Bill Nye Sues Disney Alleging Millions in Profits Distribution Withheld

Photo via Netflix USA
Written By Selin Demir

 

Background

Last Thursday, attorneys for Bill Nye filed a lawsuit in the Los Angeles Superior Court alleging Walt Disney Company (“Disney”) and its subsidiary, Buena Vista Television (“Buena Vista”), deprived Nye and other owners of “Bill Nye the Science Guy” of approximately $28 million in distribution profits.

Discussion

“Bill Nye the Science Guy,” starring Nye, originally aired for five seasons from 1992 to 1997. The show was successful, earning 19 Emmy Awards and a Television Critics Association award. Today, nearly 25 years after its first broadcast, the show airs in limited syndication and is sold to educators across the country as an academic aid with supporting lesson plans.

According to the lawsuit, in March of 1993, Buena Vista entered into an agreement with the owners of the show, including Nye himself, to market and distribute it. Under the agreement, the owners are collectively entitled to half of the net profit derived from the distribution of the show, with Nye being entitled to 33% of that half (or 16.5% of the total net profit).

In April of 2008, Buena Vista sent Nye a statement for the previous year, along with a payment of $585,123. Just three months later, however, Buena Vista sent Nye a letter retracting the April statement due to an “accounting error.” The letter also stated that Nye owed $496,111 back to Buena Vista and that he would not receive further royalty payments until it was done.

In the complaint, Nye alleges that his attempts to negotiate with Buena Vista and Disney over the statements lasted four years before he was “left with no choice but to hire a professional auditor to examine Buena Vista’s records.” When the hired auditor made attempts to conduct the audit, Nye alleges that Disney found ways to stall the investigation until May of 2016.

When the audit commenced, Nye alleges that Disney and Buena Vista both failed to produce essential documents, claimed to be “outside of the scope of the audit,” and was denied access to any information related to revenue that Disney or Buena Vista received for any exploitation of the show, among other things.

Despite this limited access, the auditor provided Nye with preliminary findings that identified underreported royalty payments owed to Nye that total approximately $9,350,565. Nye concluded that, because Disney is such a large company with a “well-staffed and well-trained accounting department,” it was aware of its wrongdoing and willfully deceived the owners of the show in an effort to deprive them of their earned share of profits from the series. The complaint further alleges that Disney continued its wrongdoing by withholding documents and other essential information to prevent the auditor from being able to fully assess the damage caused by Disney and Buena Vista.

Nye is seeking, among other remedies, a court order compelling Disney and Buena Vista to account for all of the money Nye is owed, plus a disgorgement of all profits that are in receipt of the alleged fraud, plus compensatory and punitive damages, and attorney’s fees.

While Disney has not made an official comment, a representative for Buena Vista sent a statement to The Hollywood Reporter stating: “This lawsuit is a publicity ploy and we look forward to vigorously defending it.”

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Sources Cited

Ashley Cullins, Bill Nye Says Disney Shorted Him Millions in New Fraud Lawsuit, The Hollywood Reporter (Aug. 24, 2017, 7:29 PM).

Complaint and Demand for Jury Trial, Nye v. Walt Disney Co., No. BC-673736 (Super. Ct. Cal. Aug. 24, 2017).

Feature photo courtesy of Netflix USA.

Received or Not? That is the question.

Written by Grace Ha Eun Hwang

 

Abstract: The Third Circuit Court of Appeals held that in order for goods to be considered “received” under section 503(b)(9) of the Bankruptcy Code, goods must be delivered into the physical possession of the debtor or its agents within 20 days before the debtor files for bankruptcy.

***

On July 10, 2017, the Third Circuit clarified what would happen if a creditor sold goods to a debtor soon before the debtor files a Chapter 11 bankruptcy.

Traditionally, under 11 U.S.C. § 503(b)(9), creditors may recover the value of the good that they sold to the debtor if the good was received by the debtor within 20 days before the bankruptcy petition was filed. But what exactly does “received” mean? In re World Imports answered this question.

In In re World Imports, appellants Haining Wanshen Sofa Company (“Haining”) and Fujian Zhangzhou Foreign Trade Company (“Fujian”) were Chinese companies that sold and shipped furniture to World Imports, a furniture retailer in the United States. Goods were typically shipped from China to the United States “free on board.”

Both the Creditors (Haining and Fujian) and Debtor (World Imports) agreed to the following facts:

Haining’s shipment of goods to World Imports left China on May 26, 2013

Fujian’s three separate shipments of goods to World Imports left China on May 17, May 31, and June 7 of 2013

World Imports took physical possession of Haining’s shipment in the United States on June 21, 2013

World Imports accepted all three of Fujian’s shipments in the United States within 20 days of July 3, 2013, the day on which World Imports filed its Chapter 11 petition

After gaining wind of World Import’s bankruptcy filing, both Haining and Fujian filed Motions for Allowance and Payment of Administrative Expense Claims (“the Motion”) pursuant to 11 U.S.C. § 503(b)(9). Under this administrative claim, if successful, creditors are able to reclaim payments in full value of the goods received by the debtor.

Both creditors claimed that they were entitled to relief under § 503(b)(9) because the goods were sold in the ordinary course of business to the debtor and were received by the debtor within 20 days before the debtor filed for bankruptcy. The Bankruptcy Court hearing the original motion disagreed. The Bankruptcy Court denied the Appellants’ motions after concluding that the goods were “constructively received” when they were shipped from China. The Bankruptcy Court relied on the definition of “received” under the Contracts for the International Sale of Goods (CISG) which allowed receipt by delivery to a common carrier.  The District Court affirmed the Bankruptcy Court’s ruling and the Appellants appealed to the Third Circuit.

The Third Circuit reversed the lower courts’ rulings. The Third Circuit looked to the ordinary meaning and the statutory context and found that the term “received” required physical possession.

When looking at the ordinary meaning of the term, the Court found that the Black’s Law Dictionary and the Oxford English Dictionary both interpreted the term “received” to require some type of physical possession. The Court also found that the UCC defined “receipt” of goods as taking some sort of physical possession of them. The Court then concluded that Congress could not have meant to deviate from all these well-known definitions when it adopted 11 U.S.C. § 503(b)(9).

Next, the Court looked to the statutory context surrounding 11 U.S.C. § 503(b)(9). The Court noted that because § 503(b)(9) was enacted to provide exemptions to the rules provided in § 546(c), the interpretation of the term “received” must be consistent between the two sections. The Court then looked to the ruling in In re Marin Motor Oil, 740 F.2d 220 (3d Cir. 1984) which interpreted § 546(c). In re Marin Motor Oil held that the term “received” meant the same as defined in the UCC, namely that taking physical possession is required for goods to be considered “received.” Since § 503(b)(9) has an interrelationship with § 546(c), the Third Circuit concluded that it would be greatly deviating from well-established authority if it did not also follow the UCC’s definition. The Court was also quick to note that even if the risk transfers upon shipment of goods, common carriers are not agents and thus goods are not received even when risk is transferred.

Because World Imports received their goods through a common carrier outside of the 20-day period but actually physically received possession of the goods within the 20-day period before filing for bankruptcy, both Haining and Fujian qualified for relief.

This ruling not only clarified the meaning of the term “received” but also illustrated the weighty consequences of choosing the method of acceptance for shipped goods.

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Source Cited

Haining Wansheng Sofa Co., Ltd. V. World Imports Ltd. (In re World Imports, Ltd. Et al.), No. 16-1357, 2017 WL 2925429 (3d Cir. Mar. 8, 2017).

District Court: EPIC Cannot Compel President Trump’s Tax Returns

Written By Sam Cohen

Abstract

On August 18, 2017, District Judge James E. Boasberg, of the U.S. District Court for the District of Columbia, dismissed Electronic Privacy Information Center’s (“EPIC”) complaint, which requested that President Donald J. Trump disclose his tax returns.

Background

On February 16, 2017, EPIC requested all of Donald J. Trump’s individual income tax returns dating back to 2010, in addition to filing a Freedom of Information Act (“FOIA”) request that he disclose any financial relationships with the Russian government or Russian businesses. The requests were denied because they failed to comply with the published rules and were deemed incomplete requests that the IRS could not process.

After the denial, EPIC filed another request, this time claiming a right to the documents under § 6103(k)(3) of the IRS code. This request was also denied, and the following lawsuit was filed in response.

Discussion

FOIA requests have two requirements: (1) that a request reasonably describes the records sought, and (2) that a request follows the agency’s published rules of stating the time, place, fees (if any), and procedures to be followed. The published rules of the IRS on FOIA procedures can be found in Treasury Regulation § 601.702.

In order for a FOIA application to be considered complete, the subject of the request must give consent. Without consent, the application is incomplete. In EPIC’s case, the requests were filed without the consent of President Trump; therefore, the IRS had no choice but to close the request file without granting the application. The court confirmed that such IRS regulations are reasonable and should be upheld.

EPIC’s second FOIA request was premised on § 6103 of the IRS code, which allows the IRS to disclose records, in limited circumstances, without the consent of the subject. The specific subsection upon which EPIC based its claim was § 6013(k)(3), which can be used to disclose tax returns to correct misstatements of fact. The misstatements alleged by EPIC were tweets by President Trump. Two particular tweets provided such a basis:

“For the record, I have ZERO investments in Russia.” July 26, 2016 at 5:50 p.m. EST.

“Russia has never tried to use leverage over me. I HAVE NOTHING TO DO WITH RUSSIA – NO DEALS, NO LOANS, NO NOTHING!” Jan. 11, 2017 at 6:31 a.m. EST.

For the purposes of the motion to dismiss, the Court had to accept that these tweets were misstatements that could sufficiently trigger § 6013(k)(3), as the Government’s argument against the assertion was a single sentence without citation.

The Court subsequently found that the exceptions under § 6013(k)(3) may not be get around the consent requirement of the IRS regulations; however, for the sake of argument, the Court accepted that consent was not needed. Instead, the Court found that this exception could not be used at all. This is because, before the IRS has to disclose any information under this exception, a party must obtain the approval of the Joint Committee on Taxation. EPIC did not do so. Further, the Court noted that this provision had never successfully been used to compel the disclosure of IRS records, since the Joint Committee on Taxation has never exercised this authority with regard to any other parties.

Beyond this argument, EPIC also alleged two violations of the Administrative Procedure Act. Both were rejected by the Court. Because, the Court decided that there was no way for the judicial system to grant the relief sought by EPIC, the complaint was dismissed.

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Sources Cited

Elec. Privacy Info. Ctr. v. IRS, 2017 U.S. Dist. LEXIS 131911 (D.C. Cir. 2017).

Shayna Posses, Trump or Congress Must OK Tax Return Release, Judge Says, Law360 (Aug. 18, 2017).

 

Case Study: Roy Cockrum, et al. v. Donald J. Trump for President, Inc. and Roger Stone

Written By Nicole Macris

 

BACKGROUND

During the 2016 Presidential Election, an unidentified hacker broke into the Democratic National Convention’s database and stole more than one 100 accounts of donors, staffers, and supporters alike. WikiLeaks later received that information, making it public via its website on July 25, 2016. The hack left of individuals vulnerable and exposed. Three of the affected individuals–Roy Cockrum, Scott Comer, and Eric Schoenberg–have now brought suit to recover for their invasion of privacy.

DISCUSSION

The plaintiffs–two donors and one former DNC staffer– allege that the WikiLeaks disclosures have chilled participation in vital parts of the democratic process, campaign financing, and advocacy. Private identifying information–including social security numbers, dates of birth, addresses, and phone numbers–were made public, and they allege that this now subjects them to a potential lifetime of identity theft and subsequent credit complications.

Moreover, Cockrum’s donations to specific candidates running for public office, state Democratic parties, and the DNC were publicized, which, the Complaint alleges, resulted in a chilling effect with respect to future political contributions. Comer’s emails, discussing his conflicts with colleagues, health issues, and details of his sexual orientation, were also published. The dissemination of their private information and emails, the plaintiffs further allege, resulted in intimidation and fear of using normal technological means of communication for advocacy and financial purposes.

Consequently, on July 12, 2017, the plaintiffs filed suit in the U.S. District Court for the District of Columbia. The allegations set forth in the Complaint assert that the defendants violated the plaintiffs’ privacy rights by disseminating private information about them, in a conspiracy with Russian agents, by way of WikiLeaks, DCLeaks, and Guccifer 2.0, all in violation of 42 U.S.C. § 1985(3). Named as defendants are Donald J. Trump for President, Inc. and Roger Stone, an advisor to the 2016 Trump Campaign.

The Complaint further alleges that the defendants are liable for the public disclosure of private facts, pursuant to D.C. law. In order to prevail on this claim, the plaintiffs must prove “(1) publicity, (2) absent waiver or privilege, (3) given to private facts, (4) in which the public has no legitimate concern (5) and which would be highly offensive to a reasonable person of ordinary sensibilities[.]”

Case law dictates that the dissemination of personal information, such as Social Security numbers and identification information, falls within the “highly offensive” category of private information that should not be made public without waiver. The crux, however, is determining whether disseminating the private information falls within one of the three exceptions, namely, whether it is (1) “crucial to the vitality of democracy,” (2) of public concern regarding current events, public affairs, or (3) information that could protect others or is already of public record. The plaintiffs claim that the information published fails to fall within one of the aforementioned exceptions.

Nevertheless, one crucial question remains: are the defendants culpable for disseminating the plaintiffs’ information and emails? This is where the conspiracy claim comes into play; for without a connection to the third parties, the defendants may not be liable for the published information. Thus, 42 U.S.C. § 1985(3) applies in order to establish the causation of the alleged injuries. The plaintiffs specifically rely on the harm caused by intimidation and injury resulting from supporting one candidate over another, as set forth in the statute:

. . . conspir[acy] to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy . . . .

Despite all of this, the Complaint turns on the connection between the defendants and third parties for the purposes of holding the defendants culpable for the entirety of the lawsuit. Without a finding of the alleged conspiracy, the entire cause of action could fail. Thus, this action depends on plaintiffs establishing their burden of proof with regard to the defendants’ alleged conspired with Russian agents, Gufficer 2.0, DCLeaks, and WikiLeaks.

Several points set forth in the complaint either state or add to the assertion that there was a connection between Trump for President, Inc., Roger Stone, and the aforementioned third parties. While many of the factual allegations set forth in the Complaint have been extensively covered and discussed in the media, the Complaint works to bridge the gap and form the conspiracy relationship by way of logical assertions.

• Paragraphs 9–10, 178, 180: United States government reports conclude that Russia is the culprit of the DNC hacking, and the defendants, thereafter, reaped the benefits;

• Paragraph 11: Trump for President campaign officials had/have ties to Russia, and use these ties to use the information hacked by Russia to their benefit;

• Paragraph 13: The campaign officials entered into agreements with Russia;

• Paragraphs 142–155: Defendants called attention to the hacked, and subsequently published, emails and information, and did so prior to the actual publication by WikiLeaks; and

• Paragraph 182: Defendants (1) denied Russia’s involvement, (2) undermined accountability efforts, and (3) concealed Russian contacts in order to further conceal involvement in the alleged conspiracy.

While this case is in its infancy, it is possible that the discovery, motions, and potential trial may lead to political and constitutional issues overwhelmingly more controversial than the DNC hack or alleged injuries at issue here.

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Sources Cited

Andy Wright, DNC Hack Victims Sue Trump Campaign and Roger Stone, Just Security (July 12, 2017).

Budik v. Howard Univ. Hosp., 986 F. Supp.2d 1 (D.D.C. 2013).

Cockrum, et al. v. Donald J. Trump for President and Stone, Complaint, Case No. 1:17-cv-01370, Dkt. No. 1 (July 12, 2017).

Eric Lichtblau and Eric Schmitt, Hack of Democrats’ Accounts Was Wider Than Believed, Officials Say, N.Y. Times, (Aug. 10, 2016).

Foretich v. Lifetime Cable, 777 F. Supp. 47 (D.D.C. 1991).

Grunseth V. Marriot Corp., 872 F. Supp. 1069 (D.D.C. 1995).

Susan Hennessey and Helen Klein Murillo, Is It A Crime?: Russian Election Meddling and Accomplice Liability Under the Computer Fraud and Abuse Act, Lawfare (July 13, 2017).

Wolf v. Regardie, 553 A.2d 1213, 1220 (D.C. 1989).

SDNY Dismisses Challenge to New York’s Zero Emission Credit Nuclear Subsidy Program

Written By Conor Tallet

On July 25, 2017, District Judge Valerie Caproni, of the U.S. District Court for the Southern District of New York, dismissed a challenge to New York’s Zero Emission Credit (“ZEC”) subsidy program.

Background

The program originated from Governor Andrew Cuomo’s Clean Energy Standard, which established a policy goal of achieving 50% of electrical generation from renewable sources by the year 2030. It also sets forth a goal of a 40% reduction in carbon emissions by 2030.

Due to low gas prices leading to lower power pricing, nuclear plants have been threatening to shut down because they are operating at a loss. The plan, then, is to have taxpayers subsidize the nuclear power plants over the next twelve years in order to ensure that they continue to operate, thus permitting New York to “reap[] the value of the virtually emissions-free power.” It’s estimated to cost New York electric ratepayers approximately $7.6 billion over the next twelve years.

Discussion

A key component in achieving a reduction in carbon emissions is to preserve the zero-carbon attributes of nuclear generation facilities in New York. Consequently, the Clean Energy Standard promulgated a nuclear subsidy targeted at uneconomic nuclear power plants in the New York wholesale electricity market.

The subsidy involves the payment of approximately $17.48 per megawatt hour sold from the nuclear generation facilities into the wholesale market. This causes the wholesale electricity market to work as an auction, by matching up the demand for electricity with the cheapest bids for electricity from generators.  Thus, the subsidy helps nuclear plants to continue operating.

Soon after the subsidy was passed by the New York Public Service Commission, a number of wholesale electricity generators filed suit. In Coalition for Competitive Electricity v. Zibelman, the plaintiffs argued that New York’s program intrudes on the Federal Energy Regulatory Commission’s (“FERC”) exclusive jurisdiction over the wholesale energy market vested in it by the Federal Power Act.

Where the direct sale of electricity from an individual’s local utility, to a consumer, is regulated by the individual states, any “sale for resale” of electricity is regulated by FERC. Because the ZEC subsidy works to allow nuclear plants to submit artificially low bids in the wholesale auction (when they otherwise would be uncompetitive in the wholesale market), the plaintiffs argued that the Federal Power Act should preempt the ZEC state subsidy.

A key case for the plaintiffs has been Hughes v. Talen Energy Marketing, LLC. In Hughes, the Supreme Court struck down a Maryland subsidy aimed at preserving in-state generation by paying a generator a subsidy of the difference between a bilateral contract price and the actual price the generator’s electricity cleared the wholesale market. In a narrow holding, Justice Ginsburg articulated that “[s]o long as a state does not condition payment of funds on capacity clearing auction, the State’s program would not suffer from the fatal defect that renders Maryland’s program unacceptable.” Accordingly, so long as the payment of a subsidy is not contingent, or “tethered,” on the electricity clearing the wholesale auction, it escapes the grasp of the Supreme Court’s rule and is a permissible state regulation.

The Southern District of New York determined that the ZEC program is not tethered as in Hughes. Specifically, the court stated that, contrary to the plaintiffs’ argument, New York does not require nuclear generators to sell their power into the wholesale market to receive the subsidy; rather, it is a business decision on the generators’ part. Since New York is not requiring the qualifying nuclear plants to actually sell their power into the wholesale market, the ZEC program lacks the “tether,” as was fatal in Hughes. In addition, the court determined that ZECs merely incorporate environmental attributes that are “unbundled” from the wholesale electric rate, and therefore, fall squarely within a state’s jurisdiction to incentivize clean energy outside the confines of FERC’s wholesale jurisdiction.

New York’s ZEC program has been copied in the State of Illinois, who also recently threw out a challenge to its ZEC subsidy and will likely continue to proliferate to states seeking to preserve environmental attributes of expensive forms of electrical generation.

This case has been appealed to the Second Circuit and will likely be appealed all the way up to the Supreme Court.

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Sources Cited

Andy Anderson, New York Electricity Supply Costs to Increase in 2017 – PSC Approves Clean Energy Standard, Subsidizes Upstate Nuclear Power, EnergyWatch (Aug. 1, 2017).

Coalition for Competitive Electricity v. Zibelman, 16-CV-8164 (S.D.N.Y. 2017).

Hughes v. Talen Energy Marketing, LLC, 136 S.Ct. 1288 (2016).

Tim Knauss, How Will Subsidies for Upstate NY Nuclear Plants Affect Your Electricity Bill?, Syracuse.com (Mar. 3, 2017).

Is Banning Transgender Individuals from the Military Unconstitutional?

“After consultation with my [g]enerals and military experts, please be advised that the United States Government will not accept or allow [t]ransgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender [individuals] in the military would entail. Thank you[.]” @realDonaldTrump

A little over a year ago, on June 30, 2016, Defense Secretary Ashton B. Carter announced that transgender individuals could serve openly in the armed forces. He also said “the Pentagon would cover the medical costs of those in uniform who wished to undergo gender transition, and that [the Pentagon] would begin a yearlong training program for service members on the changes.”

Yesterday, President Donald J. Trump announced through a series of tweets that the United States will be prohibiting transgender individuals from serving in the military.

According to the December 2016 Department of Defense report, there are nearly 1.3 million active-duty military members. Of that, it is estimated that somewhere between 1,320 and 15,000 of those active-duty members are transgender.

Some supporters of this policy, like U.S. Representative Vicky Hartzler, say their concerns stem from the manner in which tax dollars are spent. “I had an intern that was denied the ability to go into the military because she had a bunion on her foot, and the argument was that this may cost the military, and she might have to have surgery,” Hartzler said. “[W]hy would we allow individuals to come in, although they’re very patriotic and we appreciate their desire to serve, but who have medical problems that could be very costly? We shouldn’t make an exception in this case.”

In contrast, some opponents of this policy, such as OutServe-SLDN (a legal services organization that advocates for LGBT active-duty personnel), say this policy is discriminatory. “The readiness, effectiveness, and lethality of the Armed Services comes from the commitment of our troops,” the organization said in a statement, “not the vagaries and bigotry of exclusionary policies.”

Despite President Trump’s tweets courting both praise and criticism, however, the tweeted policy does raise some constitutional questions.

To date, “neither the Supreme Court nor the Second Circuit has held that transgender plaintiffs are members of a protected or suspect class whose equal protection claims are entitled to heightened scrutiny.” For this reason, an Equal Protection analysis of the tweeted policy must be conducted through the lens of rational basis review.

In making this assessment, a court looks at whether the purposes of the tweeted policy are rationally related to some legitimate government interest. Because President Trump’s two stated reasons for the ban are “disruption” and “tremendous medical costs,” the courts could find these reasons to be rationally related to a legitimate government interest, thereby upholding the policy.

In contrast, the bare desire to harm a particular group of people does not constitute a legitimate government interest. If the tweets are read to mean that transgender service members “erode the fighting capability” of their combat units simply because they are transgender, the courts could deem this policy as one born of animus and strike it down as unconstitutional.

This morning, General Joseph Dunford, chairman of the Joint Chiefs of Staff, stated in a letter to military service chiefs that “the policy on who is allowed to serve will not change until the White House sends the Defense Department a rules change and the secretary of defense issues new guidelines.”

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Sources Cited

White v. City of N.Y., 206 F. Supp. 3d 920, 933 (S.D.N.Y. 2016).

http://www.cnn.com/2017/07/26/politics/transgender-military-ban-vicky-hartzler-cnntv/

https://www.nytimes.com/2017/07/27/us/politics/transgender-military-trump-ban.html

https://www.outserve-sldn.org/news/356531/OutServe-SLDN-condemns-President-Trumps-statement-on-transgender-service-members.htm

http://www.sfchronicle.com/nation/article/Military-transgender-ban-would-be-tough-to-11438814.php

http://www.politico.com/magazine/story/2017/07/26/why-trumps-ban-on-transgender-servicepeople-is-flatly-unconstitutional-215423

https://www.dmdc.osd.mil/appj/dwp/dwp_reports.jsp

https://www.nytimes.com/2016/07/01/us/transgender-military.html

https://www.nytimes.com/2017/07/26/us/politics/trans-military-trump-timeline.html

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)