Legal Cholent

NJ surrogacy case troubling for would-be parents

2011-12-21T16:57:00.001-05:00

A New Jersey case could be troubling for people seeking to become parents with the help of gestational surrogates. To read a published article, about the case, click here. Sean Hollingsworth and Donald Robinson Hollingsworth are a same-sex couple who were married in California (before Prop 8) and who live in New Jersey. Sean and Donald wanted to have a child. They made an agreement with Donald's sister, Angela Robinson. Under the agreement, embryos conceived in vitro with Donald's sperm and an egg from a third-party donor were implanted in Angela's womb. Angela gave birth to twin girls. Despite not being the girls' genetic mother, Angela challenged the agreement and sought custody of the girls.

What is troubling for would-be parents in such arrangements is that despite the existence of an agreement made among the parties and despite the fact that Angela was not genetically related to the babies, a New Jersey court nevertheless declared that Angela was the legal mother of the twins. Angela challenged the agreement claiming that she had been coerced. She had lost her job and claimed that she was dependent upon her brother for a place to live.

Eventually, a judge ruled that Sean and Donald would have custody but, it was also reported that Angela would retain visitation rights to the children.

Some observers liken this case to the famous "Baby M" case of the 1980s when Mary Beth Whitehead, who was a surrogate, fought for custody of the baby girl to whom she gave birth. This case is different and in some ways more troubling. In the Baby M case, Whitehead was a traditional surrogate - that is, she was impregnated with the sperm of William Stern, the intended father. Whitehead was the genetic mother of the child and not just the gestational carrier. In this case, in order to have determined that Angela Robinson was the legal mother of the twins, the judge would have determined that the agreement she made with Sean Hollingsworth was invalid - she claimed that she was coerced into entering the agreement.

When intended parents seek to have a child with the help of a surrogate, the point of the agreement and associated legal proceedings is to establish the intended parents are the legal parents of the child and that the surrogate is not a legal parent. The Hollingsworth case shows that problems can occur when making such arrangements in circumstances that are not an arms-length transaction. Here, Angela Hollingsworth had lost her job and had no home and she had moved from Texas to New Jersey to stay with her brother. This was not an "arms-length" transaction and Angela was in a situation where she could argue that she felt pressured to agree to this arrangement because of her dependence upon her brother for a place to live. While the intended parents eventually won custody, the fact that they even had to fight for custody indicates a serious concern in the form of the surrogacy arrangement.

The preferred practices in surrogacy arrangements that have become well known include:
•Gestational surrogacy i.e. eggs from either the intended mother or a donor, not from the surrogate (traditional surrogacy).

• A detailed contract that clearly indicates the intent of the parties that the surrogate is to have no parental rights related to the child and that the intended parents are to be the legal parents of the child, along with the various financial, medical and other aspects of the agreement.

• Petitioning the court for a pre-birth order to confirm, before the child is born, that the intended parents are to be recorded on the birth certificate as the legal parents of the child.
Now, in addition to those criteria, serious consideration must be given to avoiding using close relatives as a surrogate and instead, preferring an arms-length transaction where it will be harder to assert claims of coercion in making the agreement.

Beware of"Self-help" remedies to child support or custody problems can make bad problems worse

2011-12-14T16:27:00.000-05:00

Whether it is the holiday season, beginning or end of the school year or any other time, disputes over child custody and child support can flare up most unpleasantly. Sometimes, one is tempted to use "self help" remedies when frustrated by one's former spouse or the other parent of the children. Beware! Attempting "self help" in these cases can make a bad situation worse. Following are some hypothetical scenarios of what can go wrong with self help and what are alternatives in the legal system. (The names are randomly selected and are not from real cases.)

Scenario 1 - Joe and Sue used to be married and have two children together. The children live with Sue. Joe has been paying child support under a court order but lately Sue has stopped allowing Joe to see the kids. Joe feels that if Sue will not let him see the kids, then he should not have to pay child support. Joe is thinking about stopping the child support payments until Sue lets him see the kids. Is this a good idea?
NO WAY!

The obligation to pay child support is enforceable whether or not Joe gets to see his kids. If Joe stops paying support as per the court order, he could be subject to enforcement action - even being held in contempt of court and put in jail. Joe can do something, however. He can take Sue to court to ask the court to order that he get time with the kids. If the court enters such an order and Sue fails to comply, then Joe could ask the court to hold Sue in contempt.

In Pennsylvania, child support and child custody orders are entered separately by different divisions of the court. Generally, the obligation to pay child support is a separate legal matter from the right to have time with the children. If you are having trouble seeing your kids, be smart and file a child custody action in court. Never try to use withholding child support as a weapon - it will backfire. A competent attorney practicing family law can assist you.

Scenario 2 - Bill and Lisa are the parents of a child and are no longer together. The child primarily lives with Bill and Lisa is required to pay child support under a court order. Lisa's hours at her job were cut and she can no longer afford her child support payments. Can she just stop paying or pay less?
NO, bad idea! The right way to handle this is that as soon as the loss of income happens, Lisa should file a petition to reduce the amount she is required to pay for support. Child support is determined in Pennsylvania by a guidelines formula based upon the respective incomes of the parties and the number of children. If Lisa can show that the loss of income was involuntary and that she is making reasonable efforts to replace the lost income, it is possible to lower that ordered payment. Adjustments to support obligations, whether increased or deceased, are usually made retroactive to the date of the filing with the account credited or debited as required.

What if you really cannot pay and you are waiting for a court date? If you really cannot pay the full amount, at least pay as much as possible. In support enforcement actions, there is a better chance to stave off harsher punishment if the record shows there is at least good faith effort to pay as much of the order as possible and also to follow proper procedures to seek a reduction. Never just ignore the problem. A competent family law attorney can help you.

Scenario 3 - Rachel and George are the parents of two children. Under a court order, the children mainly live with Rachel and they go to George two weekends a month and for vacations and various holidays. Rachel is upset because she has noticed that often when the children come back from staying with George, their behavior is bad, they have not done their homework and they get to eat a lot of junk food. Can Rachel just stop sending the kids to George until George shapes up as a dad?
NO! A court order must be complied with. The first thing Rachel should try is communication with George or even trying to get him to agree to counseling. If that fails, Rachel must file a petition for a court order.

But what if there is really bad stuff going on and the children are in danger? Sometimes there are situations where there is a clear danger to going back to the other parent. When something like that happens, it is important to quickly file a petition to modify the custody order. There are procedures to have emergency cases handled on an expedited basis. In my experience, judges will look more favorably on someone who makes use of legal procedures promptly rather than simply deciding to not comply with the existing order.

The bottom line is that when your family situation has had court involvement and there is a problem, you need to work through legal channels to fix it. Trying unilateral actions can make a bad problem worse.

Readers should not solely rely on this note but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration.

Estate planning still needed despite new 2010 tax law

2011-12-14T11:21:00.000-05:00

With great fanfare, Congress in its 2010 lame duck session passed lots of legislation that had been pending including a bill to extend the Bush-era tax cuts enacted in 2001 that would have expired at the end of 2010. For a good summary of the bill, click here for one published by CCH. On the estate tax front, in 2010, the estate tax was fully repealed and had Congress not acted earlier this month, the estate tax would have reverted to that in 2001 with estate taxation starting at $1 million with a 55 percent tax rate. Under the 2010 legislation, starting in 2011, estate taxation has a threshold of $5 million with a tax rate of 35 percent. In comparison, in 2009, the threshold was $3.5 million with a 45 percent rate. There is an interesting feature to the 2010 bill in that for estates of persons who died in 2010, there is a choice. One option is to have zero estate tax but then have to calculate capital gain tax with modified carry-over basis rules after the first $1.3 million ($3 million to surviving spouse). The gains under that amount can be calculated using the favorable "step-up" date-death basis valuation. The other option is to apply the 2011 estate tax rates and have the benefit of the step-up valuation for all assets. Some accountants will have a lot of numbers to crunch. Even with this bill, a lot of legal uncertain remains due to the highly volatile political situation in Washington.

Now as is noted in a New York Times article, only a tiny percentage of estates of persons dying in 2011 will have to pay estate tax - 0.5 percent - as compared to 10.5 percent which had to pay the estate tax in 1977. I am not here to say what is the proper percentage of estates that should be subject to the estate tax - it was probably too high back in 1977 given that the tax was originally intended to impact only the wealthiest estates.

One very interesting feature of the 2010 bill is is exemption portability which it makes it possible for the unused portion of one spouse's estate tax exemption to be added to the exemption of the second spouse later when he or she dies. Until now, to accomplish this required using planning techniques such as a estate tax exemption bypass trust.

The more important point for many families is that this 2010 tax bill DOES NOT remove the need for proper estate tax planning. Why? Because as was the case in 2001, Congress wanted to provide the economic stimulus of tax relief but has failed so far to address the long-term budget deficit and debt problems. Instead, the entire 2010 tax bill with all of its tax cut extensions and related provisions expires at the end of 2012. Unless Congress acts again within the next 2 years, we will again face reverting back to the law as it was in 2001 which, for estate taxation means an exemption that drops to $1 million, a tax rate of 55 percent and no provision allowing for unused exemptions to be transferred from one spouse to the other. As many pundits have described it, this is the proverbial "kicking the can down the road." Many political observers believe passing another bill in 2012 will be even more difficult because control of Congress will be divided and there will be a Presidential election campaign in that year.

Looking past the end of 2012, if a person or a couple have significant equity in their home, savings in a 401(k) or IRA and life insurance on which they control who is the beneficiary (most people who have life insurance have such control), it is easier than one might first realize for individuals and couples to get into a situation where they may be subject to federal estate tax. It is therefore essential to continue to plan estates on the assumption that the 2010 tax breaks will expire. Because of the uncertain nature of future tax laws with these expiration dates and changes in control of Congress and the White House, I and many attorneys have adjusted how documents are prepared to provide flexibility to survivors and beneficiaries as to whether they actually make use of estate tax savings provisions. In the current political environment, there are proposals ranging from outright abolition of estate taxation to keeping it with the exemption dropped back down to $1 million. This is, to put it mildly, an uncertain legal environment. As much as possible, I try to structure wills and trusts in such a manner that families have the ability put off deciding whether to use a particular tax device until the person who has created the will or trust actually passes away rather than being locked in at the time the document is signed.

Bottom line: Don't assume that just because for now that exemption is up to $5 million that you may not be subject to that tax later. Better to plan and not need than to need and not plan.

Readers should not solely rely on this note but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration.

Same sex marriage comes to NY; meaning for couples in PA

2011-08-04T12:12:00.000-04:00

The path to full marriage equality in America took a big step forward with the legalization of same-sex marriage in New York. Same-sex couples residing in Pennsylvania now have the option to travel to New York to be married. What happens, however, when they return to Pennsylvania?

New York does not have a residency requirement before marriage so same-sex couples who choose to do so can get married in New York. What does this mean for those who reside in Pennsylvania. A same-sex couple that marries in New York will not have that marriage recognized by the Commonwealth of Pennsylvania. This means that they must still file separate state income taxes. If one of the spouses dies, the inheritance left to the surviving spouse will be subject to the 15 percent inheritance tax rate for non-relatives rather than the zero inheritance tax for a spouse - the effects of this tax can be mitigated through joint asset ownership and other estate planning.

Same-sex spouses in Pennsylvania do not have automatic rights of inheritance so those directives must be spelled out in wills and perhaps other estate planning instruments such as trusts.

Married same-sex couples in Pennsylvania will not automatically be recognized as having automatic rights to visitation in hospitals and to make medical decisions for their spouse. However, this problem is addressed by executing a medical power of attorney naming the spouse. Hospitals and medical providers are required by Pennsylvania law to honor these directives.

Some same-sex couples residing in Pennsylvania who get married in New York or another state that has legalized same-sex marriage can benefit immediately from eligibility for health insurance if one of the spouses happens to work for an employer that offers health insurance coverage to all employees' spouses regardless of the genders of the couple.

Some same-sex couples who marry could choose to relocate to live in a state that recognizes their marriage such as New York. While there are many benefits to residing in a state in which one's marriage is recognized, it is not necessarily a clear-cut decision. For example, a married same-sex couple in New York could leave all of their estates to each other free of estate tax which can be a significant savings at the time one of the spouses dies. However, New York's income tax is higher than Pennsylvania's. New York has a graduated income tax starting at 4 percent and rising to 8 percent on income over $200,000.00. In contrast, Pennsylvania's income tax is a flat 3.07 percent rate. In addition, New York City has its own income tax.

Same-sex couples residing in New York would also have more work to do to file their state income taxes. This is because New York state income tax is based upon figures generated in a federal income tax return. So such couples would have to file their official federal income tax as two singles or one single and one head of household with the IRS. Then, for New York purposes, that couple must prepare a "dummy" federal joint married return in order to file and pay their New York state income tax.

I would not necessarily recommend that a couple move because of these legal differences among the states as there are many personal, community and professional factors that go into the choice of residence but for some couples, it may be a discussion worth having.

These multiple hoops and complications for married same-sex couples exist largely due to the federal Defense of Marriage Act (DOMA) which defines marriage for federal government purposes as between a man and a woman and which enables states to refuse to recognize the legally valid marriages of same-sex couples entered in other states. This means that a married same-sex couple cannot file a joint income tax return, they cannot benefit from the ability to make unlimited gifts free of estate or gift tax to the spouse, they cannot claim Social Security survivor benefits and other important rights. DOMA is under attack in several lawsuits but for now, at least, it is still on the books.

For some married same-sex couples, DOMA actually saves them on federal income taxes. This is because the so-called marriage penalty, in many instances causes a married couple to owe more in federal income tax than would be the case if the two individuals filed as two singles or one single and one head of household.

--
Readers should not solely rely on this note as legal advice but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration.

Proposed Updated 4th Amendment for the Information Age

2011-07-14T14:01:00.001-04:00

I frequently read Kashmir Hill's blog on Forbes, "The Not So Private Parts." I took particularly notice of Ms. Hill's posting about U.S. 9th Circuit Court of Appeals Judge Alex Kozinski and his law clerk, Stephanie Grace, who wrote that the 4th Amendment, once the constitutional guarantor of protecting homes, papers, things and people secure from government search and seizure has become obsolete. A line of U.S. Supreme Court decisions has held that the 4th Amendment only protects things and information regarding which people have a reasonable expectation of privacy. Increasingly, information that is given over to others to hold such as online services is considered not expected to be private as would data on a computer physically located in one's home.

In a nutshell, Judge Kozinski and Ms. Grace concluded that American consumers have killed the expectation of privacy with use of store club cards, smart phones, and online shopping. I contend that despite the advance of technology, human beings still have as much need for some measure of privacy today as they did in 1789 when the Bill of Rights was originally drafted. If the courts continue to tie privacy to the concept of physical location of data, then perhaps this is an area where law has failed to keep up with technology. If we fail to correct this change in the balance of power between the individual and the government, do we put our individual liberty at risk?

Perhaps the American people need to consider updating the 4th Amendment. To facilitate the discussion, here's a proposed updated version with additional language in bold text:

The right of the people to be secure in their persons, houses, papers, data, information and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place or entity to be searched, and the persons, information, data or things to be seized.

In an electronic age, we have changed the mode and manner of storing and using information has changed but that has not eliminated the need to protect private information from arbitrary scrutiny by the government. An updated 4th Amendment would not preclude completely obtaining information without a warrant but would enable a standard of expectation of privacy that is more in keeping with common sense in the modern context. For example, if you post information on Facebook with your privacy setting to public, so anyone can see it, there's no expectation of privacy there. However, if you purchase items from Amazon online, you do not expect anyone other than the merchant to know about it unless you specifically have authorized publication of that information.

This update to the 4th Amendment is not a detailed policy - constitutional provisions generally do not work that way but rather provide an outline for framing an important societal value and parameters in which courts and legislators will provide more detail.

I do not necessarily insist that the version offered here is necessarily the best idea but this is an issue that we as a society ought to be discussing. Let the conversation go forward.

You may own your castle built on sand but who owns the sand? Updated

2011-06-16T18:12:00.000-04:00

In a new type of property dispute, the U.S. Supreme Court last year held that the State of Florida id not have to compensate beach front homeowners when it creates new beach by adding sand and declares the new beach to be public land. The case, Stop The Beach Renourishment Inc. v. Florida Department of Environmental Protection, was a ruling for the state with no dissent on the Court.

Basically, the Florida Department of Environmental Protection has a program of adding sand to widen beaches along much of Florida's extensive coastline to protect against beach erosion and other damage caused by storms - of course Florida is very prone to being hit by hurricanes. The dispute arises over the ownership of this newly created beach. The longtime law in Florida was that a private owner's land ended at the line where the ocean reaches at high tide (a boundary which would naturally shift over time). The State of Florida essentially fixed this boundary and then declared that newly created beach outside that line would be public land and also provided that no permanent structures could be built on this new beach. In Destin, Florida where this case arose, the added beach is 60 feet wide.

Homeowners challenged this program arguing that they before the new beach was created, they had beachfront property and now they no longer have beachfront property due to the added public beach. The owners argued that this constituted a taking of property by the state and that the state must pay them compensation.

The state essentially argued that the private owners still own all the beach they did before and that this project both protects the area's attractiveness to tourists and specifically protects the land and homes of the very homeowners who sued the state. The state also argued that the homeowners still have free access to the ocean and have free use of the new public beach paid for with public money.

Justice John Paul Stevens was not present at the oral argument and the Washington Examiner article noted that he owns an apartment in a beachfront building in Fort Lauderdale. The court, in an opinion by Justice Scalia, ruled that that there was no showing that a taking had occurred. The owners still owned the same amount of land as before and there was no showing that the owners had had a well established legal property littoral right i.e. a right of bordering the ocean as opposed to owning a certain area of land.

This case could have impact in every coastal state and thus it is not surprising that 26 states along with the Obama Administration supported the position of the State of Florida. With rising sea levels and government efforts to protect shorelines, this precedent will likely be important in the future.

New Pa Custody Statute - Who has standing to file custody action?

2011-06-15T17:53:00.000-04:00

Earlier this year, a major overhaul of Pennsylvania's child custody laws took effect. A major thrust of the new statute was to codify the case law on custody into an organized statutory framework. In this and future posts, I will highlight some of the provisions in the new Pennsylvania custody statute.

One of the first questions that come up is who has standing - the right to take a child custody case to court. This is addressed in section 5324. Most obviously, a parent of a child can file a custody action. Next, a person who stands "in loco parentis" i.e. a relationship to a child in which that person has assumed a parental role and acts to carry out parental duties regarding that child.

The last category of standing to seek an order for child custody relates to grandparents who are not in loco parentis. Such grandparents can file a custody action if the grandparent is one:

(i) whose relationship with the child began either with the consent of a parent of the child or under a court order;

(ii) who assumes or is willing to assume responsibility for the child; and

(iii) when one of the following conditions is met:

(A) the child has been determined to be a dependent child under 42 Pa.C.S. Ch. 63 (relating to juvenile matters);

(B) the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or

(C) the child has, for a period of at least 12 consecutive months, resided with the grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, in which case the action must be filed within six months after the removal of the child from the home.

see § 5324. Standing for any form of physical custody or legal custody, PA ST 23 Pa.C.S.A. § 5324

When a custody action is filed, the party filing the action must, under the Pennsylvania Rules of Civil Procedure, state in the complaint the factual basis for why they have standing under one of those categories. In the case of a grandparent who does not have an in loco parentis relationship with the child, the list of facts which must be stated will be more involved to show that the person meets the criteria listed above.

In other cases where a grandparent or great-grandparent might seek partial physical custody (the right to have physical custody of a child at certain times - what is commonly referred to as "visitation"), such grandparent or great-grandparent can file an action under one of these situations:

(1) where the parent of the child is deceased, a parent or grandparent of the deceased parent may file an action under this section;

(2) where the parents of the child have been separated for a period of at least six months or have commenced and continued a proceeding to dissolve their marriage; or

(3) when the child has, for a period of at least 12 consecutive months, resided with the grandparent or great-grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, an action must be filed within six months after the removal of the child from the home.

(§ 5325. Standing for partial physical custody and supervised physical custody, PA ST 23 Pa.C.S.A. § 5325)

I will address other sections of the new custody law in future posts.

Readers should not solely rely on this note but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration.

9th Cir. Denies Prop 8 Stay While Standing Issue goes to CA Supreme Court

2011-05-26T14:30:00.001-04:00

In the Proposition 8 gay marriage ban case in California, the U.S. Court of Appeals for the 9th Circuit has denied the plaintiffs' request for a removing the stay on District Judge Vaughn Walker's ruling that Prop 8 was unconstitutional. Judge Walker's original order would have allowed marriage of gay couples to resume in California but then the Court of Appeals issued a stay pending appeal.

A decision on the constitutionality of Prop 8 by the 9th Circuit Court is awaiting a decision first by the California Supreme Court on the issue of standing. A key issue in this appeal is whether the supporters of the Prop 8 gay marriage ban have standing to appeal Judge Walker's decision. The lawsuit challenging Proposition 8 named then Governor Arnold Schwarzenegger and then Attorney General Jerry Brown as defendants in the case. Schwarzenegger and Brown, however refused to defend the law in court. Brown continues to take that position now that he is Governor. The individuals and organizations who put Prop 8 on the ballot are seeking to defend the law. The question is whether these private individuals and organizations have the legal right or standing to even appeal Judge Walker's decision.

The U.S. Court of Appeals for the 9th Circuit where the appeal was filed, a federal court, decided that this standing issue is an unclear question of California state law. The 9th Circuit invoked a procedure to certify a specific question of state law regarding this standing issue to the Supreme Court of California since that court is the final authority on what is the state law of California. The lead attorneys for the plaintiffs challenging prop 8, Ted Olsen and David Boies, had argued that standing in federal court is a question of federal law and thus there was no need for the certification to the California state Supreme Court. See article by Melanie Nathan for more on this point.

So, a decision by the California Supreme Court on the standing issue must come first. Only then will the 9th Circuit possibly take up the underlying constitutional merits of the Prop 8 challenge. On the other hand, if the California Supreme Court rules the Prop 8 supporters have no standing to appeal, the 9th Circuit would then probably dismiss the appeal. The supporters of Prop 8 might then attempt to appeal to the U.S. Supreme Court. Whatever happens, these appeals will go on for a long, long time.

Beware of some quick and cheap divorces; you get what you pay for

2011-05-18T11:31:00.000-04:00

Everybody wants a bargain. That's true when people need legal work done too. Sometimes however what seems like a bargain really isn't one at all. Online legal services or do-it-yourself form kits may work for some people in some situations but for others, they can create a real mess. As Rob Clarfeld asked in his May 17 Forbes blog post on do-it-yourself legal work, "Would you also perform surgery on yourself?"

I have had several clients who had already gotten a divorce but then had protracted litigation with their former spouses over the marital residence. By the way, in every one of those cases, the court in Cameron County, Pennsylvania issued the divorce. There is nothing wrong with that court. It just so happens that the Court of Common Pleas in Cameron County, Pennsylvania charges much lower fees for filing divorce cases than in other counties and the procedural rules for divorce in Pennsylvania allow a divorce action to be filed in any county in the state. However, if you have a problem come up and need to have a hearing, you might have to travel a long way to get to the court.

People often obtain their divorce decree with no problem but in these low-cost services, the parties are only getting a divorce decree without any resolution of their marital property issues. If the two parties owned a house together while they were married, they still own it together after the divorce if the divorce case did not address it. Some people may just have agreed to sell the house and split the money. In other cases, one of the former spouses is living in the house - perhaps with children. The other spouse, at some point, wants to get out of owning that house. The motivation could be to convert to cash his or her share of the value of the house or perhaps the existence of a mortgage on that house is impacting that person's credit (even if the loan is in good standing) and making it harder to get a new loan.

So what happens next is that if the parties cannot agree on what to do about the house, a whole new legal action must be filed in the county where the house is located and, if the parties cannot agree on another resolution, the judge will have little alternative but to order that the house be sold and the proceeds divided. This type of case, called a partition, can become even more expensive because in addition to the parties needing to pay for lawyers, it may also be necessary for the judge to appoint a master. The master is a neutral lawyer who oversees the sale and division of the asset as regarding various claims for credit each party may have against the other concerning who put what into the house, who paid the mortgage, who got to live there rent-free and so on. That master will also charge fees, which typically must be equally shared by the two parties. So that quick and cheap divorce they got is now looking much more expensive and it may end up costing them as much or much more than it would have had these property issues been handled in the original divorce case.

Failure to address property issues in the divorce can have even worse consequences for some. When a divorce case is pending, the court has a great deal of latitude to deal with dividing up assets acquired during the marriage and the court is not bound by whose name is on the title. The court can order assets to be transferred between the husband and wife to reach an equitable resolution. Thus, in a divorce, one spouse may have rights to receive a share of assets belonging to the other spouse such as part of an IRA, 401(k) or sole-titled house or brokerage account. Once the divorce decree is final, however, it is most likely that any such rights are lost and the parties then only have ownership rights to those assets on which their name is on the title. When you are dealing with a house or other assets worth hundreds of thousands of dollars or more, one must be careful about the risks when trying to save a few hundred or maybe a thousand dollars or so.

Even in simple divorce cases with no property issues and no children, the do-it-yourself approach can cause problems. There are certain documents that must be filed and there are rules on when they must be filed. One mistake can lead to a chain reaction of procedural problems. The person thinks they are filing all of the required papers and then when they try to obtain the final decree, court administrator for divorces rejects it with little explanation. In the counties where I practice, the court administrator's office will only give a very general indication of the reason for the rejection and they do not give advice on how to fix the problem. When individuals have come to me for help after falling into such procedural difficulties, it often ended up taking more time, and costing them more in legal fees to fix the problems than it would have cost had I handled the matter from the beginning.

Now there are ways to reduce expenses of divorce. One part of my practice is mediated divorces where I actually work with both the husband and the wife when they are able to come to an agreement on how they want to divide their assets. In these cases, both parties understand (and get it in writing) that I am not representing either one against the other and I am just facilitating their making an agreement. They are always free to consult their own separate lawyer if they choose. In cases such as these, the parties may end up only spending a fraction of what a contested divorce with lawyers on both sides would cost but by my working with them, I can help them to make sure that all the issues needing to be resolved in the divorce are considered before that final decree is signed.

Readers should not solely rely on this note but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration.

Protecting your will and other documents from potential challenge by angry relatives

2011-05-13T14:07:00.000-04:00

Previously, I described some steps that individuals can take to provide rights and protections to their same-sex partner or other person who cannot be recognized as a spouse under Pennsylvania law. Perhaps you have created such documents naming a friend, or a favorite charity as a beneficiary. OK, so you have been to see your attorney and working with your attorney, you have had a set of documents drawn up that will give your partner, friend or favorite charity various rights to receive property or, in the case of individuals, to have access to you in the hospital or to make medical decisions on your behalf.   You have made these decisions and have excluded your parents, siblings, children or other close family members because this is how you want to do things. You are of sound mind and you know you have the right to make these choices so no one can challenge them right? Actually, wrong.

It is a fact of life in the legal world that pretty much anyone can file anything to sue someone or challenge something even if the merits of the case make it unlikely they will win in the end. So if you are worried that your relatives will be upset about your choices and will try to challenge them, what can you do?

First, let's understand what are the reasons that a document like a will or a trust could be challenged. The law provides a very strong presumption that if a will meets the basic requirements of being in writing, signed by the testator making the will and is also signed by two adult witnesses, it is presumed to be valid. Somebody wanting to challenge the validity of the document has a heavy burden of proof to convince the court why it should not be valid.

The first major category of challenge would be to attempt to prove that the testator (person whose will it is) lacked testamentary capacity. The law presumes that every adult has testamentary capacity which means having "an intelligent knowledge regarding the natural objects of his bounty, the general composition of his estate, and what he desires done with it, even though his memory may have been impaired by age or disease." (rule stated in a Pennsylvania Supreme Court case called In re Brantlinger's Estate, 418 Pa. 236, 210 A.2d 246 (1965).

Put simply, testamentary capacity means that a person understands who are the persons to whom one would generally most likely expect to give their assets - spouse, children, parents, siblings etc.; the person understands what he or she owns - in general (does not have to be down to small details) and what he or she actually wants to do with it. A challenger has to show that the person who signed the will did not even have that basic capacity. It is not enough to show that the person was elderly or ill. The burden of proof (clear and convincing evidence) is quite high - not as high as beyond reasonable doubt like in a criminal case but higher than in a regular civil case.

The other path to challenge a will or trust is for the challenger to prove - again by clear and convincing evidence - that the will or trust was the product of undue influence. To prove undue influence, the challenge must show three things: 1) that the person who signed the will or trust was in a mentally weakened state due to a physical or mental disease or condition; 2) that there was a person who was in a close position to be trusted by the person who made the will or trust (a "confidential relationship"); and 3) that the person who had this confidential relationship with the person who signed the will received some sort of substantial benefit in the will or trust.

If the challenger proves these three elements meeting the high burden of proof, then the burden of proof shifts to the person promoting the will or trust to show that there was in fact no undue influence.

These challenges are not easy to win but they do happen and they can be expensive to defend against.   So what can you do if you are worried that your relatives might try to challenge your carefully made plans? There are several steps you can choose.

•Discuss plans openly with family. Open communication can help head off future disputes. In some families this will work but, of course, in others it will not so other tactics may be necessary.

•In your will or trust, or in a separate document, provide an explanation as to why you are including or excluding certain people.

•Video - some people go so far as to make a video recording of the will signing and of the testator explaining their decision so that in the event of a future challenge, not only can the words be heard but one can see their expression and demeanor.

•Have a meeting alone with the attorney - it is very common for couples to meet together with an attorney when having their wills or trusts prepared. If, however, you schedule a meeting alone with the attorney, the attorney has an opportunity to discuss the plan without the partner present. This may then enable the attorney, if he or she later becomes a witness in a challenge, to be able to testify about meeting with the testator alone and discussing the matter without the other partner present.

•Obtain a medical report from a personal physician at about the time these documents are being signed. The medical evidence in challenges to wills and trusts often involves going back and making a determination based on medical records generated at about the time the document was created. A specific report by a doctor attesting to the health and mental soundness of the testator can potentially deter a challenge later.

•Give limited gifts to relatives and use in terrorem clauses. This is an interesting strategy that uses a carrot and a stick. For example, a person might want to leave almost all of their estate to their partner but gives a conditional gift to a parent, child or other family member. The condition, or in terrorem provision states that in the event that anyone attempts to legally challenge the will or trust, the gift is revoked and for purposes of interpreting the document, the challenger shall be deemed to have died before the testator. This can be a strong stick to deter a challenge and it can also provide further evidence to the court of the resolve that the testator had when making this decision.

Readers should not solely rely on this note for planning but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration.

DOMA does not stop everything: Steps that same-sex and unmarried couples can take to build rights and protections around their relationship

2011-05-13T14:00:00.000-04:00

There has been much news about legal challenges against the federal Defense of Marriage Act (DOMA) which defines marriage under federal law as a union of one man and one woman and which allows states to refuse to recognize same-sex marriages legally entered under the law of another state. The Obama Administration is dropping defense of this law but House Republicans are retaining counsel to defend it. These are important developments but in the meantime, same-sex couples and their families need to get on with life now so what can they do to protect themselves and their families if they live in a state such as Pennsylvania which will not recognize them as a married couple?

One issue faced by same-sex couples is access to medical information and the right to make medical decisions for a partner who is unconscious or incapacitated. The partner is not automatically recognized because Pennsylvania does not recognize gay marriage or civil unions. However, Pennsylvania law does allow any competent adult to sign a document stating who is to make medical decisions and to have access to information. This document is sometimes called a "Medical Power of Attorney" or a "Medical Decisionmaking Surrogacy" document. Pennsylvania law specifies an order of priority of persons who can decide in the absence of a signed document - spouse, adult child, parents, siblings and so on - but if the patient has a signed document stating who they want, that document is to prevail. So for gay couples, whether married or not, to ensure they can see to each other's medical needs and decisions if needed, it is an imperative but simple matter to have an attorney prepare a medical power of attorney.

In addition, gay couples may wish to consider signing durable powers of attorney to enable each partner to engage in necessary financial transactions in the event that one partner becomes incapacitated. Such a power of attorney can prevent a dispute with a partner's family over control of personal assets in the event of incapacity.

Wills - under Pennsylvania law, if there is no will, a person's assets that do not carry their own separate beneficiary designation go to relatives in a priority order set by state law. Because same-sex partners cannot be recognized in Pennsylvania as married under current law they are not included in this order of priority, so if partners wish to leave their estates to each other, they must do so with a will. An attorney practicing in the area of wills, trusts and estates can prepare a will to achieve this objective.

Joint ownership of property - In addition to a will, same-sex partners and other unmarried individuals can help ensure that certain assets go to the person they choose through joint ownership of assets. The idea is to set up the ownership so that if one partner dies, the survivor becomes the sole owner. With real estate, care must be taken that the deed makes it clear that the surviving owner is to become the sole owner as this is not the automatic legal presumption as it is in the form of title for those who are legally married who own property together. An attorney with experience in preparation of deeds will know how to do this. With other assets, care should be taken to either have a clear beneficiary designation or designation of ownership that the surviving owner is to become the sole owner.

Joint ownership has the benefit in Pennsylvania of mitigating inheritance taxes. Unlike other types of taxes, the inheritance tax rate is determined not by the amount of money involved but by the relationship of the recipient to the deceased. The rate for a spouse is 0 percent; for children and descendants 4.5 percent; for siblings 12 percent and for anyone else it is 15 percent. Because same-sex marriages are not recognized in Pennsylvania, a bequest to a same-sex partner, no matter how long the relationship, would be taxed at the highest 15 percent rate. However, if an asset is owned jointly by two people and that ownership was established more than 1 year before the date of death, then only one-half of the value of the asset is counted as part of the estate for purposes of calculating the inheritance tax. This can be a major savings when leaving a house to a partner through joint ownership rather than a bequest in a will.

There is a downside, however to joint ownership of assets. Unlike a will which can be unilaterally changed at any time, once someone is made a joint owner of an asset like a home, one cannot take that back unilaterally. This can become a problem if the relationship breaks up. Therefore, when such joint ownership is created, the partners may wish to consider having a contract drawn up to specify what happens to such assets in the event the relationship ends.

Beneficiary designations on life insurance policies, retirement accounts and annuities - such accounts generally allow a person to choose who should receive it in the event of their death. Making sure these designations are up to date with one's wishes are an effective way to direct important assets to a partner.

Lifetime gifts - Same-sex couples cannot take advantage of the provisions in the federal tax code that exempt unlimited amounts of gifts between spouses from estate and gift taxation. However, they can make use of the provision that allows anyone to give to annual lifetime gifts. Currently, a person can give up to $13,000.00 per year per recipient. Over time, if used consistently, this provision can enable one to gradually transfer significant sums to a partner. Of course, with a gift, once that money is given away, it cannot be taken back if the relationship ends.

Readers should not solely rely on this note for planning but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration.

"Sexting" is harmful to teens but education, not prosecution should be preferred response

2011-04-29T16:49:00.000-04:00

If you are a teenager or a parent of a teenager, you know that using cell phones to send text messages is becoming the favored way of teens to communicate with each other. However, there is a subset of texting that is a real problem and that is "sexting." For those who are unfamiliar, sexting is the practice of using a cell phone camera to take nude or provocative pictures of oneself or other and then sending the pictures to others through the text messaging function of the phone. What teens need to understand is that once a picture is in an electronic format and is sent to anyone, it can be forwarded to everyone. A tragic example of the damage sexting can cause is what happened to Jesse Logan. Jesse took nude photos of herself and sent them to her boyfriend. Later, she and the boyfriend broke up. The boyfriend sent the pictures to other girls at school who, in turn, severely harassed Jesse calling her "slut," "whore" and other such insults. Jesse became severely depressed and at the age of 18 committed suicide.

Recognizing this is a problem, some local prosecutors are trying to do something controversial - prosecute or threaten prosecution for sexting by filing charges under child pornography laws.

In Wyoming County, Pennsylvania, in response to various forms of sexting, the district attorney threatened to prosecute a number of teens under child pornography laws unless they agreed to take a "reeducation" course and to write essays stating that their actions were wrong. Most of the teens and their parents agreed but three of them filed a civil rights suit in Federal court alleging that their rights to free speech were being violated by the threat of prospection and compelled speech in the essays. The pictures involving these teens did not depict them as nude nor were they engaged in any sexual act in the pictures but the prosecutor said they were "provocative." In the federal case of Miller et al v. Skumanick, a federal district judge found sufficient grounds to issue a temporary restraining order against the prosecutor barring him from prosecuting the girls over the photographs at issue. Among the grounds cited by the judge were the likelihood that the plaintiffs would prevail on their claim that the photographs were not child pornography, the chilling effect on free expression from the threat of prosecution and the right to not be compelled to make statements with which one disagreed and the lack of harm to the prosecutor and the state if there was a temporary restraining order entered while the case proceeded. The case is now on appeal before the U.S. Court of Appeals for the Third Circuit in Philadelphia.

In New Jersey, a bill is in the legislature which would make it possible to divert minors caught sexting from criminal prosecution into a mandatory educational program. This seems a more constructive approach to this serious problem.

As a parent, I view sexting as a serious issue that can threaten the welfare of teens. However, as both a parent and as a lawyer, it seems to me that prosecuting teenagers, the very people whom child pornography laws are intended to protect, is a clumsy blunt instrument. Education by parents, schools and also public awareness campaigns of the dangers of engaging in such behavior can be useful instead.

Picketers at funeral had 1st Amendment protection, US Supreme Court rules

2011-03-02T15:07:00.000-05:00

In a much-anticipated 8-1 decision, the U.S. Supreme Court ruled that the father of a Marine killed in the line of duty in Iraq cannot recover civil damages against Westboro Baptist Church and its pastor, Fred Phelps, over picketing conducted nearby to where the funeral and burial took place.

In summary, Marine Lance Corporal Matthew Snyder was killed in the line of duty in Iraq. Before the funeral and burial services, members of the Westboro Baptist Church, as they have done in numerous locations around the US, picketed nearby holding hateful signs with such slogans as: “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You.” As an aside, I would note that these picketers, by engaging in such conduct, say as much about their own morality as they say about what they think of America's national morality.

The picketers were in an area designated by police, they were orderly and there was no shouting. The plaintiff, Matthew Snyder's father, Albert Snyder, could only see the tops of the sign during the services and only learned of their full content later from television news reports. Mr. Snyder, understandably, became very distraught that his son's funeral became the focal point for a group spewing hateful messages. Mr. Snyder filed state law tort actions against the church, the pastor and members of the pastor's family for claims including intentional infliction of emotional distress. A jury made a multi-million dollar award to Mr. Snyder.

However, in the Supreme Court opinion in Snyder v. Phelps et al., written by Chief Justice John Roberts, the Court held that the defendants' actions were protected speech under the First Amendment and they could not be held liable. The key points in the case that led the Court to come to this decision:
•The messages on the signs were, though crude and hateful in nature, on matters of public concern
•The defendant's messages were not targeted for the purpose of attacking the Snyder family - they had picketed with similar messages in numerous locations before.
•The picketers were orderly and did not engage in any conduct which interfered with the funeral services
•Because the messages were on matters of public concern, there is greater First Amendment protection than there would be if it was on purely private matters.
•The jury clearly had held the defendants liable because of the content of the signs - there would have been no liability if the signs had been of the nature of saying "God bless America" or the like. Since the award was due to the content of the speech, it violated the First Amendment.

As the Court noted, this conclusion does not necessarily mean that nothing can be done to prevent such picketing near funerals. There is now a law in Maryland that prohibits picketing or demonstrations near funerals - there are similar laws in 43 states and there is a federal law as well. However, this Maryland law had not yet been passed at the time of the Snyder funeral and the Court did not make a decision on whether that law is constitutionally valid. As a general rule, restrictions on speech can be constitutional so long as the restrictions are based upon the timing, location or manner of speech and are neutral regarding content.

For an interesting commentary on this decision and how funeral services can be protected with a temporary zone of privacy in a constitutional manner, read "Vicious Verbal Assault" by my friend, Professor Perry Dane, of Rutgers University Law School in "Law, Religion and Ethics."

Legal and Political factors as Obama ceases defending DOMA

2011-02-28T16:36:00.001-05:00

As has been widely reported, the Obama Administration has announced it will no longer defend section 3 of the Defense of Marriage Act (DOMA). This is the statute that defines, for purposes of federal law, that a marriage is a legal union of one man and one woman. In its application, same-sex couples who were legally married under state law were denied the rights and privileges afforded to other married couples under federal law - such as ability to file tax returns jointly as a married couple or to claim Social Security benefits as a surviving spouse, for example.

Attorney General Eric Holder explained the reasons for this decision in a letter to House Speaker John Boehner on February 23, 2011. In previous legal challenges against DOMA, the Justice Department during the Obama Administration did defend DOMA against challenges such as those filed by the Commonwealth of Massachusetts and by same-sex couples residing there. The distinction made by Holder in those cases was that in that part of the country, there was binding precedent by the regional Circuit Court of Appeals stating that DOMA was constitutional. Obama and Holder now state that there are new lawsuits that have been filed in New York State which is in the 2nd Circuit where there are no such legal precedents. Holder stated that given the lack of binding precedent in the 2nd Circuit, the Justice Department would be called upon to take a position on the matter. Obama and Holder have determined that there position is that DOMA violates the rights of same-sex couples who are legally married under state law to equal protection of law that is afforded to heterosexual couples married under state law.

Holder argues that gays and lesbians are a politically weak class who do not have the ability to easily obtain redress through the political process to correct this unequal treatment. Holder also noted that the legislative record from the enactment of DOMA indicates much bias and prejudice regarding gays and lesbians based on opinions of morality rather than meeting legitimate governmental objectives and that it was that sort of treatment that the Equal Protection Clause in the Constitution is aimed at preventing.

Holder has given notice that all Justice Department attorneys in these cases will be directed take the position that the constitutionality of DOMA section 3 must be reviewed with heightened scrutiny - a standard that would be very likely to result in striking down the law - as compared with the rational basis test under which laws are generally upheld if any sort of legitimate governmental interest can be stated to justify the law.

So, what happens now? This does not mean that DOMA will go undefended. On the contrary, either chamber of the Congress can have its own attorneys defend the law. I would anticipate therefore that the Republican-controlled House of Representatives will enter the proceedings with its own attorneys to defend DOMA. However, the fact that that the Justice Department takes a position that a law is unconstitutional can be quite significant as these cases move forward.

Politically, this is an advantageous move for Obama. Until now, the Obama Administration's defense of DOMA has been a major irritant to gays and lesbians, who were strong supporters for Obama in the 2008 election. By now openly arguing that DOMA is unconstitutional, Obama will please his base of support. Obama will also anger conservatives but they were already against Obama anyway so there is no loss politically there. In addition, surveys are showing increasing acceptance of the idea of same-sex marriage even among some conservatives who either now accept the idea or see fighting against it as a political liability that marginalizes them. Among prominent Republicans now supporting same-sex marriage - former Vice President Dick Cheney (whose daughter, Mary is a lesbian); Barbara Bush, the daughter of former President George W. Bush; and Meghan McCain, the daughter of Senator John McCain, Obama's opponent in 2008.

Stay tuned as this legal battle plays out across America.

Woman in "Fall at the Mall" video considers legal action

2011-01-21T15:25:00.000-05:00

Cathy Marrero, a Pennsylvania woman, was walking through a mall doing what millions of people do all day long - texting. Ms. Marrero's problem began when, while texting, she was not paying attention to where she was walking and she fell into a fountain. Security cameras captured this moment on video and someone uploaded it to YouTube where it has gone "viral." Ms. Marrero has now retained a lawyer and is considering legal action because mall security failed to assist her and because the video was uploaded to the Internet. It will be interesting to see where a potential legal action goes. While the mall's personnel may not have acted properly, let's keep in mind also that this person started her own troubles by being careless. Ms. Marrero did concede in a WFMZ TV interview that it is dangerous to walk and text and she warns others to learn from her experience. Someone I know told me a story of driving and someone walked off the curb into the street with moving traffic while texting and not paying attention - an accident was narrowly avoided.

New homes in PA must have sprinklers

2011-01-12T16:54:00.000-05:00

Effective January 1, 2011, all newly constructed 1 and 2 family homes must be built with sprinker systems. Pennsylvania is only the second state to have this requirement. (California was the first.) This law took effect in 2010 regarding townhomes. Home builders objected to the new law because it increases costs in an environment where sales are difficult and they say that their profit margins are low. Home builders argue that a sprinkler system adds $15,000 to the cost of constructing a home.

Firefighters support the new law because it improves safety. In fires where there is a "flashover" it may be impossible for firefighters to arrive in time to save occupants. A sprinkler system can contain or slow a fire and give occupants a better chance to escape. They also contend that there is greater incidence of furnishings being made of materials that can spread far more rapidly making sprinklers more necessary, according this article in the Phoenix, a paper serving Chester and Montgomery Counties in Pennsylvania.

There is an interesting Frequently Asked Questions page on this from the Home Fire Sprinkler Coalition. The first question that came to my mind about putting sprinklers in a house would be whether there was a risk that the sprinkler would be set off from cooking smoke such as burnt toast or burning food in a pan or oven. The FAQ indicates that sprinkler systems are designed to be set off by the heat of fire and not by smoke or steam. On the question of water damage, the FAQ indicates that a sprinkler system emits only a fraction of the rate of water that firehoses do and since the sprinkler can help contain or limit the fire before firefighters arrive, the total amount of water used to put out the fire can actually be less than if the fire is unchecked until firefighters arrive. This can reduce damage in the home from water as well as fire and smoke.

Iowa vote Removing Judges due to Rulings Endangers Liberty for All

2010-11-04T20:14:00.000-04:00

Same-sex marriage became legal in Iowa following a unanimous decision of the Iowa Supreme Court interpreting the Iowa state constitution. On Tuesday, three Iowa Supreme Court justices were removed from office in a retention election. There were no allegations of any misconduct or impropriety on the part of these justices. The campaign to remove these justices was due to their voting for a decision to legalize same-sex marriage in Iowa. Elections are an exercise of the popular majority will. One of the crucial purposes of an independent court system is to protect people, or minorities who may lack political power or may be unpopular. Recall the early victories in the civil rights movements in the 1950s and 1960s. Integration of schools did not begin because voters decided it was a good idea but because courts - ultimately the U.S. Supreme Court, ruled that segregation violated the United States Constitution. Federal judges are appointed for life and are never subjected to such popular votes. It is not hard to imagine that if the Supreme Court in 1954 had been forced to submit to retention elections, the advancement of civil rights might have been a lot more difficult.

While most judicial retention elections are ho-hum affairs in which nearly all judges are retained, what happened this week in Iowa shows the danger to liberty when the majority has the power to remove judges because they make unpopular rulings, even if well supported by law.

Obama will try to repeal Don't Ask Don't Tell in Congress but still defending it in Court

2010-11-04T17:29:00.000-04:00

As reported by CNN, President Obama, Senate Majority Leader Harry Reid (D-NV) and Senate Armed Services Committee Chair Carl Levin (D-MI) plan another attempt to repeal the Don't Ask Don't Tell policy in the upcoming Congressional lame duck session. The logic here is obvious as it will be politically more difficult in the next Congress when the House of Representatives, under Republican control will be much more conservative.

At the same time, however, the Obama Administration is defending the Don't Ask Don't Tell law in the courts. A federal trial judge had ordered the the Defense Department to stop enforcing DADT but following an appeal by the Obama Administration Justice Department, an appeals court has stayed implementation of that ruling while an appeal proceeds. It does indeed appear quite illogical for the Obama Administration to, on the one hand, seek repeal in Congress but at the same time defend this law in the courts. The explanation is essentially this: The Justice Department is generally considered responsible to defend the statutes enacted by Congress whether or not the administration agrees with them. For the administration to have simply allowed the law to fall after the initial ruling would be a departure from that practice. Presidents generally adhere to this practice because they will want their successors to defend the laws they enact later. An administration spokesman gave as an example the defense by the George W. Bush administration of provisions of the Americans with Disabilities Act that was enacted by a Democratic Congress during the Bush 41 administration even though the Bush 43 administration did not necessarily agree with those provisions.

So, for now, the future of Don't Ask Don't Tell will be up for decision both in the federal courts and in the halls of Congress.

FBI attaches GPS device then demands its return after car owner finds it

2010-10-08T13:48:00.000-04:00

As reported in Wired.com, a California student, Yasir Afifi, recently found a GPS tracking device in his car. The student posted pictures of the device online which triggered discussion about whether it was real. The FBI confirmed the device was real when agents showed up at Afifi's apartment and demanded that he return the device to them. (I have to say it took some chutzpah for the agents to do that.) Afifi, who by the way is an American citizen, is cooperating with authorities voluntarily and says he has no idea why the FBI wanted to put him under surveillance, the Wired.com report said.

One might wonder whether it is legal for the government to plant tracking devices on cars without a warrant. It turns out that it is legal. In a case decided by the U.S. Court of Appeals for the 9th Circuit this year, United States v. Pineda-Moreno, the Court held that it is not a violation of the 4th Amendment to attach tracking devices as long as the vehicle is not in an area in which there is a reasonable expectation of privacy. The subject in Pineda-Moreno had his car parked in his driveway but the Court ruled that since there was no fence or gate, the driveway was only "semi-private." For the 4th Amendment to apply, there would have to be barriers in place preventing access to the driveway.

We were discussing this case at lunch and my law firm partner wondered whether posting of signs that said "No Government Agents Allowed Except Postal Carriers" would have made a difference.

Readers should not rely on this note as legal advice but should consult with a competent attorney licensed in their state. You can also find more information about our firm in our websites on Family Law and Wills and Estate Planning and Administration.

Leahy proposes retired Justices fill in when current Justices recuse

2010-10-06T14:11:00.000-04:00

As newest Justice Elena Kagan took her place when the Supreme Court began its new term this week, it was announced that of the 51 cases the Court has agreed to consider so far this term, Kagan will recuse herself from 25 of them. This is due to her prior involvement in those cases as the Solicitor General of the United States. In those cases, only 8 Justices would hear the case which could mean a number of 4-4 results. A 4-4 vote means that the result from the lower Court of Appeals is affirmed but without the definitive power of a majority of the Supreme Court so the issue could come up again.

Senator Patrick Leahy (D-VT) has introduced a bill that provide that when an active Justice recuses himself or herself from a particular case, the Court's active Justices may, by majority vote, designate a retired Justice to participate in decision of that case. The current living retired Justices are Sandra Day O'Connor, David Souter and John Paul Stevens. Under current law, retired Supreme Court Justice may be designated to sit on cases heard in the Circuit Courts of Appeals but not in the Supreme Court.

As reported in an article in the Legal Times blog, there are concerns about how it would be decided by the Court which retired Justice would be chosen to sit on a particular case and skeptics of the idea say that litigant parties might attempt game the system of substitution to impact the outcome of the case.

Currently, 39 states allow retired Justices of their state Supreme Courts to be designated to sit on cases when an active Justice on the Court recuses. So far Leahy's proposal has not drawn much support.

Military Funeral Protest Case Argued before Supreme Court today

2010-10-06T12:03:00.000-04:00

Today the U.S. Supreme Court hears arguments in the case of Snyder v. Phelps. As the Supreme Court's blog puts it, the issue is: Does the First Amendment protect protesters at a funeral from liability for intentionally inflicting emotional distress on the family of the deceased?

For some more detailed factual background, click here. Basically, the plaintiff is Albert Snyder, the father of a Marine who was killed in Iraq in 2006. At the funeral, Fred Phelps and his cohorts from Westboro Baptist Chuch showed up to demonstrate very loudly and holding signs such as "God hates the USA" and "Thank God for dead soldiers." Phelps and company believe that the America is a sinful nation and they claim that American deaths in Iraq and Afghanistan are divine punishment for what they see as American immorality in the form of tolerance for homosexuality and abortion, among other things.

The Snyder family, not surprisingly, was deeply hurt and upset about this taking place at the funeral for a loved one who gave his life for his country. Mr. Snyder filed suit for intentional infliction of emotion distress and won a trial verdict of $5 million in damages. The Court of Appeals, however, reversed and threw out the verdict on the basis that the behavior of Phelps and company was protected under the Free Speech provisions of the First Amendment.

Apparently there is no dispute that Phelps and company did comply with local laws on how far away from the service they had to be while protesting.
Mr. Snyder is arguing, among other points, that other free speech cases involved protests directed at institutions or public figures but he is a private citizen who was holding a private religious service to honor and bury his son and thus had a right to his privacy. Mr. Snyder also argues that for the courts to allow Phelps to carry on like this at a private religious service violates the bereaved family's right to Freedom of Religion, also guaranteed under the First Amendment.
One point made by the plaintiff is that while the protesters have opportunities to demonstrate and express their views anytime and anywhere, he only had one chance to hold a solemn funeral service for his son and that the defendants ruined it.

PA court: Opponent can obtain correspondence between attorney and expert witness

2010-09-21T16:21:00.000-04:00

A new opinion from the Pennsylvania Superior Court says that an opposing party can subpoena from an expert who will be testifying in a case the correspondence that the witness had with the attorney who retained him or her. Generally, when a request for discovery asks for correspondence coming from an attorney, an objection will be raised that this is privileged attorney work product. There is a rule of civil procedure that protects the mental impressions and work product of an attorney representing a party in a case from having to be disclosed. However, there is also a rule which allows discovery of material regarding the opinions of an expert and the facts underlying those opinions. In the case of Barrick v. Holy Spirit Hospital of Sisters of Christian Charity, the defense sought the correspondence between the plaintiff's attorney and the expert to examine whether and how the attorney was affecting the opinion of the expert. The Superior Court ruled that the interest in obtaining the information about the expert's opinion on which he or she will testify takes priority over protecting attorney work product.

This opinion was issued on September 16. It remains to be seen whether the plaintiffs in the case will attempt to appeal to the Pennsylvania Supreme Court.

The lesson for attorneys using expert witnesses is to avoid written correspondence with expert witnesses about the substance of their opinions and testimony. Any such communications should only be oral and should not be recorded.

Readers should not solely rely on this note but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration.

Attention Washington: Give us a compromise and certainty on 2011 estate tax

2010-09-20T12:54:00.000-04:00

Here we are with little more than 100 days left in 2010 and we have no idea what the estate tax will be in 2011 (not to mention what will happen with income taxes which will impact a lot more people). As readers will recall, if nothing is done in Washington, the temporary tax cuts and changes passed in 2001 will expire and the tax code will revert to what it was in 2001. For estates, that means an exemption of just $1 million with tax rates at 55 percent for amounts beyond the exemption. While most Americans were not subject to paying the estate tax before, it can impact many people who would be considered middle class. Many people are not aware that life insurance purchased and paid for by the decedent is subject to possible estate taxation if the decedent had the ability to determine who receives the insurance proceeds. That is probably the case for most people who buy life insurance.

A person who owns a modest suburban home, has put away money into a 401(k) for years and has several hundred thousand dollars worth of life insurance could end up leaving an estate subject to estate tax. Such persons are hardly in the category of wealth of someone like Bill Gates, Warren Buffett or other multi-billionaires.

There are techniques that we can use in estate planning to enhance the value of estate tax exemptions and to mitigate the impact of estate taxes but a major difficulty and frustration for professionals and clients in this field is the uncertainty. Will the estate tax exemption really drop down to $1 million? Will some new reform be passed that will set it at some higher level? The one thing that is pretty certain now is that there is a distinct tax advantage for heirs and beneficiaries of people who die in 2010 as the beneficiaries of some very wealthy folks like the late New York Yankees owner, George Steinbrenner are finding out. As a recent USA Today article noted, some people who were suffering from terminal illnesses in 2009 had a tax incentive to maintain life support until 2010 began and now with 2010 in its later months, there are terminally ill individuals and their families who may well be considering whether to withdraw life support measures to bring about death before 2010 ends. I will make a prediction that we will see at least one episode on one of the television crime drama shows which involve a homicide intended to bring about a death in 2010 to avoid estate taxation.

So what is happening now? As reported in that same USA Today article, in 2009, the Obama Administration proposed freezing the estate tax at the 2009 levels with a $3.5 million exemption and 45 percent rate on assets exceeding the exemption amount. The House of Representatives approved this proposal but Republicans blocked action in the Senate. Meanwhile, in July of this year, Sen. John Kyl (R-Arizona) and Sen. Blanche Lincoln (D-Arkansas) reintroduced a proposal that would set the estate tax to have a $5 million exemption and a 35 percent tax rate on assets exceeding that exemption amount.

To try to get some historical perspective on this, I found an IRS publication on the history of the estate tax. The estate tax as we know it today goes back to 1916. Back then, there was an exemption amount of $50,000.00 I ran that amount through a CPI calculator and found that adjusted for inflation, $50,000.00 in 1916 would have the purchasing power of $1,001,431.19 in 2010. So initially, it might seem that a $1 million exemption at least would be in line with the original 1916 exemption amount. However, other factors indicate that the reach of the estate tax has expanded significantly. First, in 1916 the top tax rate was only 10 percent whereas in 2011, it will be 55 percent. (It was actually as high as 77 percent from 1941 through 1976.) Perhaps more significantly, the types of assets that are subject to taxation has expanded since 1916 - most notably taxation of life insurance proceeds which many families depend upon to replace the income of a family breadwinner.

The estate tax was originally intended to limit concentration of major concentrations of wealth in the hands of a few powerful families (as well as to provide revenue). Indeed Bill Gates and Warren Buffett, two of the richest men on the planet are outspoken that there should be estate taxation to limit over-concentration of wealth. However, to limit the impact of estate taxation to those on whom it is really intended - the very wealthy, it seems reasonable to have an exemption that is significantly higher than the $1 million that will result from the 2011 automatic reversion. Whether that level should be $3.5 million or $5 million can be debated but it is time for the politicians in Washington to figure out a compromise and get it done.

Same-sex couple married in MA cannot get divorce in Texas says state appeals court

2010-09-02T14:41:00.000-04:00

In Texas, an appeals court has overturned a trial court ruling and held that a same-sex couple who were married in Massachusetts cannot obtain a divorce in Texas. Click the link to read the court opinion in In re Marriage of J.B. and H.B. Texas amended its constitution in 2005 to add a provision that states:

(a) Marriage in this state shall consist only of the union of one man and one woman.
(b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.
Tex. Const. art. I, § 32.

The Texas appeals court held that given this provision, Texas courts cannot grant a divorce to a same-sex couple because Texas law does not recognize the existence of a marriage to dissolve by divorce in the first place. The court did not that in the statute regarding divorces that a person can bring an action to declare a marriage void but that the plaintiff in this matter did not seek a declaration that the marriage was void but a divorce to dissolve the marriage. The court would not permit this because Texas law does not recognize the marriage to exist in the first place.

The plaintiff in the case attempted to argue that the marriage should be recognized under principles of comity. Essentially, comity is a practice in which one sovereign, as a matter of mutual respect, will honor the laws of another sovereign. The Texas court held that while comity is a common practice, it will not be applied if the result would be contrary to Texas public policy. The plaintiff argued that there was case law in New York which has not legalized same-sex marriage but that such marriages in other states could be recognized on comity grounds. The Texas court distinguished those cases by noting that New York has not passed a law explicitly outlawing same-sex marriage as Texas has so while recognition might not be against New York public policy, it would be against Texas public policy.

The Texas appeals court also held that same-sex couples are not part of a protected class such that there was violation of the 14th Amendment provisions of the U.S. Constitution concerning equal protection and due process. This puts the Texas ruling at odds with the federal court ruling in Perry v. Schwarzenegger, the case challenging California's Proposition 8. The current federal court ruling striking down Proposition 8 on 14th Amendment grounds has no impact on Texas yet and would not unless and until the U.S. Supreme Court were to uphold it the U.S. Supreme Court a lower federal court which has jurisdiction over Texas were to so rule.

Going forward, I would expect that this ruling will stand in Texas courts. A more likely avenue for overturning that would seem to be the Perry case or another federal case going to the U.S. Supreme Court and ruling that denial of same-sex marriage would violate the 14th Amendment. Or, another possibility could come out of a future challenge to the federal Defense of Marriage Act (DOMA) provision that allows states to not recognize same-sex marriages from other states.

Pa non-profit sues IRS alleging discrimination based on political views

2010-08-26T13:14:00.000-04:00

A non-profit organization based outside Philadelphia is suing the Internal Revenue Service alleging that its application for 501(c)(3) tax-exempt status is being delayed and may be denied due to an alleged special policy regarding organizations that have stances regarding Israel that are contrary to Obama Administration policy. Click here to read the federal court complaint.

The plaintiff is an organization called Z Street. The basis of the action is summarized in the complaint in the case of Z Street v. Shuman, Commissioner of Internal Revenue:

The plaintiff in this case, Z STREET, is a nonprofit organization devoted to educating the public about the facts relating to the Middle East, and that relate to the existence of Israel as a Jewish State, and Israel’s right to refuse to negotiate with, make concessions to, or appease terrorists. The case is brought because, through its corporate counsel, Z STREET was informed explicitly by an IRS Agent on July 19, 2010, that approval of Z STREET’s application for tax-exempt status has been at least delayed, and may be denied because of a special IRS policy in place regarding organizations in any way connected with Israel, and further that the applications of many such Israel-related organizations have been assigned to “a special unit in the D.C. office to determine whether the organization's activities contradict the Administration's public policies.” These statements by an IRS official that the IRS maintains special policies (hereinafter the “Israel Special Policy”) governing applications for tax-exempt status by organizations which deal with Israel, and which requires particularly intense scrutiny of such applications and an enhanced risk of denial if made by organizations which espouse or support positions inconsistent with the Obama administration’s Israel policies, constitute an explicit admission of the crudest form of viewpoint discrimination, and one which is both totally un-American and flatly unconstitutional under the First Amendment.
Z STREET brings this case seeking a Declaratory Judgment that the Israel Special Policy violates the First Amendment to the United States Constitution; and for injunctive relief barring application of the Israel Special Policy to Z STREET’s application for tax-exempt status or to similar applications by any other organization; and to compel full public disclosure regarding the origin, development, approval, substance and application of the Israel Special Policy.

In the interest of full disclosure, I will note that the attorney for the plaintiff, Z Street, Jerome Marcus and the President of Z Street, Lori Lowenthal Marcus, are longtime friends of mine. Jerome is an experienced class action litigator and Lori has extensive experience in First Amendment litigation. Even setting aside my friendship and deep respect for the Marcuses, the allegations stated in this complaint against the IRS are alarming. The regulations pertaining to tax exempt status are to be applied fairly and uniformly regardless of the political viewpoint of organizations or their leaders. More to come on this case.

Skype video can help in custody cases where parents live far apart

2010-08-25T15:39:00.000-04:00

In situations where parents are separated or divorced and custody is shared in some way, there are a variety of arrangements. Perhaps most commonly, one parent has the child most of the time and other has the child on a particularly schedule - commonly certain weekend, perhaps dinner during the week and various holidays and vacations. When parents live in the same region, it is possible for the parent without primary custody to have frequent time with the child. What happens, however, when the parent with primary physical custody wants to move far away?

Generally, it is required to obtain court approval to relocate children, particularly if it will be out of the state in which they are currently living. The best procedure is for the relocating parent to petition for approval before making the move. To simply get up and move may violate an existing court order. If there is no existing court order, when the other parent brings the matter to court, the judge will likely not look favorably on a move having been made without prior agreement or court approval.

Courts generally consider it in the best interest of children, when possible, to have meaningful relationships with both parents. If the parent with primary physical custody moves away, that will probably negatively impact the relationship with the other parent. If the court is going to approve such a move, there will have to be a showing that this move is in the child's best interest. There can be a number of reasons to justify the move such as obtaining a job that can provide a better standard of living, proximity to other family that can provide a support system to the custodial parent and more. If a long-distance move will be approved, it is common for the court to require adjustments to provide as much time as reasonably possible with the other parent such as extended time during school vacations and on holidays.

The spread of 21st century communications technologies are opening up new possibilities. In the New York state case of Baker v. Baker, a Suffolk County, NY judge ordered that a mother moving with the parties' children, ages 9 and 6, to Florida must, before moving, arrange at her own expense that the father will be able to have real-time video communication with the children via Skype. The mother wanted to move to Florida so she and the children could live with her parents and hopefully there would be better job prospects. The judge ordered that the father be able to video chat with the children at least 3 times per week and at least 1 hour per connection.

The mother in the Baker case was laid off from her bookkeeping job and remains unemployed. The father is a recovering alcoholic and only has very low income. The judge, Suffolk County, NY Supreme Court Justice Jerry Garguilo wrote:

"Common sense, logic and a realistic view of life on Long Island clearly indicate that the Petitioner and children cannot maintain a residence, heat, clothe themselves, provide for transportation and enjoy only the basic necessities on the monies that are currently available, The relocation is conditional. [T]he Petitioner will make the children available three times per week for not less than one hour per connection to communicate via Skype with their father."

Prop 8 proponents must show they are allowed to appeal unconstitutionality ruling

2010-08-17T12:31:00.000-04:00

The Prop 8 proponents, after losing at trial, may not even be allowed to pursue an appeal on the merits. The latest big story in the California Proposition 8 constitutionality case, Perry v. Schwarzenegger, is that the U.S. Court of Appeals for the 9th Circuit issued an order which granted a stay on implementing District Judge Vaughn Walker's order that would allow same-sex couples to marry in California beginning tomorrow (August 18). The stay keeps same-sex couples waiting while the appeal process unfolds. The 9th Circuit Court also ordered an expedited schedule for the parties to file briefs.

The final sentence of the 9th Circuit Court's order could have large implications for the case. It reads

In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997).

Put simply, the Court of Appeals is asking the organizations filing the appeal to justify why they should be able to appeal at all. Recall that when the plaintiffs filed their suit to challenge Proposition 8, they filed suit against Governor Arnold Schwarzenegger, Attorney General Jerry Brown and other California state officers acting in their official capacities - as was the correct procedure. However, the state officials, being of the view that Proposition 8 was unconstitutional, chose to not defend against the lawsuit.

Federal District Judge Vaughn Walker allowed several non-governmental parties to participate in the case as Defendant-Intervenors and it was only they who presented any defense of Proposition 8. After Judge Walker issued his ruling that Proposition 8 violated the Due Process and Equal Protection provisions of the 14th Amendment of the United States Constitution, it was the Defendant-Intervenors who filed an appeal. If you examine the text of the 9th Circuit Court's order, while it lists Governor Schwarzenegger and the other officials as Defendants, they are not listed as Appellants because they did not appeal Judge Walker's ruling. Only the private Prop 8 proponents filed an appeal.

So before this appeal can even proceed on the constitutional merits, the 9th Circuit Court must decide whether the Prop 8 proponents are even parties who can appeal Judge Walker's ruling. The basis for raising this question comes from a prior U.S. Supreme Court decision, Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997). In that case, there was a challenge to a law passed by voter referendum in Arizona that declared that state government business could only be done in English. A bi-lingual state employee who conversed with customers in both English and Spanish challenged the law. Her suit was successful at the trial court level. Then Governor Rose Mofford decided to not appeal the ruling but the private groups who had put the English-only law on the ballot filed an appeal. The Supreme Court found that private individuals did not have a sufficient legal interest in the case in order to properly pursue an appeal. It was up to the officials of the state to pursue an appeal and in that case, the Governor had decided it was not in the state's interest to do so. The law's advocates tried to argue that they were analogous to legislators who proposed the law - there have been instances where legislators were authorized by state law to defend a state law from a court challenge. The Supreme Court disagreed and held these private groups lacked standing.

So, in this case, Perry v. Schwarzenegger, since the Governor and the Attorney General have decided to not pursue an appeal, the Prop 8 proponents, before they even get to argue the merits of whether Prop 8 is unconstitutional, must convince the appeals court why they get to be heard on appeal at all since they are private parties and not official representatives of the State of California. If the Prop 8 proponents lack the appropriate standing to appeal, the appeal could be dismissed and Judge Walker's ruling that Prop 8 is unconstitutional would stand. Of course then the Prop 8 proponents would likely appeal to the Supreme Court over this standing issue.

It is thus conceivable that the Prop 8 case could be decided on this standing question with no national precedent on the constitutional merits. If a court decides that a party lacks standing to pursue an appeal, it will not decide the underlying question since courts generally will avoid deciding questions of law that are not necessary to resolve the case before them.

As for the many couples who are waiting to marry in California, unfortunately, they will have to wait at least several more months, and possibly longer until this case is finally resolved.

California Prop 8 decision by Judge Walker - some thoughts and analysis

2010-08-13T11:55:00.001-04:00

Judge Vaughn Walker's decision in Perry v. Schwarzenegger will, as everyone expected, be appealed - first to the U.S. Court of Appeals for the 9th Circuit and then likely to the U.S. Supreme Court. I have read through Judge Walker's 136 page opinion and the first thing that struck me was that this opinion was particularly crafted knowing that an appeal was certain. When decisions by trial judges are appealed, the appeals court has the power to substitute its own judgment on conclusions of law. However, appeals court judges almost always defer to trial judges on findings of fact because it is the trial judges who are actually present to see and hear the evidence and to make determinations of credibility and weight of evidence.   Put simply, while appeals courts can reach different legal conclusions from facts, they will generally defer to the trial judge on questions of what are the facts and which witnesses and evidence are most credible.

If you read Judge Walker's opinion, you will see that he went into tremendous detail in assessing the credibility and weight to be given to the testimony of every witness. For example, there is a lengthy discussion about how most of the witnesses the proponents of Prop 8 had originally listed did not even testify and that the plaintiffs challenging Prop 8 actually put into evidence depositions given by witnesses of the proponents of Prop 8 because that testimony supported the plaintiff's position that Prop 8 is unconstitutional. There is significant discussion about the testimony of the several couples on why they wished to marry. There is extensive discussion and comparison of the testimony of the plaintiffs' experts such as historian Nancy Cott and the defendants' expert, David Blankenhorn - what were their credentials and why their testimony did or did not support the positions of the respective parties. Cott, for example, testified that historically, civil law rather than religious custom, has always been supreme in regulating and defining marriage in the United States even though under the 1st Amendment guarantee of free exercise of religion, religious clerics are permitted under state laws to officiate marriages and that, historically the ability to consent to marriage is a basic civil right.

Blankenhorn, the expert for the Prop 8 proponents, conceded that the right to marry would indeed benefit same-sex couples and their children, would reduce discrimination against gays and lesbians and would be "a victory for the worthy ideas of tolerance and inclusion." Yet, despite these benefits, Blankenhorn opposes recognition of same-sex marriage because such benefits would not be valuable enough because, in his view, same-sex marriage could weaken marriage as an institution.   Judge Walker was very specific in rejecting this conclusion by Blankenhorn and in stating his view that Blankenhorn's testimony was not reliable.

Judge Walker wrote an entire section devoted to going through each witness one by one to assess their credibility. With regard to Blankenhorn, the primary expert witness for the Prop 8 proponents, Judge Walker noted that none of the books Blankenhorn had written about marriage and famiy structure had been subjected to a peer review process; that Blankenhorn has no degree in psychology, sociology or anthropology despite, as Judge Walker noted, the importance of those fields to the subjects of marriage, parenthood and family structure. After analyzing Blankenhorn's testimony, credentials and methodology, Judge Walker rejected his opinions on marriage.

Blankenhorn's second major assertion was that children raised by their married biological parents do better than children raised in other environments. However, as Judge Walker noted, Blankenhorn was comparing children raised by married biological parents to children raised by single parents, unmarreid mothers, step families and unmarried cohabiting parents. Judge Walker found flaw in Blankenhorn's opinion because he did not provide any evidence regarding how children do who are raised by married adoptive parents. Judge Walker found Blankenhorn's reliance on biological relationship to be unsupported by evidence and therefore rejected his conclusions.

Blankenhorn's third major conclusion was that recognition of same-sex marriage will lead to "deinstitutionalization" of marriage citing the prevalence of children being born out of wedlock, rising divorce rates and rising non-marital cohabitation. However, as Judge Walker wrote, no evidence was presented as to how recognizing same-sex marriage would somehow prevent opposite-sex couples from marrying and staying married.

In sum, Judge Walker's opinion was carefully written to show that his conclusions were strongly based on his findings of fact and credibility which an appeal court will almost never challenge.

Another key element of Judge Walker's opinion was the level of judicial scrutiny which he applied to Prop 8. Most laws are constitutional if they only meet a test of having some rational connection to a legitimate government purpose. However, when a fundamental right or liberty is involved, courts will apply a stronger "compelling interest" test. In many cases, the question of constitutionality will turn on whether the right in question is a "fundamental right" because that sets up which test will apply. Laws that are only subject to a rational basis test almost always are found to be constitutional.

Judge Walker, however, did something interesting. He set aside the question of which test would apply and found that even applying the easiest-to-pass rational basis test, Prop 8 does not promote any legitimate government objective which justifies denying same-sex couples the right to marry. The Prop 8 proponents tried to advance the idea that banning same-sex marriage would promote a state interest in promoting marriage by opposite-sex couples so that they will have sexual intercourse and produce children within marriage. Judge Walker, however, found that even if that is a legitimate government objective, denying same-sex couples the right to marry will not do anything to promote that objective.   Evidence was presented in the trial that gays and lesbians do not choose their sexual orientation and denying them the right to marry someone of the same sex is not going to cause them to marry someone of the opposite sex. In the end, Judge Walker found that Prop 8 only promotes certain private religious viewpoints but advancing private religious viewpoints was not a legitimate state interest that could justify denying some citizens the right to choose whom they wish to marry under the civil law.

Judge Walker thus seems to have done his very best to write an opinion that exhaustively shows how it is based on findings of fact and credibility and that Prop 8 does not advance any legitimate government interest, to make it as difficult as possible for an appeals court to overturn his decision. However, he seems to have made use of another strategy to prepare his decision for review. Professor Adam Winkler of the UCLA School of Law wrote in an article in the Huffington Post about how the U.S. Supreme Court will likely line up on this issue. Chief Justice Roberts and Justices Scalia, Thomas and Alito will most likely side with the proponents of Prop 8 to uphold the ban on same-sex marriage. Justices Breyer, Bader-Ginsberg, Sotomayor and newly sworn-in Justice Kagan will most likely side with the plaintiffs challenging the constitutionality of Prop 8. That leaves Justice Kennedy as the swing vote. As Professor Winkler notes in his article, there have been two major decisions by the Supreme Court in the last 15 years concerning gay rights with both decisions coming out strongly in favor of gay rights. Both of those opinions were written by Justice Kennedy. In Lawrence v. Texas, Justice Kennedy wrote:

“ These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”

"Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do."

Dahlia Lithwick, in an article in Slate, notes that Judge Walker cites Justice Kennedy's opinion in Lawrence v. Texas eight times and cites Justice Kennedy's opinion in Romer v. Evans, a decision which struck down an anti-gay Colorado ballot initiative seven times. Thus Judge Walker shows he is very mindful that the ultimate decision of this matter may rest with Justice Kennedy and Judge Walker is preparing the way to show that his decision is within the scope of Justice Kennedy's prior opinions.

Prop 8 Unconstitutional Federal Court Rules

2010-08-04T17:09:00.000-04:00

Proposition 8 is unconstitutional. That's the holding in Perry v. Schwarzenegger, the case challenging California's Proposition 8. Readers will recall that Proposition 8 was a voter-enacted amendment to the California Constitution which banned same-sex marriage after the California Supreme Court had previously ruled that it violated the state constitution to not allow same-sex couples the same marriage rights as heterosexual couples.

In the conclusion of his opinion, Chief Judge Vaughn Walker of the U.S. District Court for the District of Northern California wrote:

"Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfulling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional."

More specifically, Chief Judge Walker held that Proposition 8 violates the Due Process and Equal Protection clauses of the 14th Amendment of the U.S. Constitution.
Readers may recall that Governor Arnold Schwarzenegger and Attorney General Jerry Brown declined to have their offices defend Proposition 8 in court and it was the private organizations that originally sponsored Prop 8 who defended it.

The opinion is quite lengthy and it just was published. When I have had a chance to read it fully, I will post again on the legal issues it addresses. Chief Judge Walker ordered an injunction against applying or enforcing Proposition 8 directed to all state officials named in the lawsuit. It is quite likely that the supporters of Proposition 8 will appeal this decision to the U.S. Court of Appeals for the 9th Circuit and the case could quite possibly eventually reach the U.S. Supreme Court.

Fed Court strikes US law discriminating against same-sex couples - part 2

2010-07-21T17:01:00.000-04:00

In my last posting, I discussed, the case of Gill and LeTourneau et al. v. Office of Personnel Management et al, the case in which a federal judge in Massachusetts struck down the federal Defense of Marriage Act (DOMA) as it applies to creating a definition of who can be married for purposes of programs and status under federal law. In this posting I want to focus on the companion case, Massachusetts v. Sebelius, a case in which the Commonwealth of Massachusetts itself, as a state, sued the federal government claiming that this federal law violated Massachusetts' rights, as a state, as guaranteed under the 10th Amendment of the U.S. Constitution.   Judge Tauro, in his opinion, went into a history of how marriage fit into the federalist system in the United States. He noted that the question of marriage did not even come up at the Constitutional convention. From that time to this day, the laws of marital status have always been the domain of the states. While there were attempts in the past to develop a national law on marriage to have uniform rules, these were always rejected.    Judge Tauro found it significant that in the years before the U.S. Supreme Court ruled that state restrictions on marriage based on race were unconstitutional, the federal government never adopted its own definition of marriage but rather, looked to the states. If a state said a couple was married, then they were married.

The Court noted there are state programs for which married couples were eligible where the Massachusetts was was being forced by the federal government to apply a definition of marriage which was contrary to its state law and which interfered with its programs which were open to spouses of qualified individuals because there were instances where federal money was involved directly or indirectly.    Such programs included: the state cemetery grants program for veterans and their families; MassHealth - the Massachusetts version of Medicaid. Where federal money was denied because of DOMA, the state suffered financial loss.

The Court was presented with the question of whether DOMA was outside the powers of the federal government and thus in violation of the 10th Amendment. Under the federal system, the federal government only has powers which are granted to it under the Constitution. The 10th Amendment provides that any powers which are not delegated to the federal government and which are are not specifically denied to the states are reserved to the states or to the people.

The federal government argued that DOMA is justified by the Spending Clause in Article I of the Constitution which provides that Congress has the power to impose taxes, pay debts and provide for the common defense and general welfare of the United States. Judge Tauro agreed that Congress has broad powers to set terms for how it spends money but that power is not unlimited. Massachusetts argued that DOMA was unconstitutional for two reasons: First, this section of DOMA was independently barred by the Equal Protection Clause and second, DOMA's treatment of same-sex couples is unrelated to the purposes of Medicaid or the State Veterans Cemetery Program.

Judge Tauro found that DOMA violates the equal protection principles contained in the 5th Amendment's Due Process clause by treating some couples married under the laws of Massachusetts differently from other married couples. Therefore, Congress exceeded its authority under the Spending Clause. Judge Tauro did not address the issue of DOMA not being related to the purposes of the program since he found the law unconstitutional for another reason.

Judge Tauro also addressed the regulation imposed by the federal government on Massachusetts as a state. By DOMA distinguishing between different married couples, Massachusetts loses funding that is supposed to go to providing these benefits to any married couple. The Court concluded that marriage is an attribute of state sovereignty going back to the beginning of the United States and it was unconstitutional for Congress to intrude upon a state's power to define marriage through a regulatory statute. Massachusetts, as a state, has the authority to recognize same-sex marriages. The Congress, in enacting this section of DOMA, violated the 10th Amendment by intruding on a state's reserved power.

This is a fascinating application of the 10th Amendment and raises interesting implications politically and for possible future appeals.   It has been common that the concept of states rights is associated with what are considered to be socially conservative positions but this is an area in which social conservatives and states rights advocates will be on opposite sides. It will be interesting to see what happens in a likely appeal that could go to the U.S. Supreme Court.

This case does not address the other important provision of DOMA - that says that states are not required to respect the same-sex marriages of states that permit them. The question will be whether that will violate the Full Faith and Credit clause in Article IV of the U.S. Constitution which requires every state to respect the laws and judgments of other states. I believe such a case will come along relatively soon.

Fed Court strikes US law discriminating against same-sex couples - part 1

2010-07-15T17:49:00.000-04:00

In cases that I have been watching, U.S. District Judge Joseph Tauro in Massachusetts issued rulings striking down part of the federal Defense of Marriage Act (DOMA). At issue was the part of DOMA which defines for purposes of the federal government that a marriage is a union of a man and a woman. Massachusetts is one of several states which has legalized marriage of people of the same sex. The existence of DOMA created situations in which there were couples who were considered to be married by the state government of Massachusetts but not married by the federal government.

The first case was Nancy Gill and Marcelle Letourneau et al. v. Office of Personnel Management et al. In that case, same-sex couples who married under Massachusetts law sued the federal government because they were denied the ability to add or to include their spouses as beneficiaries for various programs of the federal government such as health insurance for federal employees and Social Security benefits and other benefits to which a spouse is generally entitled. Finding no dispute as to the facts in the case, Judge Tauro considered and granted to plaintiff couples summary judgment in their favor.

The Court ruled that DOMA as applied in this case violated the Plaintiffs' rights under the Equal Protection Clause by finding that DOMA has no rational relationship to any legitimate federal government objective. The asserted objectives in the Congressional record for DOMA were: (1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources. However, in this litigation, the federal government abandoned these reasons as justifications for DOMA. The Court noted that recent studies indicate that children raised by same-sex couples were just as likely to be healthy and well-adjusted as children raised by heterosexual couples but even assuming that there was some difference, the Court stated that nothing about DOMA would encourage heterosexuals to marry and have children and a desire to encourage heterosexual couples to marry did not justify denying rights and benefits to same-sex couples. Judge Tauro quoted from an opinion by Supreme Court Justice Scalia and stated that a desire to promote procreation is not a legitimate reason to deny benefits to same-sex couples because, as Justice Scalia wrote in his dissent in Lawrence v. Texas, ability to procreate is not and never has been a requirement for getting married in any state in this nation.

Judge Tauro also noted that DOMA cannot encourage heterosexual marriage because the Plaintiffs in question are already married to people of the same sex. Further, denying benefits to same-sex married couples will do nothing to make marriages of opposite-sex couples any stronger. The Court acknowledged that preservation of public resources is a legitimate objectives but it was not legitimate to do so by this sort of classification.

After abandoning the reasons Congress had stated for passing DOMA, the federal government's argument was that DOMA was somehow intended to preserve a status quo on a contentious issue until there was a national consensus. Judge Tauro found that this was contrary to the long established rule that marriage status is determined by states. Judge Tauro noted that in the years before the Supreme Court held that racial laws on marriage were unconstitutional and some states prohibited interracial marriages while most states did not have such a prohibition, the federal government never attempted to enact a statute on the racial characteristics of a married couple.

Similarly, Judge Tauro essentially said that the federal government had no business intruding into a question that has always been the the domain of the states. Judge Tauro stated that it should not matter that only a minority of states allow certain couples to be married - the federal government is supposed to accept that if a state says a couple is married, then they are married and it is not for the federal government to set up its own separate standard. While the federal government has a legitimate purpose in requiring certain benefits be only for spouses, it is not for the federal government to distinguish between spouses of the same sex and the opposite sex where a state has already determined that such persons are married.

This ruling is a huge development in marriage equality but it is not complete. This case is only about DOMA and its application to federal regulations and programs. Under this ruling, same-sex couples who are married would be eligible to file joint federal tax returns, survivors can claim Social Security benefits and other important rights. This case does not address the part of DOMA which says that other states which have not legalized same-sex marriage must honor the marriage certificates of couples obtained in states which do allow same-sex marriage. That will be another case. It is also likely that this ruling will be appealed and ultimately end up in the Supreme Court.

In part 2 of this posting, I will discuss the companion case, Commonwealth of Massachusetts v. Sebelius in which the Commonwealth of Massachusetts itself sued the federal government claiming violation of its state's rights.

Prop 8 - Unlawful Discrimination or Rational Law - case argued today

2010-06-16T15:43:00.000-04:00

The Prop 8 gay marriage ban case is being argued today in California. The parties challenging the law are being represented by a team that brings together former Bush v. Gore adversaries Ted Olsen and David Boies. As described in a Reuters report the District Judge will be considering the reasons why California voters passed Proposition 8 - is there a rational basis, or a good reason to have this law or is it motivated by a desire to discriminate against a certain class of people? In their brief to the Court, Olsen and Boies write, "Voters' unfounded and discriminatory stereotypes are not a substitute for proof that a law actually furthers a legitimate state interest." Olsen and Boies also argue that same-sex couples who marry improve both their health and wealth, their children benefit and the state itself benefits.

As reported by the San Jose Mercury-News lawyers from both the offices of California Governor Arnold Schwarzenegger and Attorney General Jerry Brown declined to make any argument to defend the state law.

Defense of the law is led by Charles Cooper who argues that allowing same-sex couples to marry will weaken the institution of marriage by removing the "special encouragement" for couples to stay together and raise children. Cooper further writes, "These changes are likely to reduce the willingness of biological parents, especially fathers, to make the commitments and sacrifices necessary to marry, stay married, and play an active role in raising their children."

After reading this, I have to wonder how much Mr. Cooper had to strain to come up with this argument. As an attorney having worked in family law for over 20 years, I have personally observed that limiting marriage to heterosexual couples has not served to keep families together as evidence by the large docket of divorce and child custody dispute cases in the courts today - and in my office. I fail to see how someone can take seriously the idea that by allowing certain individuals to marry that someone who has nothing to do with them will somehow feel less motivated to get married or to be a good spouse or parent.

It is worth noting that none of the court decisions or statutes which have legalized same-sex marriage require any religious authority to celebrate, sanctify or officiate same-sex marriage - it would only be addressed at the laws and actions of the government. Thus nobody whose religious beliefs oppose same-sex marriage need fear that the government will try to force their church to facilitate these marriages.

Arguments are taking place today (June 16). Whatever the decision of the District Court, it will almost certainly be appealed by the losing side and could eventually end up in the U.S. Supreme Court along with a number of other same-sex marriage cases pending around the country.

Billionaire's Heirs Big Winners in 2010 Estate Tax Gap

2010-06-11T16:58:00.001-04:00

Fortuitous timing has saved a billionaire's estate huge estate taxes. According to a New York Times report, Dan Duncan, who made a fortune from a network of natural gas processing plants and pipelines died in March of this year at the age of 77. Had he died three months earlier, his multi-billion dollar estate would have been taxed at a rate of 45 percent or higher and, under current law, had lived into 2011, his estate would have been taxed at a rate of 55 percent. Instead, Mr. Duncan's heirs benefit from the fact that Congress did not prevent the 2010 temporary lapse of the estate tax. This was a result that was never really intended in Washington. It was part of a gimmick compromise between the Bush Administration and its Republican allies on the one hand and Congressional Democrats on the other back in 2001. Wanting to have tax relief but to cap the cost, they agreed to a sunset provision of the law with a one year moratorium on the estate tax. Everyone, including me, assumed that something would be worked out before that happened but it did not. An attempt to amend the law failed in December 2009. So, Mr. Duncan's heirs benefit from some fortuitous timing. While it may seem crass, I think it is a good bet that discussions in some wealthy families are taking place about how long Grandpa or Grandma should be kept on life support - discussions that will become more urgent as the end of 2010 or (less likely) Congressional action approaches. This strange legal situation could potentially put estate planning lawyers in the uncomfortable position of being asked to advise clients on the tax implications of the timing of death. I also will not be surprised if we see an episode of one of the Law and Order shows based on a scenario of an elderly parent's demise being hastened due to estate tax considerations - are you reading and listening Dick Wolf?

Supreme Court rules against NFL in clothing licensing anti-trust case

2010-05-24T17:44:00.005-04:00

We often hear about how divided the U.S. Supreme Court is but in a decision handed down today, the Court was unanimous in ruling that the National Football League and its 32 member teams engaged in concerted anti-competitive behavior with regard to licensing of team logos and colors for clothing. The Court's opinion in American Needle, Inc. v. National Football League et al., written by retiring Justice John Paul Stevens held that the NFL and its member teams violated section 1 of the Sherman Anti-Trust Act (15 U.S.C. § 1).

A little background - Since 1963, the NFL teams have operated a separate corporation for the joint marketing of team-licensed clothing, memorabilia etc. called NFL Properties (NFLP). While the NFL teams were operating in this area through NFLP, until 2000, each team made its own licensing arrangements with manufacturers of clothing. That changed in 2000 when Reebok was given an exclusive license to produce all of the NFL team licensed merchandise. American Needle, Inc. had been one of the non-exclusive licensees previously and was denied a new license when the exclusive arrangement with Reebok took effect. American Needle filed suit alleging that the NFL and the member teams were engaging in concerted anti-competition behavior. The NFL argued that it is a single business thus no such concerted action could take place. The Supreme Court, however, found that the NFL is merely an association of the teams and that each of the 32 teams is a separate corporate entity with with its own governance and decision-making. The fact that NFLP is a single corporation did not matter as the Court recognized that the individual teams can make their own decisions and to a significant extent are in competition with each other. This was still an organized action by 32 separate corporate entities to prevent competition in the market of NFL team clothing and memorabilia.

The Court also discussed the issue of whether it is essential for the NFL teams to work together as a unit. The Court discussed the "Rule of Reason." In some areas, the NFL must operate as a unit such as the logistics of putting on the the football games, making rules for competition etc. but found that this does not apply to the licensing and marketing of merchandise.

Now if you are thinking the NFL is being treated differently than Major League Baseball would be, then you would be correct. Major League Baseball has a specific exemption from anti-trust regulation. The NFL, NBA, NHL and other leagues do not have such an exemption.

The case will go back to lower courts for further proceedings.

Father's rights? Pennsylvania law says no presumption favoring mothers or fathers.

2010-05-21T15:43:00.001-04:00

This post is in response to a question from a reader regarding what is the state of "father's rights" in Pennsylvania.

In Pennsylvania, it is true that in the past there was a legal principle called the "tender years doctrine" which essentially presumed that a mother was entitled to custody of her child over the father, particularly if the child was of "tender years" i.e. quite young. This "tender years doctrine" has since been declared invalid in Pennsylvania insofar as it created a presumption in favor of mothers over fathers.

The general rule for how a court is to decide a child custody dispute in Pennsylvania is set by statute:
Award of custody, partial custody or visitation, 23 Pa.C.S.A. § 5303

(a) General rule

(1) In making an order for custody or partial custody, the court shall consider the preference of the child as well as any other factor which legitimately impacts the child's physical, intellectual and emotional well-being.

(2) In making an order for custody, partial custody or visitation to either parent, the court shall consider, among other factors, which parent is more likely to encourage, permit and allow frequent and continuing contact and physical access between the noncustodial parent and the child.

(3) The court shall consider each parent and adult household member's present and past violent or abusive conduct which may include, but is not limited to, abusive conduct as defined under the act of October 7, 1976 known as the Protection From Abuse Act.

A remnant of the "tender years" doctrine remains in that a substantial factor in determining child custody is which parent is the primary caretaker of the child when the child is quite young. However, there is no legal presumption that the primary caretaker should be the mother. Rather, that role could be filled by either parent. If there is a perception that this factor makes the legal system tend to favor women, it is more likely due to a greater number of women exercising the role of primary caretaker than men. In my 20 years of legal practice, however, I have worked on cases where the primary caregiver was the father. In any case, while the role of primary caretaker is important, it is not necessarily the only factor for deciding a case. In particular, as one opinion noted, in addition to the quantity of care, a court must also consider the quality of care provided by the primary caretaker. Klos v. Klos, 934 A.2d 724 (Pa.Super. 2007).

Other important factors that the court should consider in awarding child custody include:
• whether a child will have greater educational opportunities with one parent than the other;
• financial circumstances of the parents;
• benefit of keeping a child together with siblings or half-siblings;
• proximity and availability of grandparents and other relatives (when parents do not live near to each other);
and other factors as well.

Again, to reiterate, it is the law in Pennsylvania that there is no presumption in the law in favor of either mothers or fathers simply by being the mother or father. Rather, judges are required to make decisions based on the facts presented regarding the relative fitness of the parents and to make an award of custody that is in the best interest of the child.

Readers should not solely rely on this note but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration and Social Security.

Which court decides when divorced/separated parents in different states battle for custody?

2010-05-14T17:19:00.002-04:00

In this age in American society, it is common for parents to be divorced or separated and in many cases, there are disputes over custody of the children. Sometimes, a key question in the case is which court will decide the case? To bring order across America in deciding which court should have jurisdiction of the case, there was created the Uniform Child Custody Jurisdiction Act (UCCJA).

First, what are Uniform Laws? These are not federal laws. Congress does not generally get involved in laws regarding marriage and domestic relations and a lot of other things. Uniform laws are laws on a particular subject that are adopted identically by the individual states. Generally, each state version of a uniform law is identical - that's why they are called uniform. There is a non-governmental body called the National Conference of Commissioners on Uniform State Laws . This body, established in 1892, is composed of lawyers who are in private practice, legislators, legislative staff and judges who draft and promote uniform statutes in subject areas where having uniform state laws is desirable. The NCCUSL drafts such laws and then works to get them adopted in the various states. One can see the need to have uniformity in how to decide which court should decide child custody disputes - even if the laws in the various states regarding child custody itself are different.

Getting back to child custody, the UCCJA provides a set of rules so that in any case, it should be possible to resolve which state has jurisdiction over the custody of a child. The main deciding factor for jurisdiction is which state is a child's "home state." As provided in the Pennylvania version of the law:
This Commonwealth is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this Commonwealth but a parent or person acting as a parent continues to live in this Commonwealth;

23 Pa. Cons. Stat. Ann. § 5421 (West)

So in most cases, if someone picks up and moves with their child to another state while the other parent remains back in the original state, the parent with the child cannot automatically file an action for custody in the new state right away. The child must have resided in that state for six months first. There are exceptions to this rule.

One exception is if the court in the home state declines to exercise jurisdiction because it considers Pennsylvania to be a more convenient forum and the child and at least one parent have a significant connection Pennsylvania beyond being physically present at the time of trying to file a case and substantial evidence concerning the child's care, protection and relationships is present in Pennsylvania.

Another exception is if all courts which would otherwise have jurisdiction have declined jurisdiction because they consider Pennsylvania to be a more appropriate forum to decide the case. Yet another exception would be if no court in any other state would have jurisdiction under the other criteria.

Also, it is not required that a child be physically present in the state for a court to exercise jurisdiction regarding that child.

In terms of the mechanics of this system, a key provision is that when a court becomes aware that another court may have been involved regarding that child or is being asked to become involved, the two (or more) courts are required to have the judges or other appropriate officials communicate directly with each other to resolve the jurisdictional issue.

Readers should not solely rely on this note but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration and Social Security.

Elena Kagan would hardly be first Justice without prior judicial experience

2010-05-10T16:27:00.000-04:00

This morning, President Obama announced that his nominee to replace retiring Justice John Paul Stevens on the U.S. Supreme Court is Solicitor General Elena Kagan. I will concede that I do not know much about Ms. Kagan's record so I am not commenting here about the particular individual choice. However, what I do like is that this nominee, the first in many years, has no prior experience as a judge. Currently all of the justices were judges in one court or another before joining the Supreme Court. However, it was not always this way. Republicans opposed to President Obama and his nominee will attack this nominee for having no prior judicial experience. Such critics, however, should keep in mind who was the last Supreme Court Justice with no prior experience as a judge - none other than William Rehnquist who was appointed to the Supreme Court by President Nixon and then appointed as Chief Justice by President Reagan. Rehnquist's prior experience included clerking for Justice Robert Jackson in the early 1950s, working in private practice in Phoenix for 16 years and 2 years as an Assistant Attorney General early in the Nixon Administration.

Other former Supreme Court Justices who were never judges before joining the Supreme Court were: Byron White (Deputy Attorney General in Kennedy Administration), Earl Warren (California Attorney General and Governor), William O. Douglas (SEC Chair in Roosevelt Administration), Felix Frankfurter (close adviser to FDR, assistant US Attorney under Henry Stimson in New York, and one of the advocates for Sacco and Vanzetti) and William Howard Taft (President of the United States). As you see, some of the most well known and distinguished past members of the Court had no prior judicial experience. Many argue that a long career as a judge can isolate someone and that there is value to having someone with extensive experience in other areas. Whatever one might think of Elena Kagan as a nominee to the Court individually, her lack of prior experience as a judge is not a negative at all.

Federal court: school district violated lesbian student's rights by canceling prom

2010-03-24T14:10:00.001-04:00

A federal court in Mississsippi has issued a significant ruling that a school district violated a lesbian student's rights when it canceled the prom after the student requested to bring her girlfriend to the prom and to wear a tuxedo at the event. In the case of Constance McMillen v. Itawamba County School District, the court ruled that Constance's rights were violated though the court declined to issue an injunction against the school district. You can read the opinion by clicking here.

First the background. Constance is a senior at the Itawamba Agricultural High School in Fulton, Mississippi. She has been openly identified as a lesbian since she was in 8th grade. As is common across America, the high school had a prom scheduled during the spring. The school district has a policy that includes provisions that students attending the prom may only bring a date who is of the opposite sex and that girls must wear dresses. Constance went to school officials and asked for permission to bring her girlfriend, who is also a student at the same school, as her date and to wear a tuxedo. She explained that to be forced to bring a boy as her date and to wear clothing traditionally associated with female gender would be to deny her true identity. The school district refused Constance's request and told her that she was not allowed to show up with her girlfriend (though they could both come if they came with boys) and that if they slow danced together and anyone complained, they would be thrown out of the prom.

Constance then sought the assistance of the American Civil Liberties Union (ACLU) which took up her case. The ACLU sent a letter to the school district demanding that it accept Constance's request about her date and her clothing. The school board held a special meeting and decided instead to cancel the prom altogether and to publicly request that private individuals organize a prom for the junior and senior students.

Constance, through her attorneys, filed suit against the school district seeking an injunction ordering the school district to reinstate the prom and to allow her to bring her girlfriend as her date and to allow her to wear the clothing she wished. The United States District Court for the Northern District of Mississippi Eastern Division denied the request for an injunction but did find that the school district violated Constance's rights. The court engaged in a four-part analysis of determining whether to issue an injunction:

1. The court found that Constance had a protected First Amendment right which the school district violated. The court held that the act of bringing a date of the same sex and wearing clothing not traditionally associated with women were acts of communication of viewpoint which were protected by the First Amendment of the United States Constitution. The court cited other instances of conduct such as the U.S. Supreme Court decision wearing black armbands to protest the Vietnam War back in the 1960s was a form of protected political speech. The court found that the school district canceled the prom for the express purpose of preventing Constance from exercising her First Amendment rights.

2. The court found that the school district was irreparably harming Constance's rights by canceling the prom.

3. The court found that Constance's First Amendment rights outweighed the school district's stated interest in effective governance of the schools and providing public education to all students. The Court found that there was no evidence in the record to support the district's claim that allowing Constance to attend the prom with her girlfriend and to wear a tuxedo would harm the school district's interests.

4. The court did not, however, issue an injunction because it found that doing so would not serve the public interest. By the time the court was making its ruling, a privately sponsored prom had already been organized which will take place on April 2. The court was satisfied that all junior and senior students, including Constance, would be permitted to attend this prom without the restrictions imposed by the school district previously. To force the school district to reinstate the original prom at this late date would cause confusion and create a waste of the efforts of the private individuals who organized the April 2 prom.

Having said that, however, the court stated that Constance's case is still a live legal action and the court gave Constance leave to amend her complaint against the school district to seek monetary damages and other relief to compensate for the violation of her rights.

Although an injunction did not issue, this is a very significant ruling. A federal court has ruled that the act of a same-sex couple attending a public event as a couple is protected by the First Amendment. This case could have future implications in other cases such as lawsuits challenging the federal Defense of Marriage Act since it can be argued that there is a right under the First Amendment to be recognized as married, particularly where a state has given such a couple a marriage license.

As for what happens next in Constance's case, it would appear that the next step is up to her. There does not seem to be a basis for the school district appeal at this point since they technically won on the decision to not grant an injunction. If Constance decides to proceed with her case and seek money damages, then further decisions by this court and appeals could follow. Constance has gained wide-ranging support including over 400,000 fan supporters on a Facebook page called Let Constance Take Her Girlfriend to Prom! dedicated to her cause.

Meanwhile, this case may already have started ripple effects elsewhere. According to a report from Georgia, Derrick Martin, a senior at Bleckley County High School sought permission to bring his boyfriend as his date to the prom. (Permission is required regarding any date who is not a student in that county). At first, the principal told him no. Then last week, the principal reversed herself and indicated that since there was no specific policy against this, Derrick could bring whomever he wanted as his date for the prom.

More interesting developments are sure to follow. In the meantime, best wishes to all prom-goers for a fun and safe celebration.

What are grandparents' rights for child custody in Pa.?

2010-03-18T13:16:00.001-04:00

In the legal world of child custody cases, we usually think of these as cases between the parents. This is not always the case as sometimes grandparents have an interest in these matters. In Pennsylvania, it is the general rule that the rights of parents usually are given priority over any other relatives but there are exceptions.

Pennsylvania has enacted legislation providing for grandparents' rights in several situations. First, it is important to note the difference between partial custody and visitation. Under the Pennsylvania law, "partial custody" is the right to take possession of a child away from the custodial parent for a certain period of time. On the other hand, "visitation" is the right to visit a child but it does not include a right to remove a child from the custodial parent's control without permission.

Thus, a person who has a right of partial custody can take the child to their home or another location by right but a person who only has visitation may be limited by the custodial parent to seeing the child in the custodial parent's home or other location permitted by the custodial parent.

Pennsylvania gives grandparents the right to go to court to request an order granting partial custody or visitation of a grandchild in three situations:
1. If a parent of a child is deceased, the parents or grandparents of the deceased parents of the child may be granted partial custody or visitation;

2. If there is an action for divorce pending between the child's parents or the child's parents have been separated for six months or longer; or

3. If the child resided with the grandparents or great-grandparents for 12 months or longer and the parents subsequently removed the child from the home of the great-grandparents.

In all of these situations, grandparents or great-grandparents are not given access to the child automatically. Rather, it must be determined by the court that partial custody or visitation is in the child's best interest and that it would not interfere with the parent-child relationship.

It is also possible for a grandparent or great-grandparent to seek primary physical and legal custody of a child if the grandparent or great-grandparent has:
1. genuine care and concern for the child;
2. the relationship began with the consent of the child's parent or due to a court order; and
3. for a period of 12 months or longer has assumed the role of parent for the child by providing for the child's needs or has assumed responsibility for the child under a legal determination that the child is "dependent" under the juvenile law code or or who assumes or deems it necessary to assume responsibility for a child who is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or mental illness.

Readers should not solely rely on this note but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration and Social Security.

In 38 states, you can set aside money for your pet - even after you are gone

2010-03-11T16:21:00.002-05:00

Perhaps you know the old expression, "It's a dog's life" but it may be that no dog ever made out better than a Maltese named Trouble, the beloved pet of the late, though not necessarily so beloved, Leona Helmsley. When Mrs. Helmsley died in 2007, she left $12 million for Trouble in her will. It was the largest single gift in Mrs. Helmsley's will.

Well, you don't have to be a multi-millionaire to leave a legacy for the care of your beloved pet. In fact, 38 states plus the District of Columbia have statutes on the books specifically authorizing creation of trusts for the purpose of caring for pets. The Pennsylvania pet trust statute allows trusts for one or more animals that was alive during the lifetime of the settlor (person creating the trust). The trust ends upon the death of the last of the animals for which the trust was created.

Now is this a good idea for every pet owner who wants to make sure that Rover or Fido is well cared for? Not necessarily. While a trust can provide a legal mechanism to direct funds to the care of a pet, there are costs involved as well. Trusts are separate legal entities and can be subject to the need to file taxes and other forms plus the expenses of meeting those requirements. It may be easier and less expensive to simply find someone you really trust to care for your beloved pet and leave that person a gift in your will for the stated purpose of covering the costs of caring for the pet.

Readers should not solely rely on this note but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration.

After divorce, what happens if your ex is still named beneficiary on accounts?

2010-03-08T17:12:00.000-05:00

In a divorce, it is common to have to deal with who gets rights to various assets acquired during the marriage. Let's suppose those issues have been resolved. Now you have your IRA or your insurance policy and your divorce settlement says your ex has no claim to it. However, before you get a chance to remove your ex from being listed as the beneficiary, you unfortunately die. What happens? Does your ex receive that money?

In Pennsylvania, section 6111.2 of the Probate, Estates and Fiduciaries Code deals with this issue for accounts like a IRA, insurance policy or other account in which there is a beneficiary named. This law says that when the owner of the account and the beneficiary become divorced, the beneficiary designation naming the former spouse becomes ineffective and the account is handled as if the former spouse had died before the owner. The exception is if there is clear indication to the contrary that the former spouse should remain the beneficiary such as clear wording that the designation was intended to survive a divorce, a court order from the divorce case or a contract between the former spouses providing for the beneficiary designation to survive the divorce.

Another big exception to this rule is in accounts which are covered by the federal ERISA (Employment Retirement Income Security Act) law - like a 401(k). These are generally accounts that one gets as a benefit through employment. For those accounts, federal law trumps state law and the federal law is to go by the written designation, even if a divorce occurred.

While the state law is helpful for non-ERISA accounts, the best way to avoid any future problems in this area is to promptly change one's beneficiary designations after a divorce is completed. While you are at it, updating one's will after a divorce is also a great idea just to make sure your estate plan is really what you want.

Readers should not solely rely on this note but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration.

LM School District issues statement on laptop lawsuit.

2010-02-18T23:09:00.001-05:00

An update in the unfolding story about the lawsuit against Lower Merion School District over allegations of remote activation of a webcam on school-issued laptops - District Superintendent Christopher McGinley has posted a letter to students and parents. That letter was posted at about 9:26 pm. There was an earlier letter which answered a number of questions. The district acknowledges that the web cam can be remotely activated as part of a system intended to track and recover the computer if it is reported stolen and states that this capability has only been used for that purpose. However, the district has now deactivated the tracking system and a review of the policies and past use will be undertaken.

Aside from all of this, the program of providing every student a laptop has many valuable benefits including leveling the playing field by enabling every student to have a laptop regardless of whether parents could afford to purchase one themselves or not.

Lawsuit alleges Lower Merion School District uses school-issued laptops to spy on students

2010-02-18T15:35:00.000-05:00

In the Lower Merion School District outside Philadelphia, they have a program in which all high school students are issued an Apple Macbook laptop computer to use during their high school years. Other than a small fee for insurance for damage to the computer, there is no cost to the students for the computers. These computers are used for school work but can also be used for personal activities such as email, instant messaging and so on. Students and parents have been pretty happy with the program - at least until now. According to allegations stated in a class action lawsuit filed by a student at Harriton High School and his parents, the school district can and does remotely activate the web cam built into these computers to monitor the activities of students (and anyone else in the room) without the knowledge of the students.

You can read more about this case in this Philadelphia Inquirer article. Here is a link to download a copy of the lawsuit filed in the case of Robbins v. Lower Merion School District et al. in federal court in Philadelphia. The lawsuit alleges the school district has violated a number of federal laws related to tampering with computers and interception of electronic communications among others. The school district is not commenting on the case and is referring the matter to attorneys.

No estate taxes for now . . . but is that good for you and your family?

2010-02-16T17:39:00.000-05:00

When I last wrote about estate taxation in December, the Congress was working on a reform of estate taxation that would freeze it at the exemption level that applied in 2009. Like many items of legislation in Washington, this one stalled out too. So now that we are in 2010, under the existing law, there is no estate tax. If someone dies today with a gazillion dollar estate, there is no federal estate tax. Is that a "WHOO HOO!" that I hear? Sounds great, right? Well, the government giveth and the government taketh away.

Yes, there is no tax on an estate of someone dying now but there's a little nasty surprise. The step-up in basis used for figuring capital gains is gone too. What's that? When an asset is sold, normally capital gain subject to tax is calculated by taking the sale price and subtracting the cost to acquire that asset - the basis. The law long was that if an asset was held until death, the basis "stepped up" to be what it was worth on date of death. This could be a really big break. Suppose someone bought Google stock when the company was just getting started. If they sold that stock themselves, they would have to pay capital gain tax on all the increase in value of that stock up to the time of sale. However, if that stock was held until death, and then it was sold, all the gain that occurred before death was tax free.

This break also applied to the sale of a home that perhaps a parent had purchased years ago.

Well, now that the estate tax has gone away, that nice break in the capital gain tax rules has gone away too. The rates for the estate tax that just disappeared were higher than the rates for capital gain tax but the majority of Americans were not paying estate tax anyway but a lot of folks were benefitting from that step up in basis. Unless the rules are changed again, some folks may have to go back and figure out how much their parents or grandparents paid for stocks years, even decades earlier. That could force a lot of folks to pay taxes who did not before not to mention the enormous pain in the butt of trying to figure out how much was paid to buy these assets so long ago - perhaps when the company had a different name or before a merger or before various stock splits.

Well if Congress does nothing, this will only impact estates of people who die in 2010 because on January 1, 2011, everything reverts to the old rules from 10 years earlier.

If you are wondering what I think ought to be done, I agree with Warren Buffett that there should be an estate tax but that the threshold amount of an estate which would be subject to it would be higher than the $3.5 million which was the exemption in 2009. The exemption amount has not kept up with inflation over the years and this is a tax that was originally intended to only impact the "robber barons" but which has impacted more and more people over the years. So, to keep things in balance, the exemption should be automatically indexed to keep up with inflation. At the same time, that step-up in basis should be permanently restored. Well, that's my recommendation. I will not be betting on Washington listening to me.

Readers should not solely rely on this note but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration.

When clearing snow, remember the top of your car

2010-02-07T07:59:00.000-05:00

Wow! That was quite a snowstorm we just had. Here in the Philadelphia area, the official count was 28.5 inches. Lots of folks will need to dig out their driveways and dig out their cars. When doing all that, don't forget that you must clean off the whole car, not just the windows. In Pennsylvania, it's the law. Why? That snow may look pretty and harmless sitting on the roof of your car but when you are driving, the movement of the car or wind blowing can cause that snow to fly back and hit other cars. I have personally experienced big chunks of snow blowing off vehicles in front of me and landing on my windshield suddenly making it impossible to see. It is frightening and a major danger for an accident.

So do yourself and everyone else a favor - clean the snow off the whole car or make sure the enterprising youths who are doing your snow cleanup for you clean off your whole car too.

Stay safe and just think - we are supposed to have another major snowfall on Tuesday night and Wednesday morning. Oh goody!

Partners in Health - Stand with Haiti

2010-01-15T11:22:00.002-05:00

Former legal adversaries join forces against Prop 8

2010-01-13T17:24:00.000-05:00

Recent days have seen much activity on the issue of marriage equality. In New Jersey, proposed legislation to legalize same-sex marriage was defeated in the state Senate last week. However, while action in the Legislature was defeated, the matter is now headed for court. As the Philadelphia Inquirier reported, Garden State Equality and the Lambda Legal Defense and Education Fund are taking the State of New Jersey to court. Their challenge will be based upon a 2006 New Jersey Supreme Court ruling that the state must provide same-sex couples with the same rights and privileges as heterosexual couples. The Court left it to the Legislature to determine how to do that. The Legislature did enact a law creating civil unions for same sex couples. However, the coming court challenge will argue that the civil union law is not sufficient in order to try to require the state to legalize same-sex marriage.

The most high profile case now is the trial underway in the case challenging California's Proposition 8. Joining forces to represent two same-sex couples challenging Prop 8 are David Boies and Ted Olson, the attorneys who were on opposite sides in the 2000 Bush v. Gore election recount case. In a Newsweek article written by Olson, he explains why he, as a conservative, supports the right of same-sex couples to marry and counters the major arguments that have been put forward opposing same-sex marriage. One very salient put Olson makes: "Marriage requires thinking beyond one's own needs. It transforms two individuals into a union based on shared aspirations, and in doing so establishes a formal investment in the well-being of society. The fact that individuals who happen to be gay want to share in this vital social institution is evidence that conservative ideals enjoy widespread acceptance. Conservatives should celebrate this, rather than lament it."

One argument against same-sex marriage that opponents raise is that it is counter to procreation. However, as Olson points out, our society has never made ability to procreate a test of getting married and indeed we allow marriage by the very elderly and inmates serving life prison sentences despite the fact that they will have little or no opportunity to procreate.

Opponents have also raised the idea that allowing same-sex marriage will somehow harm heterosexual marriage yet, as Olson notes, his opponent in the California trial conceded to the judge he could not think of any way in which same-sex marriage is detrimental to heterosexual marriage.

Meanwhile, challenges to the federal Defense of Marriage Act continue to move forward including one brought by Massachusetts Attorney General Martha Coakley (who is running for election to the late Ted Kennedy's Senate seat). Interestingly, the Obama Administration seems to be trying to have it both ways by defending the DOMA law in court while at the same time saying it wants Congress to repeal the law.

Stay tuned. More interesting developments will be coming along.

Just because you live with someone for 7 years DOES NOT create a common law marriage

2009-12-16T15:18:00.001-05:00

I have lost count of the number of times that people who are not lawyers have said to me, and with certainty that they are correct, that if a man and a woman have lived together for 7 years or more, then they are common law married. ATTENTION! THIS IS FALSE!

There is no such 7 year rule that exists anywhere in the United States. In most states, common law marriage is not recognized at all. According to the National Conference of State Legislatures, only 9 states now recognize common law marriages formed within their borders: Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma, and Texas plus the District of Columbia. There are 5 states that have grandfather clauses recognizing common law marriages that were formed before a certain date: Georgia, Idaho, Ohio, Oklahoma and Pennsylvania. In Pennsylvania, where I practice law, common law marriages can only be recognized as valid if formed before January 1, 2005. New Hampshire only recognizes common law marriages for probate purposes. Utah only recognizes common law marriages which have been validated by a court or administrative order.

So how does one get into a common law marriage, assuming one is in a state that recognizes it in some way. It requires more than the mere fact of a couple living together. There must also be a mutual agreement and intent to be married such as by the two people at some point saying to each other that they are married AND, they must also present themselves to the outside world and conduct themselves as a married couple. Such acts would include introducing each other to others as their husband/wife; filing tax returns as a married couple; establishing joint ownership of property, bank accounts and other assets; using the same last name. It is not required that a couple do all of these things. Rather, if a court is determining this, it would look at all the circumstances and facts as a whole.

Now while a common law marriage can be created without a wedding, to end it requires a divorce just as with a marriage begun with a formal wedding ceremony.

In my experience, the issue of whether a common law marriage exists or existed is most likely to come up in one of two contexts: divorce or death.

In a divorce, there are rights to distribution of marital property which can award one spouse assets even if his or her name is not on the title due to the broad powers given to the courts in such matters. If there is no marriage certificate, before one can obtain the rights inherent in a divorce, it would be required to prove that a marriage existed in the first place.

In the case of a death, spouses have certain rights of inheritance. If a person dies with no Will, in Pennsylvania, the spouse will be entitled to at least one-half of the estate or more depending upon whether the deceased had children. If the deceased made a will but left the spouse nothing, the spouse can elect against the Will and claim one-third of the estate. In the absence of a ceremonial wedding, there could be a dispute as to whether a common law marriage existed.

It should be no surprise that judges strongly dislike common law marriage. It creates disputes and ambiguity and adds to the court's docket. In Pennsylvania, for years, judges were urging the legislature to abolish common law marriage. Finally, in 2004, the legislature passed, and Governor Rendell signed, a bill that provided that beginning on January 1, 2005, no new common law marriages could be formed in Pennsylvania. Those that existed before that date could still be recognized so the courts will still have to deal with such cases for some time.

Mark Twain was wrong - new land is being made - but who owns it?

2009-12-08T12:33:00.001-05:00

Mark Twain once said, "Buy land, they're not making it anymore." In most places where people live, the land itself seems to be unchanging - at least within the span of one or a number of human lifetimes but the Earth is constantly changing. In some places, it changes quite rapidly and land can appear or disappear right before your very eyes.

My law firm partner who has a home on the Jersey shore tells me that in some places, the construction of jetties causes sand to accumulate over time and beaches will appear where there had been water before. So who owns this beach. At Barnegat Light where this happened years ago, beach formed and then a pine forest naturally grew. It is now a public park.

In Hawaii, an interesting case is going on about when new beach naturally forms above the high-water line. Picture an indentation of water into the land that over time, naturally forms a new beach. In Hawaii, the common law had been that if the beach expanded naturally, the adjacent private owners gained that ground and if the beach naturally eroded, they lost it. In 2003, Hawaii enacted a new law that says that such new beach belongs to the state. According to a recent article in the Honolulu Star-Bulletin, a class action by private owners was filed. In the case Maunalua Bay Beach Ohana 28 et al. v. State of Hawaii, the trial judge ruled in 2006 that this law constituted a government taking of private land and that the state was required to compensate the private owners. The State of Hawaii appealed and a ruling is pending.

Sometimes, the creation of new land is even more dramatic as is happening right now on Hawaii's Big Island where the Kilauea volcano has been erupting continuously for 25 years. According to this San Francisco Chronicle article, the volcano has not only covered 45 square miles of the island with lava but the island has actually grown by 568 acres in that time. So when the island of Hawaii grows, who owns the new land - the public or adjacent owners. According to this article from the Hawaii Volcano Observatory, this newly formed land belongs to the State of Hawaii.

How this came about is described in the landmark 1977 opinion of the Hawaii Supreme Court in the case of State of Hawaii by Kobayashi v. Zimring. The development of the law in Hawaii is made more interesting since it was once an independent kingdom. As the Court quoted in its opinion:

It was long ago acknowledged that the people of Hawaii are the original owners of all Hawaiian land. The Constitution of 1840, promulgated by King Kamehameha III, states:

KAMEHAMEHA I, was the founder of the kingdom, and to him belonged all the land from one end of the Islands to the other, though it was not his own private property. It belonged to the chiefs and the people in common, of whom Kamehameha I, was the head, and had the management of the landed property.

Under pressure from foreign residents who wanted to claim ownership of land, a process began in 1846 that led to private land ownership in Hawaii which the court opinion describes. In the Zimring case, there was a 1955 lava flow which extended land out into what had been ocean. To get to the heart of the issue, the Zimrings claimed that their rights as owners included access to the sea and ownership of the lava extension was necessary to preserve that right. The problem the Court had with that concept was that to give them ownership of the lava extension would have been a windfall to a private owner. The Court ruled that such new land belongs to all the people and that the state government is the people's trustee. The Zimrings, of course, would have free access to the sea.

Death and taxes are unavoidable but what about taxing death?

2009-12-04T11:44:00.000-05:00

In 1789, Benjamin Franklin wrote, "'In this world nothing can be said to be certain, except death and taxes." Experience has shown that to be the case but what about the taxation of death? The practice of taxing transfer of assets upon the death of the owner is first known to have been practiced 2700 years ago in Egypt according to an article from the Heritage Foundation. In America, a federal Stamp Act requiring purchase of stamps when probating wills existed from 1797 until 1804. Federal taxation of estates was used sporadically in times of war or other crisis.

The debate over whether it is right to tax assets at death has gone on since the early days of this nation. Opponents of death taxes argue that people paid taxes on this money while they were alive and it would be double taxation to tax it again. Proponents argue that such taxes are important to prevent wealth being locked up dynastically and that there is no absolute right to inherit wealth one did not earn. Warren Buffett, one of the wealthiest men in the world, holds this view and he believes that America should be a meritocracy and not a nation dominated by inherited wealth.

The modern estate tax that we have, according to the Heritage Foundation, began in 1916 with the Revenue Act (which also introduced the income tax we have today) because World War I and other conflicts had reduced the trade tariffs upon which the government previously relied. At the time, the estate tax was intended only to affect super-wealthy Americans. There was an exemption on taxation on the first $50,000.00. That may not seem like a lot but adjusted for inflation, $50,000 in 1916 would be over $11 million in 21st century dollars.

The exemption amount did increase over the years but only occasionally and it did not keep pace with inflation. By 2001, with the exemption at $1 million (with certain planning techniques like estate credit bypass trusts, it could be effectively $2 million for a couple), it was in inflation-adjusted terms worth only a fraction of its original value and was impacting a lot of people in the middle class. If one had a paid-up home, an IRA or 401(k) and a life insurance policy (yes, life insurance counts as part of the estate if you have kept the power to choose the beneficiary which most people do), many people who during their lifetimes would not be considered super wealthy were being subjected to estate tax.

In 2001, there was a push by the Bush Administration to eliminate the estate tax. A compromise in Congress was reached in which the exemption amounts would rise significantly until 2010 when there would be no estate tax at all. Then, to keep the total cost of the tax cuts down, it was provided that on January 1, 2011, the whole thing would "sunset" and the exemptions and rates would go back to the 2001 levels. The expectation has been that Congress would do something to avoid a big tax increase with the return of the 2001 levels with a $1 million exemption ($2 million for a couple) with taxes on estates larger than that taxed at 55 percent or more.

This uncertainty has required me and other lawyers to become more creative in anticipating what might or might not happen with estate tax laws. There were also bizarre and morbid considerations that came up - at one conference I attended, the question came up about whether a lawyer had a professional obligation to advise terminally ill clients on life support of the tax advantages of discontinuing life support so they would die in 2010 rather than in 2011 when the tax would return to the old levels.

With 2010, a mid-term election year approaching, neither Democrats nor Republicans in Congress want a return to dramatically higher estate taxes. The House of Representatives this week passed, by a vote of 225-200, a compromise bill that would freeze the estate tax at its 2009 exemption of $3.5 million per person ($7 million for a couple) with the starting tax rate on larger estates at 45 percent. One problem that I have not seen this addressing is future inflation. Without indexing of the exemption (as occurs with income tax exemptions and rates), eventually, the estate tax will once again impact people in the middle class unless dramatic new legislation is passed. The current bill now moves to the Senate.

Military servicemembers who disclose LGBT status on social networking sites risk discharge

2009-11-25T14:00:00.000-05:00

Another reminder that what you post online can potentially be read by anyone comes in this alert from the Servicemembers Legal Defense Network. Military personnel who post on social networking sites such as Facebook need to be careful about revealing information that could disclose their being gay, lesbian, bisexual or transgender because if that information is read or passed on to military authorities, it could lead to discharge under the Don't Ask Don't Tell law which is still in effect.

The guidelines from the Servicemembers Legal Defense Network include:

• DO NOT use a military email address for your profile;
• DO NOT access LGBT sites through a military computer at any time, or even through a personal computer during duty hours;
• DO NOT mention the fact that you are in the military in your personal profile, in chat rooms or other online forums;
• DO NOT provide photographs - especially not in uniform - or descriptions of tattoos or other identifying information;
• DO NOT tell friends in the military that you have a profile with a LGBT site;
• DO NOT submit your profile to be a "featured member;"
• DO NOT use any video-chat features.

A good idea, and one which is championed by the SLDN, is to abolish the Don't Ask Don't Tell law so that LGBT servicemembers can serve openly without fear of discharge. Not only is the policy unjust but it also deprives the military and the nation of the service of many dedicated and patriotic service members. Let all those who wish to serve their country do so and let's judge them by the quality of their performance and conduct on the job only. Are you listening, President Obama?

Did Texas accidentally ban marriage for everyone?

2009-11-20T12:06:00.000-05:00

While perusing my Facebook newsfeed, I found an item about the Texas same-sex marriage ban posted by Pennsylvania State Senator Daylin Leach. With a few searches, I found an article - Texas' gay marriage ban may have banned all marriages from the Fort Worth Star-Telegram. Back in 2005, an amendment to the Texas state constitution was passed which, as many states have done, provides this definition of marriage: "Marriage in this state shall consist only of the union of one man and one woman." That part seems straightforward. Texas then took another step as this constitutional amendment contains a provision which says, "This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage."

The apparent intent of this additional language was to prohibit alternatives for same-sex couples such as civil unions or domestic partnerships. However, some attorneys are already arguing that whatever the intent, the plain language of this provision means something else - a complete ban on all marriages. While it may seem obvious that that was not the intention of the provision, the first rule in interpreting legal provisions is to look at the plain meaning of the text.

Barbara Radnofsky, a Houston lawyer and Democratic candidate for Texas Attorney General blames the Republican incumbent Attorney General Greg Abbott for a major error in allowing this to happen. I am not aware of heterosexual couples being denied a marriage license yet as a result of this language but Radnofsky says that a new amendment may be necessary to fix this problem.

Meanwhile, an article in the Dallas Morning News reports that a Texas state District Judge has ruled that the above-mentioned ban on same-sex marriage violates the Equal Protection clause in the United States Constitution. In that case, two men from Texas traveled to Massachusetts and were married there in 2006. This year, one of the men in the couple filed a divorce action in a Texas court. The aforementioned Texas Attorney General Greg Abbott intervened in the case to argue that a Texas court cannot grant a divorce because Texas does not recognize same-sex marriage under its 2005 constitutional amendment. Judge Tena Callahan disagreed with Abbott and struck down the amendment. Appeals will go on for some time.

One of Abbott's criticisms of Judge Callahan's ruling was that she made that ruling despite the fact that the 2005 amendment passed with 75 percent of the vote. Abbott seems to be forgetting that constitutional protections of individual rights and the independence of the judiciary are a check on the rule of the majority in our constitutional system. Many arguments may be made for and against the validity of the Texas provision but the percentage of the vote it received is not a particularly good one.

For the sake of the children, keep child custody out of courtrooms whenever possible

2009-11-18T16:25:00.000-05:00

While in my car the other day, there was a discussion on the radio about Custody Lost Due to shifts in traditional roles, working mothers now face even tougher challenges-including unparalleled custody wars, an article in Working Mother magazine. Much of the article was a discussion about the parallel trends of more women working and being primary family breadwinners than in the past and more men being stay-at-home fathers and the impact in child custody court battles in terms of men more frequently being awarded primary physical custody of children than in the past. There is debate about whether working women are being penalized for working or whether this is a reflection of equal treatment in the courts with judges, whose priority is to look to the best interest of the child awarding more custodial time to the parent who is able to spend more time with the children.

However, what I really want to focus on here is a point that is made in the last page of the article and which I try focus on strongly in family law practice. Children should not be prizes to go to whichever parent can prevail in a court fight. It is often the case that a couple can no longer stay together but whether or not they do, they remain parents of their children. If the parents are unable to stay together in one household, they must do everything possible to create a cooperative, at least civil if not friendly, relationship for the benefit of the children. Accusations and recriminations over who does more to parent the children or who spends too much time at work or who is providing more are destructive and pointless. One of the basic facts of life in divorce is that when one household is divided into two, the living standards for both parents most likely will decline and it becomes more likely both parents must work. It is also necessary that the children be given the love and attention they need. The parents should, whenever possible, look to each other as their number one help resource for taking care of the children and should be willing to communicate freely and openly.

This is not always easy but my experience from almost 20 years in law practice has shown that when parents separate and divorce, all - parents and children - do better when the parents can resolve their custodial issues without battling it out in court. They also save a lot of money on legal fees and other expenses. While I handle many disputed cases, I also work on custody agreements and even do mediation with both parents. Here are some tips on having a better outcome for child custody when parents divorce or separate:

1. Never, ever, ever use children as pawns against the other parent. Do not pump them for information about the other parent's life. Do not try to get them to choose you over the other parent or otherwise put them in the middle. If a child tells you something that is truly concerning, look into it but don't use children as weapons.

2. Child custody need not be a war to be won but should be an exercise in cooperative parenting. Sit down together and look at work schedules, schedules for kids and coordinate. One of the biggest peeves that I have is when a parent is scheduled to have physical custody of their child and has a work or other obligation and then, rather than seek assistance from the other parent who lives relatively nearby, immediately seeks out paid child care. It's ridiculous. If a parent cannot be there at a certain time, the first phone call should be to the other parent (assuming they live in reasonable proximity). Only if the other parent cannot or will not help should other child care be sought.

3. Talk, talk, talk. You are both the parents. You are both responsible for the upbringing of these kids. Share information. Discuss concerns. Do not jump to the conclusion that a child's problem is somehow the other parent's fault. Divorced or separated parents do not have to be friends but they must cooperate in their shared enterprise of raising the children they brought into the world.

4. Never speak negatively of the other parent in front of children. Each parent must have the other parent's back in front of the children. If you must get anger off your chest about your ex, save it for when you talk to a friend, another relative or a counselor.

5. Try to accept your ex as being a good parent even if he or she does not do everything the same way you would. My clients who accept that their ex is also a good parent and that their children benefit from the relationship with the other parent have less stress about child custody and parenting than those who see any time that the children spend with the other parent as being some sort of penalty or punishment.

I realize that there are some cases where a parent is truly unfit or even a danger to children and in those cases, strong legal action may be necessary. However, in most cases, both parents love their kids and want to do what is best for them. The children do better when the parents can set aside whatever anger or bitterness they may have from the breakup of the marriage or relationship and focus on working together to both be loving caring parents for their kids.

Readers should not solely rely on this note but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration.

10 year-old Arkansas boy sits during Pledge to stand up for equal rights for gays and lesbians

2009-11-13T14:36:00.000-05:00

A college classmate brought this news report from Arkansas to my attention about 10 year-old Will Phillips who is standing up for equal rights and equal treatment for gays and lesbians by remaining seated during the Pledge of Allegiance because, as Will is quoted in the article, "“I really don't feel that there's currently liberty and justice for all.” Use the link above to read the article to learn more about why Will is taking this stand.

Will did come under some pressure from a substitute teacher but his right to not say the pledge is protected by the United States Constitution according to the U.S. Supreme Court's landmark opinion in the 1943 case of West Virginia State Board of Education v. Barnette. Unfortunately, Will has been subjected to harassment at school for his stance. I really admire this young man for his strong, peaceful stand for his beliefs and being willing to dissent even when it may be uncomfortable to do so.

In Pa., bicycles and motorized recliner chairs are vehicles under DUI and other laws

2009-11-12T12:48:00.000-05:00

By now you have likely heard about the case of Dennis Anderson, the Minnesota man who motorized his La-Z-Boy chair by mounting it on a riding lawnmower and outfitted it with a stereo, cupholders and headlights and who, after imbibing some alcoholic beverages, was arrested and charged with Driving While Intoxicated.

If this case had occurred in Pennsylvania, Mr. Anderson's motorized chair would indeed be considered a "vehicle" for purposes of Pennsylvania's DUI law. In fact, a device need not have an engine or motor to be considered a vehicle so it is possible and indeed it happens that bicycle riders are arrested and charge with DUI when riding a bicycle after consuming alcohol. All that is required is the requisite amount of alcohol consumption and operation of a vehicle on a highway. (By the way, bicycle riders can and do get ticketed for speeding.)

I have been asked whether one could be arrested for DUI while operating one of those motorized assisted mobility scooters that are marketed to senior citizens. In fact, the definition of "vehicle" in Pennsylvania's Vehicle code specifically exempts, "a self-propelled wheel chair or an electrical mobility device operated by and designed for the exclusive use of a person with a mobility-related disability." So Grandma or Grandpa might be able to escape prosecution for DUI if they have had a few beers or shots before hopping on their scooter but it is not a safe thing to try.

A couple of important legal definitions under the Pennsylvania Vehicle Code:

“Vehicle.” Every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon rails or tracks. The term does not include a self-propelled wheel chair or an electrical mobility device operated by and designed for the exclusive use of a person with a mobility-related disability.

“Highway.” The entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel. The term includes a roadway open to the use of the public for vehicular travel on grounds of a college or university or public or private school or public or historical park.
(Note that "highway" does not just mean a roadway. Courts have found that this definition can also include a parking lot or parking garage if there is public access to the lot or garage.)

As for what happened to Mr. Anderson, according to a KTLA news report, he pled guilty to driving while intoxicated. Police confiscated the motorized La-Z-Boy because it was not street legal and put it up for auction on eBay. According to the KTLA report, there was a bid for $43,000.00 but then the La-Z-Boy manufacturer claimed there was trademark violation and eBay was forced to cancel the auction. A new auction of a "DWI chair" had a winning bid of over $10,000.00 which would go to the Proctor, Minnesota town coffers. Meanwhile, Mr. Anderson's family was auctioning autographed photos of Anderson on his motorized chair to raise money to pay fees incurred.

Readers should not consider this note to be legal advice but should consult with a competent attorney licensed in their state.

Diverse families in Philadelphia exempt from city real estate transfer tax

2009-11-10T15:34:00.001-05:00

In a follow up on my earlier posting on how same-sex couples and other diverse families can plan to leave property to each other, there is an important benefit available to families living in Philadelphia.

The City of Philadelphia imposes a tax of 3 percent of the purchase price of real estate when sold. The Commonwealth of Pennsylvania also imposes a real estate transfer tax - 1 percent of the sale price.

Transfers of real estate between spouses have long been exempt from real estate transfer taxes. The City of Philadelphia enacted an ordinance exempting registered same-sex life partners from paying the city's real estate transfer tax when transferring property from one to the other. That ordinance was struck down by Pennsylvania Supreme Court because it treated same-sex partners differently from other people such as unmarried heterosexual couples. In 2007, Philadelphia responded by enacting a new ordinance which now exempts persons who live in a household together who are "financially interdependent" upon each other. Read more about this ordinance and the court case that led to it in this article by Rebecca Schatschneider, Esq. in a Philadelphia Bar Association blog. Registered Life Partners are covered by this ordinance but such registration is not required to benefit from it.

It should be noted that this ordinance has no effect on the statewide real estate transfer tax.

Readers should not solely rely on this note for planning but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration.

Thoughts to consider when choosing an executor or trustee

2009-11-09T17:26:00.001-05:00

When you make a will or a trust, one of the choices you will have to make is who will be responsible for carrying out the directions in those documents - the executor for a will and the trustee for a trust. There is no one right answer in every case but here are some ideas to think about.

It is not essential to pick someone who has a professional background in accounting or finance. In my experience, most of the people who are chosen to be an executor of a will or the trustee of a trust are not professionals in finance or related fields. It is perfectly acceptable for an executor or trustee to retain the services of lawyers, accountants, financial planners and other professionals to assist in carrying out the terms of the will or trust. The fees for these services can be paid from the estate or trust. In some cases, it is appropriate to use an institutional executor or trustee but that is generally only appropriate in cases where there are large sums of money to be managed - $250,000.00 or $500,000.00 or more - because such institutions charge as their fee a percentage of the principal that they are managing. In the case of serving as executor of a will, it may be a one-time fee. In the case of a trust, it could be an annual fee as long as the trust exists.

Geographic proximity does not have to be the primary consideration. It is more important that the person chosen to serve as an executor or trustee be diligent, responsible and trustworthy. Much, if not most, of the transactions and tasks required can be accomplished by mail. Physical presence may be important when dealing with the contents of a house and selling a house which may require some visits if the executor lives at a distance. Of course the reasonable expenses incurred for such necessary travel can be reimbursed out of the estate.

Consider carefully before choosing co-executors or co-trustees. Sometimes parents, out of a desire to treat their children equally, will want to name all of their children as equal, co-executors. While this desire is understandable, in some cases, it can create a danger of conflict and deadlock. There are some cases where the co-executors cannot agree on how to handle the estate or trust and the administration becomes paralyzed to the point that intervention of a court is required. I generally recommend that there only be one executor or trustee at a time with an order of succession designated if the first executor or trustee dies, resigns or is otherwise unable to serve. If you are going to have co-executors or co-trustees working together, be very sure you are confident that they can work together cooperatively.

If there is a trust for children, should the trustee be the same person as the guardian? This scenario comes up in the event that both parents are deceased and an inheritance for children is being held in a trust until the children reach a designated age set by the parents in the will. The children will have a guardian who will be responsible for raising the children if the parents are deceased. There are two ways to look at the question of whether or not the trustee for the children should be the same person as the guardian. One view is that the guardian is the person who will generally be spending the money and there ought to be a check and balance with a different person as trustee. The other view is that the guardian will be most familiar with the needs of the children and having a different person as trustee could be cumbersome and inefficient and a source of conflict. Another reason to choose different people for these roles is that the parents may consider one person better at parenting and caregiving and thus a better choice for guardian while someone else may be better at financial management and thus a better choice for trustee. In some cases, the same parent may have good skills for both roles. I don't think there is only one right answer to this question. It really depends upon the individuals involved. The parents should consider this issue carefully when planning their estates.

Perhaps the most important thing to do is to have conversations with the people you are considering for these different roles so that they understand what are your values and you can explore whether they are willing and able to handle matters as you would like.

Readers should not solely rely on this note for planning but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration.

Despite Maine vote, Massachusetts case could have larger implications in gay marriage issue

2009-11-04T12:23:00.000-05:00

Yesterday, voters in Maine voted to repeal a law that would have legalized same-sex marriage in that state. This is a setback to those who believe in equal rights to marry but it is just one of many steps that that will occur as this issue develops across America. A court challenge that could have even wider implications but which is not getting as much publicity yet is the case of Commonwealth of Massachusetts v. United States. This case is the first challenge by a state government against the federal Defense of Marriage Act which was signed into law in 1996 by President Bill Clinton. You can read more about this specific case and DOMA in this linked article by Massachusetts attorney David Gabriel. DOMA does two things: One - it defines marriage under federal law as a union of one man and one woman and defines "spouse" as a husband or wife of the opposite sex. Two - DOMA provides that states are not required to recognize same-sex marriages authorized under the laws of other states. This case is the first time that a state is challenging the constitutionality of the federal DOMA statute. Essentially, the Commonwealth of Massachusetts is arguing that regulation of marriage is a power reserved to the states and that by denying recognition of certain marriages it authorizes, DOMA is infringing on the rights of a state, Massachusetts, to regulate marriage and to have its laws respected fully as the laws of other states are respected.

The legal issues in the case are complex but practical implications of it are clear. If Massachusetts succeeds in this challenge and DOMA is struck down, then a same-sex marriage that is performed in a state that permits them will most likely have to be recognized by other states under the Full Faith and Credit clause. If states are then required to recognize same-sex marriages, whether or not they can be entered into in those states, there will be much less reason for states to continue to prohibit same-sex marriage directly. One of the reasons that this case will be explosive politically is that it places social conservatives and states' rights advocates in opposition to each other and could make for some unusual political alliances.

This issue will play out in the courts and in the political arena for years to come but in the meantime, people have to get on with their lives so what can same-sex couples do to protect their rights as partners and parents in a family unit? The options vary state by state and in my next post, I will describe some of the options available in Pennsylvania where I have my law practice.

Are partisan elections the best way to choose judges in Pennsylvania?

2009-11-03T13:32:00.001-05:00

Today is what some might call an off-off-year election. Here in Pennsylvania we are electing local offices and judges. If anyone asks me, choosing judges by popular vote is not a good idea. A judge, unlike a legislator or a governor or a president, is not supposed to respond to or be accountable to the popular will. A judge's job is to uphold, enforce and interpret the law. The rules of ethics which apply to judges make it rather difficult to have any substantive debate among opposing candidates. When I read about judicial candidate positions or see a debate, the subject matter seems to be about administrative skills or rules of procedure and I get the strong sense that most voters have little opportunity to know much about these candidates.

In my view, the state constitution should be amended to provide that all judges, at every level in the state court system, be appointed by the Governor and confirmed by the Senate - similar to the federal process. Potential judges would still be rated by bar associations and other bodies before confirmation is considered. To keep some popular will involved, the appointments could be for the same 10 year term that judges get now when elected. At the end of the 10 year term, a judge would face a retention election - a yes or no vote on whether that judge should be retained for another 10 year term.

Pennsylvania currently has retention elections and they generally are non-partisan in nature. It is rare that a serious attempt is made to unseat a judge in a retention election and it should only be in unusual cases that a judge is denied retention. If the no vote prevails, then that judgeship would be vacant and a new judge would be nominated by the Governor and confirmed by the Senate.

Just my opinion.

The clocks fall back today

2009-11-01T07:46:00.001-05:00

Today the clocks "fall back" to standard time. Under the Energy Policy Act of 2005, starting in 2007, the dates for changing clocks became: Daylight Savings Time begins (spring ahead) on the second Sunday in March at 2 am. Daylight Savings Time ends (fall back) on the first Sunday in November. There are parts of the country like Arizona, Hawaii and parts of Indiana that never have daylight savings time - I will not even go into that for now.

When we are on daylight savings time to have that extra daylight in the evening but its tough for kids who have to get to a school bus before 7 am to have to go in the dark. Today I was looking forward to an extra hour of sleep. Unfortunately, though the clock was set back, my dog could not read it and started making noise about wanting her morning walk at what she thought was the regular time.

Book to check out - "So Sue Me, Jackass"

2009-10-30T14:30:00.000-04:00

I have to give a shout-out to my friend and fellow attorney, Amy Feldman and her comedy writer sister Robin Epstein, for their recently pulished book, So Sue Me Jackass: Avoiding Legal Pitfalls that Can Back to Bite You at Home, at Work and at Play. The book is a useful guide to understanding many legal situations that happen to regular people written in very straightforward, engaging and humorous style. There are also a number of amusing stories used to explain various points. I particularly enjoyed Robin's story about interviewing for a certain type of job at an establishment in Nevada to get background information for a script she was writing. You will have to read the book to find out what was the job for which Robin applied.

As Amy makes very clear in the book, it is not a substitute for the services of a qualified attorney but it can help one to better understand certain situations and when one might need to engage an attorney.

Welcome! Why "Legal Cholent?"

2009-10-30T13:04:00.002-04:00

Welcome to my new blog called Legal Cholent. Some of you may be wondering, what in the world is cholent? Some of you may know what cholent is and be wondering what in the world does cholent have to do with law.

Well to start with, cholent is an ancient Jewish dish that is very much linked to law. The Yiddish word "cholent" actually comes from two French words - "chaud" meaning hot and "lent" meaning slow - a dish cooked hot and slow. Cholent is a slow-cooked stew and there are hundreds, if not thousands, of recipes for it. Cholent, and its Middle Eastern counterparts Hamin and Dafeena, are a traditional dish for lunch on Saturdays - the Jewish Sabbath. If you like slow-cooked chili or dishes made in slow-cookers or crock pots, you can thank the Jews for inventing this type of cooking.

Cholent actually is older than its name and this is where the connection to law comes in. For over 2000 years, the Rabbis have been the interpreters and judges of Jewish law. Jewish law is more than just the Torah - it also includes the enormous compilations of rules, intepretations and teachings known as the Babylonian Talmud and the Jerusalem Talmud and numerous later law codes which further compiled, interpreted and extended. A major topic in Jewish law is the set of rules of what is and is not permitted to be done on the Sabbath. One thing that cannot be done on the Sabbath is to cook. Now if one took a very strict constructionist view of what is written in the Torah, one might think that come Saturday afternoon, all you could do is eat cold food. However, the majority of the Rabbis held that this was not correct. The Sabbath is supposed to be a joyful day and part of that joy is enjoying hot meals. So how can one have a hot lunch on Saturday but not violate the rule against cooking on the Sabbath. The solution was the dish that later became known in Central and Eastern Europe as cholent. The key to it is that the food is set up and put on heat BEFORE the Sabbath begins and then it slowly heats up until the next day. Because all the preparation is done before the Sabbath and then it is just left on its own, the prevailing view among the Rabbis was that this was permitted and thus Jewish families from ancient times to today have been able to enjoy a savory hot meal for Sabbath lunch.

So you see that cholent is very much related to law. There is another reason of why I relate law to cholent. My philosophy in practicing law is to work with clients to plan solutions and avoid as many problems as possible later. This is a process that requires many ingredients including my discussions with my clients, my clients thinking and discussing with their spouse or family what are their goals, making use of available laws to help achieve those goals and, when necessary bringing in the expertise of professionals in other fields. Good family legal planning is not just a matter of downloading a form and filling in some blanks once and being done. Ideally, the relationship with the attorney lasts for years and plans are adjusted and improved in a long, ongoing process. This long-term, multi-ingredient process has some resemblance to what goes into making a good cholent. You pick a variety of good ingredients and set them to cook slowly. You do not necessarily get the instant reward you get as when you stick something in the microwave but instead, with some patience, you get something much more delicious and satisfying.

So, that's why Legal Cholent. In this space, I will share with you developments or ideas in law, my thoughts on what ought to be changed and maybe some other interesting thoughts I have too.