury awarded  compensatory damages of $5,600 to Coalson and $14,000 to Stemke, in addition to awarding $100,000 in punitive damages to each of them. The trial court remitted Coalson's punitive damages award, noting a "significant disparity" between the plaintiffs' compensatory damages awards but identical awards of punitive damages. On appeal, the Coalson court first determined that punitive damages were warranted based on Canchola's egregious conduct, as follows:

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Topics: legal research, Fred Shackelford, Va. Supreme Court, The Lawletter Vol 39 No 6, personal injury law, comparing punitive damages to prove excessive comp, Coalson v. Canchola, determination must be based on facts and circumsta

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