Author: TLR BLOG

Packingham v. North Carolina: Reducing Recidivism One Social Media Post at a Time

TLR BLOG

 

By Jenna Jonassen, J.D. Class of 2018 Touro Law Review Associate Editor

Lester Gerard Packingham was convicted under North Carolina state law for something that most people do every single day—posting to his Facebook account. On April 27, 2010, Packingham posted on his Facebook page proclaiming his excitement over the dismissal of a recent traffic violation.[1] He posted: “God is good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court costs, no nothing spent . . . Praise be to GOD, WOW! Thanks JESUS!”[2] While this seemingly innocent post does not appear out of the ordinary for most, the fact that Packingham was a registered sex offender in North Carolina at the time that the post was made subjected him to criminal liability.[3]

In 2002, Packingham was convicted of two counts of statutory rape of a thirteen-year-old child in Cabarrus County, North Carolina.[4] In exchange for a guilty plea, the state lowered Packingham’s charges to “taking indecent liberties with a child” and he was required to register as a sex offender with the state.[5] In accordance with the state’s previously enacted Sex Offender Registration Program and recognizing the potential risk for recidivism of certain classes of sex offenders after they are released from incarceration,[6] the North Carolina legislature enacted § 14-202.5 of the North Carolina General Statutes[7] in 2008, which banned registered sex offenders from utilizing social networking websites in which minor members are able to enroll.[8] When a member of the North Carolina Police Department found Packingham’s Facebook page, listed under an alias but confirmed to be Packingham by his profile picture, and discovered his recent post, the officer obtained a search warrant for Packingham’s residence.[9] The search resulted in the officer’s seizure of evidence that implicated Packingham as the Facebook account holder, as well as, ironically, a signed copy of changes to the North Carolina sex offender laws that were sent to Packingham by the state.[10] Given Packingham’s sex offender status and his use of Facebook.com, the state brought charges against Packingham in September 2010 for violation of § 14-202.5.[11]

In order for a violation to occur under § 14-202.5, classified as a Class I felony,[12] the state is required to prove that the registered offender knew that the site allowed minor users to register,[13] that the offense was committed within the state,[14] and that the site used meets all of the following criteria:

1. Is operated by a person who derives revenue from membership fees, advertising, or other sources related to the operation of the Website.

2. Facilitates the social introduction between two or more persons for the purposes of friendship, meeting other persons, or information exchanges.

3. Allows users to create Web pages or personal profiles that contain information such as the name or nickname of the user, photographs placed on the personal Web page by the user, other personal information about the user, and links to other personal Web pages on the commercial social networking Web site of friends or associates of the user that may be accessed by other users or visitors to the Website.

4. Provides users or visitors to the commercial social networking Web site mechanisms to communicate with other users, such as a message board, chat room, electronic mail, or instant messenger.[15]

Sites devoted specifically to commercial transactions, or those with limited capabilities, such as photo-sharing, electronic mail, or instant messenger, for example, are specifically excluded from the statute’s reach.[16]

At a pre-trial hearing, Packingham moved to dismiss the charges against him on the grounds that § 14-202.5 violated his constitutional rights to free speech and association[17] as guaranteed under both the First Amendment to the United States Constitution[18] and Article I, § 14 of the North Carolina State Constitution.[19] The North Carolina Superior Court of Dunham County denied Packingham’s motion to dismiss and found that the statute was constitutional as applied to Packingham; however, due to jurisdictional issues, the court failed to determine whether the statute was constitutional on its face.[20] As a result, Packingham’s case went to trial and he was found guilty of accessing commercial social networking sites in violation of § 14-202.5 and sentenced to six to eight months imprisonment with twelve months of supervised probation.[21]

On appeal to the Court of Appeals of North Carolina, Packingham alleged that § 14-202.5 was unconstitutional due to its overbreadth, vagueness, and failure to be narrowly tailored to a legitimate government interest.[22] In finding that the statute was content-neutral,[23] the North Carolina Court of Appeals determined that the statute must withstand intermediate scrutiny, which requires it to be “narrowly tailored to achieve a significant governmental interest” while still “leav[ing] open ample alternative channels for communication of the information.”[24] The court found that § 14-202.5 was not narrowly tailored because it treated all sex offenders equally, despite potential differences in offenses and the likelihood of recidivism—subclasses which the North Carolina legislature specifically intended to differentiate between when they enacted § 14-202.5.[25] Specifically, the court held that “the statute is not narrowly tailored because it fails to target those offenders who ‘pose a factually based risk to children through the use or threatened use of the banned sites or services’” and “burdens more people than necessary to achieve its purported goal.”[26]

Further, the court held that the statute was unconstitutionally vague because it “lacks clarity” and “certainly fails to give people of ordinary intelligence fair notice of what is prohibited.”[27] While offenders would understand that sites resembling Facebook and Myspace would be prohibited under this law, they might not be aware that the language of § 14-205.5 also prohibits visitation of sites like Google and Amazon.[28] Though seemingly innocent, these sites also generate revenue from advertising, allow for social interaction between people, and allow minors to create user profiles, qualifying them as prohibited under the statute even though these sites might not even necessarily be frequented by minors.[29] Having further issue with the language of § 14-202.5, the court indicated that the statute’s general prohibition on “access” to commercial networking sites would actually make it unlawful for sex offenders in North Carolina to even happen upon a prohibited site or log-in to social networking accounts that may have been established prior to being registered as a sex offender.[30]

However, upon the State’s request for review, the court reversed the judgment of the North Carolina Court of Appeals.[31] Relying on the United States Supreme Court’s decision in United States v. O’Brien,[32] the court applied a four-factor test to determine whether Section 14-202.5 was “sufficiently justified” under intermediate scrutiny.[33] Applying this test, the court found that the statute’s enactment was within the power of the North Carolina legislature and satisfied a significant governmental interest in keeping recidivism rates for registered sex offenders low.[34] While the court determined that Section 14-202.5 could have been drawn more narrowly, the court ultimately held that the statute was sufficiently narrow to further the governmental interest without more than incidental constitutional implications.[35]   For example, although many sites would fall within the ambit of those prohibited by the statute, the court determined that there were also enough sites that would not be prohibited by Section 14-202.5 that served virtually similar purposes.[36] Therefore, the court held that the statute is not unreasonable and is thus constitutional both facially and as applied.[37] The court stated that the government’s interest was entirely too important to “invalidate [this] statute on its face.”[38]

The Supreme Court of the United States granted certiorari of Packingham’s appeal on October 28, 2016, to consider whether the North Carolina statute under which Packingham was convicted is unconstitutional both facially and as applied.[39] Though the Supreme Court has yet to render a decision, oral arguments were made by both parties on February 27, 2017.[40] Analysis of these arguments revealed that the Justices had a difficult time accepting the implications that the North Carolina statute had on First Amendment freedoms.[41] Specifically, Justice Kagan noted that the implications of Section 14-202.5 would prohibit registered sex offenders from being able to access political information from Twitter, which was deemed to be a “crucially important channel of political communication.”[42] Justice Kagan further noted that sites like Facebook and Twitter have “become incredibly important parts” of social, religious, and political culture as they have been “embedded in our culture as ways to communicate and ways to exercise constitutional rights.”[43] Justice Ginsburg agreed that social networking sites make up a “very large part of the marketplace in ideas”[44] and Justice Alito even expressed similar concerns, indicating that “there are people who think life is not possible without Twitter and Facebook.”[45] However, the Supreme Court Justices were not shy in pointing out that they previously allowed the states to impose other restrictions on the fundamental rights of convicted criminals, and that restricting First Amendment rights for registered sex offenders would not be dissimilar.[46]

Though a decision by the United States Supreme Court is forthcoming, the Justices’ responses to the petitioner and the respondent’s oral arguments make it clear that technological innovations have become so ingrained in our culture that constitutional restrictions on our use of it would speak to the very essence of who we are. Though the Supreme Court has previously allowed the states to restrict the constitutional rights of convicted criminals, North Carolina law provides that sex offenders must remain registered with the state for even non-violent sexual offenses for 30 years from the initial date of registration.[47] This means that sex offenders would be subject to these significant social restrictions for the majority of their lives.[48] While the concern for recidivism for sexually-based offenses toward minors is, of course, a significant governmental and public concern, the question remains whether the government is at liberty to almost permanently restrict individuals from these publicly-accessible channels of information on which our generation relies without substantial constitutional implications.

[1] State v. Packingham, 777 S.E.2d 738, 749 (2015).

[2] Id.

[3] Id. at 742.

[4] Id.

[5] Brief for Respondent at 8, Packingham v. North Carolina, 137 S. Ct. 368 (2016) (No. 15-1194), http://www.scotusblog.com/wp-content/uploads/2016/07/15-1194-BIO.pdf.

[6] N.C. Gen. Stat. § 14-208.5 (referring generally to Chapter 14, Article 27a of the North Carolina General Statutes titled Sex Offender and Public Protection Registration Programs).

[7] N.C. Gen. Stat. § 14-202.5.

[8] Packingham, 777 S.E.2d at 742.

[9] Id.

[10] Brief for Respondent, supra note 5, at 9.

[11] Packingham, 777 S.E.2d at 742.

[12] N.C. Gen. Stat. § 14-202.5(e).

[13] N.C. Gen. Stat. § 14-202.5(a).

[14] N.C. Gen. Stat. § 14-202.5(d).

[15] N.C. Gen. Stat. § 14-202.5(b).

[16] N.C. Gen. Stat. § 14-202.5(c).

[17] State v. Packingham, 777 S.E.2d 738, 742 (2015).

[18] U.S. Const. amend. I.

[19] N.C. Const. art I, § 14.

[20] Packingham, 777 S.E.2d at 742.

[21] Id.

[22] State v. Packingham, 748 S.E.2d 146, 149 (N.C. App. 2013).

[23] The court determined that this statute was content-neutral because it restricted an individual’s access to certain social networking sites without commenting on the type of speech found on those sites. Id. at 150 (referring to State v. Petersilie, 334 N.C. 169, 183 (1993)). As a general rule, the court indicated that content-neutral regulations must be evaluated under intermediate scrutiny, while other types of regulations on free speech that are more content-specific are subject to a more exacting standard. Id.

[24] Id. at 150.

[25] Id. at 152.

[26] Packingham, 748 S.E.2d 146 at 152.

[27] Id. at 153.

[28] Id.

[29] Id.

[30] Id. at 153-54.

[31] State v. Packingham, 777 S.E.2d 738, 741 (2015).

[32] United States v. O’Brien, 391 U.S. 367 (1968).

[33] Packingham, 777 S.E.2d 738 at 746. The court identified the relevant factors of this test to be 1) whether the statute was in the constitutional power of the Government; 2) whether the statute furthered a substantial governmental interest; 3) whether that government interest was related to the suppression of free expression; and 4) whether the statute is narrowly tailored to further that governmental interest without implication on First Amendment guarantees being greater than required in order to further that interest. Id.

[34] Id.

[35] Id. at 744.

[36] Id. at 747.

[37] Id. at 748, 750.

[38] State v. Packingham, 777 S.E.2d 738, 751 (2015) (internal citations omitted).

[39] Supreme Court of the United States, SCOTUS blog, http://www.scotusblog.com/case-files/cases/packingham-v-north-carolina/ (last visited Mar. 22, 2017).

[40] Id.

[41] See Transcript of Oral Argument, Packingham v. North Carolina, 137 S. Ct. 368 (2016) (No. 15-1194), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2016/15-1194_0861.pdf.

[42] Id. at 28.

[43] Id. at 32.

[44] Id. at 47.

[45] Id. at 54.

[46] Transcript of Oral Argument, supra note 40, at 4-5.

[47] State v. Packingham, 748 S.E.2d 146, 148 (N.C. App. 2013).

[48] Id.

Is it Time to Legalize Marijuana?

TLR BLOG

By Andrea Laterza, J.D. Class of 2018 Touro Law Review Associate Editor

Mass incarceration has become a disturbing issue in this country.[1] The United States is home to only five percent of the world’s population, yet houses twenty-five percent of the world’s prisoners.[2] “The War on Drugs” has been a direct cause of mass incarceration.[3] Someone is arrested for drug possession every twenty-five seconds, which amounts to 1.25 million drug-related arrests each year.[4] In 2015, there were 574,000 arrests made for marijuana possession whereas 505,681 arrests were made for violent crimes, such as rape and murder.[5] Thus, there were more people arrested for mere possession of marijuana than for heinous, violent crimes.[6]

In 1972, there were less than 350,000 people incarcerated; however, due to the War on Drugs, that number skyrocketed by approximately 500%, amounting to over 2,000,000 people incarcerated today.[7] Despite Nixon and subsequent presidents’ intentions, the War on Drugs has been a failure.[8] Its wrath left U.S. prisons overcrowded, filthy, and a huge expense for taxpayers.[9] If marijuana were to be legalized, the number of inmates would reduce significantly, thereby saving the government hundreds of millions of dollars.[10] Not only would the government save money, but it would also profit.[11] Colorado, one of the several states that has legalized marijuana for recreational use, generated approximately $70 million in tax revenue during the first fiscal year that cannabis was legally sold and taxed.[12]

Aside from the monetary incentive, there may be a constitutional reason to end the criminalization of marijuana.[13] Arguably, the right to use marijuana falls within the recognized rights of privacy and autonomy.[14] The Supreme Court has repeatedly held that the Constitution “create[s] zones of privacy,” which extend to the home and personal bodily choices.[15] The Court has found that the rights to choose abortion, to refuse medical treatment, to use contraception, and to engage in consensual sodomy all fall within the “penumbra” of privacy and autonomy rights.[16] Using marijuana is analogous to these recognized rights because it is also a private, bodily choice.[17] In fact, one state has already held that using marijuana falls within the privacy right of the Constitution.[18] The Supreme Court of Alaska emphasized the importance of privacy within one’s home and held that “possession of marijuana by adults at home for personal use is constitutionally protected.”[19] The court based its holding, in part, on scientific research demonstrating that marijuana is not at all harmful or dangerous to the user or anyone else; therefore, Alaska had no legitimate interest in its prohibition.[20]

Even if using marijuana is not a privacy right, it is arguably a fundamental liberty “deeply rooted in this Nation’s history and tradition.”[21] Marijuana can be traced all the way back to 2737 B.C..[22] The Chinese emperor began prescribing marijuana for ailments, such as gout, rheumatism, and malaria.[23] The drug’s popularity spread across the globe and was used to treat all kinds of pain from earaches to childbirth.[24] In the 1600’s, the plant made its way to the United States where it became a major cash crop.[25] Hemp was used for many purposes, such as medicine, construction, and paper products.[26] In fact, the Declaration of Independence, signed by the Founding Fathers themselves, was written on hemp.[27] Even George Washington and Thomas Jefferson grew hemp.[28] The plant only became illegal in the 1900’s after it was negatively associated with Mexican immigrants.[29] The government falsely vilified marijuana as a drug linked to crime and insanity.[30] The American Medical Association even opposed the government’s position on marijuana because doctors wished to prescribe the drug.[31] Marijuana is not dangerous; no one has ever died from it.[32] In fact, experts believe marijuana has significant health benefits, such as treating glaucoma, speeding up metabolism, controlling seizures, and preventing cancer.[33] Nevertheless, the drug has been unscientifically outlawed.[34]

Today, marijuana is federally categorized as a schedule I drug, alongside hard drugs like heroin and cocaine.[35] According to the Supremacy Clause, federal law trumps state law, which means that even if one is in a state where marijuana is legal, he or she could still face federal prosecution.[36] A drug conviction may prevent citizens from taking out student loans, securing a job, renting a home, obtaining welfare benefits, or even voting.[37] It is time to end the stigma surrounding marijuana because the drastic effects of its criminalization are affecting millions of Americans.[38]

[1] See infra note 2 and accompanying text.

[2] Pamela Engel, Watch How Quickly the War on Drugs Changed America’s Prison Population, Bus. Insider (Apr. 23, 2014, 1:19 PM), http://www.businessinsider.com/how-the-war-on-drugs-changed-americas-prison-population-2014-4.

[3] Fareed Zakaria, Incarceration Nation: The War on Drugs Has Succeeded Only in Putting Millions of Americans in Jail, Time (Apr. 2, 2012), http://content.time.com/time/magazine/article/0,9171,2109777-1,00.html.

[4] Every 25 Seconds: The Human Toll of Criminalizing Drug Use in the United States, ACLU Update (ACLU/ Human Rights Watch, New York, N.Y.), Oct. 5, 2016, at 2, 4.

[5] Id. at 5.

[6] Id.

[7] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 8 (The New Press 2012).

[8] Ray Williams, Why “The War on Drugs” Has Failed, Psychology Today (June 6, 2011), https://www.psychologytoday.com/blog/wired-success/201106/why-the-war-drugs-has-failed.

[9] Saki Knafo, 10 Ways to Reduce Prison Overcrowding and Save Taxpayers Millions, Huffington Post (Nov. 8, 2013, 7:30 AM), http://www.huffingtonpost.com/2013/11/08/prison-overcrowding_n_4235691.html.

[10] Id.

[11] See infra note 12 and accompanying text.

[12] Tanya Basu, Colorado Raised More Tax Revenue from Marijuana Than from Alcohol, Time (May 18, 2016, 12:49 PM), http://time.com/4037604/colorado-marijuana-tax-revenue/.

[13] See infra notes 14, 21 and accompanying text.

[14] See infra notes 15-20 and accompanying text.

[15] Griswold v. Connecticut, 381 U.S. 479, 484 (1965).

[16] Lawrence v. Texas, 539 U.S. 558, 578-79 (2003); Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992); Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 304 (1990); Roe v. Wade, 410 U.S. 113, 166 (1973); Griswold, 381 U.S. at 484.

[17] Id.

[18] Ravin v. State, 537 P.2d 494, 511 (Alaska 1975).

[19] Id.

[20] Id. at 506-12.

[21] Washington v. Glucksberg, 521 U.S. 702, 703 (1997).

[22] Patrick Stack, A Brief History of Medical Marijuana, Time (Oct. 21, 2009), http://content.time.com/time/health/article/0,8599,1931247,00.html.

[23] Id.

[24] Id.

[25] John Dvorak, America’s Harried Hemp History, Hemphasis (2004), http://www.hemphasis.net/History/harriedhemp.htm.

[26] Matt A.V. Chaban, Cannabis Construction: Entrepreneurs Using Hemp for Home-Building, N.Y. Times (July 6, 2015), https://www.nytimes.com/2015/07/07/nyregion/cannabis-construction-entrepreneurs-use-hemp-in-home-building.html?_r=0; Stack, supra note 21.

[27] Seeley v. State, 940 P.2d 604, 628 n.10 (Wash. 1997).

[28] Id.

[29] Tim Weber, Would Government Prohibition of Marijuana Pass Strict Scrutiny?, 46 Ind. L. Rev. 529, 543 (2013).

[30] Id.

[31]Id.

[32] Ravin, 537 P.2d at 508 (comparing cannabis to alcohol and barbiturates, which are legal, and do kill people).

[33] Jennifer Welsh & Kevin Loria, 23 Health Benefits Of Marijuana, Business Insider (Apr. 20, 2014, 3:03 PM), http://www.businessinsider.com/health-benefits-of-medical-marijuana-2014-4/#it-can-be-used-to-treat-glaucoma-1.

[34] Dr. Malik Burnett & Dr. Amanda Reiman, How Did Marijuana Become Illegal in the First Place?, Drug Policy Alliance (Oct. 9, 2014), http://www.drugpolicy.org/blog/how-did-marijuana-become-illegal-first-place.

[35] 21 U.S.C. § 812 (2012).

[36] U.S. Const. art. VI, cl. 2.

[37] Every 25 Seconds, supra note 4, at 11.

[38] See supra notes 3-5, 7, 9, 20, 26, 29-31, 37 and accompanying text.

Tri-Custody: The New Wave Of Custody And Visitation Arrangements Or An Unworkable And Erroneous Arrangement?

TLR BLOG

By Bradley Kaufman, J.D. Class of 2018 Touro Law Review Junior Staff Member

In the matter of Dawn M. v. Michael M.,[1] decided on March 8, 2017, in Suffolk County Supreme Court, the Honorable Patrick Leis, III granted a “tri-custody” arrangement.[2] This ruling is considered “groundbreaking”[3] and “historic.”[4] In Dawn M., the husband (defendant) and wife (plaintiff) got married in 1994.[5] Shortly thereafter, the couple discovered their fertility issues after numerous failed efforts to conceive a child.[6] Several years later in 2001, the plaintiff met and became close friends with Audria G., a resident in a downstairs apartment in the same apartment building.[7] Audria had a boyfriend at the time she met the plaintiff, but ultimately ended that relationship and moved into the same apartment with the plaintiff and defendant.[8]

The three individuals then began to “engage in intimate relations.”[9] Husband Michael M., wife Dawn M., and Audria called themselves a family and agreed to conceive a child together, in which Audria would be artificially inseminated because Dawn was infertile.[10] The fertility doctor that the trio visited refused to artificially inseminate Audria with Michael M.’s sperm because she was not the wife of Michael M.[11] Audria eventually became pregnant after having unprotected sexual intercourse with Michael M. and the child was born in 2007.[12] Prior to conception of the child, however, the three individuals all agreed that they would raise a child together as a “thruple.”[13] Ultimately, the marital relationship between Dawn M. and Michael M. dissolved, in which Dawn M. filed for divorce, moved out of the apartment where the threesome resided and moved into a residence to live with Audria and the child.[14] A custody action was commenced and settled preceding the divorce action, which resulted in joint custody of the child between Audria and Michael M. with residential custody to Audria and liberal visitation for Michael M.[15] Because Dawn M. was not awarded custody or visitation and was fearful that she would not be in the child’s life because of her lack of biological connection to the child, Dawn M. petitioned the Court for her own custody and visitation rights of the child.[16]

Pursuant to New York Domestic Relations (DRL) law §70,[17] “either parent may apply to the Supreme Court for a writ of habeas corpus . . . and the Court . . . may award the natural custody . . . of such child to either parent.”[18] Ever since Alison D. v. Virginia M.[19] was decided in 1991, “parent” in the context of DRL §70 excluded non-biological individuals, who fostered significant relationships with the child.[20] However, the definition of “parent” from Alison D., was effectively overruled in 2016 in Brooke S.B. v. Elizabeth A.C.C.,[21] to include non-biological, non-adoptive partners, who establish “by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together.”[22] With respect to Custody and Visitation Orders, the Court is required to maintain the best interests of the child,[23] which is accomplished by recognizing what will “promote his welfare and happiness.”[24] The court in Dawn M. ordered a “tri-custodial arrangement”[25] and proffered that the child’s best interests “cry out for an assurance that [the child] will be allowed a continued relationship with the plaintiff,”[26] notwithstanding the plaintiff’s lack of a biological link to the child.[27]

Since before the child was born, Dawn M. acted like a mother to the child despite Dawn M. not carrying the child.[28] For example, Dawn M. went with Audria to a majority of her doctor appointments and Dawn M. used her medical insurance to cover the pregnancy and delivery of the child.[29] Upon the child being born, Dawn M. rotated with Audria to feed the child during the night and took the child to the doctor as well.[30] The only family the child knows consists of his three parents and refers to both Dawn M. and Audria as “mommy.”[31] The child makes no distinction based on biology and thus considers Dawn M. and Audria as “equal mommies.”[32] The court adamantly agrees with the child’s assertions and reasoned that the child would be devastated if his ability to see Dawn M. ceased.[33] The court opined that the child clearly demonstrated that “he enjoys his present living situation and would not want it altered in any way.”[34] Thus, the court granted a tri-custody arrangement because it would undoubtedly serve the best interests of the child.[35]

One of the rationales behind Dawn M. petitioning the court for custody and visitation was to avoid Dawn M. having to get permission from either Audria or Michael M. in order to see the child.[36] The court reasoned that this case “represents the logical next step,” in the expansion of who constitutes a “parent” to have standing to seek custody and visitation after Brooke S.B.[37] The court is confident that because of the thruple’s cohesive history in raising the child, in which the thruple have already made significant decisions pertaining to the child’s “health, education, and welfare,” it will continue to do so moving forward.[38] However, it is no guarantee that the thruple’s cohesiveness will stand the test of time.

Currently, Dawn M. and Audria are living together but separately from Michael M. The court rejected Dawn M.’s request for visitation of one weekend a month because it would take visitation time away between Michael M. and the child.[39] The court justified its denial of Dawn M.’s weekend visitation because she essentially has de facto residential custody of the child as a result of living with Audria, and thus sees the child almost daily, resulting in substantially more time with the child than Michael M.[40] It will be interesting to see if Dawn M. will be satisfied with the arrangement and her visitation schedule if her relationship dissolves with Audria and she moves out. Moving out will result in the loss of de facto residential custody and significantly reduce her overall visitation with the child because the court denied her one-weekend-a-month request. New York Supreme Courts deciding custody and visitation matters may have their hands full when ordering tri-custody arrangements if the above-referenced situation comes to fruition. This decision is also worth monitoring to see if it makes its way up to the Court of the Appeals to settle the tri-custody issue of first impression in New York.

[1] 2017 WL 923725 (Suffolk Cnty. Sup. Ct. 2017).

[2] Id. at *2.

[3] Julia Marsh, Historic ruling grants ‘tri-custody’ to trio who had threesome, New York Post (March 10, 2017), http://nypost.com/2017/03/10/historic-ruling-grants-custody-to-dad-and-mom-and-mom. [hereinafter “Historic Ruling.”].

[4] Historic Ruling, supra note 3.

[5] Dawn M., 2017 WL 923725 at *2.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Dawn M., 2017 WL 923725 at *2.

[11] Id. at *2.

[12] Id. at *2-3.

[13] Id. at *3; “A sexual relationship . . . between three people.” MacMillian Dictionary, http://www.macmillandictionary.com/us/dictionary/american/thruple (last visited March 20, 2017).

[14] Dawn M., 2017 WL 923725 at *3.

[15] Id.

[16] Id.

[17] N.Y. Dom. Rel. §70 (McKinney’s 2017).

[18] Id.

[19] 572 N.E.2d 27 (N.Y. 1991).

[20] Id. at 29.

[21] 61 N.E.3d 488 (N.Y. 2016).

[22] Id. at 490.

[23] N.Y. Dom. Rel. §240 (McKinney’s 2017).

[24] Id.

[25] Dawn M., 2017 WL 923725 at *5.

[26] Id.

[27] Id. at *3.

[28] Id.

[29] Id.

[30] Dawn M., 2017 WL 923725 at *3.

[31] Id.

[32] Id. at *4.

[33] Id.

[34] Id.

[35] Dawn M., 2017 WL 923725 at *4.

[36] Id. at *3.

[37] Id. at *5, n.6.

[38] Id. at *4.

[39] Id.

[40] Dawn M., 2017 WL 923725 at *4.

Court Case Has ‘Sirius’ Impact on Common Law Copyright in NY

TLR BLOG

By Luann Dallojacono, J.D. Class of 2018 Touro Law Review Junior Staff Member

It’s 1967, and the band The Turtles has a no. 1 hit.[1] “So Happy Together” has people imagining me and you day in and day out.[2]

Fast-forward almost five decades later, and in 2013, the song is the subject of several lawsuits pitting the 1960s band against satellite radio giant SiruisXM.[3] Flo & Eddie, Inc., the company that controls the Turtles’ music and that is owned by original band members Mark Volman and Howard Kaylan sued SiriusXM in California, Florida, and New York for playing the band’s songs without the company’s permission.[4]

Flo & Eddie filed three class action suits claiming copyright protection under state law.[5] The plaintiffs were independent artists and record companies, including Flo & Eddie. [6] The suits have since uncovered some confusion about the applicability of copyright law to sound recordings made prior to 1972 and whether certain state’s laws allow the owners of those songs to control performing rights for the recordings.[7] As the New York District Court put it, “The long and short of this is—Sirius makes multiple copies, temporary, permanent, whole or partial, during its broadcast process; and it performs the copies it makes. Furthermore, as to pre–1972 sound recordings, it does so without obtaining licenses or paying royalties.”[8]

The parties are in the process of settling in California after Sirius was found liable under California law.[9] Sirius agreed to pay at least $25 million for playing pre-1972 recordings without a license and $5 million for each victory in state court if Flo & Eddie won its cases in New York, California and Florida.[10] The settlement also includes $59 million for a 10-year license for recordings by the plaintiffs at a 5.5% royalty rate.[11]

But legal developments last month may have some questioning the settlement. In February, Sirius saw victory when the case was dismissed in New York, overturning rulings in 2014 by the U.S. District Court.[12] The dismissal also reduced the amount of the settlement reached in California by $5 million as per the settlement agreement.[13]

The New York District Court described the case as one about copyright in sound recordings, which are media in or on which a particular performance of a song is fixed.[14] Congress gave sound recordings copyright protection in 1971 and in 1995 added a “limited public performance right” for sound recordings to give copyright holders of sound recordings the “exclusive right . . . to perform the copyrighted work publicly by means of a digital audio transmission.”[15] However, the 1971 Act has an important limitation in that recordings made prior to February 15, 1972, do not qualify for federal copyright protection.[16] Congress left the issue of pre–1972 sound recordings to the states.[17]

The Turtles’ recordings were all fixed before that February date in 1972, leaving none eligible for copyright protection under federal law.[18] Thus, Flo & Eddie looked to state law.[19] In New York, the company argued that pre–1972 sound recording owners have rights and remedies under the common law, which covers pre–1972 sound recordings and prohibits reproducing and publicly performing the recordings.[20]

This past February, New York’s Second U.S. Circuit Court of Appeals accepted a December 20, 2016, ruling by the state Court of Appeals holding that New York common-law copyright does not protect public performance for creators of sound recordings made before 1972.[21] The issue came before the high court after the Second Circuit Court of Appeals certified the following question to the court: “Is there a right of public performance for creators of sound recordings under New York law and, if so, what is the nature and scope of that right?”[22] It was an issue of first impression for the Court of Appeals.[23] After an exhausting look at relevant case law, the court concluded that New York’s common law has not recognized a right of public performance for those who have created sound recordings prior to 1972. [24] The court noted that recognizing such a right would rattle societal expectations and carry with it extensive economic consequences as well as pervasive and widespread ramifications. [25] The issue would be more appropriately addressed by the legislature, the court added.[26] Judge Rivera dissented and came to the opposite conclusion. [27] She argued that the benefits of a right of public performance coupled with the creator’s desire to be compensated for his or her labor in making the recording pair well with society’s interest in protecting artists and their works from exploitation.[28] She also said that the right aligns well with increasing the public access to artists’ endeavors, the expectations of the music industry, and the fact that “Congress has placed a time limit on common-law protections for pre-1972 sound recordings while providing a limited right of public performance for all sound recordings made after February 15, 1972.”[29]

Sirius also won the Florida case in 2015, making its legal record 2-for-3.[30] Perhaps it is as the singer Meat Loaf would say: “Two out of three ain’t bad.”[31]

 

[1] See Ben Sisario, SiriusXM Agrees to Pay Up to $99 Million to Settle Turtles-Backed Copyright Suit, N.Y. Times (Nov. 29, 2016), https://www.nytimes.com/2016/11/29/arts/music/turtles-siriusxm-1972-copyright-settlement.html.

[2] The Turtles, So Happy Together (White Whale Records 1967).

[3] See Sisario, supra note 1.

[4] See Sisario, supra note 1.

[5] Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 62 F. Supp.3d 325, 335 (S.D.N.Y. 2014); see Sisario, supra note 1.

[6] See Sisario, supra note 1.

[7] Ben Sisario, SiriusXM Agrees to Pay Up to $99 Million to Settle Turtles-Backed Copyright Suit, N.Y. Times (Nov. 29, 2016), https://www.nytimes.com/2016/11/29/arts/music/turtles-siriusxm-1972-copyright-settlement.html.

[8] Sirius, 62 F. Supp.3d at 334.

[9] In California, Flo & Eddie alleged violations of Cal. Civ. Code § 980(a)(2) and California’s Unfair Competition Law, Cal. Bus. & Prof. Code § § 17200, et seq., conversion, and misappropriation. The court granted the company’s motion for summary judgment on all causes of action insofar as the claims are based on Sirius XM’s public performance conduct. See Flo & Eddie Inc. v. Sirius XM Radio Inc., No. CV 13-5693 PSG RZX, 2014 WL 4725382 at *12 (C.D. Cal. 2014). See also Jonathan Stempel, Siruis XM Wins Dismissal of Turtles Copyright Lawsuit in New York, Insurance Journal (Feb. 21, 2017), http://www.insurancejournal.com/news/east/2017/02/21/442442.htm; Jonathan Stempel, Sirius May Settle Music Copyright Suit Brought by The Turtles for $100M, Insurance Journal (Nov. 20, 2016), http://www.insurancejournal.com/news/national/2016/11/30/433536.htm.

[10] See Sisario, supra note 1; Stempel, Sirius XM Wins Dismissal, supra note 9.

[11] See Sisario, supra note 1.

[12] Stempel, Siruis XM Wins Dismissal, supra note 9.

[13] Stempel, Siruis XM Wins Dismissal, supra note 9.

[14] 17 U.S.C. § 101; See Sirius, 62 F. Supp. at 335–36.

[15] 17 U.S.C. § 106; See Sirius, 62 F. Supp. at 336.

[16] 17 U.S.C. § 301(c); See Sirius, 62 F. Supp. at 336.

[17] See Sirius, 62 F. Supp.3d at 336.

[18] Id.

[19] Id.

[20] Id.

[21] See Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 28 N.Y.3d 583, 610 (2016); Stempel, Siruis XM Wins Dismissal, supra note 9.

[22] Sirius, 28 N.Y.3d at 589.

[23] Id. at 595.

[24] Id. at 594-603.

[25] Id. at 606.

[26] Id.

[27] Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 28 N.Y.3d 583, 617 (2016) (Rivera, J., dissenting).

[28] Id. at 620-21.

[29] Id.

[30] Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 13-23182-CIV, 2015 WL 3852692 at *1 (S.D. Fla. 2015).

[31] Meat Loaf, Two Out of Three Ain’t Bad (Epic Records 1977).

 

The Criminalization of HIV

TLR BLOG

By Barbara J. Roman, J.D. Class of 2018 Touro Law Review Associate Editor

From the start of the HIV epidemic, fear and ignorance about HIV’s modes and risks of transmission[1] have fueled a backlash against people living with HIV/AIDS.[2] This backlash is most evident in existing laws that punish those living with HIV for engaging in consensual sex or other activities that pose no risk of HIV transmission.[3] These laws penalize “alleged, perceived or potential HIV exposure; alleged nondisclosure of a known HIV-positive status before any sexual contact (including acts that do not risk HIV transmission); or non-intentional HIV transmission.”[4] In the 1980s and early 1990s, HIV/AIDS was a leading cause of death among adults in the U.S., with the mortality rate climbing every year from 1987 to 1994.[5] By the latter year, the disease had become the leading cause of death among adults 25-44 years of age.[6] In 1990, Congress passed the Ryan White Comprehensive AIDS Resources Emergency Act requiring each state to enact criminal laws to prosecute any HIV-infected individual who knowingly exposed another person to HIV.[7] The states obliged, but some forced HIV-positive people to disclose their status before every sex act and many made any possible exposure to HIV a felony.[8] By 2011, a total of sixty-seven laws explicitly focused on persons living with HIV had been enacted in thirty-three states.[9] There are, however, problems with these HIV laws.[10]

Many HIV laws are unjust and the penalties are wildly disproportionate to the offense.[11] Long jail terms are imposed for HIV convictions even when there is no real risk of transmission and no actual injury.[12] For example, in Iowa, Nick Rhoades plead guilty to a Class B felony after a one-time, consensual sexual encounter in which he wore a condom.[13] Mr. Rhodes received a sentence of twenty-five years and was required to register as a sex offender.[14] Other Class B felonies in Iowa include manslaughter, kidnapping, and robbery.[15] Engaging in sexual intercourse while having HIV or AIDS is a Class A felony in Arkansas and carries a sentence of six to thirty years.[16] In comparison, intentionally using a deadly weapon to cause serious injury to a family member is a Class B felony with a sentence of only five to twenty years.[17] A felony conviction and registration as a sex offender adds additional burdens to someone already dealing with the stresses of living with HIV.[18]

Advocates of the criminalization of HIV/AIDS argue that criminal laws deter HIV-positive individuals from risk taking behavior, as well as punish individuals who place others at risk of infection.[19] Unlike criminals of violent sexual assaults, most people who spread HIV do so through carelessness or ignorance, not malevolence.[20]   HIV laws create a culture of fear, and often discourage people from knowing their HIV status, seeking treatment, or disclosing their HIV status in appropriate circumstances, all of which are counterproductive in terms of curbing the transmission of HIV.[21] HIV experts from around the country have concluded that HIV criminalization statutes do nothing to curb the spread of the virus.[22] Instead, these laws “undermine the public health goals of promoting HIV screening and treatment” by scaring people away from learning their status. [23] Additionally, if a person thinks he or she may land in prison for sharing his or her status, he or she might be disinclined to share that information with potential partners.[24] Moreover, most HIV criminalization laws target people who spread HIV to a partner who consented to have sex in the first place.[25] While status disclosure is important, the burden should remain on the HIV-negative population to protect themselves from exposure.[26] By placing exclusive responsibility on the person living with HIV, these laws undermine the public health messages regarding shared responsibilities for safe sex.[27]

Many of these laws have not been updated since the early ’90s, and thus reflect a misunderstanding of the virus at the time.[28] Most states maintain laws based on outdated science[29] and have not assessed how their laws stand up to current evidence regarding HIV transmission risk.[30] The majority of HIV laws were passed before studies showed that antiretroviral therapy (ART) significantly reduced viral load.[31] Having a suppressed or undetectable viral load makes it very unlikely that an individual can transmit the HIV virus.[32]

Some laws criminalize spitting, biting, and “throwing of body fluids.”[33] An HIV positive homeless man in Dallas was sentenced to thirty-five years in prison for harassing a public servant with a deadly weapon: his saliva.[34] The Centers for Disease Control and Prevention categorizes the risk of transmission of HIV from spitting as negligible, and the exposure unlikely.[35]

The Civil Rights Division of the United States Department of Justice issued a best practices guide to help states reform their laws and ensure that their policies do not place unnecessary burdens on people who are living with HIV.[36] These best practices suggest that, among other things, criminal laws regarding HIV transmission and prevention be scientifically based, and that prosecutors and others in law enforcement have an accurate understanding of transmission risks.[37] In addition, Federal legislation has been introduced that would address discrimination in criminal laws against people with HIV.[38] The Repeal Existing Policies that Encourage and Allow Legal Discrimination Act (“REPEAL HIV”) was introduced in the House in March 2015.[39] The bill recommends that state attorney general’s work with public health officials to ensure that laws, regulations, and policies are all in line with the bill’s provisions regarding people living with HIV/AIDS.[40]

An important component to preventing the spread of HIV is to consider whether many of the HIV criminal laws run counter to our current understanding of best public health of scientific evidence about HIV transmission. States must also ensure that the laws do not undermine the public health goals of promoting HIV screening and treatment. While HIV-specific state criminal laws once were initially well-intentioned and necessary law enforcement tools, most are unjust or do not reflect the current state of the science of HIV. Laws that punish people for consensual behavior, or for behavior that pose no risk of HIV transmission, serve only to further stigmatize a community that is already marginalized while missing opportunities for prevention education.[41] States that choose to retain HIV-specific criminal laws should reform and modernize their laws so that they accurately reflect the current science of risk and modes of transmission and ensure they are the desired vehicle to achieve the states’ intended public health goals.

[1] See Lawrence K. Altman, AIDS Studies Hint Saliva May Transmit Infection, N.Y. Times, Oct. 9, 1984, at C1.

[2] Poll Indicates Majority Favor Quarantine for AIDS Victims, N.Y. Times, http://www.nytimes.com/1985/12/20/us/poll-indicates-majority-favor-quarantine-for-aids-victims.html (last visited Feb. 5, 2017).

[3]See HIV Criminalization: A Challenge to Public Health and Ending AIDS, Scribd, https://www.scribd.com/document/217500583/2014-AIDSWatch-HIV-Criminalization-Fact-Sheet (last visited Feb. 5, 2017).

[4] Id.

[5] Thirty Years of HIV/AIDS: Snapshots of an Epidemic, Amfar, http://www.amfar.org/thirty-years-of-hiv/aids-snapshots-of-an-epidemic (last visited Feb. 5, 2017).

[6] Lawrence K. Altman, AIDS Is Now the Leading Killer of Americans From 25 to 44, N.Y. Times, Jan. 31, 1995, at C2.

[7] Ryan White Comprehensive AIDS Resources Emergency Act of 1990 (Pub. L. 101-381; 104 Stat. 576).

[8] See, e.g., Cal. Health & Safety Code § 120600 (West 2014); LA. Rev. Stat. Ann. § 40:1062 (2014); Mont. Code Ann. § 50-18-112 (2013); N.Y. Pub. Health Law § 2307 (McKinney 2014); S.C. Code Ann. § 44-29-60 (2014); Tenn. Code. Ann. § 68-10-107 (2014); VT. Stat. Ann. tit. 18 § 1106 (2014); W. VA. Code § 16-4-20 (2014); see also Chart: State –by-State Criminal Laws Used to Prosecute People with HIV, The Ctr. for HIV Law and Pol’y, (2013), http://hivlawandpolicy.org/resources/chart-state-state-criminal-laws-used-prosecute-people-hiv-center-hiv-law-and-policy-2012.

[9] See J. Stan Lehman et al., Prevalence and public health implications of state laws that criminalize potential HIV exposure in the United States, AIDS Behav., Jun 2014, Vol. 18, 997.

[10] See Best Practices Guide to Reform HIV-Specific Laws to Align with Scientifically-Supported Factors, U.S. Dep’t. of Just., C.R. Div., https://www.aids.gov/federal-resources/national-hiv-aids-strategy/doj-hiv-criminal-law-best-practices-guide.pdf (last visited Feb. 5, 2017).

[11] Infectious Diseases Society of America (IDSA) and HIV Medicine Association Position on the Criminalization of HIV, Sexually Transmitted Infections and Other Communicable Diseases, HIV Med. Ass’n (Mar. 2015), http://www.hivma.org/uploadedFiles/HIVMA/Policy_and_Advocacy/HIVMA-IDSA-Communicable%20Disease%20Criminalization%20Statement%20Final.pdf.

[12] See, e.g., People v. Plunkett, 77 A.D.3d 1442, 1443, 907 N.Y.S.2d 919, 920 (2010), aff’d as modified, 19 N.Y.3d 400, 971 N.E.2d 363 (2012). An HIV-positive man was sentenced to 10 years in prison for aggravated assault after biting a police officer. His saliva was considered a dangerous instrument for the purposed of the “aggravated” portion of the charge; see, e.g., State v. Hinkhouse, 915 P.2d 489, 489 (1996). A man was convicted of ten counts of attempted murder and ten counts of attempted assault based on allegations that he engaged in unprotected sexual intercourse without disclosing his medical condition.

[13] Rhoades v. State, 840 N.2d 726 (Iowa Ct. App. 2013), vacated, 848 N.W.2d 22 (Iowa 2014) (plead to violating Criminal Transmission of Human Immunodeficiency Virus, Iowa Code § 709C.1(1994)).

[14] Id.

[15] Iowa Code Ann. § 709.3 (West 2013).

[16] Ark. Code Ann. §§ 5-14-123, 5-4-401, 5-4-201 (West 2010).

[17] Id.

[18] See US Dep’t. of Just., supra note 10; see, e.g., Saundra Young, Imprisoned Over HIV: One Man’s Story, CNN (Nov. 9, 2012, 8:42 PM), http://www.cnn.com/2012/08/02/health/criminalizing-hiv; Twenty states (Arizona, California, Florida, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New Hampshire, New Jersey, New York, North Dakota, Pennsylvania, South Carolina, Texas, Virginia, Washington, and Wisconsin) and the District of Columbia have enacted laws regarding the post-incarceration involuntary civil commitment of individuals convicted of certain sex offenses under certain circumstances, including HIV crimes. In addition, the Adam Walsh Child Protection Safety Act of 2006, 42 USC § 1691, et seq., authorizes the federal government to institute involuntary civil commitment proceedings for federal sex offenders under certain circumstances.

[19] See Winifred H. Holland, HIV/AIDS and The Criminal Law, 36 Crim. L.Q. 279 (1993-1994).

[20] Robert Klitzman & Ronald Bayer, Mortal Secrets: Truth and Lies in the Age of AIDS 197 (Johns Hopkins University Press 2003).

[21] Brad Barber & Browen Lichtenstein, Support for HIV Testing and HIV Criminalization Among Offenders Under Community Supervision, Res. in the Soc. of Health Care, 33 (2015), http://www.hivlawandpolicy.org/sites/www.hivlawandpolicy.org/files/BARBER_LICHTENSTEIN%20SUPPORT%20HIV%20TESTING%20AND%20CRIMINALIZATION%202015-2.pdf.

[22] National HIV/AIDS Strategy for the United States, The White House (July 2010), https://obamawhitehouse.archives.gov/sites/default/files/uploads/NHAS.pdf.

[23] Id.

[24] LGBT Policy Spotlight: HIV Criminalization Laws (2016), Movement Advancement Project, https://www.lgbtmap.org/file/policy-spotlight-HIV-criminalization.pdf.

[25] Lower your Sexual Risk for HIV, Aids.gov, https://www.aids.gov/hiv-aids-basics/prevention/reduce-your-risk/sexual-risk-factors/ (last visited Feb 5, 2017).

[26] Id.

[27] The White House, supra note 22, at 37.

[28] See US Dep’t. of Just., supra note 10.

[29]HIV-Specific Criminal Laws Ctrs. for Disease Control and Prevention, https://www.cdc.gov/hiv/policies/law/states/exposure.html (last visited Feb. 5, 2017).

[30] See US Dep’t. of Just., supra note 10.

[31] HIV Transmission Risk: Estimated Per-Act Probability of Acquiring HIV from an Infected Source, by Exposure Act, Ctrs. for Disease Control and Prevention, https://www.cdc.gov/hiv/risk/estimates/riskbehaviors.html (last visited Feb. 5, 2017).

[32] Id.

[33] See The White House supra note 22, at 36; Eleven states still have statutes that criminalize spitting, biting and throwing while HIV positive (Georgia, Indiana, Louisiana, Missouri, Mississippi, Nebraska, Ohio, Pennsylvania, South Carolina, South Dakota, Utah).

[34] Campbell v. State, No. 05-08-00736-CR, 2009 WL 2025344, at 1 (Tex. App. Jul. 14, 2009).

[35] HIV Transmission Risk: Estimated Per-Act Probability of Acquiring HIV from an Infected Source, by Exposure Act, Ctrs. for Disease Control and Prevention, https://www.cdc.gov/hiv/risk/estimates/riskbehaviors.html (last visited Feb. 5, 2017).

[36] U.S. Dep’t. of Just., supra note 10.

[37] U.S. Dep’t. of Just., supra note 10.

[38] H.R. 1586, 114th Cong. REPEAL HIV Discrimination Act of 2015 (2015-2016).

[39] Id.

[40] Id.

[41] U.S. Dep’t. of Just., supra note 10.

Has a Recent Supreme Court, Appellate Division Decision Changed the Way New York Courts Will Treat Conservation Easements?

TLR BLOG

By Brian Troy, J.D. Class of 2018 Touro Law Review Junior Staff Member

On July 20, 2016, the Second Department of the Supreme Court, Appellate Division handed down a decision in favor of a landowner defending against a land trust that claimed the owner was in violation of a conservation easement that burdened his land.[1] This case, Orange Cnty. Land Tr., Inc. v. Tamara Amelia Farm, LLC, was brought to the Appellate Division by the plaintiff/appellant Orange County Land Trust, Inc. (“OCLT”).[2] The defendants/appellants were the previous owner, Tamira Amelia Farm, LLC, and the current owners, Vincenzo Oppedisano and Clemente Farm, LLC. (“Clemente”).[3]

A conservation easement is a restriction on the use of one’s property to maintain open space and to preserve the land’s natural properties and conditions.[4] The easement requires a voluntary agreement between a private landowner and not-for-profit conservative organization or public body.[5] Conservation easements will usually contain “permanent, perpetual restrictions on the use and development of the landowner’s property.”[6] These restrictions run with the land and are enforceable in perpetuity against any future landowners.[7] For these reasons, conservation easements usually reduce the value of the land to which they are attached.[8] There is a strong public policy favoring the creation and enforcement of conservation easements, as they are one of many tools New York uses to preserve the natural resources and scenic beauty of the state.[9]

The plaintiff alleged multiple violations of the conservation easement.[10] These violations included the building of a barn in a prohibited area, the construction of an access road to the barn, and failure to obtain approval for building the barn.[11] The barn and access road were built in what the easement referred to as the “farm area” of the property.[12] OCLT claimed that improvements such as the barn and road were not permitted in this area.[13] Construction projects and improvements were restricted to the 29-acre “farmstead complex,” while the 50-acre farm area was to be used for agricultural purposes.[14]

When interpreting the easement, the court looked to its language to try and determine the intent of the parties.[15] The stated purpose of the conservation easement was “to conserve productive agricultural and forestry lands and natural resources associated with the Property for the benefit of the public and for future generations, and also to conserve the scenic character of the Property for the benefit of the public and for future generations.”[16] The court stated that this purpose applied both to the farm area and the farmstead complex.[17] The court reasoned that because the easement had an agricultural element in its stated purpose, the building of a barn in the farm area was consistent with its purpose.[18]

It is standard for a land trust to include terms in a conservation easement requiring the landowner to receive permission before any construction or improvements take place on the burdened property.[19] Although Clemente clearly violated the easement by neglecting to ask OCTL for permission to construct the barn and access road, the court decided that OCTL waived any redress for this violation when it agreed to consider applications retroactively.[20] The court dismissed OCLT’s retroactive withholding of permission as unreasonable “under the terms of the easement and the circumstances.”[21] The New York Court of Appeals denied review of Orange Cnty. Land Tr.[22]

This case presented several issues that New York courts have yet to address regarding conservation easements.[23] A further examination of the issue of whether OCLT unreasonably withheld consent would have been both beneficial to this case, and future cases that encounter standard of consent issues.[24] The defendants had expressed confusion and difficulties regarding the process for applying to OCLT for the permissions in the first place, and it is unclear what the standards for withholding consent are in these situations.[25] The court did not discuss this, and doing so would have provided clarity on an issue that has not been discussed in New York.[26]

The court also had an opportunity to examine how restrictive covenants will be treated in New York when they are part of a conservation easement.[27] Public policy against restrictions on the free use of land requires a strict construction of restrictive covenants, and all ambiguities should be construed against the party creating the restrictions.[28] The presence of these covenants in conservation easements, however, introduces the competing public policy of enforcing conservation easements, which would promote construction of the terms in favor of the restriction.[29] The easement in Orange Cnty. Land Tr., contained a provision stating that all terms should be construed in favor of the holder, which raises questions as to the validity of such provisions depending on which public policy the courts find more compelling.[30] The court did not discuss this provision in their decision.[31]

This decision has attracted the attention of land use attorneys in New York, forcing them to wonder how strictly conservation easements will be enforced in the future.[32] The decision may undermine the enforcement of a widely used tool for conserving New York’s natural and agricultural resources.[33]

[1] Orange Cnty. Land Tr., Inc. v. Tamara Amelia Farm, LLC, 34 N.Y.S.3d 618 (N.Y. App. Div. 2016), appeal denied, No. 2016-1178 (N.Y. Feb. 14, 2017).

[2] Id.

[3] Id.

[4] “Conservation easement” means an easement, covenant, restriction or other interest in real property, created under and subject to the provisions of this title which limits or restricts development, management or use of such real property for the purpose of preserving or maintaining the scenic, open, historic, archaeological, architectural, or natural condition, character, significance or amenities of the real property. . . .

N.Y. Envtl. Conserv. Law § 49-0303 (McKinney 2016).

[5] Id.

[6] Jessica E. Jay, Land Trust Risk Management of Legal Defense and Enforcement of Conservation Easements: Potential Solutions, 6 Envtl.L. 441, 451 (2000).

[7] Id. at 452.

[8] Id. at 453. “Giving away rights, such as the right to develop, reduces the value of a landowner’s property.” Id.

[9] “The policy of the state shall be to conserve and protect its natural resources and scenic beauty and encourage the development and improvement of its agricultural lands for the production of food and other agricultural products.” N.Y. Const. art. XIV, § 4.

[10] Orange Cnty. Land Tr., Inc., 34 N.Y.S.3d at 618.

[11] Id. at 620.

[12] Id.

[13] Id.

[14] Jessica Owley, Interpreting Conservation Easements in New York, Land Use Prof Blog (Aug. 15, 2016), http://lawprofessors.typepad.com/land_use/2016/08/a-recentconservation-easement-case-from-new-york-has-a-lot-of-land-trusts-worried-in-2004-the-orange-county-land-trust-e.html.

[15] Orange Cnty. Land Tr., Inc., 34 N.Y.S.3d at 620.

[16] Id.

[17] Id.

[18] Id. “Contrary to the plaintiff’s contention, construction of the barn did not violate the easement, because such construction was consistent with the easement’s agricultural purpose and its particular requirements. . . .” Id.

[19] See Sample Conservation Easement 1, Schoharie Land Trust, http://schoharielandtrust.org/index.php/get-started/benefits-to-you/state-tax-incentives/56-stewardship/conservation-easement/102-sample-conservation-easement-1 (last visited Mar. 11, 2016).

[20] Orange Cnty. Land Tr., 34 N.Y.S.3d at 618.

[21] Id.

[22] Orange Cnty. Land Tr., Inc. v. Tamara Amelia Farm, LLC, No. 2016-1178, 2017 WL 581856 (N.Y. Feb. 14, 2017).

[23] See Owley, supra note 14.

[24] Id.

[25] Owley, supra note 14.

[26] Id.

[27] See Orange Cnty. Land Tr., 34 N.Y.S.3d at 618.

[28] See Wetlands Am. Tr., Inc. v. White Cloud Nine Ventures, L.P., 782 S.E.2d 131, 165-66 (Va. 2016). The decision, in this case, includes an interesting discussion on this topic. The majority held in favor of applying strict construction to an ambiguity in a conservation easement, while a dissenting opinion argued for abolishing strict construction when conservation easements are involved. Id.

[29] Id. (Roush, J., dissenting).

[30] See Owley, supra note 14.

[31] See Orange Cnty. Land Tr., 34 N.Y.S.3d at 618.

[32] See Owley, supra note 14.

[33] See Land Trust Alliance: New York Program, Land Trust Alliance, http://www.landtrustalliance.org/what-we-do/our-regional-programs/northeast/new-york-program (last visited Feb. 21, 2017).

Is Relief Coming for the Rapid Increase in Drug Prices?

TLR BLOG

By Brian Passarelle, J.D. Class of 2018 Touro Law Review Junior Staff Member

Opioid use has exploded throughout America. This increase has also increased the use of the lifesaving drugs that work to counter the effects of opioid use. Sadly, as simple economics suggest, when demand goes up, prices go up with it, even when the product is a lifesaving treatment.[1] Pharmaceutical companies will continue to reap unwarranted benefits from this epidemic due to the relaxed drug pricing laws.[2] For instance, Kaleo, a pharmaceutical company in Virginia, that produces a medicine called Evzio, has increased the cost from $690.00 for a twin-pack to an astonishing price tag of $4,500.[3] Evzio is used to deliver naloxone, a life-saving antidote for overdoses related to opioids. [4]

Naloxone, which has been on the market since 1971, is the latest drug to have a big new price tag.[5] Senator Bernie Sanders, an adamant oppositionist to big pharma stated that, “the greed of the pharmaceutical industry is killing America.”[6] Also, President Trump has made it clear that he thinks drug prices are too high and that the pharmaceutical industry, as he put it at a news conference this month, is “getting away with murder.” [7] Indeed, experts say Evzio’s price surge is way out of step with production costs, and a needless drain on health-care resources.[8]

American drug-pricing is set up in a way that makes it relatively easy for companies to charge what they want.[9] America has continually taken a free market approach to pharmaceuticals.[10] Drug companies dicker separately over drug prices with a variety of private insurers across the country.[11] Meanwhile, Medicare, the government health program for those over sixty-five, which is also the nation’s largest buyer of drugs, is barred from negotiating drug prices.[12]

This approach is drastically different in many other countries. In England, for example, the government has an agency that negotiates directly with drug makers.[13] The government sets a maximum price that it will pay for a drug, and if companies don’t agree, “they simply lose out on the entire market.”[14] This puts drug makers at a disadvantage, driving down the price of drugs.[15] This enigma has been addressed by President Trump, as he wants to force drug makers to bid for the right to sell their products to Medicare beneficiaries.[16] However, this has repeatedly failed to attract enough support in Congress, especially among his fellow Republicans.[17]

Many states have taken it upon themselves to deter these radical price increases. In New York, lawmakers are trying to combat these staggering prices through drug price transparency legislation.[18] Senate Bill S5338A, currently in committee, enacts the pharmaceutical cost transparency act requiring prescription drug manufacturers to file a report disclosing certain financial information pertaining to prescription drugs which have a wholesale acquisition cost of $10,000 or more annually or per course of treatment.[19] Pharmaceuticals will be required to report the cost of clinical trials, research, and development, marketing, acquisitions or licensing, manufacturing, advertising to consumers and physicians, and patient assistance programs.[20] The impetus behind such efforts is the idea that the price of a drug should reflect not only an assessment of its clinical benefit — represented by its cost-effectiveness or economic value — but also the effort and resources expended in its creation.[21]

Proponents of the bill argue that customers have a right to know how a drug’s current price relates to these factors and that this information will assist policymakers in determining when a price is reasonable.[22] Additionally, it is suggested that these laws will encourage manufacturers to invest more heavily in research, whereas reviews have found that only about fifteen percent of pharmaceutical company revenues are currently invested in research and development, which is substantially less than is spent on marketing. [23]

Though these transparency laws have the potential to provide some additional information for state policymakers in a relatively secret industry, there is speculation that it will have no real impact on cost.[24] Some suggest that the drug companies will avoid explaining price spikes by raising prices below the thresholds stipulated ($10,000 in New York).[25] This is a step in the right direction but pharmaceutical company resistance and political realities may deter the ability to use drug pricing law’s to lower drug prices.[26] It shall be interesting to see if President Trump is able to muster up a movement in Congress to combat the prices.

[1] As Price Goes Up, So Does Demand, The Economist (July 18, 2007), http://www.economist.com/blogs/freeexchange/2007/07/as_price_goes_up_so_does_deman.

[2] See Julia Belluz, A Drug Company Hiked the Price of a Lifesaving Opioid Overdose Antidote by 500 Percent, Vox, http://www.vox.com/2017/2/3/14490804/kaleo-evzio-price-hike-opioid-epidemic (last visited Feb. 3, 2017).

[3] Id.

[4] Id.

[5] Sarah Karlin-Smith, Price Spikes of Life-Saving Drug, Politico (May 16, 2016), http://www.politico.com/story/2016/05/drug-prices-addiction-223192.

[6] Id.

[7] Katie Thomas, The Fight Trump Faces Over Drug Prices, New York Times (Jan. 23, 2017), https://www.nytimes.com/2017/01/23/health/the-fight-trump-faces-over-drug-prices.html.

[8] Shefali Luthra, Massive Price Hike for Life-Saving Opioid Overdose Antidote, Scientific American (Feb. 2, 2017), https://www.scientificamerican.com/article/massive-price-hike-for-lifesaving-opioid-overdose-antidote1/.

[9] Belluz, supra note 2.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Belluz, supra note 2.

[15] Id.

[16] Thomas, supra note 7.

[17] Id.

[18] See Ameet Sarpatwari et. al., State Initiatives to Control Medication Costs — Can Transparency Legislation Help?, The New England Journal of Medicine (June 16, 2016) , http://www.nejm.org/doi/full/10.1056/NEJMp1605100#t=article.

[19] S. 5338A, 2015-2016 Reg. Sess. (2015).

[20] Id.

[21] Sarpatwari et. al., supra note 18.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Sarpatwari et. al., supra note 18.