The Lawletter Vol 40 No 5

Steve Friedman, Senior Attorney, National Legal Research Group

     The Fair Housing Act ("FHA"), 42 U.S.C. §§ 3601–3631, the Americans with Disabilities Act ("ADA"), id. §§ 12101–12213, and the Rehabilitation Act ("RA"), 29 U.S.C. §§ 701–796l, each prohibit certain forms of discrimination based on physical impairments. See 42 U.S.C. § 3604(f)(1) (making it unlawful "[t]o discriminate in the sale or rental [of], or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap"); id. § 12112(a) (making it unlawful to discriminate against disabled persons in employment); id. § 12132 (same regarding public services); id. § 12182(a) (same regarding public accommodations); id. § 594(a) (same regarding "any program or activity receiving Federal financial assistance").

      "The relevant portions of the FHA, ADA, and [RA] offer the same guarantee that a covered entity . . . must . . . make the entity's benefits and programs accessible to people with disabilities," and, thus, the analysis "under the three statutes is treated the same." Sinisgallo v. Town of Islip Hous. Auth., 865 F. Supp. 2d 307, 337 (E.D.N.Y. 2012) (internal quotation marks omitted). A person is considered to have a disability under the FHA, ADA, and RA if that person has, in fact, a record of, or is merely regarded as having, "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102(2) (ADA); id. § 3602(h) (FHA). "[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." Id. § 12102(2)(A) (emphasis added).

The Lawletter Vol 40 No 5

Suzanne Bailey, Senior Attorney, National Legal Research Group

     Section 237(a)(2)(B)(i) of the Immigration and Nationality Act ("INA") provides:

     Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.

8 U.S.C. § 1227(a)(2)(B)(i).¹ In Mellouli v. Lynch, 135 S. Ct. 1980 (2015), the U.S. Supreme Court held that INA section 237(a)(2)(B)(i) was not triggered by a Kansas state law drug paraphernalia conviction for concealing four orange tablets in a sock. The defendant acknowledged that the tablets were unprescribed Adderall, but the criminal complaint did not identify the substance as Adderall. In so holding, the Court reversed the judgment of the Eighth Circuit Court of Appeals, Mellouli v. Holder, 719 F.3d 995 (8th Cir. 2013), which had affirmed the decision of the Board of Immigration Appeals ("BIA") upholding the deportation order.

The Lawletter Vol 40 No 5

Anne Hemenway, Senior Attorney, National Legal Research Group

     Workers' compensation claims are often straightforward where the worker has suffered a clear work-related injury in the jurisdiction in which the employer is located. Where a worker has been injured in a work-related accident while traveling in a different state for work, however, different jurisdictions impose specific jurisdictional restrictions notwithstanding the workers' compensation insurance contract. See McIlvaine Trucking, Inc. v. Workers' Comp. Appeal Bd. (States), 810 A.2d 1280 (Pa. 2002) (holding that where a worker who regularly traveled to other states for work was injured in Pennsylvania, the parties' agreement to be bound only by the West Virginia Workers' Compensation Act was unenforceable as against Pennsylvania public policy, which requires in-state workers' injuries to be governed only by the Pennsylvania workers' compensation laws).

The Lawletter Vol 40 No 5

Alistair Edwards, Senior Attorney, National Legal Research Group

      Recently, in Francis v. Kings Park Manor, Inc., No. 14-cv-3555 (ADS)(GRB), 2015 WL 1189579 (E.D.N.Y. signed Mar. 16, 2015), the U.S. District Court for the Eastern District of New York held that an African-American apartment resident had a plausible claim for breach of the implied warranty of habitability based on the harassing behavior of a next-door neighbor tenant. In that case, the plaintiff's next-door neighbor, among other things, repeatedly made racially offensive comments and threats to the plaintiff, which conduct led at one point to the neighbor's arrest for aggravated harassment. Despite the plaintiff's complaints to the property management company in charge of the apartment complex, the management company took little action to address the plaintiff's complaints.

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.

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.

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.

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.").

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: