California Passes Bill to Protect Sexual Assault Victims

—by Astrid Quiñones

Source: Sex Crimes: Mandatory Prison Sentence, California, Assembly Bill No. 2888, https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201520160AB2888

Abstract: In response to the Brock Turner case, California enacted legislation to disallow probation and provide a mandatory minimum three-year sentence for defendants convicted of sexually assaulting an unconscious victim.

***

“I do not know your name — but I know that a lot of people failed you [. . .].” – Joe Biden, Vice President of the United States

Stanford rape survivor “Emily Doe” was sexually assaulted by Brock Turner while she was unconscious behind a dumpster. Earlier this year, Turner was convicted of three felonies, including assault with intent to commit rape, penetration of an unconscious person with a foreign object, and penetration of an intoxicated person. However, Turner was sentenced to six months in jail and was released after only serving half of his sentence.

Prior law prohibited a court from granting probation or suspending the execution or imposition of a sentence if a person was convicted of violating specified provisions of the law, including rape by force, pandering, and aggravated sexual assault of a child. But the prior law did not include this prohibition for victims who were unconscious or incapable of providing consent due to intoxication. Thus, the judge had the authority to provide a lenient sentence to Turner.

In response to Turner’s case, California lawmakers proposed legislation to correct this failure. The bill, AB 2888, ends a discrepancy in the California penal code that permits probation for defendants convicted of sexually assaulting an unconscious victim.  Also, it invokes a mandatory minimum three-year prison term for crimes regardless of whether the victim is conscious.

The bill had bipartisan support and quickly passed through the Senate and Assembly, and was signed by California Governor Jerry Brown (D.). However, the bill did not go unopposed. The American Civil Liberties Union and the California Public Defenders Association argued that state law already provided an adequate sentencing scheme. Arguably, changing the sentencing laws was not the appropriate solution to such a serious problem.

In the United States, one in four women are likely to be sexually assaulted in their lifetime. According to RAINN (Rape, Abuse & Incest National Network), the nation’s largest anti-sexual violence organization, out of 344 incidents that are reported to the police, only 6 perpetrators will be incarcerated. The bill reflects the growing awareness of the need to protect women and the need to hold their offenders accountable. The hope is to avoid such injustice from occurring and successfully treat sexual assault victims equally.

Recently Introduced Bill Provides Data Breach Insurance Tax Credit

—by Adam Koulish

H.R. 6032, 114th Cong. (2016) (as referred to H.R. Comm. on Ways and Means, Sept. 14, 2016).

Cybersecurity Framework FAQs Framework Basics, Nat’l Inst. of Standards and Tech. (last visited Sept. 25, 2016), https://www.nist.gov/cyberframework/cybersecurity-framework-faqs-framework-basics.

William H. Latham, Does Your Company’s Data Breach Insurance Coverage Measure Up?, Lexology (Jan. 21, 2016), http://www.lexology.com/library/detail.aspx?g=13ae8c51-5eb8-42f6-8f1c-7e04fa346463.

Abstract: A bill, H.R. 6032, the Data Breach Insurance Act, has recently been introduced to the House Ways and Means Committee. If passed, the bill would allow businesses to claim a tax credit for the purchase of qualified data breach insurance.

***

As data breaches or “hacks” of businesses happen at an increasing rate, the purchase of data breach insurance has become a necessity for businesses of all sizes. In an effort to lessen the burden and incentivize such a purchase, a bill was assigned to the House Committee on Ways and Means on September 14, 2016 that would amend the Internal Revenue Code of 1986 to provide a tax credit to businesses that purchase data breach insurance. H.R. 6032, the Data Breach Insurance Act, would provide a credit amount equal to 15 percent of a business’ aggregate premiums paid or incurred during the taxable year for qualified data breach insurance. Being a recently introduced bill, there is a high likelihood of it being amended before it even reaches the House floor. There is also a distinct possibility that the bill will not be passed.

For the purposes of this bill, qualified data breach insurance is “coverage provided by an insurance company for expenses or losses in connection with the theft, loss, disclosure, inaccessibility, or manipulation of data.” Typically, there are two main types of claims associated with data breach insurance coverage. There are third-party claims such as legal defense if sued by a customer whose data was exposed, and there are first-party claims such as the various IT and public relations responses needed to mitigate the damage of a breach. Ideally, a data breach insurance policy would cover both types.

A business wishing to receive this credit must have adopted the Framework for Improving Critical Infrastructure Cybersecurity (FICIC) as set forth by the National Institute of Standards and Technology or any similar standard prescribed by the Secretary of Homeland Security and the Secretary of Commerce. Simply put, the FICIC is voluntary guidance that helps businesses manage and reduce their cybersecurity risk. It also establishes common terms used in cybersecurity risk management to facilitate easier communication between entities inside and outside the business.

In claiming a credit for qualified data breach insurance, the charge for such insurance should be separately stated from other types of insurance in the contract or specified on a separate statement. Also, the charge for qualified data breach insurance should not be unreasonably large in comparison to the rest of the insurance contract. The premiums paid for this insurance will only qualify for the tax credit “if such premiums are paid or incurred in the ordinary course of the taxpayer’s trade or business.” Although since data breaches can happen to almost any business, this should be an easy requirement to satisfy. Lastly, in its current form, the bill provides for credits claimed in the five years after its passage.

Governor Cuomo Signs Executive Order Boycotting a Boycott

—by Ryan Lefkowitz

N.Y. Exec. Order No. 157 (June 5, 2016), https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_157_new.pdf.

Abstract: New York State Governor Cuomo signed an executive order aimed to disallow transactions between New York State agencies and institutions engaged in the political protest of Israel through the use of boycotts, divestments, and sanctions.

***

On June 5th, 2016, New York State Governor Andrew Cuomo signed into action Executive Order 157 which prohibits state agencies from conducting business with companies that endorse and support economic sanctions for Israel. The executive order comes on the heels of the New York State legislature failing to push through two similar bills, Senate Bill S6378A and S6086. Executive Order 157 explicitly declares a “special historical relationship” and “commonly forged cultural bond” between New York State and Israel as well as the intention of New York State to “stand[] firmly with Israel.”

There are two main components to the executive order. The first involves the creation of a public blacklist of companies that are deemed to support “boycott, divestment, and sanctions activity targeting Israel” (also known as BDS). The executive order defines “boycott, divestment, or sanctions activity against Israel” as engaging in or promoting any activity that is intended to adversely affect Israel’s economy (including limiting commercial relations with both Israel and people in Israel) as a means of affecting political change. Because the executive order’s definition of BDS activities includes a requisite intent of affecting political change, the order relies on the Commissioner being able to reliably distinguish between companies using their buying power to boycott versus purchasing for personal preference.

The list of institutions and companies is to be compiled by the Commissioner of the Office of General Services within 180 days after its enactment. Included in the list will be institutions and companies that the Commissioner finds, through “credible information available to the public,” involved in BDS activities (either directly or through a parent or subsidiary). The order fails to define what means of obtaining information would fall under the umbrella term of “available to the public.” The list is to be publicly posted on the website of the Office of General Services and will be updated every 180 days.

Companies will be provided with written notice prior to being placed on the list, at which point they have ninety days to produce evidence showing they do not actually participate in boycott, divestment, or sanctions activity targeting Israel. If the Commissioner then makes a “good faith” determination that the institution does not engage in such activity, they will not be included on the list.

Any institution that is placed on the publicly published list can petition for removal by providing “written evidence” that the company has ceased its participation in BDS activities. There is no provision for if a company has erroneously been placed on the list and alleges that it has never engaged in BDS activity at all. Although the only requirement for being initially included on the list is “credible information” as evaluated by the Commissioner, the institution bears the burden of providing “written evidence” that they have stopped engaging in BDS activities in order to be removed from the list once published. Therefore, companies can petition to prevent their inclusion on the list by providing evidence they do not engage in BDS activities, but once they are included on the list the only way off is to show they have stopped such activity, not that they never engaged in it to begin with.

The second component of the executive order involves banning business dealings between “affected state agencies” and businesses that are deemed to be involved in or promote BDS activity. The order defines “affected state agencies” as any and all agencies and departments that the Governor has executive authority over, as well as all entities to which the Governor appoints the Chair, the Chief Executive, or the majority of Board Members (with the Port Authority of New York and New Jersey being an exception).

These entities are prohibited from financial dealings with any of the institutions on the publicly available blacklist. Entities that are currently involved with institutions that are deemed to engage in BDS activities have one year from the effective date of the order to comply. The executive order itself is effective immediately and is indefinite in length.

Executive Order 157 is the first of its kind in the country and Governor Cuomo has faced both praise and backlash for it. In light of the inability of the New York State legislature to pass similar bills, some have seen it as an unwarranted executive overreach on a divisive issue. Opponents of the bill’s contents argue that it is a politically motivated attack on the freedom of speech, exercised here through engagement in BDS activities, and is unconstitutional.

New York Court of Appeals Cites College of Law Alum

—by Adam Kuhn
Special thanks to Mary Ellen Gill for her assistance with this article.

Sources: Brooke S.B. v. Elizabeth A. C.C., No. 91, 2016 WL 4507780 (N.Y. Aug. 30, 2016); Mary Ellen Gill, Note, Third Party Visitation in New York: Why the Current Standing Statute Is Failing Our Families, 56 Syracuse L. Rev. 481 (2006)

Abstract: The New York Court of Appeals expanded the definition of “parent” to include a non-biological, non-adoptive partner. The court overruled a 1991 case that defined “parent” as a biological parent or adoptive relative.

***

The NY Court of Appeals cited 2006 College of Law alumnae Mary Ellen Gill’s Syracuse Law Review Note in Brooke S.B. v. Elizabeth A. C.C. The court held in its August 30th decision that “where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody” under NY Domestic Relations Law Section 70(a).

At issue was the vitality of Alison D. v. Virginia M., 572 N.E.2d 27 (N.Y. 1991), where the Court of Appeals defined “parent” as a biological parent or adoptive parent. This meant that a person who did not fit this relationship to a child had no standing to seek visitation. The issue affected all manners of family relationships, with implications for not only same-sex partners, but also all functional parents who took on care of a child from a different relationship than a biological parent, sibling, or grandparent. However, this issue has now been resolved, as Brooke S.B. has overruled the strict definition that was created by Alison D., and allowed non-biological, non-adoptive partners to have standing to seek visitation.

In the majority opinion, Judge Abdus-Salaam noted that “legal commentators have taken issue with Alison D. for its negative impact on children,” citing Ms. Gill’s Note, among others, for the proposition that “children suffer [trauma] as a result of separation from a primary attachment figure—such as a de facto parent—regardless of that figure’s biological or adoptive ties to the children.”

Photo of Mary Ellen Gill
Mary Ellen Gill

Ms. Gill’s Note, titled Third Party Visitation in New York: Why the Current Standing Statute Is Failing Our Families, was published in Volume 56 of the Syracuse Law Review. The Note discussed NY Domestic Relations Law Section 70(a), which provides that only a parent (or sibling or grandparent) can petition for visitation with a child. The Note suggested an amendment to the statute based on a factor test.

Ms. Gill, who currently works as a Pro Se Law Clerk to the Hon. Michael A. Telesca in the U.S. District Court for the Western District of New York, said she was excited and proud to have her Note cited by New York’s highest court.

New York Court of Appeals Takes Strict View on Preservation

—by David Katz

In re New York City Asbestos Litigation (Konstantin v. Tishman Liquidating Corp.), 2016 N.Y. LEXIS 1765; 2016 NY Slip Op 05064 (N.Y. June 28, 2016), aff’g on other grounds 121 A.D.3d 230 (N.Y. App. Div. 2014).

Abstract:

The Court of Appeals recently reminded litigators that preservation doctrine favors the cautious litigator who renews his objections whenever circumstances change.  The Court held that an objection to allowing cases to be tried jointly was unpreserved for appellate review where parties settled after the order was made and the defendant failed to renew its objection at trial.

***

On June 28, 2016, the New York Court of Appeals delivered a decision highlighting the pitfalls of preservation doctrine in New York.  “You snooze, you lose” is the basic aphorism that summarizes preservation doctrine, but the New York Court of Appeals reminded the legal community that a hole in the preservation chain can sever appellate review.  In re New York City Asbestos Litigation presented the Court with a specific iteration of an oft-faced preservation issue: when circumstances change, will an initial objection suffice for preservation purposes.

Ten plaintiffs moved to have their cases tried jointly.  The defendants opposed the joint trial, but the trial court allowed seven cases to be joined for trial.  Between the order granting a joint trial and the trial, five cases settled; thus, two cases remained to be tried.  One defendant did not renew its opposition to the joint trial.  After trial, one defendant made a post-trial motion challenging the joint trial.  The trial court denied the motion.

The defendant then appealed, arguing that the order allowing a joint trial was improperly made.  Plaintiffs, in response, argued that the issue was not preserved for appellate review because, amongst other arguments, Defendants’ opposition was not renewed after the five cases settled.

The First Department, in a three-to-two decision, found that the issue was preserved on review.  Specifically, the majority reasoned that the issue was preserved because the appeal stemmed from a final order, which brought the interlocutory order up for review.  As a result, the majority found that there was no need to renew an objection after five cases settled.  The majority, having found the issue preserved, affirmed the trial court’s decision on the merits.  The dissent also was not willing to find the issue unpreserved.  Instead, the dissent disagreed with the majority’s conclusion that the appendix on appeal was sufficient to permit appellate review.

A unanimous Court of Appeals affirmed the result, but wrote a separate opinion addressing the preservation issue.  According to the Court of Appeals, opposing the initial joint trial motion, along with a post-trial motion, was insufficient to preserve the issue for appellate review.  Instead, according to the Court of Appeals, the defendant should have renewed the motion after five plaintiffs settled in the hopes that the trial court would rebalance CPLR § 602 considerations in its favor.  As a result, the Court of Appeals refused to review the order.

The Court of Appeals reminds litigation counsel: object early, object often.  In order to argue a case effectively on appeal, litigators must remember to renew arguments, even if the litigator does not think the rationale underpinning the decision has changed.  Raising a trial court’s ire just before trial is a gamble, but the Court of Appeals reminded us that failing to preserve an issue is a sure bet against appellate review.

NY Court of Appeals Grants Summary Judgment in Joint Venture Dispute

—by Shannon Crane

Littleton Constr. Ltd. v. Huber Constr., Inc., No. 96, 2016 N.Y. LEXIS 1688 (June 14, 2016).

***

In Littleton Construction Ltd. v. Huber Construction, Inc, plaintiff commenced a proceeding against defendants Huber Construction, Inc. (“Huber”) and Littleton/Huber Joint Venture (the “Joint Venture”) seeking a portion of the management fees collected by Huber as part of the payment for projects completed by the parties in connection with a joint venture. Huber Construction, Inc. (Huber) and Littleton/Huber Joint Venture (the joint venture) seek a portion of the management fee. 2016 N.Y. Slip Op.  04657, at 1–2. Defendants moved for summary judgment, and the motion relied upon the validity and interpretation of the party relationship governing documents. Id. at 2. The trial court partially granted defendants’ motion, leaving one claim seeking recovery of a portion of management fees. The Appellate Division dismissed the complaint in its entirety. Id.

The issue before the Court of Appeals was the parties’ dispute over which agreement governed the joint venture relationship. Pursuant to the motion for summary judgment, defendants met their evidentiary burden of establishing that the Operating Agreement was not executed by Huber, and was thus unenforceable. Id. The joint venture cannot be governed by the terms of an unenforceable document. Id. Because the terms of the Operating Agreement were not enforceable, the Court determined that the Memorandum of Understanding governed the relationship. Littleton Construction Ltd. 2016 N.Y. Slip Op.  04657, at 2 (N.Y. 2016). The Memorandum of Understanding plainly provided for a 9 percent management fee to Huber, which Huber was not required to share with the plaintiff. When a contract is complete, clear and unambiguous, it must be enforced according to its plain meaning; thus, defendants were entitled to summary judgment. Id.

Pennsylvania Judge Rules Senator Cruz Is Eligible To Be President

—by Philip A. Perez

Elliott v. Cruz, 134 A.3d 51 (Pa. 2016).

Abstract:

On March 10, 2016, Senior Judge Dan Pellegrini authored an opinion for the Commonwealth Court of Pennsylvania that decided the Constitutional issue on the merits of whether Senator Ted Cruz, born in Canada, is eligible to hold the Office of President. Judge Pellegrini held that a “natural born citizen” includes “any person who is a United States citizen from birth,” and concluded that Senator Cruz is eligible to be President. The memorandum opinion is twenty-two pages and relies heavily on the research and conclusions of legal scholars published in law review articles and in a Congressional Research Service (“CRS”) report. The Pennsylvania Supreme Court affirmed the court’s opinion on March 31, 2016. A copy of the opinion is available here.

***

The Commonwealth Court’s opinion is the first to address this issue on the merits. The attorney for the petitioner stated his client intends to appeal the decision to the U.S. Supreme Court, which will give the Court the opportunity to decide this lingering constitutional question. The following analysis focuses on the lower court’s opinion on the merits.

 

Procedural History

Carmon Elliot (“petitioner”), a Pennsylvania resident and registered Republican, petitioned the Commonwealth Court of Pennsylvania to set aside Senator Ted Cruz’s (“respondent”) petition to appear on the Pennsylvania primary election ballots for the Office of President.

 

Facts

The parties agreed to stipulated facts. Among them, that respondent was born in Calgary, Alberta, Canada, that his mother was born in the State of Delaware, that his mother is and has always been a U.S. citizen, and that his mother had been physically present in the U.S. “for more than ten years of her life, including at least five years after she reached the age of fourteen,” and that Senator Cruz was a citizen from the moment of his birth.

It is worth mentioning that the opinion does not identify the requirements provided by Congress for whether a person is eligible to be a U.S. citizen by birth. However, under Section 301 of the Immigration and Nationality Act, a child born outside of the United States or its territories is considered a U.S. citizen if, inter alia, his parents are married and one is a U.S. citizen who meets the applicable time requirement (which for Senator Cruz required that his mother was “physically present” in the U.S. for ten years, five of which must have been after her fourteenth birthday). Immigration and Nationality Act, 8 U.S.C. § 1401 (2012).

 

Issues

 

Political Question Doctrine

The court first addressed the respondent’s claim that the issue is a political question for which the court does not have jurisdiction. Respondent argued that the question of whether a candidate is eligible for the Office of President is an issue for Congress or the Electoral College. The court found that the determination of whether a candidate is eligible to hold the Office of President is not textually committed to Congress or the Electoral College.

In support of its finding, the court looked to Article II, Section 1, clauses 2 and 3 and the Twelfth Amendment of the U.S. Constitution, and found that these provisions reaffirmed Congress’ role in “counting the ballots” but that neither “evidences a textually demonstrable constitutional commitment of the issue of Presidential eligibility to Congress.” The court also found that the Constitution does not give the Electoral College the power to determine whether a candidate is eligible since it only directs the members to select a candidate and transmit their votes.

The court held that the issue is justiciable, and found there was not a lack of judicially discoverable and manageable standards. The court pointed to other instances where U.S. courts decided issues regarding citizenship in other contexts, including issues regarding “natural born citizen[s].” Specifically, the court noted the Supreme Court’s finding in Hall v. Florida, that “No natural born citizen may be denaturalized,” could “never be applied” if the issue were not justiciable.

 

Meaning of “Natural Born Citizen” in Article II, Section 1, clause 4 of U.S. Constitution

 

Article II, Section 1, clause 4 of the U.S. Constitution provides that “[n]o Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President[.]”

The court noted that the term “natural born citizen” is not defined in the Constitution, and that the Supreme Court has never defined its meaning with regard to the eligibility of a presidential candidate.

The petitioner argued for Jus soli citizenship—meaning citizenship vests in a person “based on the geographic location of his or her birth, regardless of the parents’ citizenship status.” The respondent argued for Jus sanguinis citizenship—meaning citizenship vests in a person based on his ancestry. Specifically, respondent argued that a person is a natural born citizen if at least one of his parents is a United States citizen, regardless of whether the person was born in the United States or one of its territories.

The court acknowledged the importance of this question and gave examples of past presidential candidates who had their eligibility challenged. The candidates noted by the court included Charles Evan Hughes, born in the U.S. to non-citizen parents, Senator John McCain, born on a U.S. military base in the Panama Canal Zone to a U.S. citizen parent, Governor George Romney, born in Mexico to U.S. citizen parents, and President Barack Obama, born in the U.S. but his father was not a U.S. citizen.

The court then looked to articles by legal scholars and a CRS report published in 2016 for consensus and insight on the issue. First, the court cited an article by Charles Gordon published in 1968.[1] The court provides an excerpt of Gordon’s conclusion from the article: (1) “[N]atural-born” should be considered in light of the English usage at the time of the founding, and English statutes “accorded full status as natural-born subjects to persons born abroad to British subjects;” (2) The Framer’s intent was likely to exclude American citizens who acquired citizenship through naturalization; and (3) The Fourteenth Amendment and the Naturalization Act of 1790 did not limit or define the presidential qualification clause, nor bar the understanding that the clause includes children born abroad to American parents.

Second, the Court provides an excerpt from a report by the CRS that analyzes the historical and legal background of the issue.[2] The report concludes that the term “natural born” likely means a person who is entitled to U.S. citizenship by birth:

The weight of legal and historical authority indicates that the term “natural born” citizen would mean a person who is entitled to U.S. citizenship “by birth” or “at birth,” either by being born “in” the United States and under its jurisdiction, even those born to alien parents; by being born abroad to U.S. citizen-parents; or by being born in other situations meeting legal requirements for U.S. citizenship “at birth.” Such term, however, would not include a person who was not a U.S. citizen by birth or at birth, and who was thus born an “alien” required to go through the legal process of “naturalization” to become a U.S. citizen.

Third, the court provides an excerpt from an article by Paul Clement and Neal Katyal published in 2015.[3] The authors conclude that “a U.S. citizen at birth is a natural born citizen and constitutionally eligible to serve as President.” The authors found that the term meant someone who is a U.S. citizen at birth “with no need to go through a naturalization proceeding at a some later time.”

Clement and Katyal note that Congress has always taken the position that a child born abroad to a U.S. citizen parent generally becomes a U.S. citizen, subject to residency requirements on the parents. The authors note that British laws in place for the American colonies explicitly used the term “natural born” to include children born outside of the British Empire to British subjects, and that the Framers would have been familiar with the statutes and the way the term “natural born” was used. The authors then explain how the term has been used and defined in the Immigration and Naturalization Acts passed throughout U.S. history.

Clement and Katyal point to two sources that suggest the purpose of the “natural born” provision was to ensure that a “foreigner” could not be elected to the position of Commander in Chief.[4] The authors recognize Senator Cruz’s birthplace and conclude that “there is no question that Senator Cruz has been a citizen from birth and is thus a ‘natural born Citizen’ within the meaning of the Constitution.”

At the end of the opinion, the court acknowledged that there is not a consensus on the issue, and that some legal scholars contend that a presidential candidate must be born in the United States. However, the court found that the Jus soli position is a minority view and held “consistent with the common law precedent and statutory history, that a ‘natural born citizen’ includes any person who is a United States citizen from birth.”

The court found that Senator Cruz is eligible to run for President because he was a U.S. citizen from birth, and it denied the petition in this case.

 

[1]              Charles Gordon, Who Can Be President of the United States: the Unresolved Enigma, 28 Md. L. Rev. 1 (1968).

 

[2]              See Jack Maskell, Cong. Research Serv., R42097, Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement (2011).

 

[3]              Paul Clement & Neal Katyal, On the Meaning of “Natural Born Citizen,” 128 Harv. L. Rev. 161 (2015).

 

[4]              Letter from John Jay to George Washington (July 25, 1787), in 3 The Records of the Federal Convention of 1787; 3 Joseph Story, Commentaries on the Constitution of the United States § 1473, at 333 (1833).

 

In Jail? Be Careful What You Say on the Phone, It May be Used Against You in Court

—by D.J. Nugent

People v. Johnson, No. 37, 2016 N.Y. LEXIS 752 (N.Y. Apr. 5, 2016).

Abstract:

The Court of Appeals upheld a New York City regulation that permits prisons, such as Rikers Island, to monitor and record inmates’ non-privileged conversations. Furthermore, the Court held that upon request of the District Attorney’s Office, the prison may turn over any recording for use at trial.

***

Facts

Marcellus Johnson (“defendant”) was arrested for robbery and could not make bail, thus being held at Rikers Island (“Rikers”). While at Rikers, defendant made multiple telephone calls to his friends and family. In these calls defendant made incriminating statements and used vulgar language in reference to the victim and other individuals involved in the robbery. Pursuant to New York City Regulation, Title 40 RCNY § 1-10 (“regulation”), the Rikers administration listened to and monitored these calls.

The regulation provided that prisoners may make telephone calls, that telephones shall be installed in the housing areas of prisons, that upon the implementation of appropriate procedures prisoners’ phone calls may be listened to when legally sufficient notice has been given to the prisoners, and that telephone calls to several classes of people, such as attorneys, shall not be monitored or listened to.[1] Rikers implemented appropriate procedures to record prisoners’ phone calls. These procedures stated that three notices would be provided to prisoners to inform them that their phone calls were being recorded and or monitored. One notice, written in English and Spanish, was posted near the telephones the prisoners use, one notice was set forth in the inmate handbook, and one notice was played at the beginning of each call that a prisoner made from Rikers.

Rikers stated that it only records calls on a “needs basis” which means when a situation “prompts” review, such as calls that involve institutional and public safety and security. New York City District Attorneys’ Offices may request a copy of the prisoner’s recorded call, and such requests are decided within three business days by Rikers Deputy Commissioner for Legal Matters, which has no criteria for deciding such requests. The New York City District Attorney’s Office acquired the recordings of the calls that defendant made, and sought to play excerpts of these conversations at trial.

 

Procedural History

Defendant filed a motion in limine to bar the prosecution’s use of the recordings arguing the disclosure was unauthorized and unwarranted under Rikers’s procedures, and that disclosure to the District Attorney’s Office undermined his Sixth Amendment right to counsel. The trial court denied this motion, and the prosecution was allowed to play excerpts of the recordings for the jury. The jury then convicted defendant of robbery, larceny, and possession of stolen property. On appeal the appellate division found the recordings admissible, although defendant’s right to an attorney had attached. The New York Court of Appeals granted leave to appeal.

 

Court’s Analysis and Reasoning

The defendant claimed that Rikers’s practice regarding prisoners’ phone calls violated his right to counsel, exceeded the scope of Rikers’s regulatory authority, and was conducted without defendant’s consent. The Court held the claims were either without merit or were unpreserved, and did not warrant reversal or a new trial.

 

  1. Sixth Amendment Violation

Defendant’s Sixth Amendment argument was that by recording his phone calls Rikers essentially acted as an agent for the prosecution in eliciting damaging statements from him. The Sixth Amendment prohibits the use of incriminating statements deliberately elicited from a defendant by government agents. The Court emphasized that a violation of a defendant’s Sixth Amendment right to counsel requires the involvement of the state in eliciting that evidence.

The Court stated that there was no evidence that Rikers elicited or encouraged defendant to conduct these telephone conversations, and that defendant was on notice that the phone calls were being recorded, therefore analogizing this situation to an informer who passively receives information from a defendant, which the Court has held does not constitute acting as an agent of the government. Furthermore, defendant argued that his unique situation, specifically his limited access to the outside world, left him without options other than to make statements out of necessity during phone calls that were detrimental to his defense. The Court held that however true this argument may be it does not establish that Rikers acted as an agent of the prosecution in defendant’s case.

 

  1. Rikers Acting Beyond the Scope of its Authority Provided in the Regulation

The Court held that regardless of whether the record supports defendant’s argument, he is not entitled to suppression or preclusion of the phone calls on those grounds. The Court stated that suppression of evidence is warranted when the violation of a statute implicates a constitutionally protected right. Furthermore, defendant failed to identify a statutory right violated by Rikers because the regulation does not prohibit Rikers’s recording of prisoners’ conversations with friends and family.

 

  1. Lack of Consent

 

The Court held that defendant’s lack of consent argument was not preserved because he failed to argue to the trial court that his consent could not be broader than the notice of monitoring that was provided to him.

 

Concurrence

Judge Pigott concurred with the majority’s analysis and holding, but wanted to bring further attention to the District Attorney’s Office’s direct and unregulated access to all of an inmate’s non-privileged telephone conversations. The judge acknowledged that Rikers had a legitimate interest in maintaining the safety and security of its detention center, but compared this to the possibility that District Attorneys’ Offices may abuse the regulation. Specifically, the judge focused on the fact that the prosecution regularly is allowed access to phone recordings from Rikers, and that people who are detained before trial have a better chance of being convicted because of the inequities that a detained defendant faces in preparing his/her case. Faced with these realizations, the judge believed that a defendant’s only choice was not to use prison phones, which was a result that the judge could not sanction.

[1] Title 40 RCNY § 1-10.

New York Court of Appeals Holds “Symptom Threshold” Methodology Is Inadmissible, But Cites “Odor Threshold” Methodology With Approval

—by David M. Katz

Sean R. v. BMW of N. Am., LLC, 48 N.E.3d 937 (N.Y. 2016).

Abstract:

The New York Court of Appeals recently decided that the basis for an expert opinion on the specific concentration of a chemical cannot be predicated solely on a person’s symptoms, but also noted that expert opinion that a chemical was present at the concentration of scent detection could be admissible.

***

On February 11, 2016, the New York Court of Appeals decided Sean R. v. BMW of N. Am., LLC, 48 N.E.3d 937 (N.Y. 2016).

The plaintiff was born with significant physical and mental birth defects.  The plaintiff alleged that his injuries were caused when his mother inhaled high concentrations of gasoline fumes while driving her 1989 BMW 525i during her first trimester of her pregnancy.  Both the plaintiff’s mother and grandmother stated that they could smell gasoline odors in the car.  Additionally, the plaintiff’s mother suffered from “headaches, dizziness and throat irritation” after driving in the car.  Further, the plaintiff’s mother and father stated that they could smell gasoline in their house when the car was parked in the garage.

Two causation experts opined on the nexus between the gasoline vapor exposure, the concentration of the gasoline during the exposure, and the plaintiff’s birth defects.  Using two separate methodologies, the plaintiff’s two causation experts came to the conclusion that the plaintiff’s mother inhaled gasoline at a concentration of 1,000 parts per million based solely on the symptoms exhibited during exposure to the gasoline fumes.

The defendants first filed motions for summary judgment, arguing that the plaintiff’s experts failed to lay a foundation for their opinions.  The trial court denied the motions.  The appellate division modified the order on other grounds.

The defendants then challenged the experts’ “symptom-threshold” methodology, arguing that using symptoms to determine a concentration of a chemical is not generally accepted within the scientific community.  The trial court precluded the plaintiff’s experts from testifying because symptom-threshold methodology was not generally accepted in the scientific community as a means of determining concentrations of chemicals.  On reargument, the court reaffirmed its prior decision.  The appellate division affirmed and granted a motion for leave to appeal to the Court of Appeals.

The plaintiff’s experts employed the symptom-threshold methodology.  Under the symptom-threshold methodology, an expert uses statements regarding odors and the symptoms that resulted to determine the concentration of chemicals that a person was exposed to.  The Court of Appeals began by noting that the plaintiff could not show any scientific literature employing the symptom-threshold methodology for causation purposes.  While the Court of Appeals noted that smelling chemicals and experiencing symptoms could be corroborative of a level of concentration, that evidence alone cannot “divine an otherwise unknown concentration of gasoline vapor.”  Thus, the court found that a symptom-threshold methodology, where symptoms are used to determine the concentration of a chemical, was not generally accepted in the scientific community.

The Court of Appeals distinguished the symptom-threshold methodology from other cases where experts employ the “odor threshold” methodology.  Similar to the methodology employed by the plaintiff’s experts, experts using the odor threshold methodology determine that a chemical concentration exists because the witness smelled a chemical.  However, unlike the plaintiff’s experts, experts employing the odor threshold methodology limit their opinion to the fact that the concentration was at least at the minimum concentration required for humans to smell the chemical.  The Court of Appeals noted that the odor threshold methodology is admissible because the level of detection is self-proving: if someone can smell a chemical, then it must be present at a certain minimum level.  As a result, the Court of Appeals, while rejecting the symptom-threshold methodology, also opened the door for the odor threshold methodology in toxic tort cases where the level of detection is equivalent to the level of toxicity.

Taxing the Human Body

—by Kelly Pare

Perez v. Comm’r, 144 T.C. No. 4 (2015)

Abstract:

Advances in modern medicine have brought new meaning to the idea of selling one’s body. Surrogacy arrangements, egg and sperm donations, and even black market kidney transactions are commonplace in today’s society. From a tax perspective, these types of commercial transactions are very interesting.

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Perez v. Comm’r, a 2015 United States Tax Court case, seems to raise more questions than it answers about the tax treatment of income derived from egg donations.  Nichelle Perez contracted with Donor Source, a for-profit California company, to donate eggs. See Perez v. Comm’r, 144 T.C. No. 4 (2015). Nichelle received $20,000 in 2009 for the pain, suffering, time, and inconvenience that the egg donation caused her. Id. Donor Source sent Nichelle a 1099 in the amount of $20,000. Id. Instead of reporting this income on her tax return, Nichelle concluded that the money was excluded from gross income under section 104(a) of the Tax Code. I.R.C. 104(a) (2014) (excluding from gross income damages received on account of personal physical injuries or physical illness).

The tax court rejected Nichelle’s argument, reasoning that the payments, although in compensation for physical pain and suffering, arose out of a consensual contract between Nichelle and Donor Source and did not merit exclusion from gross income. See Perez v. Comm’r, 144 T.C. No. 4 (2015).  Consequently, Nichelle had to pay income tax on the money she received by Donor Source. The court was adamant in addressing only the particular issue and facts before it, and expressly stated what the case was not about.  The court refrained from deciding whether human eggs are capital assets, figuring out how to allocate basis in the human body, determining the holding period for human body parts, or deciding the character of the gain from the sale of human body parts. Id. at 9.

The decision in Perez is narrowly confined to the facts of the case and decided only the tax liability of the particular individual at issue.  Moreover, current law is ambiguous as to the tax treatment of transfers in human body parts and the IRS offers little guidance. See Lisa Milot, What Are We—Laborers, Factories, or Spare Parts? The Tax Treatment of Transfers of Human Body Materials, 67 Wash. & Lee L. Rev. 1053, 1053 (2010).  This lack of clarity surrounding the taxability of transfers in human body parts makes tax planning and compliance difficult. Id. at 1108. Given the increasing volume of these types of transactions, perhaps the time is ripe for Congress to legislate in this area.

Unfortunately, the questions left unanswered by the court in Perez are more thought provoking and interesting from a tax standpoint than the questions on which the court focused.  Do human body parts properties constitute capital assets?  Is your basis in your body zero, or does it adjust upward and downward?  If for example, you sell a kidney that you have stored outside your body for more than a year, can the proceeds of that sale be characterized as a capital gain?  At the very least, the unanswered questions posed by the court in Perez would surely make for an interesting conversation at a bar, and the facts in Perez provide ideas for a great law school exam hypothetical.

For a more comprehensive overview of the taxation of transfers of human body parts and a framework of how these transactions should be taxed, see Lisa Milot, What Are We—Laborers, Factories, or Spare Parts? The Tax Treatment of Transfers of Human Body Materials, 67 Wash. & Lee L. Rev. 1053 (2010) and Bridget J. Crawford, Our Bodies, Our (Tax) Selves, 31 Va. Tax Rev. 695 (2012).