The Lawletter Vol 39 No 9

Suzanne Bailey, Senior Attorney, National Legal Research Group

     Section 237(a)(2)(B)(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(B)(i), provides that an alien is deportable if s/he has been convicted of any law "relating to a controlled substance . . . other than a single offense involving possession for one's own use of 30 grams or less of marijuana." (Emphasis added.) What approach should an Immigration Judge ("IJ") take in determining whether the alien's conviction fits within this "personal use" exception? Should the IJ be limited to a categorical inquiry, which does not permit a review of the facts underlying the particular offense but requires a comparison of the elements of the "generic" offense listed in the INA with the elements of the statutory offense of which the alien was convicted? Or should the IJ be allowed to conduct a circumstance-specific inquiry into the alien's conduct leading to the conviction?

The Lawletter Vol 39 No 9

Anne Hemenway, Senior Attorney, National Legal Research Group

     If you have ever wondered why above-median-income Chapter 13 debtors continue to enjoy ownership of luxury items, the answer is in the 2005 amendments to the U.S. Bankruptcy Code. Prior to the significant amendments to the Code in 2005, a Chapter 13 debtor's disposable income, necessary for the viability of a Chapter 13 plan, was determined by the court reviewing an individual debtor's ability to pay a Chapter 13 plan based on the individual circumstances of the debtor. As part of the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act ("BAPCPA"), Congress amended 11 U.S.C. § 1325(b) and replaced the court's discretionary analysis of a debtor's disposable income and expenses with a statutory and mechanical means test.

Paul Ferrer, Senior Attorney, National Legal Research Group

      The Federal Rules of Civil Procedure specifically provide that a plaintiff stating a claim for relief must include in his or her complaint, among other things, "a demand for the relief sought, which may include relief in the alternative or different types of relief." Fed. R. Civ. P. 8(a)(3). Many states, including Oregon, have included an identical or substantially similar provision in their own Rules of Civil Procedure. See Or. R. Civ. P. 16(C) ("Inconsistent claims or defenses are not objectionable . . . . A party may . . . state as many separate claims or defenses as the party has, regardless of consistency and whether based upon legal or equitable grounds or upon both."). Despite the rules permitting pleading of alternative claims for relief, plaintiffs who request both legal and equitable remedies based on the same conduct by the defendant often face an early motion to dismiss the equitable claim on the theory that equitable relief ordinarily is not available when the claimant has an adequate legal remedy. The Oregon Supreme Court, sitting en banc, considered this "shibboleth" in a thoughtful opinion rendered in Evergreen West Business Center, LLC v. Emmert, 323 P.3d 250, 252 (Or. 2014) (en banc).

The Lawletter Vol 39 No 9

Jeremy Taylor, Senior Attorney, National Legal Research Group

      In a recent decision, the U.S. District Court in Yanez v. Graco, Inc., CIV. 13-2243 JRT/JSM, 2014 WL 4415291 (D. Minn. Sept. 8, 2014), held that both a parent corporation and its subsidiary were manufacturers of the hose and paint system that allegedly caused the plaintiff's injuries. The plaintiff brought a state law strict products liability action against a number of defendants involved in the manufacture and distribution of the product. After removal of the case to federal court, the defendants moved for summary judgment.

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.

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.

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).

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).     

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.