Common Sense, Close Family, and Bona Fide Relationships: Hawaii Judge Expands Classes Exempt from Travel Ban

Photo via The Guardian

Written By Ian Ludd

 

ABSTRACT

Hawaii U.S. District Judge Derrick Watson ruled last Thursday that the government definition of “close family member” with respect to the Trump Administration’s Travel Ban exemption defies common sense, expanding the exemption to include grandparents, other family members, and refugees with formal assurances from a resettlement agency.

DISCUSSION

For the purposes of an exemption in the Trump Administration’s Revision Travel Ban (“EO-2”), Hawaii Judge Derrick Watson ruled that a grandparent is a “close family member,” despite the assertions to the contrary by the Government.

The Supreme Court, on June 26, in a per curiam opinion, specified that the stay on enforcement of EO-2 will remain in place for all who have a “credible claim of a bona fide relationship with a person or entity in the United States.” For a bona fide relationship with a “person” to be found, a close familial relationship is required. A relationship with an “entity” requires a formal, documented relationship formed “in the ordinary course, rather than for the purpose of evading EO-2.”

The Trump Administration, in issuing guidance to its agencies on the application and enforcement of EO-2, defined “close familial relationship” narrowly, excluding from its definition, grandparents, grandchildren, aunts, and uncles, amongst other family members. The Hawaii District Court found this definition to be the “antithesis of common sense,” contrary to the Supreme Court’s per curiam decision and other precedent.

The Government’s asserted definition of close family stemmed from a provision of the Immigration and Nationality Act (“INA”), applicable to family-based immigration visas. Nevertheless, the District Court found the use of this definition to be “cherry-picking,” ignoring other relevant immigration statutes that defined close family in a much broader sense.

The Hawaii District Court cited several Supreme Court cases evincing a preference for broad definitions of “close family.” The District Court pointed to the Supreme Court’s focus on a relationship nexus, reasoning that if the Supreme Court had intended to issue an exception only to “immediate family members,” it would have explicitly done so. Furthermore, the District Court reasoned that the definition used by the Government is inherently flawed, as it excludes “mothers-in-law,” despite the Supreme Court explicitly holding that EO-2 may not be enforced against a plaintiff’s mother-in-law and those “similarly situated.”

The District Court also found that refugees covered by a formal assurance between the Government and a United States refugee resettlement agency may not be excluded by EO-2. The Government argued that any contract in such an arrangement exists only between the State Department and the resettlement agency, not the refugee. The District Court found this argument unconvincing.

“Nothing in the Supreme Court’s decision requires a refugee to enter into a contract with a United States entity in order to demonstrate the type of formal relationship necessary to avoid the effects of EO-2. An assurance from a United States refugee resettlement agency, in fact, meets each of the Supreme Court’s touchstones: it is formal, it is a documented contract, it is binding, it triggers responsibilities and obligations, including compensation, it is issued specific to an individual refugee only when that refugee has been approved for entry by the Department of Homeland Security, and it is issued in the ordinary course, and historically has been for decades. Bona fide does not get any more bona fide than that.”

The Trump Administration, bypassing the Ninth Circuit, asked the Supreme Court directly to clarify its per curiam ruling and to block the ruling by the Hawaii District Court. On July 19, 2017, the Supreme Court denied the Government’s motion for clarification in a brief unsigned order. The Court further stated that “[t]he District Court order modifying the preliminary injunction with respect to refugees covered by a formal assurance is stayed pending resolution of the Government’s appeal to the Court of Appeals for the Ninth Circuit.”

The Supreme Court is set to definitively rule on the Revised Travel Ban this October.

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Sources Cited

Trump v. Int’l Refugee Assistance Project, Nos. 16-1436 (16A1190) and 16-1540 (16A1191), slip op. (U.S. June 26, 2017).

Hawaii, et al. v. Trump, et al., Civil No. 17-00050 DKW-KSC (D. Haw. July 13, 2017) (order granting in part and denying in part plaintiffs’ motion to enforce, or in the alternative, to modify preliminary injunction).

Barbara Campbell, et al., U.S. Challenges Hawaii Judge’s Expansion of Relatives Exempt From Travel Ban, NPR (July 14, 2017).

Joel Rose & Bill Chappell, Supreme Court Revives Parts Of Trump’s Travel Ban As It Agrees To Hear Case, NPR (June 26, 2017).

Julia Edwards Ainsley, et al., Supreme Court gives Hawaii until Tuesday to answer Trump travel ban motion, REUTERS (July 15, 2017).

Adam Liptak, Trump Refugee Restrictions Allowed for Now; Ban on Grandparents Is Rejected, N.Y. Times (July 19, 2017).

Supreme Court Finds Arkansas Statute Unconstitutional; Holds Both Same-Sex Parents’ Names Should Be On Child’s Birth Certificate

Photo via Arkansas Online

Written by Joseph Railey

ABSTRACT

In a brief per curium opinion, the Supreme Court found Arkansas’ birth certificate statute to be unconstitutional because it treated same-sex couples differently. The Court stated that the statute “denied married same-sex couples access to the ‘constellation of benefits that the stat[e] ha[s] linked to marriage.’”

DISCUSSION

The case began when two, married, same-sex couples in Arkansas decided to have a child through artificial insemination. Upon the birth of the children, each of the couples wrote in two mothers’ names on the birth certificate paperwork. However, when the couples received the birth certificates back, the State had listed only the mother who carried and gave birth to the child.

At the time, Arkansas’ birth certificate statute provided that “the mother is deemed to be the woman who gives birth to the child” and that, “[i]f the mother was married at the time of either conception or birth, . . . the name of [her] husband shall be entered on the certificate as the father of the child.” One exception to this rule is when the child is born via artificial insemination, where Arkansas allows for only the mother’s name to be listed, unless the father consents to his name being listed as well.

The trial court held that the statute conflicted with Obergefell v. Hodges, 135 S. Ct. 2071 (2015), as it “categorically prohibited every same-sex married couple . . . from enjoying the same spousal benefits which are available to every opposite-sex married couple.” The Arkansas Supreme Court, however, disagreed and held that the statute focused on the relationship between the biological mother, father, and child rather than on the “marital relationship of husband and wife.” As such, it held that the statute did not conflict with Obergefell and was, therefore, constitutional. Thereafter, the United States Supreme Court granted certiorari and reversed the Arkansas Supreme Court’s decision, remanding the case.

In its opinion, the United States Supreme Court noted the disparate treatment.

As already explained, when a married woman in Arkansas conceives a child by means of artificial insemination, the State will—indeed, must—list the name of her male spouse on the child’s birth certificate. And yet state law, as interpreted by the court below, allows Arkansas officials in those very same circumstances to omit a married woman’s female spouse from her child’s birth certificate. As a result, same-sex parents in Arkansas lack the same right as opposite-sex parents to be listed on a child’s birth certificate, a document often used for important transactions like making medical decisions for a child or enrolling a child in school.

In Obergefell, the Court specifically addressed this issue. Where some of the petitioners in Obergefell sued to be listed as parents on their child’s birth certificates, the Obergefell Court expressly identified birth certificates as part of the “terms and conditions” of marriage.

Justices Gorsuch, Thomas, and Alito dissented, noting that summary reversal should not have been applied in this case and that the state’s arguments for only listing biological parents on a birth certificate were permissible. The justices also opined that, as the petitioners only sought relief under the state’s birth certificate registration statute (§ 20-18-401), and not the statute relating to artificial insemination (§ 90-10-201), the Court impermissibly applied that provision.

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Sources Cited

Pavan v. Smith, 198 L.Ed.2d 636 (2017).

Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

Ark.  Code Ann. § 20-18-401 (West 2017).

Ark. Code Ann. § 9-10-201(a) (West 2017).

Making a Murderer: Seventh Circuit Agrees Dassey’s Confession was Coerced

Photo courtesy of Lex18.com

Written by Melanie-Ann DeLancey

Brandon Dassey, one of two men convicted of murder and featured in the Netflix docu-series Making a Murderer, made headlines again when the Seventh Circuit Court of Appeals upheld an August 2016 federal magistrate judge’s ruling regarding Dassey’s confession. The three-judge panel found that the confession of Brendan Dassey, the nephew of Steven Avery, was coerced and involuntary. Prosecutors must now decide whether to appeal to the Supreme Court of the United States, request review by the full Seventh Circuit, or retry Brendan Dassey within 90 days.

Making a Murderer, released in 2015, was filmed over a ten-year period, following Steven Avery’s trials and tribulations as he went from prison, to DNA exoneration, to prison again. The series specifically focuses on Avery’s and Dassey’s convictions for the murder of Teresa Halbach.

Specifically, in episode four, the series documents how investigators brought high-school sophomore Brandon Dassey, who has an IQ between 74 and 81, in for questioning without a parent or guardian. The investigators then proceeded to various interrogation tactics that ultimately led to Dassey giving a confession.

In its ruling, the Seventh Circuit pointed out how the investigators would chastise Dassey when he failed to answer questions in a way that investigators would like.

“[T]hroughout the interrogation it became clear that ‘honesty’ meant those things that the investigators wanted Dassey to say. Whenever Dassey reported a fact that did not fit with the investigators’ theory, he was chastised and told that he would not be ‘okay’ unless he told the truth. And this pattern continued until Dassey finally voiced what the investigators wanted him to say, seemingly by guessing, or the investigators fed him the information they wanted. Once he spoke ‘correctly,’ the investigators anchored the story by telling Dassey, “now we believe you” to signal to him that this was the version that would allow him to be ‘okay,’ or ‘set him free.’ By doing this—by linking promises to the words that the investigators wanted to hear, or allowing Dassey to avoid confrontation by telling the investigators what they wanted to hear—the confession became a story crafted by the investigators instead of by Dassey. And, as we will see, it was a confession that therefore cannot not be viewed as voluntary.”

During one interview, Special Agent Tom Fassbender said to Dassey, “I’m a father that has a kid your age, too. There’s nothing I’d like more than to come over and give you a hug ‘cuz I know you’re hurtin’.”

The Court’s decision discussed assurances made by investigators that they would not leave Dassey “high and dry” and discussed how Dassey’s account of the murder began to change throughout his interrogations. According to the Court, his own responsibility in the murder seemed to increase in response to the suggestions made by investigators.

The Court noted that “special caution” is required under the Supreme Court’s ruling in J.D.B. v. North Carolina when assessing the voluntariness of juvenile confessions. The State of Wisconsin never evaluated any of the factors such as age, experience, education, background, and intelligence.

Furthermore, the Court discussed the risks of coercion in evaluating a defendant’s so-called voluntary confession. The Court concluded that “[n]o reasonable court could have come to the conclusion that Dassey’s confession was voluntary.”

Dassey is now 27 years old and serving a life sentence. He is represented by The Center on Wrongful Convictions at Northwestern University. The Wisconsin Department of Justice reportedly plans to either request a review by the entire Seventh Circuit or to petition the Supreme Court.

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Sources Cited:

Kristine Phillips, Making a Murderer’ Confession was Coerced and ‘Crafted by Investigators,’ Court Affirms, Wash. Post (June 23, 2017).

Dassey v. Dittmann, No. 16-3397, 2017 U.S. App. LEXIS 11113, at *38-39 (7th Cir. June 22, 2017).

J.D.B. v. North Carolina, 564 U.S. 261, 269 (2011).

Increasing the Scope of Legal Responsibility: Can Words Kill?

Written by: Emily Keable

In a rare legal ruling, a Massachusetts judge found Michelle Carter, 20, guilty of involuntary manslaughter. Carter was accused of encouraging her boyfriend, Conrad Roy, to commit suicide. Unlike many other states, Massachusetts has no law against encouraging someone to commit suicide. However, the Court still found Carter guilty of involuntary manslaughter. Carter now faces up to 20 years in prison.

At the time, the two were teenagers who both struggled with mental illnesses. Earlier on in their relationship, Carter encouraged Roy to seek help for his troubles. Eventually, however, the conversations turned to Carter’s persistent pressuring of Roy to commit suicide. Leading up to Roy’s death, text messages from Carter to Roy show her urging him to act upon his suicidal thoughts.

Beyond a conviction of involuntary manslaughter, this case carries questions of free speech. It is undisputed that Carter’s speech was “morally reprehensible.” Nevertheless, the First Amendment protects speech that is reckless, hateful, and ill-willed. Consequently, it can be argued that the First Amendment protects Carter’s speech, especially as it fails to meet the narrow exception of unprotected speech for literal threats of violence and the incitement of lawless action. ACLU attorney Matthew Segal stated this decision “is saying that what [Carter] did is killing him, that her words literally killed him, that the murder weapon was her words.”

Many people are also questioning how this decision expands the very definition of manslaughter, raising questions of what this could mean for the future. One law professor told the New York Times, “Will the next case be a Facebook posting in which someone is encouraged to commit a crime? This puts all the things that you say in the mix of criminal responsibility.”

All in all, one burning question looms: whether this case will be die out as a rare decision, or whether it will set off a path of precedents that expand the boundaries of criminal laws at the expense — or question — of constitutional protections.

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Sources Cited

Katharnie Q. Seelye & Jess Bidgood, Guilty Verdict for Young Woman who Urged Friend to Kill Himself, N.Y. Times (June 16, 2017)

Denise Lavoie, What’s Next for Michelle Carter after Conviction in Texting Suicide Trial, Boston (June 19, 2017)

Robby Soave, Michelle Carter Didn’t Kill with a Text, N.Y. Times (June 16, 2017)

 

Common Sense Prevails: SEC Disgorgement Damages are Deemed a Penalty

Written by: Mike Corelli

Facts & Procedural History

In 2009, the Securities and Exchange Commission (SEC) commenced an action against Charles Kokesh for violating federal securities laws by misappropriating funds. After a jury found Kokesh had violated the federal securities laws, the District Court addressed the damages the SEC demanded. Under 28 U.S.C. § 2462, there is a five-year statute of limitations that precludes civil monetary damages from being enforced. Holding that SEC disgorgement damages were not subject to 28 U.S.C. § 2462, the District Court entered a disgorgement judgment of $34.9 million against Kokesh. The Tenth Circuit affirmed. The Supreme Court granted certiorari to determine whether 28 U.S.C. § 2462 applies to SEC disgorgement damages.

Supreme Court Decision

The Supreme Court reversed the Tenth Circuit’s decision holding that SEC disgorgement damages are subject to 28 U.S.C. § 2462. Under 28 U.S.C. § 2462, “an action, suit[,] or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years.” Thus, the Court turned to whether SEC disgorgement damages constitute a “civil fine, penalty, or forfeiture.”

In resolving whether SEC disgorgement damages are subject to 28 U.S.C. § 2462, the Court considered the definition of “penalty.” The Court defined a penalty as a punishment imposed and enforced by the State, for a crime or offense against its laws. Accordingly, this definition establishes two factors that are determinative as to what constitutes a penalty. The first factor as to whether a pecuniary damage is a penalty is whether the wrong being addressed is a wrong against the public, as opposed to a wrong against a private citizen. The second factor is whether the pecuniary damages are sought to penalize and serve as a deterrent, as opposed to compensating a victim.

With these factors guiding its analysis, the Court addressed whether the $34.9 million disgorgement judgment against Kokesh was a penalty and subject to 28 U.S.C. § 2462. First, the Court noted that the lower court’s judgment was imposed for violating public laws. Essentially, disgorgement judgments provide a remedy to the United States, not aggrieved individuals. Moreover, after these judgments are paid, the courts have discretion in how these funds are distributed. Second, the Court noted that disgorgement judgments are intended to put others on notice by serving as a deterrent. Accordingly, the Court held that SEC disgorgement damages are a penalty and are subject to 28 U.S.C. § 2462. Thus, SEC disgorgement judgments must comply with the five-year statute of limitations. The $34.9 million disgorgement judgment against Kokesh was reduced to comply with the five-year statute of limitations enumerated in 28 U.S.C. § 2462.

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Sources Cited

Kokesh v. SEC, 580 U. S. ____ (2017).

Trump’s Travel Ban: What comes next?

Written by: Conor Tallet

On January 27, 2017, President Donald J. Trump issued Executive Order No. 13769, commonly known as the “travel ban.” When the Ninth Circuit blocked it, President Trump issued a “revised travel ban”on March 6, 2017 via Executive Order No. 13780. The Department of Justice has appealed the blocking of the orders to the Supreme Court, and the question as to whether or not the Court will act remains.

The revised order reworked provisions of the first travel ban that were at issue in the Ninth Circuit. Specifically, Section 2(c) of the order temporarily suspends new visas for citizens of six countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. The ban’s stated purpose was to decrease the risk of terrorist organizations from entering into the United States. Consequently, the order explained that the six listed countries had been “significantly compromised by terrorist organizations, or contain active conflict zones.” While such a purpose may appear clear on its face, a key question in evaluating this ban has been whether it violates the Establishment Clause of the First Amendment of the Constitution.

The Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” Essentially, this means that the government cannot establish an official religion of the United States or pass any laws that favor or inhibit a particular religion.

The primary Establishment Clause test utilized by courts today is derived from Lemon v. Kurtzman, and the rest requires that courts analyze a government action’s purpose, effect, and entanglement with religion. If a court finds the government acted with a primary religious purpose, had the effect of advancing or inhibiting religion, or was sufficiently entangled with religion, it will strike the law down as unconstitutional in violation of the Establishment Clause. Under this Lemon test, a challenger needs to show only one of the three prongs to succeed.

Here, six Muslim individuals, and three organizations that represented Muslim clients, asserted that they would be harmed by the implementation of the revised travel ban. In turn, they filed a lawsuit in the United States District Court of Maryland seeking a preliminary injunction. The District Court granted the injunction and determined that the plaintiffs were likely to succeed on the merits of an Establishment Clause claim.

After the ruling was appealed, the Fourth Circuit upheld the Maryland District Court’s decision to block the revised travel ban on May 25, 2017, finding the ban to be in violation of the Establishment Clause. In its analysis, the Fourth Circuit employed the Lemon test and viewed extrinsic evidence on the record from the viewpoint of a reasonable observer to determine that the revised travel ban had a primary religious purpose.

One question that arose revolved around whether or not courts should be permitted to consider extrinsic evidence when assessing the purpose. In the Lemon test analysis, a court determines not only the government’s stated purpose, but also the purpose from a reasonable observer’s standpoint. Thus, in analyzing the purpose from the standpoint of a reasonable observer, it is proper for a court to take extrinsic evidence surrounding the implementation of a government action into account, just as the Fourth Circuit did in this case. However, in an age where society is constantly bombarded with information through countless avenues of communication, it is worth asking how much extrinsic evidence a court should take into consideration when attempting to determine the primary purpose of a governmental action.

In this case, the District Court of Maryland looked to President Trump’s campaign statements, rallies, interviews, and tweets in order to assess the various discussions surrounding the travel ban. More specifically, the court assessed the choice of language such as banning “Muslims” as opposed to banning “terrorists.” Thus, the Fourth Circuit determined that the abundance of extrinsic evidence on the record, “viewed from the standpoint of the reasonable observer, creates a compelling case that [the revised travel ban’s] primary purpose is religious.”

Furthermore, in this case, the Fourth Circuit held that the District Court’s use of such extrinsic evidence, in holding that the order was a violation, was proper to show a primary religious purpose disguised in terms of national security to circumvent Establishment Clause scrutiny. Accordingly, the Fourth Circuit concluded that President Trump’s statements revealed his “desire to exclude Muslims from the United States” in violation of the Establishment Clause.

On June 1, 2017, the Department of Justice filed a petition with the Supreme Court, seeking review of the Fourth Circuit’s decision.

Whether or not the Supreme Court will hear the case remains to be seen. Some experts argue that the court will likely grant certiorari and hear the appeal, saying that “[w]hen a major presidential initiative is ruled unconstitutional by a federal appeals court, a review by the Supreme Court almost always follows.” On the other hand, rulings in the Hawaii District Court, Maryland District Court, Washington District Court, Fourth Circuit, and Ninth Circuit have remained consistent, blocking both the travel ban and the revised travel ban. With consistent interpretation and no circuit splits, some experts argue that there is no reason for the Supreme Court to hear the case. Only time will tell.

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Sources Cited      

Adam Liptak, The Supreme Court’s Options in the Travel Ban Case, NY Times (Jun. 2, 2017).

Int’l Refugee Assistance Project v. Trump, 2017 WL 2273306 (4th Cir. 2017).

Ryan Lovelace, Will the Supreme Court Take up Trump’s Travel Ban?, Washington Examiner (Jun. 3, 2017).

Int’l Refugee Assistance Project v. Trump, 2017 WL 1018235 (D. Md. 2017).

Mississippi Man First to be Prosecuted and Sentenced Under Federal Hate-Crime Statute

Written by: Brianne Szopinski

On Monday, May 15, 2017, Joshua Vallum became the first individual to be prosecuted and sentenced for a federal hate crime after the murder of his ex-girlfriend, Mercedes Williamson. Vallum pled guilty to Williamson’s murder on December 21, 2015. In his plea, he stated that, despite earlier statements to the police indicating his unawareness of Williamson’s gender identity, he ultimately killed Williamson because she identified as transgender.

Typically, prosecutions for hate crimes are handled by individual states, as opposed to the federal government. However, the state of Mississippi, where the crime took place, does not have a statute protecting individuals from hate crimes based on their gender identity. Therefore, the government brought federal charges against Vallum under a federal hate crime statute: the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009. Section (a)(2) of the statute criminalizes behavior in which an individual commits or attempts to commit violent acts against another when motivated by certain characteristics of the victim (i.e., actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability). Because Congress passed section (a)(2) of the Act under its Commerce Clause power, the government must establish that the alleged hate crime occurred in or affected interstate or foreign commerce.

Here, the government alleged that Vallum murdered Williamson based on her actual or perceived gender identity. Although previously in a relationship, Vallum and Williamson broke up in 2014. Prosecutors in the case alleged that Vallum knew that Williamson identified as a transgender female during the course of their relationship. On May 28, 2015, Vallum allegedly murdered Williamson after his friend discovered that Williamson identified as transgender. The government alleged that Vallum persuaded Williamson to enter his car at her home in Alabama, drove her to Mississippi, assaulted, and ultimately stabbed her. Prosecutors believe that, despite already knowing Williamson’s gender identity, Vallum murdered Williamson due to fear of retribution from other members of his gang, the Almighty Latin Kings and Queens Nation. Vallum allegedly believed that his own life was in danger because other gang members knew about his sexual relationship with a transgender individual.

Vallum was sentenced to 49 years in prison and a $20,000 fine in the Southern District of Mississippi. The charges against Vallum and the sentence imposed drew mixed reactions from various civil rights groups across the country. Some groups approved of the government’s commitment to protect individuals against discrimination based on gender identity. Others acknowledged the problems associated with enhanced-sentencing statutes, stating that these laws do not protect against or prevent hate crimes, as they only punish perpetrators after the crimes are committed. Nevertheless, as hate crimes continue to be committed across the country, it is likely that this will not be the last invocation of the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act.

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Sources Cited

Emanuella Grinberg, Transgender Hate Crime Guilty Plea in Federal Court is a First, CNN (Dec. 23, 2016, 6:24 AM), http://www.cnn.com/2016/12/22/politics/mississippi-transgender-hate-crime/index.html.

Ralph Ellis, Emanuella Grinberg, & Janet DiGiacomo, Mississippi Man Sentenced for Hate Crime Killing of Transgender Woman, CNN (May 16, 2017, 6:39 AM), http://www.cnn.com/2017/05/15/us/transgender-hate-crime-murder-sentence-mississippi/.

Anti-Defamation League, Hate Crime Laws – The ADL Approach 4 (2012), https://www.adl.org/sites/default/files/documents/assets/pdf/combating-hate/Hate-Crimes-Law-The-ADL-Approach.pdf.

The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009, U.S. Dep’t of Just., https://www.justice.gov/crt/matthew-shepard-and-james-byrd-jr-hate-crimes-prevention-act-2009-0 (last updated Aug. 6, 2015).

The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, 18 U.S.C. § 249 (2012).

Autumn Callan, Mississippi Man Sentenced in First US Transgender Hate Crime Conviction, Jurist (May 16, 2017, 3:38 PM), http://www.jurist.org/paperchase/2017/05/mississipi-man-sentenced-in-first-us-transgender-hate-crime-conviction.php.

New York’s Highest Court Requires Hearings for Final Child Custody Determinations

–by Shannon Mumaw

Sources:

S.L. v. J.R., 56 N.E.3d 193 (2016); Daniel Leddy, Major Custody Ruling by New York’s Highest Court, silive.com (June 20, 2016, 12:17 PM), http://www.silive.com/opinion/danielleddy/index.ssf/2016/06/major_custody_ruling_by_new_yo.html.

Abstract:

The New York Court of Appeals held that in general, final custody determinations should only be made after a full and complete evidentiary hearing.

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Summary:

The mother and father, who were both attorneys, had been married for nearly fifteen years before the mother commenced divorce proceedings against the father and sought full custody of their two minor children. The father, who had left the marital home months before, returned to find that the mother had broken the windows and burned his clothes. The father filed an order to show cause seeking temporary sole legal custody of the children. In addition to incidents of harassment, the father alleged he feared for the children’s safety because the mother engaged in extramarital affairs and abused prescription medication and alcohol.

The trial level court granted the father temporary sole interim legal and physical custody with supervised visitation for the mother, which was later continued by the issuance of a second order. After a court-appointed forensic evaluator concluded that the father was the more “psychologically stable” parent, the court granted full custody to the father without a hearing. Additionally, the court suspended visitation for more than five months, noting that the mother “acknowledged her involvement in many incidents of disturbing behavior.”

In unanimously affirming the lower court’s decision, the Appellate Division, Second Department, held that although custody determinations “generally may only be made following a full and comprehensive evidentiary hearing . . . no hearing is necessary where, as here, ‘the court possesses adequate relevant information to enable it to make an informed and provident determination as to the child’s best interest.’”

On June 9, 2016, the New York Court of Appeals overturned the Appellate Division and held that final custody determinations should only be made after a full hearing is conducted. However, the court declined to fashion a catchall rule mandating a hearing in every case. In its opinion, the court stated that by applying the “undefined and imprecise ‘adequate relevant information’ standard,” the lower courts effectively relied on hearsay statements and the conclusion of a court-appointed forensic evaluator whose opinions and credibility were untested. The court went on to say that such a standard does not adequately protect a parent’s fundamental right to control the upbringing of his or her child.

Further, the court held that taking into consideration the governing principle in all custody determinations­­—the best interest of the child—there are no absolutes; rather custody determinations must be entrusted to the discretion of the trial court.

Does Charging Bull Artist Arturo Di Modica have a Claim Under VARA?

–by Veronica Ramirez

Sources: Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128, 129 (1st Cir. 2006); 17 U.S.C. § 106A (2012); Leonard D. DuBoff, Christy A. King, Michael D. Murray, and James A.R. Nafziger, Art Law Deskbook: Vol. 1 Artists’ Rights in Intellectual Property, Moral Rights, and Freedom of Expression, Part 7 (Matthew Bender); Kriston Capps, Why Wall Street’s Charging Bull Sculptor Has No Real Case Against Fearless Girl, The Atlantic (Apr. 14, 2017), https://www.theatlantic.com/entertainment/archive/2017/04/wall-streets-charging-bull-sculptor-has-no-case-against-fearless-girl/523086/; History, Charging Bull,  http://chargingbull.com/chargingbull.html (last visited Apr. 29, 2017); Jamiles Lartey, ‘Charging Bull’ Sculptor Calls for New York to Remove ‘Fearless Girl’ Statue, The Guardian (Apr. 12, 2017, 3:00 PM) https://www.theguardian.com/us-news/2017/apr/12/charging-bull-artist-remove-fearless-girl-arturo-di-modica.

Abstract: On April 12, 2017, artist Arturo Di Modica stated that the “Fearless Girl” statue infringes on his artistic rights. Under the Visual Artists Rights Act (“VARA”), he may have a viable claim; however, because the “Fearless Girl” alters the message, and not the physical structure of the “Charging Bull,” it is unlikely that he would prevail.

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After the stock market crash of 1987, artist Arturo Di Modica spent two years creating a sculpture that symbolized the resilience of American people and the promise of a booming economy. On December 15, 1989, Di Modica erected the iconic “Charging Bull” sculpture outside of the Stock Market Exchange without a permit, at the foot of a then-installed Christmas tree, which quickly became a tourist attraction. The New York Stock Exchange removed the sculpture the next day.

Shortly after its removal, the “Charging Bull” was installed in a different Bowling Green location, where it still stands today. As of March 7, 2017, however, the “Charging Bull” shares the traffic island with a recently installed sculpture, the “Fearless Girl” by Kristen Visbal. Visbal, unlike Di Modica, was commissioned by State Street Global Advisors to spotlight the need for gender diversity at the leadership level on Wall Street. Like Di Modica, however, she erected “Fearless Girl” overnight on March 7, 2017, the day before International Women’s Day, as a temporary installation. The statue stands defiantly in front of the “Charging Bull,” and it is set to remain there until February 2018.

Taken together, both sculptures convey a different message than originally conceptualized. The meaning of the “Charging Bull,” a symbol of resilience, has been modified by the addition of the “Fearless Girl” and should be removed, according to Di Modica. Seeing as the statues share a traffic island in Bowling Green, the “Fearless Girl” represents the obstacles presented in a male-dominated field via the young girl confidently confronting the symbolic obstacle of the “Charging Bull.” Given this sudden shift in what the “Charging Bull” originally represented, Di Modica voiced that the “Fearless Girl” statue violates his copyright rights.

The legal basis for a claim like Di Modica’s falls under the Visual Artists Rights Act (“VARA”) of 1990, which, among other things, allows artists like Di Modica “to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to [the artist’s] reputation.” Works protected under this statute include works created after the statute’s enactment as well as works created before it that an artist still owns the copyrights to. Although Di Modica’s sculpture was created and installed in 1989, before VARA’s enactment, if Di Modica still owns the copyright or has not waived his rights, he could invoke VARA as a legal basis for his claim of copyright infringement.

Even if Di Modica does satisfy one of the requirements mentioned above, Di Modica is unlikely to prevail on the substance of his claim. In a press conference held on April 12, 2017, Di Modica’s attorney mentioned that the “Fearless Girl” was “incomplete without Mr. Di Modica’s Charging Bull, and as such it constitutes a derivative work.” Di Modica’s attorney also mentioned that the “Fearless Girl” statue was fearless because she stood in front of Di Modica’s “Charging Bull.” Thus, in Di Modica’s view, the “Fearless Girl” modifies his work.

Modification typically involves altering the work itself, such as partially covering a work of art. To date, federal courts have not considered whether a modification includes alterations external to a protected work’s surroundings, such as the installment of another statue in the same area. Since the “Fearless Girl” alters the message of the “Charging Bull,” but not the physical sculpture of the “Charging Bull,” it is unlikely that Di Modica could prevail on his claim.

Additionally, Di Modica’s claim raises an issue concerning site-specific art. Under VARA, site-specific art claims assert that the removal of a work of art from a particular place violates an artist’s rights. “In a work of ‘site-specific art,’ one of the component physical objects is the location of the art. To remove a work of site-specific art from its original site is to destroy it.”

Applying this to Di Modica’s situation, it is unlikely that Di Modica could prevail on his claim simply because his “Charging Bull” is being modified by another object in its vicinity, rather than being removed from its physical location. Since the “Charging Bull” is not being removed, the “Charging Bull” is not necessarily destroyed by the addition of the “Fearless Girl.” Additionally, if the Second Circuit adopts a similar view of indifference to that of the First Circuit in Phillips, then the site-specific argument may prove futile.

Ultimately, Di Modica’s attorneys have not filed suit, but they have requested information regarding the permits of the “Fearless Girl,” in addition to asking New York City Mayor Bill de Blasio to move the statue elsewhere. Di Modica and his attorneys are hoping to resolve this amicably, but they have not removed litigation from the table.

Paid Family Leave Without Worries?

–by Nicole Macris

Citations: Family Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq. (2017); FAMILY Act, S.337, 115th Cong. (2017), https://www.congress.gov/bill/115th-congress/senate-bill/337; Wendy McElroy, The FAMILY Act is Smart Politics, but Bad for Business, The Hill (Oct. 14, 2014, 6:00 AM), http://thehill.com/blogs/pundits-blog/healthcare/219766-the-family-act-is-smart-politics-but-bad-for-the-economy; Claire Zillman, Kirsten Gillibrand is Giving Her Paid Family Leave Proposal its First Trump-Era Test, Fortune (Feb. 7, 2017), http://fortune.com/2017/02/07/trump-paid-family-leave-gillibrand/.

Abstract: United States Senator Kirsten Gillibrand (D-NY) introduced a bill that would revise the paid-leave system developed under the Family Medical Leave Act. It establishes an insurance-based program for paid-leave. There are concerns regarding how this legislation, if enacted, would affect employees, employers, and the federal government.

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Enacting the Family Medical Leave Act (“FMLA”) in 1993 provided up to 12 weeks of unpaid leave to those in need of an excused leave of absence. However, under FMLA, many employees were unable to afford leave without pay, and unable to take the full leave. The FAMILY Act will work in conjunction with FMLA to construct an affordable safety net for employees who need to care for themselves or family members.

United States Senator Kirsten Gillibrand (D-NY) introduced multiple bills to revise the FMLA. Her latest attempt began by introducing the FAMILY Act, her first try during the Trump Administration and 115th Congress in Senate Bill 337, on February 7, 2017. The FAMILY Act is modeled after the paid family leave statutes in California, New Jersey, and Rhode Island, which increased the number of people in the workforce who were eligible for paid leave insurance based on a particular set of standards. Senator Gillibrand’s bill sets forth eight objectives:

  1. centralize the policies within FMLA to the federal government and, subsequently, establish a new division within the Social Security Administration (“SSA”): Office of Paid Family and Medical Leave, to oversee the entirety of the insurance program;
  2. set forth the criteria by which individuals are eligible for benefits of the program, prohibitions, and violations;
  3. entitle individuals to the insurance if the person (a) is insured for disability insurance under SSA when the application is filed, (b) earned twelve (12) months of income from employment, (c) filed an insurance application pursuant to the bill, and (d) is engaged in either caring for or anticipates to be engaged during a 90-day period, either before filing the application or within 30 days of filing;
  4. create a formulaic determination of the benefit which the individual will receive monthly, including the maximum and minimum amounts per month;
  5. coordinate the Family and Medical Leave Insurance benefits with any benefits received from other insurance programs via state law, local government, or disability insurance or family leave insurance programs;
  6. create a fund, from which the payments will be made;
  7. protect SSA from the insurance being paid from other programs within the agency; and
  8. amend the Internal Revenue Code to finance the program by imposing taxes on individuals, employers, the self-employed, and all railroad employees, railroad representatives, and railroad employers.

Thus, the FAMILY Act develops a system similar to an unemployment insurance program, but on a federal level, which gives employees a fallback plan when they need to take on the role of caregiver.

There are concerns as to how this legislation will affect individuals, employers, and the government. Individuals will have to pay into the system; the amendments to the Internal Revenue Code will impose taxes on individuals in order to fund the program. This safeguard has both negative and positive effects. The amount taken from paychecks will increase, but, on the other hand, there is a safeguard set in place for those eligible for the program, and in need of assistance. Employers will also incur a tax expenditure, but will be held to minimum FMLA standards, and may actually benefit from the insurance program established by the FAMILY Act. However, the effects facing the government could be substantial. The FAMILY Act will require the federal government to allocate resources to the program, which, in turn, removes resources from other federally funded programs or agencies. Programs such as this also place further obligations on the federal government to protect the American people.

The objectives of the bill, and insurance program, are wonderful in theory. Having a safety net is comforting, especially for those with aging parents, sickly family members, etc., especially when financial security is of concern when determining how to care for family members. Previous bills, with little to no amendments between introductions, have been killed in Congress several times already. Furthermore, it is unlikely that a new office within the SSA will be established while there is a hiring freeze. There must be revisions to the bill in order to facilitate a smooth transition from the current to proposed programs, along with provisions as to how resources will be properly allocated.