The Lawletter Vol 38 No 7

John Stone, Senior Attorney, National Legal Research Group

     A first grade teacher in a public school brought an action against the New York City Department of Education, her school principal, an assistant principal, and police officers, alleging under 42 U.S.C. §§ 1981 and 1983 that she had been subjected to racial discrimination and retaliation and that she had been falsely imprisoned and unlawfully strip-searched.  In a lengthy opinion, the trial court granted the defendants' motion for summary judgment on all claims and denied the plaintiff's motion to amend her complaint. Blythe v. City of New York, No. 08-CV-2843(RRM)(CLP), 2013 WL 3990772 (E.D.N.Y. Aug. 5, 2013).

     Regarding the false imprisonment claim, the court ruled that probable cause existed for the teacher's arrest for endangering the welfare of a child, thus precluding her false imprisonment claims against the police officers under § 1983 and New York state law.  The key facts as
to this claim were as follows:   Because the first grader was being disruptive and repeatedly leaving the classroom, the teacher requested that the school's parent coordinator contact the student's father or mother.  The father came to the school and met with the teacher and his child, who told her father in the teacher's presence that the teacher had scratched her when putting her back in her seat.  The student's mother was then contacted by the father and, independently, by another teacher, both of whom indicated that the student was crying because the teacher had thrown her into a chair earlier that day.  The mother went to the school, where she saw that her daughter's shirt was ripped. In a heated conversation, she accused the teacher of harming her child.

     After learning of the allegations against the teacher, the school principal reported the allegation of corporal punishment through the proper channels, resulting in the principal's being informed that the mother could call 911 because of the seriousness of the incident and the age of the student.  The principal and the student's mother then called 911 and reported the incident.  (The mother also later filed with the New  York Police Department a formal complaint against the teacher for, among other things, endangering the welfare of a child.)

     When police officers arrived at the school shortly thereafter, the mother, who was still at the school, informed the officers that the teacher had "'put her hands on the child and forced her back into her seat'" numerous times.  Id. at *4.  One police officer saw "'a little bit of redness'" on the student.  Id.  He then arrested the teacher and transported her to a police station, where she was detained and strip-searched.  About four hours later, after the teacher had been further questioned by a police detective and a social services agency representative, the arrest was voided and the teacher was released.

     Notwithstanding that the arrest was voided a few hours after it had been made, the teacher's claims for false imprisonment under federal civil rights law and state tort law failed because of the presence of probable cause at the time when the arrest was made. Under the alleged facts, taken to be true by the court, the student's mother called 911 and reported that the teacher had put her hands on the student and forced her back into her seat numerous times, and after the police officers arrived, they corroborated the information contained in the 911 call.  Moreover, the court observed that the teacher was precluded from challenging the fact that she had grabbed the child, based on a hearing officer's prior determination that "'[plaintiff] grabbed a first grade child with sufficient force that she tore the collar of her shirt and popped the buttons.  She grabbed the child with sufficient intensity that she left marks on the student's shoulder.'"  Id. at *19 n.10.  This factual determination also contributed to the existence of probable cause for the arrest and brief imprisonment.  Id. at *17.

The Lawletter Vol 38 No 7

Alistair Edwards, Senior Attorney, National Legal Research Group

     Going all the way back to the Woodstock Festival held at Max Yasgur's 600‑acre dairy farm in New York state in 1969, outdoor music concerts have regularly been held on farmlands.  Naturally, these concerts can cause certain inconveniences for the neighbors of the farms.

     Recently, in Shore v. Maple Lane Farms, LLC, No. E2011‑00158‑COA‑R3CV, 2013 WL 4428904 (Tenn. Aug. 19, 2013) (not yet released for publication), a farmer's neighbor filed suit against the farmer for holding outdoor concerts on his farm, asserting a claim for nuisance.  The farmer defended, in part relying on the Tennessee Right to Farm Act, which purports to insulate farm operations from nuisance suits and provides in pertinent part that "it is a rebuttable presumption that a farm or farm operation . . . is not a public or private nuisance."  Tenn. Code Ann. § 43‑26‑103(a).  As used in the Act, "farm operation" is a broad term intended to include all activities connected "with the commercial production of farm products or nursery stock."  Id. § 43-26-102(2).

     However, the court refused to apply the Act to the amplified  music concert being held at the farm.  In its analysis, the court explained that "the Tennessee Right to Farm Act would apply to the noise generated by the concerts at Maple Lane Farms if these concerts are somehow connected 'with the commercial production of farm products or nursery stock.'" 2013 WL 4428904, at *12. Although the court considered the concerts to be a clever "marketing and promotion effort to further the income of the farming operation," it did not consider this marketing activity to be the "commercial production of farm products or nursery stock."  Id. 
The court explained:

     We find it significant that the General Assembly chose to use the word "production" alone in its definition of "farm operation." It did not include "marketing," as other states have done in similar contexts. Marketing activities are not mentioned elsewhere in the Tennessee Right to Farm Act, and we have found no reference to marketing in the legislative history of the Act or any of its amendments. Based on the text and the legislative history of the Tennessee Right to Farm Act, no conclusion can be reached other than that, when it enacted the Act, the General Assembly was focused on the activities related to the production of farm products—that is to say, growing or raising these products. The General Assembly was not focused on the marketing of farm products for sale.

*             *             *

     Despite our diligent search, we have found nothing that suggests the General Assembly
considered noise from amplified music concerts held on a farm to necessarily have a connection with producing farm products. Nor have we found any basis to conclude that the General Assembly considered music concerts to be some sort of farm operation. The plain language of the Tennessee Right to Farm Act reflects a close connection between producing farm products and the conditions or activities shielded by the Act.

Id. at *12, *14 (footnotes omitted).

     Finally, the court concluded not only that the Act did not bar the neighbor's nuisance claim but also that the evidence was sufficient to establish a prima facie case of nuisance.  For example, the neighbor testified that the concerts had an adverse effect on her health,
including quickened pulse, headaches, and nausea, and that they affected her ability to sleep at night. Another neighbor testified that the concerts were so loud that he could not hear television or have telephone conversations, even when his home was completely shut, and that he escaped the noise by leaving his home.  A third neighbor testified that the concerts bothered her and were so loud that she could feel vibrations in her chest, and that the concerts interfered with her ability to read in her own home.  Therefore, the supreme court reversed the judgments of the trial court and the court of appeals and remanded the case for further proceedings, charging the costs of the appeal to the farmer.

The Lawletter Vol 38 No 7

Brad Pettit, Senior Attorney, National Legal Research Group

     The courts of the various states are quite busy addressing issues that arise in the context of same-sex marriage.  This activity will certainly increase, given the U.S. Supreme Court's recent ruling in United States v. Windsor, 133 S. Ct. 2675 (2013).

     A recent decision by a New York State appellate court, while not relying on Windsor, is illustrative of the kinds of issues that can arise in administering the estate of a decedent who was involved in a same-sex marriage that was recognized in some states but not in others.  In the case of In re Ranftle, 969 N.Y.S.2d 48 (App. Div. 2013), the court held that for purposes of probating the will of a deceased married person, the decedent's surviving same-sex spouse had met his burden of proof in showing that the deceased testator had changed his domicile from Florida (does not recognize same-sex marriages) to New York (recognizes same-sex marriages) in the months prior to his death.

     In reaching its decision, the Ranftle appellate court stated that "[w]e see no basis for disturbing the Surrogate's Court's finding that Ranftle changed his domicile to New York in the months before his death," id. at 51, even though the decedent's will contained a statement declaring that he was a resident of Florida.  Rather than focusing solely on what the decedent's will said about the testator's residence, the probate and appellate courts in the Ranftle case both relied on New York's rules for determining the domicile of a decedent at the time of his or her death.  The Ranftle court's ruling reads as follows:

     The Surrogate's Court Procedure Act defines domicile as "[a] fixed, permanent and principal home to which a person wherever temporarily located always intends to return" (SCPA 103[15]). "The determination of an individual's domicile is ordinarily based on conduct manifesting an intent to establish a permanent home with permanent associations in a given location" (Matter of Clute v. Chu, 106 A.D.2d 841, 843, 484 N.Y.S.2d 239 [3d Dept 1984]). A person's domicile is generally a mixed question of fact and law, which the court must determine after reviewing the pertinent evidence (see Matter of Brunner, 41 N.Y.2d 917, 918 [1977]).   No single factor is dispositive (Matter of Kartiganer v. Koenig, 194 A.D.2d 879, 881, 599 N.Y.S.2d 312 [3d Dept 1993]), and the unique facts and circumstances of each case must be considered (Ruderman v. Ruderman, 193 Misc. 85, 87, 82 N.Y.S.2d 479 [Sup Ct, N.Y. County 1948], affd, 275 A.D. 834, 89 N.Y.S.2d 894 [1st Dept 1949]). A party alleging a change of domicile has the burden of proving that change by clear and convincing evidence (Gletzer v. Harris, 51 A.D.3d 196, 199, 854 N.Y.S.2d 10 [1st Dept 2008], affd, 12 N.Y.3d 468 [2009]).

     We agree with the Surrogate that Leiby met his burden of proof as to the change of domicile. As noted, petitioner's scattered evidence that Ranftle remained a Florida domiciliary is overwhelmed by the large and consistent body of evidence showing that Ranftle moved back into the New York City apartment he shared with his husband with the intent of permanently remaining there, and that his change of domicile was motivated both by his grave illness and New York's recognition of same‑sex marriages.

The Lawletter Vol 38 No 6

Brad Pettit, Senior Attorney, National Legal Research Group

The so-called "innocent spouse relief" provisions of the Internal Revenue Code provide that if, upon

taking into account all the facts and circumstances, it is inequitable to hold the other individual liable for the deficiency in tax for such taxable year attributable to [the] understatement [of one of the joint filers], . . . then the other individual shall be relieved of liability for tax (including interest, penalties, and other amounts) for such taxable year to the extent such liability is attributable to such understatement.

26 U.S.C. § 6015(b)(1)(D) (Westlaw current through P.L. 113‑13 approved 6‑3‑13) (paragraphing omitted).  Section 6015 goes on to say that if relief is not available to the other individual under subsection (b) (or (c)), "the Secretary may relieve such individual of such liability."  Id. § 6015(f).

Currently, there is some confusion as to which of two administrative rulings by the Internal Revenue Service ("IRS") should be applied when evaluating whether a taxpayer qualifies for equitable innocent spouse relief under § 6015(f):  IRS Notice 2012‑8, 2012‑4 I.R.B. 309; or Rev. Proc. 2003‑61, 2003‑2 C.B. 296.  Both of these rulings by the IRS describe in detail the procedures that must be followed and the standards that are to be applied in a case in which a taxpayer petitions the IRS for innocent spouse relief.  However, according to at least three decisions by the U.S. Tax Court, the guidelines of Revenue Procedure 2003‑61 must be followed unless and until the recommended changes in the procedures and standards set forth in IRS Notice 2012‑8 are "finalized" via the issuance of a formal Revenue Procedure.  Hudgins
v. Comm'r, T.C. Memo. 2012‑260, T.C.M. (RIA) ¶ 2012‑260, 2012 WL 3964890; Deihl v. Comm'r, T.C. Memo. 2012‑176, T.C.M. (RIA) ¶ 2012‑176, 2012 WL 2361518; Sriram v. Comm'r, T.C. Memo. 2012‑91, T.C.M. (RIA) ¶ 2012‑091, 2012 WL 1021315.  Therefore, although IRS Notice 2012‑8 purportedly "superseded" Revenue Procedure 2003‑61, an attorney or accountant representing a taxpayer seeking innocent spouse relief under § 6015
is advised to consult with the IRS to make sure that both the client and the IRS are following the same guidelines and rules for determining whether the client is entitled to relief from joint and several liability under a jointly filed federal tax return.

A recent Chief Counsel Notice issued by the IRS provides insight as to what to expect when litigating a case involving a married taxpayer's claim for so-called "innocent spouse" relief from joint and several liability on a joint federal income tax return.  In IRS Chief Counsel Notice
("C.C.N.") CC‑2013‑011 (June 7, 2013), the IRS provided Chief Counsel attorneys with guidance regarding the standard and scope of review that the Tax Court applies when reviewing requests for relief from joint and several liability under § 6015(f) and litigation guidance for cases that involve claims for relief under § 6015.  C.C.N. CC‑2013‑011 points out to all IRS attorneys that a de novo standard of review is applied in innocent spouse relief cases that are argued before the Tax Court:

The Lawletter Vol 38 No 6

Fred Shackelford, Senior Attorney, National Legal Research Group

A "golden rule" argument asks jurors to place themselves in the position of a party. For example, an attorney may ask jurors how much the loss of the use of their legs would mean to them or ask them to "do unto others as you would have them do unto you."  Virtually all courts have considered such arguments to be improper if made in regard to damages.  However, courts appear to be split as to whether such arguments are permissible with reference to liability.

The U.S. Court of Appeals for the District of Columbia recently addressed this issue in Caudle v. District of Columbia, 707 F.3d 354 (D.C. Cir. 2013). In Caudle, several employees sued their employer for retaliation under the Civil Rights Act of 1964.  During closing argument, their attorney made four statements to the jury that were challenged on appeal.

First, counsel instructed the jury to "ask yourself, would you hesitate to speak up if you knew that speaking up would mean that your boss would call a meeting with your entire office[?]"  Id. at 358 (emphasis omitted).  Second, counsel argued, "Ask yourself this:  Wouldn't you think twice about complaining about workplace discrimination[?]"  Id. (emphasis omitted).  Third, counsel asked the jurors "to put yourselves in the plaintiffs' shoes. What would it do to you to have your complaint broadcast to your entire office, to be the only one excluded[?]"  Id. (emphasis omitted).  Finally, counsel argued:

By protecting plaintiffs' right to complain about unlawful conduct without reprisal, you preserve the rights not just of plaintiffs but of everyone. By ensuring that plaintiffs are made whole for what they have endured, you ensure that others will be free to exercise their rights without fear. Yours is an important job and we trust that you will [do what] is right and ensure that justice is done.

Id. (emphasis omitted).

The Caudle court noted that at least four circuits have held that golden rule arguments are proper when they relate to liability, while the Third Circuit found no distinction between golden rule arguments relating to damages versus liability.  The Caudle court decided that a golden rule argument is improper regardless of whether it relates to liability or to damages and that such an argument may require a new trial.  The court concluded that the rationale for prohibiting a golden rule argument as to damages—preventing a verdict based on inappropriate considerations such as emotion—applies equally to liability arguments.

Turning to the specific arguments by plaintiffs' counsel, the Caudle court found that all four were inappropriate.  The first three arguments were improper because they asked the jurors to decide how each of them—not how a reasonable person—would feel in the plaintiffs' situation. The fourth argument was not a golden rule argument, but the court found it to be inappropriate as well.  It was a "send a message" argument which, like the golden rule arguments, diverted the jury's attention from its duty to decide the case based on the facts and law as opposed to emotion, personal bias, or interest.  Id. at 361.

The Lawletter Vol 38 No 6

John Buckley, Senior Attorney, National Legal Research Group

The increasingly complex statutory and regulatory requirements imposed upon employers require that written policies be promulgated and maintained in order to avoid fines for noncompliance, exposure to liability from lawsuits, and punitive damages.  Many federal laws, and an increasing number of state laws, require that employers promulgate and maintain written policies.  Furthermore, it is no longer sufficient to simply pass out cookie‑cutter policies; to be effective, workplace policies must be precisely tailored and contain specific provisions required by the location of the workplace, the type of business involved, the number of individuals employed, and a host of other considerations. 

A properly drafted and implemented written policy can be a valuable tool for employers.  For
example, in EEOC v. AutoZone, Inc., 707 F.3d 824 (7th Cir. 2013), the court noted the rule that an employer may avoid liability for punitive damages based on the actions of managerial employees by simply showing that it had implemented an antidiscrimination policy.  Because the employer in that case had not made the modest investment in an adequate antidiscrimination policy, the court upheld an award of $200,000 in punitive damages. See also Dunlap v. Spec Pro, Inc., No. 11‑cv‑02451‑PAB‑MJW, 2013 WL 1397294 (D. Colo. Apr. 5, 2013) (to avail itself of the good‑faith compliance standard, and avoid vicarious liability for punitive damages in a Title VII action, an employer must (1) adopt antidiscrimination policies; (2) make a good-faith effort to educate its employees about these policies and the statutory prohibitions; and (3) make good-faith efforts to enforce an antidiscrimination policy).  

In addition to insulating employers from potentially devastating punitive damages, properly drafted policies can help employers avoid liability entirely.  In the following cases, employers were able to avoid liability for discrimination claims:  Zakrzewska v. New School, 598 F. Supp. 2d 426 (S.D.N.Y. 2009); Chaloult v. Interstate Brands Corp., 540 F.3d 64, 74 (1st Cir. 2008); McPherson v. City of Waukegan, 379 F.3d 430 (7th Cir. 2004); Salazar v. U.S. Dep't of Justice, 98 F. App'x 623 (9th Cir. 2004); Talamantes v. Berkeley County Sch. Dist., 340 F. Supp. 2d 684 (D.S.C. 2004).  In each of these cases, the employers had properly drafted, written policies prohibiting discrimination and setting out grievance procedures for resolving discrimination claims.  Although a properly drafted policy can enable an employer, in many cases, to obtain summary judgment in its favor, a deficient policy may negate certain defenses and enable a plaintiff to survive summary judgment.  Smith v. First Union Nat'l Bank, 202 F.3d 234, 245 (4th Cir. 2000).

In addition to policies prohibiting discrimination and harassment, employers should have written policies that include provisions covering wages and hours, benefits, leave, workplace safety, workplace conduct, and discipline.  Most employers should also consider policies covering Internet and email use, recordkeeping, drug and alcohol use, and immigration law compliance.

The Lawletter Vol 38 No 5

Sandra Thomas, Senior Attorney, National Legal Research Group

Yet another ground for conflict in U.S. state court custody disputes arises from the fact that a number of foreign countries have not signed the Hague Convention on the Civil Aspects of International Child Abduction. That treaty provides a civil remedy if a parent, in violation of the
custody rights of the other parent, absconds with a child to a foreign country.  Under the Hague Convention, courts are required to return the child to the United States if he or she has been wrongfully removed from the United States or wrongfully retained in the foreign country.  The courts of countries that have not signed the treaty are not bound by it and are not obligated to
return a child who was wrongfully removed or retained and not allowed to return to the United States.  (Information about the status of particular countries is available at http://travel.state.gov/abduction/country/country_3781.html.) 

This state of affairs has led some parents in U.S. custody disputes to ask for an order prohibiting the other parent from traveling outside the United States with the children or to ask that the children's passports be held by the domestic parent or by a third party.