The Lawletter Blog

APPELLATE PROCEDURE: How Not to Use Out-of-State Authority When Writing an Appellate Brief

Posted by Brett R. Turner on Thu, Jun 11, 2015 @ 15:06 PM

The Lawletter Vol 40 No 4

Brett Turner, Senior Attorney, National Legal Research Group

     A recent Utah Supreme Court decision sets forth a good example of how not to use out-of-state authority when writing an appellate brief on a question of first impression. Johnson v. Johnson, 2014 UT 21, 330 P.3d 704.

     In a divorce case, the court issued an order dividing the husband's military pension, but the wife never obtained the qualified order necessary to have the military pay a portion of the pension directly to her. Some years after the divorce, she petitioned for such an order. The husband argued that she had waited too long, and that her request was barred by laches. The trial court prospectively granted the wife's request, and the husband appealed.

     There was no Utah authority directly on point, so the husband cited two New York cases. The court was not unwilling to look outside Utah, but it criticized the manner in which the New York cases had been discussed, and ultimately dismissed the laches issue on grounds of insufficient briefing.

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Topics: Brett R. Turner, The Lawletter Vol 40, No 4, using out-of-state cases in appellate brief, appellate procedure, relate out-of-state law to general principles

CRIMINAL LAW: Search and Seizure—Probable Cause for Search in Light of—Enactment of Medical Marijuana Law

Posted by Mark Rieber on Thu, Jun 11, 2015 @ 15:06 PM

The Lawletter Vol 40 No 4

Mark Rieber, Senior Attorney, National Legal Research Group

      In Commonwealth v. Canning, 28 N.E.3d 1156 (Mass. 2015), the court held as a matter of first impression that with the Commonwealth's new medical marijuana law ("the Act") in effect, if the police seek a warrant to search a property where they suspect an individual is cultivating or possesses marijuana, then they must first offer information sufficient to provide probable cause to believe that the individual is not properly registered under the Act to possess or cultivate the suspected substance. The court rejected the Commonwealth's argument that any cultivation of marijuana remained illegal even under the Act. That argument further asserted that to the extent that the Act permits a limited class of properly licensed or registered persons to grow marijuana, the existence of a license or registration is an affirmative defense for a defendant charged with unlawful cultivation to raise at trial—the Commonwealth is not obligated to disprove such a status in, or to conduct a search at the outset of, the investigation.

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Topics: warrant needed for probable cause, criminal law, Mark Rieber, search warrant, The Lawletter Vol 40, No 4, medical marijuana law

CIVIL RIGHTS: Circuits Split on Showing Required in Reverse Discrimination Cases

Posted by Dora S. Vivaz on Thu, Jun 11, 2015 @ 13:06 PM

The Lawletter Vol 40, No 4

Dora Vivaz, Senior Attorney, National Legal Research Group

     The procedural requirements and burdens for showing race discrimination in employment are by now fairly well delineated and established. This is apparently not yet so for claims of reverse discrimination. In a recent case, the U.S. District Court for the Western District of Virginia, faced with such a claim, first noted that there is a split amongst the circuits as to whether the same requirements and burdens apply to reverse discrimination claims as apply to discrimination claims. Shomo v. Apple, Inc., Civ. Act. No.: 7:14cv00040, 2015 WL 777620, at *4 n.3 (W.D. Va. Feb. 24, 2015). The court referenced McNaught v. Virginia Community College System, 933 F. Supp. 2d 804, 817-20 (E.D. Va. 2013), which includes a detailed discussion of the subject and outlines the circuit split on the issue.

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Topics: Dora Vivaz, legal research, equal protection, reverse discrimination, no enhanced requirement standard

BANKRUPTCY: Finality—Appealability

Posted by Timothy J. Snider on Tue, Jun 9, 2015 @ 16:06 PM

The Lawletter Vol 40, No 4

Tim Snider, Senior Attorney, National Legal Research Group

      Very few principles of federal appellate practice are more fundamental than that only final judgments may be appealed. Mohawk Indus. v. Carpenter, 558 U.S. 100 (2009). That said, bankruptcy presents a unique situation, in that often adversary proceedings finally conclude the dispute between and among the parties to those proceedings and thus are appealable, even though the entire bankruptcy case may not yet be concluded. Howard Delivery Serv. v. Zurich Am. Ins. Co., 547 U.S. 651, 657 n.3 (2006) ("Congress has long provided that orders in bankruptcy cases may be immediately appealed if they finally dispose of discrete disputes within the larger case.").

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Topics: bankruptcy, Chapter 13, order declining to confirm Chapter 13 plan, automatic stay persists

TRUSTS: Dean Smith Payments to Players—NCAA Violation

Posted by James P. Witt on Tue, Jun 9, 2015 @ 16:06 PM

The Lawletter Vol 40 No 4

Jim Witt, Senior Attorney, National Legal Research Group

     Dean Smith, the head coach of the University of North Carolina ("UNC") men's basketball team from 1961 to 1997, died on February 7, 2015, at age 83. Aside from the tributes paid to the man and his career that captured a good deal of media attention, a specific aspect of Coach Smith's estate plan also stirred up some interest. Following the modern trend, Smith's estate planners made a revocable living trust an important part, if not the centerpiece, of his plan for disposing of his assets at his death. Presumably, Smith transferred the bulk of his estate to the trust and, by doing so, realized a number of advantages for both himself and his estate: (1) privacy—the details of the trust, unlike information concerning an individual's assets that pass by will, do not become part of the public record; (2) because the transfer or transfers of assets to the trust are made during the individual's life, the assets are not subject to probate administration, and the expenses of such procedure are avoided (although the expenses of setting up the trust and having it administered must be considered); (3) the assets of the trust are not frozen, as can happen under a probate proceeding, thereby improving access to the assets for the estate and the heirs; (4) because the trust is revocable, the individual maintains control over the disposition of his or her assets transferred to the trust, because he or she can withdraw particular assets from the trust or dissolve the entire arrangement, which is also essentially true under a will in that a will has no effect until the individual's death.

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Topics: legal research, trusts, Jim Witt, The Lawletter Vol 40, No 4, trust advantages, NCAA violation

PROPERTY: Does Seller of Real Property Have Duty to Disclose That Property Is Haunted?

Posted by D. Bradley Pettit on Tue, May 12, 2015 @ 13:05 PM

The Lawletter Vol 40 No 3

Brad Pettit, Senior Attorney, National Legal Research Group

      The motion picture industry has produced many horror or suspense films that are centered on the theme of an individual or couple who purchase a dream house, only to subsequently discover, by way of terrifying sights, sounds, and other stimuli, that a gruesome event once occurred on the property. In a courtroom drama sequel to those movies, the Supreme Court of Pennsylvania made it clear that the occurrence of a murder/suicide or similar tragic event inside a house does not constitute a "material defect" therein that must be disclosed by a seller to a purchaser. Milliken v. Jacono, 103 A.3d 806 (Pa. 2014), as modified on reconsideration (Nov. 12, 2014). Accordingly, the Milliken court held that a real property seller's failure to disclose the occurrence of a murder/suicide inside a house to a buyer thereof did not constitute actionable fraud, negligent misrepresentation, or violations of unfair trade practices, consumer protection, and real estate sales disclosure laws. In short, the Milliken court concluded that "purely psychological stigmas are not material defects" in property that a seller must reveal to a buyer. Id. at 811. The Milliken court's reasons for its decision were as follows:

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Topics: property law, haunted property, disclosure by seller, material defect

CONSTITUTIONAL LAW: Fighting Words Are Not Protected Speech

Posted by John M. Stone on Tue, May 12, 2015 @ 12:05 PM

The Lawletter Vol 40 No 3

John Stone, Senior Attorney, National Legal Research Group

     When there is a confrontational encounter between a citizen and a law enforcement officer, it is not uncommon for a charge of disorderly conduct against the citizen to result, sometimes even though there may be no other charge that emanates from the initial reason for the interaction. Some maintain that disorderly conduct charges are too readily leveled against citizens who may be doing no more than questioning, perhaps angrily, why a police officer is taking particular actions. According to that view, a disorderly conduct charge can become a catchall offense too often used to punish someone whose remarks or conduct simply annoy the police officer. On the other hand, there certainly are instances in which the way a citizen reacts to the police crosses the line from protected speech to criminal conduct constituting disorderly conduct. One such example is "fighting words" directed at a police officer.

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Topics: constitutional law, protected speech, disorderly conduct

FAMILY LAW: Laws of State of Domicile Govern Divorce of Couple Married in Another State

Posted by Sandra L. Thomas on Mon, May 11, 2015 @ 16:05 PM

The Lawletter Vol 40 No 3

Sandra Thomas, Senior Attorney, National Legal Research Group

     In the first decision in the nation to address the issue, the Alabama Court of Civil Appeals has held that an Alabama trial court was under no obligation to enforce the covenant-marriage contract entered into between the parties at the time of their marriage in Louisiana where the parties subsequently moved to Alabama and sought a divorce in the Alabama court. Blackburn v. Blackburn, No. 2131043, 2015 WL 1608431 (Ala. Civ. App. Apr. 10, 2015) (not yet released for publication).

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Topics: family law, “golden rule” arguments, . Right to Farm Act did not bar nuisance claim, Louisiana Covenant Marriage Act, domiciliary state

ANTITRUST: Supreme Court Provides Guidance on Active-Supervision Prong of State-Action Immunity Test

Posted by Paul A. Ferrer on Mon, May 11, 2015 @ 13:05 PM

The Lawletter Vol 40 No 3

Paul Ferrer, Senior Attorney, National Legal Research Group

     The U.S. Supreme Court continues to refine the state-action immunity doctrine first formulated in Parker v. Brown, 317 U.S. 341 (1943). In Parker, relying on principles of federalism and state sovereignty, the Court refused to construe the Sherman Act, which prohibits contracts, combinations, or conspiracies in restraint of trade, see 15 U.S.C. § 1, as applying to the anticompetitive conduct of a state acting through its legislature. Rather, the Supreme Court ruled that the Sherman Act was intended to prohibit private restraints on trade, and it refused to infer an intent to "nullify a state's control over its officers and agents" in activities directed by the legislature. Parker, 317 U.S. at 351.

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Topics: active supervision of nonsovereign actor, antitrust, state-action immunity

TAX: State and Local Sales Tax on Internet Sales of Goods

Posted by D. Bradley Pettit on Wed, Apr 15, 2015 @ 13:04 PM

The Lawletter Vol 40 No 2

Brad Pettit, Senior Attorney, National Legal Research Group

      A very recent decision by a Florida appellate court illustrates constitutional issues that arise when a state or locality seeks to impose a tax upon sales of goods to out-of-state customers via the Internet. In American Business USA Corp. v. Department of Revenue, 151 So. 3d 67 (Fla. 4th DCA 2014), the court addressed the question of whether Internet sales of flowers, gift baskets, other items of tangible personal property, and prepaid telephone calling arrangements by a corporation that was registered to do business in Florida to out-of-state consumers were subject to the Florida sales tax. The taxpayer in the American Business case objected to taxation of its Internet sales to out-of-state customers on the ground that such taxation violated the Commerce and/or Due Process Clauses of the U.S. Constitution. The American Business court upheld the State of Florida's taxation of Internet sales of prepaid telephone call cards but rejected the State's taxation of Internet sales of flowers and other tangible goods.

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Topics: Commerce Clause, Due Process Clause, tax law, Internet sales, state and local sales tax

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