The Supreme Court DOMA Ruling: What happened and what are the future implications?

 

On June 26, 2013, the Supreme Court in a 5-4 decision held that Section 7 of the Defense of Marriage Act (DOMA), which limited the definition of marriage to heterosexual couples, violated the Fifth Amendment.

Edith Windsor and Thea Spyer were a legally married same-sex couple. When Spyer died in 2009, the federal government did not allow the estate tax exemption for bequests to widows because of DOMA. Spyer’s estate was forced to pay the tax.

In United States v. Windsor, Windsor challenged Sec. 7 of DOMA on the grounds that the law violated the Fifth Amendment’s Equal Protection Clause. The Supreme Court agreed, stating that the principle purpose of Sec. 7 of DOMA was to demean those in homosexual marriages and to deprive homosexual couples of the rights and privileges that were available to heterosexual couples under the federal laws. The government returned the federal estate taxes that had been paid from Spyer’s estate.   

DOMA has not been invalidated in its entirety. The Supreme Court’s decision is limited only to Sec. 7 of DOMA. While the Windsor ruling does not legalize same-sex marriage nationwide, the ruling has allowed for same-sex couples to enjoy certain rights and benefits under federal law which were previously unavailable to them, such as filing a joint federal income tax return. 

Sec. 3 of DOMA, which is still in effect, gives states discretion in choosing whether to recognize any legally formed same-sex relationship.  Same-sex married couples would be wise to seek legal advice on protecting their rights to the extent possible before traveling or moving to a state which will not recognize their legal relationship.

 

 

Connecticut Prison Officials Can Now Take DNA By Force

The Connecticut DNA Database Unit, which currently receives 12,000 DNA samples from convicted offenders each year, will undoubtedly expand in light of the Connecticut Appellate Court’s recent ruling in State of Connecticut v. Roosevelt Drakes. Recently, Connecticut’s second-highest court affirmed rulings in two superior court cases and held that state prison officials can use reasonable force to take DNA samples from convicted felons who refuse to provide them because the ability to use physical force is inherent in the statutory language and barring state officials from using reasonable physical force would allow a felon to evade his or her obligation to provide a DNA sample and thereby hinder the creation of a comprehensive DNA database to assist in future criminal investigations.  

Connecticut law requires that all convicted felons provide DNA samples, but the challenged statute did not explicitly permit officials to use force in obtaining those samples.  Also, under the statute, convicted felons who did not comply with requests for DNA specimens could be charged with an additional class D felony.  Two inmates, Mark Banks, who is serving up to 34 years in prison on kidnapping, robbery, and other convictions, and Roosevelt Drakes, who is serving a 30-year sentence for murder, declined to provide DNA samples and consequently received additional charges and penalties.  Banks and Drakes appealed their convictions under the statute, which has since been amended by Public Act No. 11-144, on the ground that there was no specific and express language in the statute authorizing officials to use force to obtain DNA samples. 

Currently, all 50 states allow state officials to take DNA samples from convicted felons, and the United States Supreme Court recently issued a significant ruling regarding officials’ ability to obtain DNA evidence during the pre-conviction phase of criminal proceedings.  In June, 2013, the United States Supreme Court held that when officers make an arrest supported by probable cause, hold a suspect for a serious offense, and transport him or her to a station to be held in custody, taking and analyzing a cheek swab of the arrestee’s DNA is a legitimate police booking procedure that is reasonable under the Fourth Amendment (Maryland v. King).   

The recent decisions at the state and federal levels received widespread media coverage, which is a testament to the increasingly important role of DNA evidence in criminal proceedings.  As of June 20, 2013, officials had not yet taken DNA samples from Banks and Drakes because the trial court decisions against them had been stayed pending the outcome of their appeals, and it is uncertain whether Banks and Drakes will now appeal their decisions to the Connecticut Supreme Court. 

Should Families of the Wrongfully Convicted be Compensated Too?

Steven Phillips had been recently married and was in the midst of starting a new business when he was convicted of sex crimes in 1982. His wife, along with his young son, spent the next ten years visiting Phillips in prison, sending him money, and above all else, trying to get him out. The strain of being behind bars combined with the thought of never getting out prompted Mr. Phillips to seek a divorce after ten years of marriage.

After spending 24 years behind bars, DNA evidence exonerated Phillips, prompting the state of Texas to award him a compensation package of $6 million for his wrongful conviction pursuant to Tex. Civ. Prac. & Rem. Code Sec. 103.001,et seq., Compensation To Persons Wrongfully Imprisoned. This has generated a legal battle unlike any other in the nation and raises the following issue: should families of the wrongfully convicted be compensated too?

Phillips’s ex-wife believes she is entitled to a portion of his award and has taken legal action. A Texas court agreed with her, and ordered that she be given approximately $153,000 of the award. He is currently appealing this decision. Read more here.  

In Connecticut, Connecticut General Statutes 54-102uu - Compensation for wrongful incarceration, gives compensation to a person who has been wrongfully convicted, but makes no reference to their family. The outcome of the Phillips case will likely be instructive for similar situations going forward, and may even spark a trend in providing for family members of the wrongfully convicted.    

Connecticut Sales Tax Liability

In Connecticut, someone buying the assets of another company may become liable for any delinquent sales tax owed by the selling company.  Under Connecticut’s Successor Liability Statute, if you are buying all or substantially all of a business or stock of goods in a business, you will also inherit all of the company’s sales tax liability.  However, a buyer may avoid this liability by holding some of the purchase price in escrow until the seller produces a sales tax clearance letter.

Find out more about Connecticut’s Successor Liability Statute and the sales tax clearance letter on our website.

Is a Prenup Agreement right for you?

If you’ve thought about marriage, chances are this question has crossed your mind. Thanks to popular culture, prenuptial agreements are most commonly associated with heated divorce battles and arguments over money. However, these basic legal agreements are often used in even the happiest of marriages and are a very important factor to consider if nuptials are on the horizon.

A prenuptial agreement is a contract between two individuals contemplating marriage that allows those individuals to decide how their property and income will be divided upon divorce, legal separation, annulment or death.   Because a prenuptial agreement is a binding contract that can grant or deny rights to the parties involved, it is important to think carefully before entering into one.  Some of the factors to consider before drafting or entering into a prenuptial agreement include the assets you and your future spouse own and how you both would want those assets divided should the marriage end. It is important to discuss these with your betrothed before meeting with an attorney so that you can take your time and come to an agreement that is best for both you and your fiancé. Do this ahead of time so you will be able to enjoy your special day (relatively) worry-free!

The family attorneys at Brown Paindiris & Scott, LLP can assist you in deciding what to include in your prenup agreement.

Do you know what to do when approached or detained by the police?

Do you know what to do when approached or detained by the police?  As described by Attorney Richard Brown, the most important things you need to know are that you cannot be forced to say anything and that you have the right to consult with an attorney, and thereby terminate all questioning.  Do not fall into the traps for the unwary . . . casual conversation can quickly turn to more serious discussions . . . you do not need to have written a statement down and signed it for it to be used against you . . . 

Falling Tree Limbs

Falling tree limbs can be a danger, not just to damaging property, but also causing injuries and in some cases death, to people.  In fact, the cases and laws regarding falling tree limb damage have been around for quite some time, with one case going back to 1867.  The laws can also vary depending on the state.

 

The link below provides detailed information on the laws surrounding falling tree limbs:

 

http://www.bpslawyers.com/Articles/Falling-Tree-Limbs.shtml

Mashantucket Tribe Does Away with Tribal Bar Exam

The Mashantucket Pequot Tribal Court in Connecticut has stopped issuing its tribal bar exam. The Court, which resides over criminal and civil claims involving tribal members and claims against Foxwoods Casino by non tribal members, will no longer require attorneys to pass a special written exam before being permitted to practice in the court.

Edward Gasser, president of the tribal court bar association, explained to the New London Day that the test had become quite burdensome over the years and lawyers were becoming less likely to devote the necessary time to preparation. As a result, fewer and fewer lawyers were passing the exam; in recent years, only about 50 percent of those taking the test passed. Perhaps because of this difficult entry requirement, only about 150 to 200 attorneys are presently qualified to practice in the Mashantucket court systems. With the removal of the written exam, attorneys who are already admitted to practice in a state and federal court and wish to apply for admission to the tribal bar must pay a fee.  This change is expected to increase the number of attorneys qualified to practice in the Tribal Courts. Currently, the Mohegan Tribe still has a written bar exam attorneys must pass in order to be admitted to practice in the Mohegan Tribal Courts.

“Pay-For-Experience” Ad Criticized by Connecticut Legal Community

Would (or should) newly admitted attorneys and law school graduates pay an experienced attorney for experience? This is the question Stratford trial lawyer, Kenneth Beck, recently attempted to answer by placing a “Help Wanted”ad on Craigslist. Beck told the Connecticut Law Tribune that he “wasn't looking to charge five people $300 an hour to go to court with me…I was just looking to basically not lose money that's involved in explaining things. It would be learning by doing. I thought it was a creative way to fill a gap. I thought I was offering a service.” 

The “service” however, is already offered for free as a mentorship program through the bar association. His idea has raised controversy over whether it is wrong for a law firm to charge law school graduates for on-the-job training. Lou Pepe, co-chair of the Connecticut Bar Association's Professionalism and CLE section, told the Law Tribune that he thinks it “quite unfortunate that anyone would try to exploit the plight of recent law school grads in such a manner. I hope it's not a portent of things to come in our profession.” Students, lawyers, professors, bloggers and the like have reacted negatively to the ad, questioning the motivation behind such a posting. Beck ultimately pulled the ad after receiving nasty emails and responses from people who believed the pay-for-experience ad was wrong.

BPS Nominated in BEST OF HARTFORD 2013

For the second year in a row Brown, Paindiris & Scott is in the running for the best Hartford area law firm. Every January the HartfordAdvocate conducts a “best of” poll where readers vote on the best bars, restaurants, salons, and of course, law firms, along with plenty of other categories. To vote for your favorite businesses, including Brown, Paindiris & Scott, visit the online ballot today!

Investigative Reporting? The Strange Tale of Manti Te'o

In one of the strangest hoaxes to hit national media coverage, Heisman candidate and Notre Dame football player, Manti Te’o was apparently duped by someone he developed a relationship with online.   According to reports, Te’o never actually met his online girlfriend, who supposedly died of cancer shortly after his grandmother passed away.  Although reporters wrote stories about the hardships with which Te’o was dealing with while in the running for the Heisman, it appears that none of the reporters made significant efforts to verify the identity or story of his girlfriend.  Te’o now says that he was the victim of a cruel hoax, and that his girlfriend, who he had never met in person, actually never existed.    However, Te’o wasn’t the only one who was duped, the media was too.

 

Officer: Do You Like Birds?

John and Judy were driving peacefully along in upstate New York when John noticed a police officer who was operating a handheld radar device on the side of the road.  John decided to show his displeasure with the officer by extending his right arm out the window and waiving to the officer . . . with only one finger.   John and Judy were not violating any traffic laws, but upon arriving at their destination they were immediately approached by police officers.  After checking Judy’s license and registration, and having a short exchange with John, John was placed under arrest for disorderly conduct.  The criminal case was eventually dismissed on speedy trial grounds.

John brought a civil action for money damages alleging that his Constitutional rights were violated by an unlawful seizure of his person.  At the trial level, summary judgment was granted to the defendants and the case dismissed.  However, in a recent decision reversing the summary judgment of the trial court the Second Circuit held that “[t]his ancient gesture of insult [i.e. giving the middle finger] is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity.”  Moreover, “such a gesture alone cannot establish probable cause to believe a disorderly conduct violation has occurred [under the New York disorderly conduct law].” 

However, while John and Judy should not have been pulled over in New York, it is impossible to know if the result would have been the same here in Connecticut.  Under Connecticut law, a Breach of Peace in the Second Degree is defined as, “with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person . . . in a public place, uses abusive or obscene language or makes an obscene gesture; . . . "[P]ublic place" means any area that is used or held out for use by the public whether owned or operated by public or private interests” while a Connecticut case dealing with an “obscene gesture” indicated that “flipping [] the bird” qualifies as one.  Thus, while New York’s disorderly conduct law may not include gesturing, the status of Connecticut’s law on the subject is arguable.  Nonetheless, it is always advisable that while you’re in Connecticut, you should show your displeasure with speed traps by simply going the speed limit!

FISCAL CLIFF DEAL PROVIDES SOME RELIEF TO UNDERWATER HOMEOWNERS

Though the confusing and complicated nature of the “fiscal cliff” is too much for most Americans to digest, see this Pew Research Study, an important outcome of the settlement reached by Washington politicians means that homeowners who go through a short sale or foreclosure will NOT have to pay taxes on the mortgage debt forgiveness they receive. Normally, the tax code provides that forgiven debt be treated and taxed as regular income. Homeowners going through a short sale or foreclosure often find themselves with hundreds of thousands of dollars of “forgiven debt” and the tax implications would force many into even deeper financial ruin. As a result of the January 1 “fiscal cliff” deal, the Mortgage Forgiveness Debt Relief Act was extended for one year through the end of 2013 giving a reprieve to many worried homeowners.

Washington and Colorado Voters Legalize Marijuana

President Obama was not the only big winner after November’s election—marijuana took center stage following its legalization in two states.  Voters in Washington and Colorado legalized marijuana for general use, becoming the first states in the U.S. to do so. These measures are in direct conflict with federal law, which continues to outlaw marijuana as a dangerous drug under the Controlled Substances Act.  The Obama administration has signaled that federal law enforcement officials will continue to pursue trafficking and other offenses throughout the U.S.

The Colorado measure, which passed with 55% of the vote, will let residents 21 years and older grow and possess up to one ounce of marijuana.  The state will also allow marijuana sales at special stores starting in 2014.  Washington's marijuana law calls for legislators to design from scratch a homegrown industry for cultivation, processing and retailing sales of marijuana within state boundaries to people 21 or older.  The state liquor-control board will oversee licensing and inspection.

 

Connecticut, by comparison, recently became the 17^th state to legalize marijuana for medical or “palliative” use by patients with debilitating medical conditions.  The bulk of the law went into effect on October 1, 2012.  The Department of Consumer Protection will regulate the state-licensed distribution of marijuana, which includes; licensing of producers and dispensaries, registration of patients, and determination of qualifying medical conditions.  Marijuana is also “decriminalized” in Connecticut, meaning that if caught with a half-ounce or less of marijuana, you will receive a ticket, and your marijuana will be confiscated.  The first offense is a ticket for $150, with the amount of the fine increasing for each subsequent offense.