May 8, 2012
Fred Shackelford, Senior Attorney, National Legal Research Group
Courts in various jurisdictions have arrived at different conclusions when deciding whether umbrella insurance policies are statutorily required to provide uninsured ("UM") or underinsured ("UIM") motorist coverage. One article has summarized the case law as follows:
Although uninsured or underinsured motorist coverage is an almost universally statutorily required component of motor vehicle liability policies, the question whether "excess" or "umbrella" insurance policies are also required to provide such coverage varies jurisdictionally. Many courts addressing the issue have found that umbrella policies, which are designed to protect against an infrequent risk of catastrophic loss in the form of excess judgments, and for which proportionally low premiums are paid, do not fall within the scope of an uninsured motorist statute which was intended to apply only to primary policies . . . . Conversely, some courts have found that their uninsured motorist statutory schemes do contemplate the inclusion of umbrella policies. Those cases which consider whether an excess or umbrella policy is statutorily required to provide uninsured motorist coverage, as well as cases which consider whether coverage is provided by the terms of a policy, and, if so, at what point such coverage begins, have been collected and analyzed in this annotation.
Lisa K. Gregory, Annotation, "Excess" or "Umbrella" Insurance Policy as Providing Coverage for Accidents with Uninsured or Underinsured Motorists, 2 A.L.R.5th 922 (1992 & Westlaw database updated weekly).
This issue was recently resolved in Colorado in the case of Apodaca v. Allstate Insurance Co., 255 P.3d 1099 (Colo. 2011). In Apodaca, the insureds were covered under automobile and umbrella policies, both of which were issued by Allstate. The automobile policy included UM/UIM coverage in the amount of $100,000 per person and $300,000 per occurrence, while the umbrella policy provided $1 million in excess liability coverage for occurrences arising out of, among other things, "occupancy of a land vehicle . . . by an insured for personal transportation." Id. at 1100. The umbrella policy did not expressly provide UM/UIM coverage, and it specifically excluded coverage for "personal injury or bodily injury to an insured." Id. at 1101.
A Colorado statute requires that UM/UIM coverage be offered and included, unless rejected in writing, in any "automobile liability or motor vehicle liability policy" delivered or issued in Colorado. Colo. Rev. Stat. § 10-4-609(1)(a). The court framed the issue as whether an umbrella policy that includes supplemental liability coverage for automobiles or motor vehicles is within the scope of this statute. The court noted that an umbrella policy is a distinct type of excess liability policy, which may also provide primary coverage for certain risks that an underlying policy may not cover.
Turning to the language of the statute, the court observed that it does not purport to apply to all liability policies, but only to automobile or motor vehicle liability policies. In addition, the statute applies only to policies "with respect to any motor vehicle licensed for highway use in this state." Id. at 1105. The court viewed the statute as focusing on insurance policies that provide liability coverage for specifically identified vehicles licensed for use in the state and noted that the insureds' underlying policy designated four particular vehicles and required premiums that were calculated based on considerations specific to each vehicle. In contrast, the premium for the umbrella policy was "not tethered to specific aspects of the policyholder's automobiles or their use." Id. The umbrella policy was "not inherently tied to particular automobiles or motor vehicles, or even the activity of driving." Id. The court ruled that the umbrella policy was not the type of liability policy encompassed by the statute, stating:
But an umbrella policy is not transformed into an "automobile or motor vehicle liability policy" simply because it includes coverage for liability arising from the use of automobiles. An umbrella policy is an inherently different type of policy. As Allstate observes, it would be equally inaccurate to label the umbrella policy an "aircraft policy," "boat policy," or "homeowners policy."
Id.
The court declined to rule in favor of the insureds on the basis of public policy considerations. The court also declined to adopt a "minimum liability" analysis that some other courts have followed, whereby umbrella policies are excluded from UM/UIM statutes based on legislatures' presumed intention to offer insureds only minimum amounts of coverage. The Apodaca court noted that Colorado insureds can elect to have UM/UIM coverage in excess of minimum limits under financial responsibility laws, and it based its decision solely on the language of section 10-4-609(1)(a).
Although the court ruled that umbrella policies are not required to provide UM/UIM coverage, it did implicitly warn insurers that they cannot evade their obligation to offer UM/UIM coverage for automobile policies by disguising them as umbrella policies. The court stated:
Our holding, however, is not predicated on the superficial labeling or packaging of a policy. See, e.g., 4 New Appleman on Insurance Law Library Edition § 24.02[4] (explaining one must "analyze the policy language, rather than basing decisions on labels or headings" in determining whether a particular policy affords excess or umbrella coverage). Instead, we look to the plain language of the policy to determine whether it is fundamentally an "automobile liability or motor vehicle liability policy" within the meaning of the UM/UIM statute. An insurer could not, for example, remove an automobile liability policy from the reach of the UM/UIM statute merely by adding some coverage that is unrelated to automobiles, such as identity‑theft coverage.
Id. at 1107.
The Lawletter Vol 36 No 11
Fred Shackelford, Senior Attorney, National Legal Research Group
What is the potential liability of a testing laboratory that incorrectly analyzes a DNA sample? This was the issue before the Oklahoma Supreme Court in Berman v. Laboratory Corp. of America, 2011 OK 106, 268 P.3d 68. In the Berman case, the plaintiff sought assistance from the Department of Human Services ("DHS") to determine the paternity of her child and to collect child support. The agency arranged for the defendant laboratory (LabCorp) to conduct a DNA test. LabCorp tested the sample twice and both times incorrectly reported that a particular individual, Herbert White Jr., was not the child's father.
However, after a different laboratory performed a DNA test and found that White was in fact the father, the plaintiff sued LabCorp for having negligently tested the DNA sample. She sought damages for the loss of past and future child support payments that White would have been required to pay if the paternity test results had been correctly reported. After the court disposed of an immunity defense, it addressed an issue of first impression in Oklahoma: "[D]oes LabCorp owe Berman, as the parent seeking to prove the paternity of her child, a duty of care to conduct accurate DNA testing which was ordered by DHS for child support purposes?" Id. ¶ 16.
The court noted that DNA or genetic test results have become an important part of evidence law in Oklahoma. Such test results have been admitted in cases involving heirship of a decedent's estate; proving paternity to prevent an adoption from moving forward without notice to the natural father; criminal proceedings to revoke a suspended sentence; and exonerating wrongfully convicted criminal defendants. Holding that LabCorp had a duty to perform accurate testing, the court reversed a grant of summary judgment for LabCorp and stated:
The importance of reliable and accurate DNA test results cannot be overstated. This type of forensic evidence is becoming part of our jurisprudence, and this trend is not likely to end. Much stands in the balance of the lives of those relying on such test results to protect their legal rights in a court of law. Inaccurate results could deal a devastating blow to those who otherwise have no ability to prove their cases on their own. Without recourse against a negligent defendant, a plaintiff has no remedy. Berman stands in that position in her relationship with LabCorp. Inaccurate results proved fatal to her case in her DHS proceeding. She was forced to pursue further legal action at her own expense. Her risk was foreseeable, and LabCorp owed her a duty to prevent that risk of harm.
Id. ¶ 18.
Given the importance of DNA testing in a variety of contexts and the potential consequences of reporting incorrect results, the
Berman case represents an important precedent in the field of negligence law.
The Lawletter Vol 36 No 11
Matt McDavitt, Senior Attorney, National Legal Research Group
While a person's entry upon the land of another without consent ordinarily constitutes tortious trespass, there are exceptions to the rule, including privileged entry based on necessity. Factually, privileged entry might occur in a circumstance where a person's property or dependents (i.e., an animal or a child) enters or wanders onto the property of another and necessity dictates that for the parent or owner to retrieve his or her property or offspring, he or she must enter the lands of another. This so-called "privileged entry" exception appears in the Restatement (Second) of Torts:
(1) One is privileged to enter land in the possession of another, at a reasonable time and in a reasonable manner, for the purpose of removing a chattel to the immediate possession of which the actor is entitled, and which has come upon the land otherwise than with the actor's consent or by his tortious conduct or contributory negligence.
(2) The actor is subject to liability for any harm done in the exercise of the privilege stated in Subsection (1) to any legally protected interest of the possessor in the land or connected with it, except where the chattel is on the land through the tortious conduct or contributory negligence of the possessor.
Restatement (Second) of Torts § 198 (1965). Note that to invoke this privilege, (1) the owner's entry must be reasonable in time and manner, and (2) the property or dependent must not have come onto the land through the owner's tort, consent, or negligence. The official commentary to this Restatement section supplies the further guidance that, ordinarily, the owner must first seek permission to enter from the landowner, and only if this permission cannot be obtained, or asking proves futile (i.e., refusal), may the property owner enter under the privileged-entry exception. This Restatement formulation of the privileged-entry rule has been followed in several jurisdictions. See, e.g., State v. Oldack, 283 So. 2d 73 (Fla. Dist. Ct. App. 1973); State v. Logsdon, 160 Ohio App. 3d 517, 2005-Ohio-1875, 827 N.E.2d 869; Hartsock v. Bandhauer, 158 Ariz. 591, 764 P.2d 352 (Ct. App. 1988).
In Hoblyn v. Johnson, 2002 WY 152, 55 P.3d 1219 (Wyo. 2002), for instance, a teenage daughter was sent to live with her grandparents out of state while her father was being investigated for alleged physical abuse. The daughter wanted her horse, which was titled in her name, to accompany her to Nebraska, but her parents refused to release the animal from their possession in Wyoming. After involving the authorities to help her, the daughter employed an agent to enter her parents' land, identify her horse, and remove it to her possession. The parents sued, claiming, in part, trespass. The Wyoming Supreme Court, having quoted Restatement § 198, held that
once the parents refused the daughter's request for the return of her horse, she was privileged to enter their real property at a reasonable time and in a reasonable manner to take the horse. No reason exists why she could not accomplish the same through an agent.
Id. ¶ 33, 55 P.3d at 1229-30. Thus, the privileged-entry exception is also exercisable through an owner's agent.
The Lawletter Vol 36 No 11
Jeremy Taylor, Senior Attorney, National Legal Research Group
The U.S. Court of Appeals for the Fifth Circuit recently decided a case involving the issue of federal preemption of a state products liability statute requiring a plaintiff in a failure-to-warn case against a drug manufacturer to assert that the manufacturer withheld material information from the Food and Drug Administration ("FDA") or misrepresented such information to the agency. See Lofton v. McNeil Consumer & Specialty Pharms., No. 10-10956, 2012 WL 579772 (5th Cir. Feb. 22, 2012). The family of a man who died of a severe autoimmune allergic reaction after taking the defendant's over-the-counter drug, Motrin, brought an action against the manufacturer, alleging that the defendant had failed to warn consumers about the risk of such severe autoimmune reactions to the drug. The plaintiffs sued under Texas state law, alleging negligence and strict products liability.
The court of appeals noted that under Texas statutory law, there is a rebuttable presumption that a drug manufacturer is not liable for failing to warn about the risks of its product if the FDA has approved the warnings or information furnished in the sale of the drug. The Texas statute allows a plaintiff to rebut this presumption by establishing that the manufacturer withheld from, or misrepresented to, the FDA required information material and relevant to the performance of the product and that the manufacturer's act was causally related to the plaintiff's injury. The defendant manufacturer raised the Texas statutory presumption of nonliability as an affirmative defense, and the district court determined that the prerequisites to the presumption were satisfied because the manufacturer had complied with all FDA requirements governing the labels of the drug. The district court then held that the rebuttal portion of the statute was preempted by federal law. The court concluded that the Supreme Court's decision in Buckman Co. v. Plaintiffs' Legal Committee, 531 U.S. 341 (2001), extended preemption to fraud-on-the-FDA claims involving drugs, and noted that the FDA had rejected a 2005 Citizen's Petition requesting that the FDA strengthen labeling requirements for the defendant's drug. Because the plaintiffs were asking the court to reach a conclusion opposite to that reached by the FDA, the district court determined that the Texas rebuttal statute that potentially allowed such claims was preempted.
The court of appeals affirmed. The court found that the Texas rebuttal statute was a fraud-on-the-FDA provision. According to the court, the rebuttal statute eliminates the presumption that a drug manufacturer is not liable only in cases where the defendant committed the same fraud that federal law empowers the FDA to punish and to deter. The court observed that state tort claims are impermissible if they exist solely by virtue of disclosure requirements contained in the Federal Food, Drug, and Cosmetic Act. The court concluded that in cases like the one under consideration, where the FDA has not found fraud, the threat of imposing state liability on a drug manufacturer for committing fraud on the FDA intrudes on the competency of the FDA and its relationship with regulated drug manufacturers. The court held, therefore, that the Texas rebuttal statute is preempted unless the FDA has itself found fraud on the part of a drug manufacturer.
The Lawletter Vol 36 No 11
Brett Turner, Senior Attorney, National Legal Research Group
Guardians ad litem serve a very useful role in child custody proceedings. But it is important to remember that a guardian ad litem is not a judge, and an order giving the guardian too much authority may be invalid.
In Van Schaik v. Van Schaik, 24 A.3d 241 (Md. Ct. Spec. App. 2011), the trial court was faced with a very common situation: The parents of two children had shown persistent inability to communicate and resolve differences without court intervention. In response, the court entered the following order:
[E]xcept in emergencies, the parties shall communicate through e‑mail and any contentious matters or disputed e‑mail issues shall be forwarded to the attorney for the minor children, Leigh R. Melton, Esquire, for her review. In the event [appellant] and [appellee] cannot reach a mutual agreement on any disputed matter regarding the minor children within twenty‑four (24) hours, then the attorney for the minor children shall serve as the "tie‑breaker" and resolve the dispute.
Id. at 244. The attorney to whom the disputes were referred was formally the children's "best interests attorney." A best-interests attorney is not quite exactly a guardian ad litem, but fulfills a very similar role as an advocate for a child's best interests. A best-interests attorney can be contrasted with a "child advocate attorney," who advocates the child's wishes without considering whether the wishes are in the child's objective best interests.
The trial court's order was well intentioned, but it was nevertheless reversed upon appeal. "Maryland cases have made clear that a court may not delegate to a non‑judicial person decisions regarding child visitation and custody." Id. at 245. The order under review allowed the best-interests attorney to resolve literally any disputed matter, without indicating that the attorney's resolution was subject to any form of judicial review or modification. Because the power granted was so broad, "we conclude that the court erred by delegating judicial authority to Melton, a non‑judicial person." Id. at 246.
When delegating authority to a guardian
ad litem or other representative of the child's interests, therefore, it is essential to preserve the right to seek judicial review of the guardian's decisions. If that right is not expressly preserved, a court might well conclude that the order makes an improper delegation of judicial power.
The Lawletter Vol 36 No 11
Doug Plank, Senior Attorney, National Legal Research Group
Early in 2011, the sole U.S. manufacturer of sodium thiopental—used by many state officials as part of the process of administering the death penalty by lethal injection—announced that it was ending production of the drug. That announcement and the subsequent shortage of the drug caused delays in executions in California and Oklahoma and caused those and other States to scramble to find alternative sources for the drug. Ultimately, these States reached out to foreign suppliers and began to import sodium thiopental for use in executions. However, under the federal Food, Drug, and Cosmetic Act, the Food and Drug Administration ("FDA") is charged with preventing the importation of drugs from other countries unless they have been specifically approved by the FDA. In a suit brought by death-row inmates from Tennessee, California, and Arizona, the inmates argued that the FDA had ignored its responsibility to keep the unapproved foreign sodium thiopental from entering the United States. In response, the FDA argued that it had no jurisdiction over drugs used for executions.
Siding with the inmates, a federal district court judge in Washington, D.C., on February 27, 2012, held that the FDA's actions were "contrary to law,"
Beaty v. FDA, Civ. No. 11-289 (RJL), slip op. at 12 (D.D.C. filed Mar. 27, 2012), and "arbitrary, capricious, [and] an abuse of discretion,"
id. at 18, and found that the plain language of the law requires that an article that appears to be unapproved "shall be refused admission,"
id. at 12. The judge then blocked the FDA from allowing the drug into the country and further ordered the FDA to immediately contact state correctional departments to inform them that the use of foreign‑manufactured sodium thiopental is prohibited by law and to require them to send their supplies of the unapproved drug to the FDA. This ruling is sure to have an impact on the ability of States to carry out scheduled executions.
April 24, 2012
John Stone, Senior Attorney, National Legal Research Group
Title IX of the Education Amendments of 1972 prohibits gender‑based discrimination by federally funded educational institutions. It provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). In Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005), the Supreme Court held that retaliation against a person because that person has complained of sex discrimination is also a form of gender‑based discrimination actionable under Title IX.
On its first occasion to say what a plaintiff must prove to prevail on a retaliation claim under Title IX, the Ninth Circuit has reinstated a case for a plaintiff whose claim had been dismissed on summary judgment by a federal district court. Emeldi v. Univ. of Or., No. 10-35551, 2012 WL 933821 (9th Cir. filed Mar. 21, 2012). As other federal circuits have done, the Ninth Circuit applied the same framework as is used to decide retaliation claims brought against employers under Title VII of the Civil Rights Act of 1964. See, e.g., Papelino v. Albany Coll. of Pharm. of Union Univ., 633 F.3d 81, 91B92 (2d Cir. 2011) (applying the Title VII framework to a Title IX retaliation claim); Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 67 (1st Cir. 2002) (same).
According to that framework, a plaintiff who lacks direct evidence of retaliation must first make out a prima facie case of retaliation by showing that he or she was engaged in protected activity, he or she suffered an adverse action, and there was a causal link between the two. Once the plaintiff has made the threshold prima facie showing, the defendant must articulate a legitimate, nonretaliatory reason for the challenged action; if the defendant does so, the plaintiff must then show that the reason is pretextual either directly, by persuading the court that a discriminatory reason more likely motivated the employer, or indirectly, by showing that the employer's proffered explanation is unworthy of credence.
In Emeldi, the plaintiff was a graduate student who alleged that she had been retaliated against because she had complained about bias based on gender. Her complaints were on such matters as the lack of women on the faculty, the failure to give female students the same support and attention as male doctoral candidates received, and the fact that male students had opportunities that were not available to female students, such as access to more and better resources, including more office space and better technology for collecting data.
The court found that the plaintiff's complaints to the Dean of the College of Education and, later, to an administrator about gender‑based institutional bias and about a male professor's—her dissertation committee chair's—unequal treatment of her in particular and of female graduate students in general constituted "protected activity" under Title IX; moreover, the protected status of her alleged statements stayed intact whether or not she would ultimately be able to prove her underlying contentions about discrimination.
The second element of the prima facie case, that is, "adverse action" against the plaintiff based on the protected activity, was met in an unusual manner, by the resignation of the professor as her dissertation chair. At first blush, it would seem that the student would have welcomed the resignation. However, the resignation was "adverse" to the plaintiff because she could not complete the University's PhD program without a faculty dissertation chair and she had been unable, despite diligent efforts, to secure a replacement chair.
The necessary causal link between the protected activity and the adverse action was provided by evidence that the professor/dissertation chair had resigned within one month of having allegedly been told by the administrator of the student's complaints and that the professor had exhibited a gender‑based animus in other contexts. This causal-link element is construed broadly, so that a plaintiff merely has to prove that the protected activity and the negative action are not completely unrelated. A causal connection can be shown, as was done in Emeldi, by proximity in time between the protected activity and the adverse action.
Once the plaintiff student had made out her prima facie case of Title IX retaliation, the University did articulate legitimate, nonretaliatory reasons for the resignation by her dissertation chair and for her inability to secure a replacement chair. According to the University, the dissertation chair had resigned because the student did not follow his research advice, and university administrators had not provided a replacement dissertation chair because faculty members whom the student had solicited were unwilling to take the student for legitimate reasons, such as being unavailable or unqualified to advise her research.
The University's production of a nonretaliatory reason for the adverse action shifted the burden to the student to show that the proffered reasons were merely a pretext for retaliation. It was on this point that genuine issues of fact existed, making summary judgment for the University inappropriate. The court mentioned the following factors supporting the student's showing of pretext: the proximity in time between the student's complaints of unequal treatment and the professor's resignation as her dissertation chair; the administrator's admission that she had relayed the student's complaints to the professor; the professor's resignation as dissertation chair without having provided assistance in securing a replacement chair; other evidence of the professor's gender‑based animus; the professor's praise for the student on the progress of her dissertation; and the student's inability to secure a replacement dissertation chair. Considered together, these facts could lead a reasonable jury to conclude that the student's complaints of unequal treatment, and not the professor's supposed dissatisfaction with her research, motivated the resignation. Because a reasonable jury could conclude from the evidence presented at summary judgment that the professor's resignation was gender‑based retaliation, the district court had erred in granting summary judgment.
April 17, 2012
Doug Plank, Senior Attorney, National Legal Research Group
In the landmark case of Gideon v. Wainwright, 372 U.S. 335 (1963), the U.S. Supreme Court established that the Sixth Amendment guarantee of the right to counsel requires States to provide an attorney to every criminal defendant charged with a felony. Subsequently, in Strickland v. Washington, 466 U. S. 668 (1984), the Court went a step further and determined that the right to counsel is meaningless unless a defendant's attorney performs at a minimum level of competence at trial. The Court thus found in Strickland that a convicted defendant could challenge the validity of his or her conviction on a showing of the ineffectiveness of his or her counsel at trial, adopting a two-part test under which the defendant has to show both (1) that his or her counsel's representation fell below an objective standard of reasonableness, and (2) that he or she was prejudiced as a result. In Hill v. Lockhart, 474 U.S. 52 (1985), the Court held that Strickland's requirements extend to the situation in which an attorney provides incompetent advice to a defendant that causes the defendant to accept a plea agreement, reasoning that the entry of a guilty plea represents a waiver of a trial in violation of the right to a fair trial and that such a waiver satisfies the second prong of the Strickland test. Most recently, in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Court held that a criminal defendant could show that he or she had been denied the effective assistance of counsel when his or her attorney recommended entering a guilty plea without explaining that a collateral consequence of the plea would be the defendant's deportation, finding that the deportation could satisfy the prejudice requirement of the Strickland test.
However, until the recent decisions of the Court in Missouri v. Frye, No. 10-444, 2012 WL 932020 (U.S. Mar. 21, 2012), and Lafler v. Cooper, No. 10-209, 2012 WL 932019 (U.S. Mar. 21, 2012), the Supreme Court had never addressed the situation in which a defense attorney renders incompetent advice that persuades a criminal defendant to reject a favorable plea agreement and to decline to plead guilty. By 5-4 votes in each case, the Court held for the first time in Frye and Lafler that a criminal defendant has the right to effective assistance of counsel in plea negotiations even where the negotiations do not result in a guilty plea. Commentators have hailed these decisions as being extremely significant, with one law professor stating that they represent "'the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel.'" Adam Liptak, Justices' Ruling Expands Rights of Accused in Plea Bargains, N.Y. Times, Mar. 21, 2012 (quoting Wesley M. Oliver).
In Frye, after the defendant had been charged with the felony of driving with a revoked license, the prosecutor sent a letter to the defendant's attorney, offering for a limited time a choice of two plea bargains, one providing for a three-year sentence in exchange for a guilty plea, with 10 days to be served in jail, and the other providing for a reduction in the charge to a misdemeanor with a corresponding 90-day jail sentence, in exchange for a guilty plea. Defense counsel never informed the defendant about the offers. Subsequently, following his second arrest for driving with a revoked license, the defendant entered a guilty plea to the first charge, without any plea agreement, and was ultimately sentenced to three years in prison. Upon learning of the previous plea negotiation letter, the defendant filed a motion for postconviction relief, arguing that his attorney's failure to have informed him of the offers was ineffective assistance of counsel. The trial court denied the motion, but the Missouri Court of Appeals reversed, finding that the defendant had established both prongs of the Strickland test.
In affirming the essential holding of the lower court, the Supreme Court, in a majority opinion written by Justice Kennedy, determined that it was well established that a defendant has the right to counsel at all critical stages of the criminal proceedings, and noted that plea negotiations had not previously been recognized as such a critical stage. Pointing to statistics that revealed that 97% of federal convictions and 94% of state convictions are the result of guilty pleas, the Court concluded that "[t]he reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages." Frye, 2012 WL 932020, at *6. The Court further pointed out that since the criminal justice system "'is for the most part a system of pleas, not a system of trials,' . . . it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process." Id. (quoting Lafler, 2012 WL 932019, at *9).
With regard to the "difficult question" of how to define the duties and responsibilities of defense counsel in the plea-bargaining process, the Court held that defense counsel must at a minimum inform the defendant of all formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. Id. at *8. The Court noted that the American Bar Association's Standards for Criminal Justice, Pleas of Guilty 14-3.2(a) (3d ed. 1999), imposes an obligation to communicate all formal plea bargain offers to defendants and that several States have created guidelines to follow in plea negotiations; from these, the Court adopted several specific recommendations for parties to follow in the course of plea negotiations:
The prosecution and the trial courts may adopt some measures to help ensure against late, frivolous, or fabricated claims after a later, less advantageous plea offer has been accepted or after a trial leading to conviction with resulting harsh consequences. First, the fact of a formal offer means that its terms and its processing can be documented so that what took place in the negotiation process becomes more clear if some later inquiry turns on the conduct of earlier pretrial negotiations. Second, States may elect to follow rules that all offers must be in writing, again to ensure against later misunderstandings or fabricated charges. Third, formal offers can be made part of the record at any subsequent plea proceeding or before a trial on the merits, all to ensure that a defendant has been fully advised before those further proceedings commence.
Frye, 2012 WL 932020, at *8 (citation omitted).
The Court next addressed the question of how to establish prejudice under Strickland in the plea-bargaining context, finding that in order to show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, criminal defendants
must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law. To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.
Id. at *9. The Court emphasized that applying Strickland to an uncommunicated, lapsed plea does nothing to alter the standard laid out in Hill but requires the defendant to make the different showing that he or she would have accepted the offer to plead pursuant to the terms earlier proposed and that there was a reasonable probability that neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented.
Applying these new standards to the case before it, the Court held that because the Missouri Court of Appeals had not required the defendant to show that if he had accepted the first plea offer, it would have been adhered to by the prosecution and accepted by the trial court, the matter had to be remanded back to the court of appeals for that determination.
The issue presented in Lafler was both different and more complicated than that in Frye, as the alleged ineffectiveness of counsel in Lafler occurred when the defendant's attorney informed him of a plea offer but urged him to reject it. The defendant had been charged after a shooting incident with assault with intent to murder, possession of a firearm by a felon, possession of a firearm in the commission of a felony, misdemeanor possession of marijuana, and for being a habitual offender. On two occasions prior to trial, the prosecution had offered in exchange for a guilty plea to dismiss two of the charges against the defendant and to recommend a sentence of 51 to 85 months for the other two. The defendant had initially admitted his guilt and expressed a willingness to accept the offer, but he ultimately decided to go to trial because his attorney had convinced him that since he had shot the victim below the waist, the prosecution would be unable to establish his intent to murder. After trial, the defendant was convicted on all counts and received a mandatory minimum sentence of 185 to 360 months' imprisonment.
Alleging ineffectiveness of counsel, the defendant brought a postconviction relief action in state court without success and then filed a petition for federal habeas relief under 28 U.S.C. ' 2254. The district court granted the defendant relief, holding that his attorney had been ineffective and ordering specific performance of the plea agreement originally offered by the Government. The Court of Appeals for the Sixth Circuit affirmed.
As in Frye, the Supreme Court in Lafler rejected the Government's position that a fair trial wipes clean any deficient performance by defense counsel during plea bargaining. The Court then addressed the specific contentions of the defendant and found that it was clear that the defendant's attorney had performed deficiently by misinforming the defendant about a legal principle applicable to his case and that the defendant had been prejudiced by the fact that he had received a sentence at trial that was more than three times as severe as the sentence offered during plea negotiations. Next focusing on the relief to be granted to a defendant who declines a plea offer as a result of ineffective assistance of counsel and then receives a greater sentence as a result of trial, the Court found that the situation could present several alternatives: First, when the charges that would have been admitted as part of the plea bargain are the same as the charges the defendant was convicted of after trial, a court
may conduct an evidentiary hearing to determine whether the defendant has shown a reasonable probability that but for counsel's errors he would have accepted the plea. If the showing is made, the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.
Lafler, 2012 WL 932019, at *10. The Court further recognized that in some situations, resentencing may not provide full redress for the constitutional injury:
If, for example, an offer was for a guilty plea to a count or counts less serious than the ones for which a defendant was convicted after trial, or if a mandatory sentence confines a judge's sentencing discretion after trial, a resentencing based on the conviction at trial may not suffice. In these circumstances, the proper exercise of discretion to remedy the constitutional injury may be to require the prosecution to reoffer the plea proposal. Once this has occurred, the judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed.
Id. (citation omitted).
In implementing a remedy in any case, the Court suggested weighing a variety of factors and specifically mentioned two: (1) the defendant's earlier expressed willingness, or unwillingness, to accept responsibility for his or her actions, and (2) whether there was information concerning the crime that was discovered after the plea offer had been made.
The Court then applied the preceding principles to the defendant's case before it and determined that because the state courts had failed to apply Strickland properly, it could both grant relief under 28 U.S.C. ' 2254 and provide an appropriate remedy. The Court decided that it was inappropriate for the district court to have ordered specific performance of the plea agreement and instead held that
[t]he correct remedy in these circumstances . . . is to order the State to reoffer the plea agreement. Presuming respondent accepts the offer, the state trial court can then exercise its discretion in determining whether to vacate the convictions and resentence respondent pursuant to the plea agreement, to vacate only some of the convictions and resentence respondent accordingly, or to leave the convictions and sentence from trial undisturbed.
Id. at *12.
In dissenting opinions in both cases, Justice Scalia, joined by other members of the conservative wing of the Court, called the decisions "absurd" and contended that they provided "a remedy unheard of in American jurisprudence." Id. at *13, *18 (Scalia, J., dissenting). Justice Scalia asserted that
the court's squeamishness in fashioning a remedy, and the incoherence of what it comes up with, is attributable to its realization, deep down, that there is no real constitutional violation here anyway. The defendant has been fairly tried, lawfully convicted and properly sentenced, and any "remedy" provided for this will do nothing but undo the just results of a fair adversarial process.
Id. at *18.
Justice Scalia's parting shot at the decisions, made from the bench at the time of their announcement, summarized the net effect of the cases, as he said with regard to the consequences of the decisions: "'[T]he court leaves all of this to be worked out in further litigation, which you can be sure there will be plenty of.'" Liptak,
supra (quoting Scalia, J.). On this point, observers of the Court are in full agreement, as the full import of
Frye and
Lafler will undoubtedly be the subject of countless court cases.
The Lawletter Vol 36 No 10
Sandra Thomas, Senior Attorney, National Legal Research Group
The Supreme Court of Pennsylvania has very recently addressed the issue of paternity by estoppel, examining the issue in the context of a complaint for child support. K.E.M. v. P.C.S., No. 67 MAP 2011, 2012 WL 573635 (Pa. Feb. 21, 2012). The mother of the minor child in that case filed a complaint seeking child support from the man she believed to be the biological father, P.C.S. He responded with a motion to dismiss, relying on the mother's intact marriage to her husband to establish a presumption of the husband's paternity, and further relying on the husband's assumptions of parental responsibilities as implicating paternity by estoppel.
At a hearing on the motion, the mother testified that she had told her husband of her affair with P.C.S. and that the husband did not wish to be identified as the father on the birth certificate. Genetic testing excluded the husband as the biological father of the child. The mother testified that after she had received those results, she had asked P.C.S. to submit to testing. He refused, although he acknowledged the child as his. The mother testified that during the four years of the child's life, P.C.S. had undertaken some degree of involvement in the child's life, giving the mother money to buy Christmas presents, providing unsigned cards and gifts of his own, visiting parks and playgrounds, and providing the mother with a cell phone to assure her and the child's safety. The mother testified that the child referred to both the husband and P.C.S. as "Daddy." Id. at *1.
By the time of trial, P.C.S. had ended the relationship with the mother; at about the same time, the husband separated from the mother. The trial court granted P.C.S.'s motion to dismiss the support action, finding that the presumption of paternity was controlling and, in the alternative, that the husband should be regarded as the child's father under the doctrine of paternity by estoppel. The intermediate appellate court affirmed, differing with the trial court on the issue of whether the presumption of paternity should apply in a case in which the marriage was not being protected because the husband knew that the child was not his, but agreeing that paternity by estoppel applied, based on the husband's actions of holding the child out as his own and providing support. The Pennsylvania Supreme Court allowed an appeal to consider application of the doctrine of paternity by estoppel to the case.
The mother argued that the child already knew P.C.S. as his father and that there was therefore "no concern over deleterious impact from a judicial determination to such effect," and questioned the "application of a legal fiction in a circumstance in which all parties involved fully apprehend the true state of affairs, a circumstance which is becoming increasingly common." Id. The mother also "asks that Pennsylvania law be modified to consider genetic testing, along with other factors, in determining paternity on a case-by-case basis." Id.
In his argument, P.C.S. focused on the husband's continued participation in the marriage and the relationship with the child during the first four years of the child's life. P.C.S. argued that application of paternity by estoppel remains appropriate "because it recognizes the importance, in a child's life, of a 'psychological father' who has provided nurturing and life's necessities." Id.
In its decision, the supreme court stated that "we believe there remains a role for paternity by estoppel in the Pennsylvania common law, in the absence of definitive legislative involvement." Id. at *8. The court noted that in the case before it, neither P.C.S. nor the husband had testified at the trial regarding his relationship with the child, and concluded that "it is our considered view that the determination of paternity by estoppel should be better informed according to the actual best interests of the child, rather than by rote pronouncements grounded merely on the longevity of abstractly portrayed (and perhaps largely ostensible) parental relationships." Id. at *9. The court also noted that it had the authority to appoint a guardian ad litem to advocate the child's best interests "in concrete terms," an action which had not been taken in the case. Id. at *10.
The court concluded: "In summary, paternity by estoppel continues to pertain in Pennsylvania, but it will apply only where it can be shown, on a developed record, that it is in the best interests of the involved child."
Id. at *11. The court remanded the case to the trial court to further develop the factual record.
The Lawletter Vol 36 No 10
Brad Pettit, Senior Attorney, National Legal Research Group
As the percentage of Americans who are over the age of 70 continues to rise, there has been a corresponding increase in the risk of financial abuse of elderly persons. Accordingly, state legislatures have been examining ways to protect senior citizens from fraud and other misconduct by parties or persons to whom elderly persons often entrust their financial affairs.
Several states have adopted the Uniform Power of Attorney Act ("U.P.A.A." or the "Act"), see Colo. Rev. Stat. §§ 15‑14‑701 to ‑745; Idaho Code Ann. §§ 15‑12‑101 to ‑403; Maine Rev. Stat. Ann. §§ 5‑901 to ‑964; Md. Code Ann., Est. & Trusts §§ 17‑101 to ‑204; Nev. Rev. Stat. §§ 162A.010–.860; N.M. Stat. §§ 46B‑1‑101 to ‑403; V.I. Code Ann. tit. 15, §§ 5‑501 to ‑523; Va. Code Ann. §§ 26‑71.01 to ‑74.03; and Wis. Stat. §§ 244.01–.64, or are in the process of adopting the Act, several provisions of which are aimed at making it easier for family members and others who have genuine concerns about the welfare of an elderly person to seek judicial redress against a fiduciary who is suspected to have abused his or her powers over an elderly person's financial affairs. For example, one section of the Act sets forth a broad range of parties or persons who have standing to sue an attorney-in-fact in order to protect the interests and rights of the principal under a power-of-attorney document. Those parties include the principal him- or herself or an agent; a fiduciary acting for the principal; someone authorized to make health‑care decisions for the principal; the principal's spouse, parent, or descendant; a presumptive heir or named beneficiary; a governmental agency having regulatory authority to protect the welfare of the principal; the principal's caregiver; and a person asked to accept the power of attorney. U.P.A.A. § 116(a) (Westlaw current through 2010 Annual Meeting of the Nat'l Conf. of Comm'rs on Unif. State Laws & 2011 elec. pocket pt.).
According to the comment to section 116, "[t]he primary purpose of [section 116] is to protect vulnerable or incapacitated principals against financial abuse." Id. § 116 cmt. The comment lists specific statutes as examples of legislation that either tracks the language of section 116(a) or contains similar provisions that give standing to a broad range of parties or persons who may bring an action against an attorney-in-fact in order to protect the principal. See Cal. Prob. Code § 4540; Colo. Rev. Stat. § 15‑14‑609; 755 Ill. Comp. Stat. 45/2‑10; Ind. Code § 30‑5‑3‑5; Kan. Stat. Ann. § 58‑662; Mo. Rev. Stat. § 404.727; N.H. Rev. Stat. Ann. § 506:7; Wash. Rev. Code § 11.94.100; Wis. Stat. § 243.07(6r). For further discussion of the problems associated with the abuse of power-of-attorney documents, see J. Rhein, No One in Charge: Durable Powers of Attorney and the Failure to Protect Incapacitated Principals, 17 Elder L.J. 165 (2009), cited in U.P.A.A. § 116 cmt.
By adopting statutes that give standing to a wide variety of parties or persons who can seek the aid of a court in protecting the interests and rights of the principal under a power-of-attorney instrument, states have recognized the problems associated with limiting the standing to sue an attorney-in-fact to the principal, the principal's guardian, or the principal's estate. In short, section 116(a) represents a big step toward protecting elderly or incapacitated persons from unscrupulous conduct by attorneys-in-fact who are supposed to act solely in the principals' best interests.