Author: TLR BLOG

Does Constitutional Protection Stretch Over the Border?

TLR BLOG

By Kellie Mahoney, J.D. Class of 2018 Touro Law Review Junior Staff Member

On June 7, 2010, Sergio Adrian Hernandez Guereca, a fifteen-year-old Mexican boy, was playing with a group of his friends on the Mexican side of a cement culvert near the Paso del Norte Bridge, which separates Mexico from El Paso, Texas.[1] The boys were playing a common game that was known to both Mexican children and Border Patrol Agents alike, in which the boys would run up to the incline of the culvert, touch the barbed-wire fence separating the two countries, and then run back down the incline.[2] United States Border Patrol Agent Mesa approached the group and detained one of Hernandez’s friends.[3] While the agent was still standing in the United States, he fired at least two shots at Hernandez who had retreated from the scene but remained in Mexico.[4] One of those shots struck Hernandez in the face and killed him.[5] Six months after the boy’s death, his parents filed suit in the United States District Court for the Western District of Texas, alleging that Agent Mesa violated the Fourth and Fifth Amendments of the United States Constitution through the use of deadly force and the failure to use reasonable force when making arrests.[6] Mesa moved to dismiss, claiming that Hernandez lacked constitutional protection because of his alien status and the fact that he was physically in Mexico when he was killed.[7] The district court granted Mesa’s motion and Hernandez’s parents filed an appeal.[8]

The United States Court of Appeals for the Fifth Circuit held that Agent Mesa’s arguments against Hernandez’s Fourth Amendment claims were no longer supported by the Supreme Court.[9] In Boumediene v. Bush,[10] the Supreme Court addressed the standards used in applying Fourth Amendment constitutional principles abroad.[11] In this case, the Court precluded the use of a categorical test such as the one Agent Mesa proffered.[12] Thus, the Fifth Circuit held that

Boumediene and the cases cited therein indicate that [its] inquiry involves the selection application of constitutional limitations abroad, requiring [the court] to balance the potential of such application against countervailing government interests. In other words, [the court’s] inquiry is not whether a constitutional principle can be applied abroad; it is whether it should.[13]

Using this malleable standard, the Fifth Circuit ultimately decided that three “objective factors and practical concerns” were relevant: “(1) the citizenship and status of the claimant, (2) the nature of the location where the constitutional violation occurred, and (3) the practical obstacles inherent in enforcing the claimed right.”[14] Using these factors and concerns, the Fifth Circuit found that Hernandez “lacked sufficient voluntary connections with the United States to invoke the Fourth Amendment.”[15] The Court then discussed Hernandez’s Fifth Amendment claim.

Hernandez’s Fifth Amendment claim stated that Agent Mesa showed a callous disregard for Hernandez’s rights by using excessive deadly force when he was unarmed and presented no threat.[16] After discussing the more flexible standards of the Fifth Amendment’s application extraterritorially, the Fifth Circuit held that “a noncitizen injured outside the United States as a result of arbitrary official conduct by a law enforcement officer located in the United States may invoke the protections provided by the Fifth Amendment.”[17]

Hernandez filed a petition for writ to the Supreme Court on July 23, 2015.[18] The issues presented to the Court are (1) whether a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States; (2) whether qualified immunity may be granted or denied based on facts unknown to the officer at the time of the incident; and (3) whether the claim, in this case, may be asserted under Bivens v. Six Unknown Federal Narcotics Agents.[19] Oral argument is set to start on February 21, 2017.[20] A final holding by the Supreme Court could give a definitive answer as to whether those who are injured or killed in Mexico by United States Border Patrol agents have standing to sue in the United States.[21] Since 2010, there have been six cases similar to the Hernandez case.[22] Proponents of the families of the victims argue that international law, national law, and basic human rights simply cannot allow for an agent to shoot and kill someone without recourse.[23] Groups on the other side, such as the National Border Patrol Council, are concerned that such recourse would cause agents fear when acting against an aggressor in Mexico.[24] As such, if the Supreme Court definitively grants non-citizens the right to sue U.S. Border Patrol agents, the interactions between those agents and the people of Mexico, and citizens of other countries, will be drastically changed.

[1] Hernandez v. U.S., 757 F.3d 249, 255 (5th Cir. 2014).

[2] Id.

[3] Brittany Davidson, Shoot First, Ask Later: Constitutional Rights at the Border after Boumediene, 64 Am. U. L. Rev. 1547, 1548 (2014-2015).

[4] Hernandez, 757 F.3d at 255.

[5] Id.

[6] Id. The Fourth Amendment states

The right of the people to be secure in their persons, houses, papers, 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 to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. The Fifth Amendment states

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger, nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken without just compensation.

U.S. Const. amend. V.

[7] Id.

[8] Hernandez, 757 F.3d at 255-56.

[9] Id. at 260.

[10] Boumediene v. Bush, 553 U.S. 723 (2008).

[11] Id. at 766-67.

[12] Id. at 764.

[13] Hernandez, 757 F.3d at 262.

[14] Id.

[15] Id. at 266.

[16] Id. at 267.

[17] Hernandez, 757 F.3d at 272. The Fifth Circuit differentiates the Fourth Amendment analysis from the Fifth Amendment analysis, concluding that Hernandez’s claim “is not constrained by prior precedent on extraterritoriality, unlike [his] claim under the Fourth Amendment.” Id. at 268. It goes on to discuss the Fifth Amendments application to “any person,” rather than “the people” protected by the Fourth Amendment. Id. The Court also recognizes that the practical concerns that counseled against Fourth Amendment protection, do not carry the same weight as to the Fifth Amendment context (such as the need for surveillance, varying degrees of reasonableness, etc.). Id. at 270.

[18] Hernandez v. Mesa, 785 F.3d 117 (5th Cir. 2015), cert. granted, 137 S.Ct. 291 (U.S. Oct. 11, 2016) (No. 15-118).

[19] Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). “Under Bivens a person may sue a federal agent for money damages when the federal agent has allegedly violated that person’s constitutional rights.” Hernandez, 757 F.3d at 272. This is not, however, an automatic entitlement. Id. The Court must first ask “whether any alternative, existing process for protecting the constitutionally recognized interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.” Id. (quoting Minneci v. Pollard, __ U.S. __, 132 S.Ct. 617, 621, 181 L.Ed.2d 606 (2012)). If, as in the Hernandez family’s case, there is no other alternative, the Court will move to the second step which requires the Court to “exercise [its] judgment in determining whether ‘any special factors counsel hesitation.’” Id. at 274-75. Here, the Fifth Circuit found no such factors. Id. at 277.

[20] Hernandez v. Mesa, 785 F.3d 117 (5th Cir. 2015), cert. granted, 137 S.Ct. 291 (U.S. Oct. 11, 2016) (No. 15-118).

[21] Rob, O’Dell, Supreme Court to hear Border Patrol Cross-Border Killing Case, The Arizona Republic, Oct. 11, 2016, http://www.azcentral.com/story/news/politics/border-issues/2016/10/11/us-supreme-court-cross-border-killing-mexican-sergio-guereca-border-patrol/85671248/.

[22] Id.

[23] Id.

[24] Id.

Brown v. Buhman: Bigamy Law Uncertainty

TLR BLOG

By Katie Coggins, J.D. Class of 2018 Touro Law Review  Junior Staff Member

The Browns are a polygamist family living in Las Vegas, Nevada who star in the TLC television series, “Sister Wives.”[1] Polygamy is a tenet of the Browns’ Apostolic United Brethren Church faith.[2] Kody Brown is legally married to his wife, Meri Brown, and “spiritually married” to his three other wives, Janelle Brown, Christine Brown, and Robyn Sullivan.[3] When the Browns’ TLC series began in 2010 the family resided in Lehi, Utah.[4] After the airing of the first episode, the Lehi police opened an investigation against the family because of their openly polygamist relationship.[5] Subsequently, the Utah County Attorney’s Office opened a case file on the Browns.[6] Out of fear of criminal prosecution, the Browns moved their family to Nevada.[7]

In Utah, polygamy may constitute a felony under the state’s bigamy statute.[8] The Utah bigamy statute reads: “A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.” [9] Although polygamy and bigamy are similar, their definitions differ slightly. Bigamy is “the act of entering into a marriage with one person while still legally married to another.”[10] Polygamy is “marriage in which a spouse of either sex may have more than one mate at the same time.”[11] Hence, it is possible to simply be a polygamist and still violate the bigamy statute because the statute only requires a married person to cohabit with another non-spouse. The statute does not require a person to actually be legally married to multiple people to violate the statute.

Although bigamy is also illegal in Nevada (in addition to all fifty states), the Nevada bigamy statute does not have the same cohabitation prong.[12] Therefore, one reason the Browns moved to Nevada is probably because they would most likely not be prosecuted for religious cohabitation by Nevada.[13] However, the Browns’ move to Nevada did not affect Utah’s ability to prosecute the Browns as the statute of limitations for felonies in Utah is four years.[14]

The Browns brought suit against the Governor of the State of Utah, the Attorney General of the State of Utah and the Utah County Attorney, claiming that the Utah bigamy statute violated their First and Fourteenth Amendment rights.[15] The district court dismissed the case against the Governor and the Attorney General, concluding that the Browns did not have standing to bring an action against them.[16] The court held that the Browns lacked standing against the Governor and Attorney General because neither the Governor nor the Attorney General did anything to threaten the Browns with prosecution.[17] The court noted that the State of Utah actually had a policy to not prosecute for bigamy unless other crimes were also committed.[18] Furthermore, the Attorney General assured the Browns that they would not be prosecuted for participating in the Sister Wives series.[19]

However, the court held that the Browns did have standing against the Utah County Attorney’s Office.[20] The court concluded that the actions of the Lehi City Police Department and Utah County prosecutors directly targeted the Browns’ bigamous conduct.[21] Furthermore, the court noted that the Utah County Attorney’s Office did not have a policy, like the Attorney General’s policy, to not prosecute bigamy absent other crimes.[22] Therefore, the court held that the Browns faced a credible threat of prosecution by the Utah County Attorney’s Office.[23]

Soon after the district court’s ruling, the Utah County Attorney’s Office adopted a policy “under which the Utah County Attorney will bring bigamy prosecutions only against those who (1) induce a partner to marry through misrepresentation or (2) are suspected of committing a collateral crime such as fraud or abuse.”[24] In addition, the Attorney General stated that it was always the policy of the Attorney General’s Office to only initiate prosecutions under the bigamy statute against persons suspected of another crime, such as abuse, domestic violence, or welfare fraud.[25] Furthermore, the Attorney General stated that it was not the intent of the Attorney General’s Office to prosecute the Browns unless they were suspected of another crime.[26]

The district court reasoned that this was the Attorney General’s attempt to avoid review of the statute.[27] The court held that the cohabitation prong of the statute was unconstitutional because it had a “targeted effect on specifically religious cohabitation” and failed strict scrutiny under the Free Exercise Clause. [28] Furthermore, the district court held that the state had “no rational basis under the Due Process Clause on which to prohibit the type of religious cohabitation at issue.”[29]

On appeal, the Tenth Circuit held that the Utah County Attorney policy rendered the Browns’ case moot because the Browns were neither induced to marry through misrepresentation nor suspected of committing a collateral crime.[30] The Tenth Circuit held that district court should never have proceeded on the merits of the case.[31] On January 23, 2017, the Browns’ petition for writ of certiorari was denied.[32] Now, it seems as if polygamists’ religious rights are up in the air.

Polygamist religious freedom has been an issue in the United States, especially Utah, since the mid-nineteenth century.[33] In fact, a condition on Utah entering the union was that polygamist marriages were to be banned forever.[34] This is largely due to the idea that polygamy was associated with African, Middle Eastern, and Asian cultures, which many Americans perceived to be inferior to European culture.[35] Furthermore, many believed that bigamy would degrade the Christian morals of the country, and introduce “barbarism” into white American society.[36]

Today, sexual abuse and incest are the primary concerns with polygamy.[37] On February 1, 2017, members of Utah’s House Judiciary Committee met to debate a bill that will amend Utah’s bigamy statute.[38] The bill amends Utah’s bigamy statute to read: “A person is guilty of bigamy when, knowing the person has a husband or wife or knowing the other person has a husband or wife, the person purports to marry and cohabitates with the other person.”[39] The proposed law seems to eliminate the issue of polygamists being prosecuted for religious cohabitation alone because a person must purport to marry and cohabitate with another person to violate the law, not simply cohabitate with another person.[40]

However, not all polygamists are happy with the proposed law. Members of different polygamist sects in Utah testified at the House Judiciary Committee meeting to express their views on the new bill.[41] Many proponents of the bill are in favor of the proposed law’s crackdown on sexual abuse.[42] The proposed law has harsher penalties for those who are convicted of bigamy in conjunction with sexual abuse.[43] Those who are in favor of the bill say that polygamist relationships hurt women and children.[44] Some who have left polygamist communities have said that polygamist communities “can be rife with welfare fraud and child abuse, sexual abuse and forced labor.”[45] One proponent of the new bill testified that as a polygamist, she was forced to marry her first cousin, who was also her nephew when she was only fifteen years old.[46] Others opposed to the bill testified that they were always members of polygamist families and had never experienced abuse.[47] Opponents argue that the new bill is still discriminatory, and not all polygamists should be lumped in with certain abusive sects.[48]

It will be interesting to see how this new law works out if it is passed. Although the “Sister Wives” have brought polygamy into the main stream, many still fear the existence of abuse within the polygamist community. Hopefully, Utah can find a way to crack down on abuse without attacking the sincerely held religious beliefs of the polygamist community.

[1] Brown v. Buhman, 822 F.3d 1151, 1155 (10th Cir. 2016).

[2] Id. at 1156.

[3] Id.

[4] Id. at 1156.

[5] Id.

[6] Buhman, 822 F.3d at 1156.

[7] Id.

[8] Utah Code Ann. § 76-7-101 (West, Westlaw through 2016 Fourth Special Session).

[9] Id.

[10] Definition of Bigamy, Meriam-Webster, https://www.merriam-webster.com/dictionary/bigamy (last visited Feb. 3, 2016).

[11] Definition of Polygamy, Meriam-Webster, https://www.merriam-webster.com/dictionary/polygamy (last visited Feb. 3, 2016).

[12] Kaitlin R. McGinnis, Sister Wives: A New Beginning for United States Polygamist Families on the Ever of Polygamy Prosecution?, 19 Vill. Sports & Ent. L.J. 249, 258 (2012); Nev. Rev. Stat. Ann. § 201.160 (West, Westlaw through 2015 Regular Session and 2016 Special Session).

[13] McGinnis, supra, note 12.

[14] McGinnis, supra, note 12; Utah Code Ann. § 76-1-302 (West, Westlaw through 2016 Fourth Special Session).

[15]  Buhman, 822 F.3d at 1155.

[16] Brown v. Herbert, 850 F. Supp. 2d 1240, 1244 (D. Utah 2012).

[17] Id. at 1249.

[18] Id. at 1249.

[19] Id. at 1249.

[20] Id.

[21] Herbert, 850 F. Supp. 2d at 1250.

[22] Id. at 1251.

[23] Id. at 1252.

[24] Buhman, 822 F.3d at 1155.

[25] Id. at 1157.

[26] Id. at 1157.

[27] 822 F.3d at 1159.

[28] Brown v. Buhman, 947 F. Supp. 2d 1170, 1190 (D. Utah 2013), vacated, 822 F.3d 1151 (10th Cir. 2016).

[29] Id.

[30]  Buhman, 822 F.3d at 1155.

[31] Id.

[32]  Buhman, 822 F.3d 1151, cert. denied, 2017 WL 276182 (U.S. Jan. 23, 2017) (No. 16-333).

[33] Buhman, 947 F. Supp. 2d at 1183 (D. Utah 2013), vacated, 822 F.3d 1151 (10th Cir. 2016).

[34] Id. at 1183.

[35] Id. at 1183.

[36] Id. at 1187-88.

[37] McGinnis, supra, note 12.

[38] Nate Carlisle, Hearing on Utah Polygamy Bill Focuses on Sex Crimes, Other Offenses, Salt Lake Trib. (Feb. 1, 2017 8:42 PM), http://www.sltrib.com/home/4886848-155/hearing-on-utah-polygamy-bill-focuses.

[39] H.B. 281, 61st Leg., Gen. Sess., (Utah 2016).

[40] Associated Press, Polygamous Families Protest Bigamy Law at Utah Capitol, Times Trib. (Feb. 11 2017) http://thetimes-tribune.com/news/polygamous-families-protest-bigamy-law-at-utah-capitol-1.2153676.

[41] Carlisle, supra, note 38.

[42] Carlisle, supra, note 38.

[43] Associated Press, supra, note 40.

[44] Associated Press, supra, note 40.

[45] Associated Press, supra, note 40.

[46] Carlisle, supra, note 38.

[47] Carlisle, supra, note 38.

[48] Carlisle, supra, note 38.

Guardian ad Litem Appointed to Determine the Date of Death of Kathleen McCormack Durst, an Absentee

TLR BLOG

By Shira Bloom, J.D. Class of 2018 Touro Law Review  Junior Staff Member

The Surrogates Court Procedure Act provides that a Guardian ad Litem may be appointed by the Court to represent an infant, person with a disability, or an absentee.[1] A petition may be filed with a court of competent jurisdiction to appoint a named Guardian ad Litem or the Court may choose to appoint a Guardian to assist in protecting the legal rights of the ward from the Part 36 list.[2] The Guardian ad Litem must be an attorney admitted to practice law in the State of New York.[3] She must file a consent to act and a statement relaying that she has no interest or conflict adverse to her ward.[4] She must file an appearance and diligently take all steps deemed necessary to protect the interest of her ward, file a report of her activities, and make a recommendation to the court.[5] She must always review that file, ascertain that service of process on her ward was proper, and that the court has jurisdiction. The Guardian ad Litem must report to the court what she believes to be in the ward’s best interests, regardless of whether it coincides with the wishes of the ward.[6]

Kathie McCormack Durst married real estate heir, Robert Durst in what appeared to be a happily-ever-after tale.[7] Kathie was close to completing medical school at the Yeshiva University Albert Einstein College of Medicine when she mysteriously vanished on January 31, 1982, and has not been seen or heard from since that date.[8] Kathie’s body was never recovered and no official crime scene exists.[9] Now, thirty-five years later, Kathie’s family members have petitioned the Surrogate’s Court of New York County to declare Kathie dead as of January 31, 1982, as they believe Robert Durst may have had some involvement in her disappearance.[10] Kathie’s is currently declared an absentee, under a previous order of the New York Surrogate’s Court, but family and friends believe that Robert and Kathie engaged in a heated argument on the night of January 31, 1982, which led to Robert killing Kathie.[11]

As Kathie is an absentee, the court will await recommendation from the Guardian ad Litem, Charles Captenakis, who was appointed by the court in September 2016.[12] Once the Guardian Ad Litem’s recommendation is offered, the court will make a determination as to when Kathie should be declared dead and the appropriate date of death pursuant to Estate, Powers and Trusts Law (hereinafter “EPTL”) § 2-1.7.[13]

Robert is currently seventy-three years old and worth $100 million.[14] He was recently extradited to California, from New Orleans, where he was charged with weapons possession, where he is being charged with the murder of long-time friend, and alleged confidante, Susan Berman.[15] He allegedly killed Berman to prevent her from revealing information to the authorities relating to Robert’s role in Kathie’s disappearance.[16]

This is not Robert’s first interaction with the law; he was acquitted of murder in Galveston, Texas, despite admitting to killing and dismembering his neighbor, Morris Black.[17] Durst argued that it was done in self-defense.[18] The Jinx, a series produced by HBO, was released where Robert Durst admits to “killing them all,” in reference to Kathie and his other two victims.[19]

Where a petition has been made to the court to make a declaration of death, the EPTL § 2-1.7 governs the action. An absentee may be declared dead if for a period of three years or longer, she “has not been seen or heard from and her absence is not satisfactorily explained.” Should this be the case, the absentee will be declared “to have died three years after the date she went missing, or on an earlier date if such a date can be established through clear and convincing evidence as the most probable date of death”.[20] The EPTL also provides that if it can be proven that the absentee was exposed to a specific peril of death at the time of the disappearance, it may be a sufficient basis to establish that she died “less than three years after her absence commenced.”[21]

We now await the Guardian ad Litem’s recommendation to the court, and the courts determination of whether January 31, 1982, will be the day Kathie is declared dead. The decision by the court will determine whether a future action may be brought by Kathie’s family on her behalf, such as other civil litigation and the administration of Kathie’s estate. The recognition of January 31, 1982, as the date of death will help to bring justice and closure to Kathie’s family who has been without legal closure for thirty-five years.

[1] N.Y. Surr. Ct. Proc. Act § 403 (McKinney 1995).

[2] N.Y. Surr. Ct. Proc. Act § 403 (McKinney 1995).

[3] N.Y. Surr. Ct. Proc. Act § 404(1) (McKinney 1968).

[4] N.Y. Surr. Ct. Proc. Act § 404(2) (McKinney 1968).

[5] N.Y. Surr. Ct. Proc. Act § 404(3) (McKinney 1968).

[6] Matter of Aho, 39 N.Y.2d 241 (1976).

[7] Memorandum for Petitioner, In Re the Application of Ann C. McCormack, by her Special Guardian and Attorney-in-Fact Carol Bamonte, concerning the Estate of Kathleen Durst (2015) No. 1982-5053/D.

[8] Complaint at 2-4, McCormack v. Durst, No. 1982-5053/D.

[9] Id.

[10] Id.

[11] Id.

[12] Order Appointing the Guardian Ad Litem, No. 1982-5053/D.

[13] N.Y. Est. Powers & Trusts Law § 2-1.7 (McKinney 2000).

[14] Complaint at 2-4, McCormack v. Durst, No. 1982-5053/D.

[15] Charles V. Bagli, Family Of Robert Durst’s First Wife Ask Court To Declare Her Dead, The New York Times (July 14, 2016), https://www.nytimes.com/2016/07/15/nyregion/family-of-robert-dursts-first-wife-asks-court-to-declare-her-dead.html?_r=0.

[16] Complaint, supra, note 14.

[17] Complaint, supra, note 14.

[18] Complaint, supra, note 14.

[19] Complaint, supra, note 14.

[20] N.Y. Est. Powers & Trust Law § 2-1.7(a) (McKinney 1996).

[21] N.Y. Est. Powers & Trust Law § 2-1.7(b) (McKinney 1996).

Regulating Transient Rentals

TLR BLOG

By Stephen Weinstein, J.D. Class of 2018 Touro Law Review  Junior Staff Member

Airbnb; HomeAway; VRBO; Flipkey. The explosion of the sharing economy has led to the creation and massive boom of the short-term residential rental market, also known as transient rentals. Hotels, once regarded as the main lodging for transient guests, are currently losing revenue and market share to transient rental hosting companies.[1] Even though some municipalities have laws in place regulating transient rentals prior to the transient rental market’s recent growth, enforcement of these existing laws have been a major issue.[2] The municipalities that did not have laws in place beforehand are trying to catch up to the rapid expansion of transient rentals in order to ensure enforceable regulations are in place.

A transient rental is defined differently based on the governing jurisdiction.[3] However, generally, transient rentals are defined as a third-party rental of a residential dwelling for a duration of fewer than 30 days.[4] These dwellings may be owner or non-owner occupied.

Local governments may take a variety of approaches to regulate transient rentals. Ideally, local governments base their governing legislation on the needs of their local community members when deciding to regulate the duration, manner, location, and participants of transient rentals in addition to considering the impact it will have on the community as a whole.[5] Some local governments place additional limitations on transient hosts, such as how many times the host may rent his property in a given period,[6] number of units offered in a particular building type,[7] and maximum occupancy,[8] among other limitations.[9] A survey of the current law in several major United States cities portray three main approaches to transient rental regulations with distinct differences among the various jurisdictions.[10] The first approach encompasses local governments that have no laws governing transient rentals, so it is inferred that transient rentals are allowed to operate.[11] Alternatively, if governments have transient rental laws in place, but there are not adequately enforced, transient rentals are able to operate.[12] The second approach encompasses legislation prohibiting non-owner occupied residential transient rentals altogether.[13] The final approach encompasses local governments that explicitly allow transient rentals, typically under 30 days, subject to certain requirements and taxation.[14]

Residential transient rentals are developing into an important economic and hospitality market in the United States, as well as globally. As with any change, fear of the unknown may take over and prevent people from accepting positive forward moving growth. New and amended laws surrounding transient rentals are coming into effect rapidly in an attempt to keep up with the growing marketplace.[15] When a local government is considering enacting a transient rental law, the local government, among other factors, should consider the big picture of how the law will affect its residents, the character of the community, and the revenue opportunity for small businesses and hosts.[16] These local governments should strongly consider enacting a set of laws allowing transient rentals, subject to specified conditions that advance the goals of each unique munici

[1] Biz Carson, Once Someone Tries Airbnb, They’re Less Likely to Prefer a Hotel, says report, Bus. Insider (Feb. 16, 2016), http://www.businessinsider.com/once-someone-tries-airbnb-theyre-less-likely-to-prefer-a-hotel-says-report-2016-2.

[2] Research Dep’t and Internet Bureau, Office of the Attorney Gen. of the State of N.Y., Airbnb in the City 2, 8-9 (2014), http://www.ag.ny.gov/pdfs/Airbnb%20report.pdf [hereinafter Airbnb Report].

[3] See, e.g., Miami Beach, Fl., Mun. Code § 142-1111(a) (2016), https://www.municode.com/library/fl/miami_beach/codes/code_of_ordinances?nodeId=SPBLADERE_CH142ZODIRE_ARTIVSUDIRE_DIV3SUUSRE_S142-1111SHRMREAPUNTO (defining transient rentals as less than 6 months and 1 day); N.Y. Mult. Dwell. Law § 4.8(a) (McKinney 2016) (defining transient rentals as less than 30 days).

[4] N.Y. Mult. Dwell. Law § 4.8(a) (McKinney 2016).

[5] See generally Morgan A. Stewart, Short-Term Rentals: Navigating the New Economic Marketplace, Multifamily Executive (Apr. 26, 2016), http://www.multifamilyexecutive.com/business-finance/commentary/short-term-rentals-navigating-the-new-economic-marketplace_o.

[6] Cleveland, Ohio, Mun. Code § 337.251 (2016), http://library.amlegal.com/nxt/gateway.dll/Ohio/cleveland_oh/cityofclevelandohiocodeofordinances?f=templates$fn=default.htm$3.0$vid=amlegal:cleveland_oh.

[7] Chi., Ill., Ordinances § 4-14-060(e) (2016), https://www.cityofchicago.org/content/dam/city/depts/rev/supp_info/TaxRulingsandRegulations/HotelTax-SharedHousingSubstituteOrdinance.pdf.

[8] Portland, Or., Mun. Code § 33.207.020(a) (2015), https://www.portlandoregon.gov/bps/title33_complete_print.pdf.

[9] Nashville, Tenn., Mun. Code § 6.28.030(Q) (2015), https://www.municode.com/library/TN/metro_government_of_nashville_and_davidson_county/codes/code_of_ordinances?nodeId=CD_TIT6BULIRE_DIVIGERE_CH6.28HORO_6.28.030SHTEREPRST.

[10] This Blog surveyed San Diego, North Las Vegas, New York City, Santa Monica, Miami Beach, Portland, Chicago, Cleveland, and Nashville.

[11]See, Las Vegas, Nev., Mun. Code §17 (2011), https://www.municode.com/library/nv/north_las_vegas/codes/code_of_ordinances; San Diego, Cal., Mun Code § 113.04 (2000), http://docs.sandiego.gov/municode/MuniCodeChapter13/Ch13Art01Division04.pdf.

[12] See generally Airbnb Report, supra note 2.

[13] See, Miami Beach, Fl., Mun. Code § 142-1111(a) (2016), https://www.municode.com/library/fl/miami_beach/codes/code_of_ordinances?nodeId=SPBLADERE_CH142ZODIRE_ARTIVSUDIRE_DIV3SUUSRE_S142-1111SHRMREAPUNTO; N.Y. Mult. Dwell. Law § 4.8(a); Santa Monica, Cal., Mun. Code §6.20.030 (2015), http://www.qcode.us/codes/santamonica/view.php?topic=6-6_20-6_20_030&frames=on.

[14] See, Chi., Ill., Ordinances § 4-13-310 (2016), https://www.cityofchicago.org/content/dam/city/depts/rev/supp_info/TaxRulingsandRegulations/HotelTax-SharedHousingSubstituteOrdinance.pdf; Cleveland, Ohio, Ordinance 30-16 (Feb. 8, 2016), http://www.clevelandcitycouncil.org/ClevelandCityCouncil/media/CCCMedia/Documents/City-Planning-Comm-of-Whole-6-6-16.pdf; Nashville, Tenn., Mun. Code § 6.28.030(A) (2015), https://www.municode.com/library/TN/metro_government_of_nashville_and_davidson_county/codes/code_of_ordinances?nodeId=CD_TIT6BULIRE_DIVIGERE_CH6.28HORO_6.28.030SHTEREPRST; Portland, Or., Mun. Code § 33.207.020(a) (2015), https://www.portlandoregon.gov/bps/title33_complete_print.pdf.

[15]See Avery Hartmans, Governor Cuomo just signed a bill that could deal a huge blow to Airbnb in New York, Bus. Insider (Oct. 21, 2016), http://www.businessinsider.com/gov-cuomo-signed-new-york-airbnb-bill-2016-10.

[16] See Airbnb, Airbnb: Generating $4.5 Billion for Restaurants (2016), https://www.airbnbaction.com/wp-content/uploads/2016/10/restaurant-report-final-10-14-16.pdf; Airbnb Citizen, Airbnb, Airbnb Home Sharing Activity Report: Los Angeles (May 9, 2016), https://www.airbnbaction.com/airbnb-home-sharing-activity-report-los-angeles/) (13% of hosts reported that their income prevented these hosts from losing their home to foreclosure while 10% of hosts reported that their transient rental income saved these hosts from eviction); Things to do, Airbnb, Inc., https://www.airbnb.com/things-to-do (last visited Jan. 30, 2017).

Lynch v. Morales-Santana: Equal Protection, Gender Discrimination, and Derivative Citizenship

TLR BLOG

By Brett Potash, J.D. Class of 2018 Touro Law Review  Junior Staff Member

In November 2016, the Supreme Court heard arguments on a case involving an Equal Protection claim.[1] Luis Ramon Morales-Santana’s father was born in Puerto Rico on March 19, 1900, and obtained United States citizenship in 1917.[2] Twenty days before he turned nineteen years old, he left Puerto Rico to take a job working for the South Porto Rico Sugar Company in the Dominican Republic.[3] In 1962, Luis Ramon Morales-Santana was born in the Dominican Republic to his then unmarried American father and Dominican mother.[4] Morales-Santana was statutorily “legitimated” as a citizen by his father when his parents were married in 1970.[5] He was later permitted to enter the United States as a lawful permanent resident in 1975.[6]

After being convicted of “various felonies” in 2000, Morales-Santana was placed in removal proceedings.[7] He claimed that he obtained derivative citizenship through his father and applied for withholding of the removal on that basis, but an immigration judge denied his application.[8] In 2010, he filed a motion to re-open his case.[9] This time, his motion was based on a violation of the Equal Protection Clause and newly obtained evidence relating to his father.[10] Unfortunately, the Board of Immigration Appeals denied Morales-Santana’s claims for derivative citizenship and therefore denied his motion to re-open.[11] Morales-Santana appealed to the United States Court of Appeals for the Second Circuit.[12]

“The law in effect at the time of birth governs whether a child obtained derivative citizenship as of his or her birth.”[13] The statute in effect at the time of Morales-Santana’s birth was the Immigration and Nationality Act of 1952.[14] Under this Act, a child born abroad to an unwed citizen mother and non-citizen father has citizenship at birth if the mother was present in the United States (or one of its “outlying possessions”) for at least one year at any point prior to the birth of the child.[15] Morales-Santana, however, represents a child born abroad to an unwed citizen father and non-citizen mother.[16] For instances such as this, the statute provides that the child have citizenship at birth only if the father was present in the United States (or one of its “outlying possessions”) for periods totaling at least ten years, and at least five of those years being after the father reached the age of fourteen.[17] Morales-Santana’s father did not meet these requirements.[18] Based on this gender discrepancy, Morales-Santana’s principal argument on appeal was that his Fifth Amendment guaranteed rights to Equal Protection had been violated and that unwed fathers should receive the same benefits that unwed mothers receive under the statute.[19]

Attorney General Loretta Lynch argued in the Second Circuit that there are two interests to justify the distinction between mothers and fathers written into the 1952 Act: “ensuring a sufficient connection between citizen children and the United States” and “avoiding statelessness”.[20]

Fortunately for Mr. Morales-Santana, the Second Circuit overruled the Board of Immigration Appeals decision in concluding that “[c]onforming the immigration laws Congress enacted with the Constitution’s guarantee of equal protection . . . Morales-Santana is a citizen as of his birth.”[21] The court stated that “the statute’s gender-based distinction is not substantially related to the goal of ensuring a sufficient connection to the United States.”[22] Attorney General Loretta Lynch responded to this ruling by filing a petition for writ of certiorari, which was subsequently granted on June 28, 2016.[23]

This case brings two issues before the Supreme Court: 1) Whether the Immigration and Nationality Act of 1952’s language to impose a different requirement on unwed citizen mothers of foreign-born children than on other citizen parents of foreign-born children violates the Fifth Amendment’s guarantee of Equal Protection, and 2) Whether the Second Circuit Court of Appeals erred in conferring United States citizenship on Morales-Santana in the absence of any express statutory authority to do so.[24] Formal arguments took place before the Supreme Court on November 9, 2016, and an official ruling is still pending.[25]

The ruling of this case will have a major impact on foreign-born U.S. citizens both presently, and in the future. While the outcome will obviously affect the citizenship status of Mr. Morales-Santana, it will also affect others seeking derivative citizenship as well. If the Court decides that differences in the mandatory times of physical presence in the United States between genders is unconstitutional, then it may overturn the present-day statute. The present-day statute mandates that for derivative citizenship, a child born out of wedlock’s citizen father must have at least five years of citizenship (two after turning fourteen years old), and if the mother is the citizen, then she still only needs to have just one year of continuous citizenship at any point.[26] The Court may choose to decide that ANY time frame is unconstitutional, not just an equal time frame.

As currently constructed, the Act relevant in Lynch v. Morales-Santana and the present-day statute both suggest that unwed mothers are more responsible parents than unwed fathers. They also suggest that the presence of a marriage at the time of birth exposes a difference in societal expectations regarding parental responsibilities for unwed fathers, but not for unwed mothers.

The Supreme Courts highly anticipated decision should be rendered in early 2017. Its decision will make a powerful statement about how the United States protects the rights of its citizens born abroad, and also how we choose to combat gender discrimination issues.

[1] SCOTUSblog, http://www.scotusblog.com/case-files/cases/lynch-v-morales-santana/ (last visited Jan. 25, 2017).

[2] Morales-Santana v. Lynch, 804 F.3d 520, 524 (2d Cir. 2015).

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Morales-Santana, 804 F.3d at 524.

[8] Id.

[9] Id. at 524-25.

[10] Id.

[11] Id. at 525.

[12] See 804 F.3d 520 (2d Cir. 2015).

[13] See Ashton v. Gonzalez, 431 F.3d 95, 97 (2d Cir. 2005).

[14] Morales-Santana, 804 F.3d at 523.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Morales-Santana, 804 F.3d at 523-24.

[20] Id. at 527-28.

[21] The court determined that an intermediate level standard of scrutiny was proper. Morales-Santana, 804 F.3d at 538.

[22] Id. at 535.

[23] SCOTUSblog, http://www.scotusblog.com/case-files/cases/lynch-v-morales-santana/ (last visited Jan. 25, 2017).

[24] Id.

[25] Id.

[26] 8 U.S.C. § 1409 (2012).

Supreme Court to Soon Decide Whether Tribal Sovereignty Extends to Employees of Native American Businesses in Tort Actions

TLR BLOG

By Patrick Harty, J.D. Class of 2018 Touro Law Review  Junior Staff Member

On October 22, 2011, a car accident occurred near Norwalk Connecticut. William Clarke, who at the time was acting for his employer, caused the accident.[1] Ordinarily, this case would be solved through a simple tort law analysis.[2] Traditionally, if the employee acted within the ordinary scope of business, the employer would also be liable for the employee’s negligent conduct.[3] However, the employer in this instance is the Mohegan Sun Gaming Authority.[4] This is a business that is owned by the Mohegan Tribe, which is a federally recognized, sovereign Indian nation.[5] Sovereign immunities, which allow Native Americans to govern themselves, have long been recognized in the United States.[6] This immunity creates an assumption that “’until Congress acts, the tribes retain’ their historic sovereign authority.”[7] However, the area involving their employees still remains relatively gray, which is the reason for this Supreme Court case.[8] The victims, in this case, Brian and Michelle Lewis, are challenging the Connecticut Supreme Court’s ruling that the sovereign status given to American Indian tribes extends to its employees.[9] The case before the Supreme Court, which was argued on January 9, 2017, will attempt to answer the question of whether Native American’s sovereign status extends to its employees when they are acting within the scope of employment.

Regarding tribal sovereignty, the extent of the federal government’s power to intrude on sovereignty has remained unclear.[10] There are several competing theories regarding the extent of the federal government to control tribal sovereignty. Some believe that this right was never granted by the United States, but is inherent.[11] If the Supreme Court were to follow this theory, it would be presumed that all those associated by employment with a sovereign Native American tribe would also be granted sovereignty. Another competing theory is that this sovereign right is only”quasi-sovereignty.”[12] This means that the tribe’s sovereignty is within the discretion of the Federal government. The government can change, modify, or eliminate anything regarding the tribe’s sovereign status as it sees fit.[13]

When making their case, Petitioners argued that a case argued before the Second Circuit, Maxwell v. San Diego,[14] which determined that employees acting on behalf of a sovereign tribe may be sued in their individual capacity.[15] The Petitioners Lewis argue that Maxwell is just one example of why sovereign immunity should not extend to its employees.[16] However, this is the minority opinion amongst the Circuits, as no other Circuit had followed the logic behind that ruling.[17] It is also worth mentioning that in Maxwell, the claim was for gross negligence, where in this case the claim is just ordinary negligence.[18]

If the Supreme Court is to rule that employees are no longer granted sovereign immunity when acting within the scope of employment for a recognized tribe, there could be significant ramifications. Tribes would become more reluctant to hire employees, not within the tribe, and many could lose their jobs. However, if the Supreme Court is to rule that employees do maintain sovereign status, how far does this protection extend? This could then be applied to those doing business with Native Americans, and those businesses could potentially take advantage of the ruling in order to take part in deals that would be recognized by the government as illegal. If the Supreme Court is to rule that sovereign status extends to employees working for a recognized tribe, it must do so with specificity in order for this to not extend to other areas of business. Regardless of the outcome, this upcoming Supreme Court decision will have a profound effect on the extent to which Native American Sovereign Immunity extends.

[1] Lewis v. Clarke, 137 S. Ct. 31 (2016).

[2] See generally, Christine W. Young, Respondeat Superior: A Clarification and Broadening of the Current Scope of Employment Test, 30 Santa Clara L. Rev 599 (1990) (Providing a generally understanding of the traditional views of the tort law surrounding employer liability).

[3] Lewis v. Clarke, 137 S. Ct. 31 (2016).

[4] Id.

[5] Id.

[6] See, Alexander Hogan, Protecting Native American Communities by Preserving Sovereign Immunity and Determining the Place of Tribal Businesses in the Federal Bankruptcy Code, 43 Colum. Hum. Rts. L. Rev. 569, 571 (2012) (providing a background into Native America sovereign immunity).

[7] Michigan v. Bay Mills Indian Community, 134 S. Ct 2024, 2027 (2014).

[8] Lewis v. Clarke, 137 S. Ct. 31 (2016).

[9] Id.

[10] Sue Woodrow, Tribal Sovereign Immunity, An Obstacle for Non-Indians doing Business in Indian Country, Federal Reserve Bank of Minneapolis (July 1, 1998), https://www.minneapolisfed.org/publications/community-dividend/tribal-sovereign-immunity-an-obstacle-for-nonindians-doing-business-in-indian-country.

[11] Id.

[12] Id.

[13] Id.

[14] Maxwell v. City of San Diego, 697 F.3d 941 (9th Cir. 2012).

[15] Id. at 955.

[16] Id.

[17] Lewis v. Clarke, 137 S. Ct. 31 (2016).

[18] Id.

Should Families Be Forced to Jump Through Hoops to Get Their Special Needs Children the Accommodations That They Need?

TLR BLOG

By Nicole La Grega, J.D. Class of 2018 Touro Law Review  Junior Staff Member

In Fry v. Napoleon Cmty. Schs.,[1] the Sixth Circuit held that a parent must exhaust all requirements under the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C.S. §1415 before bringing claims against the school, its principal and the school district for violating the American with Disabilities Act (ADA) and Rehabilitation Act by refusing to permit a child from bringing a service dog to school.[2] The Plaintiff’s (the Frys) had a daughter (E.F.) who suffered from cerebral palsy; she had a service dog to assist her with everyday tasks such as using the bathroom and picking up dropped items.[3] E. F’s school provided her with a human aide to assist her in school pursuant to the Individualized Education Program (IEP) under the Individuals with Disabilities Education Act, (IDEA). However, the school refused to allow E.F.’s service dog to attend school with her.[4] The Frys sued alleging violations of the ADA and Rehabilitation Act and the State Disability Law.[5] The District court granted the defendant’s (Napoleon County Schools) motion to dismiss under Fed. R. Civ. P. 12 ( c ) claiming that the Frys had to exhaust all other administrative procedures under IDEA.[6] The Frys appealed, arguing that the IDEA exhaustion requirement does not apply to them because they did not seek the type of relief provided by IDEA procedures.[7]

The Fry’s decided to home school their daughter until they found a school that had no opposition to the service dog attending school with E.F. [8] The Frys claimed that because the school refused to allow the service dog to attend school with E.F. from Fall 2009 to Spring 2012, their daughter was denied an equal opportunity to access the school’s facilities and to interact with other students. [9] Furthermore, this refusal interfered with E.F.’s ability to form a bond with her service dog.[10] The Napoleon County Schools argued that IDEA’s exhaustion requirement applied to the Frys. The District Court agreed and granted the defendant’s motion to dismiss. The Fry’s appealed.[11]

The IDEA’s exhaustion requirement “calls for [a] highly fact-intensive analysis of a child’s disability and her school’s ability to accommodate her. The procedures ensure that the child’s parents and educators, as well as local experts, are first in line to conduct this analysis.”[12] The court discussed how exhaustion requirements are not required when the injuries do not relate to the free appropriate public education as defined by the IDEA, as well as when they cannot be remedied through the administrative process.[13]

The court discussed that the school already provided accommodations for E.F., but that the accommodation of having a human aide was not sufficient because it was not helping E.F. to learn to function on her own.[14] The Frys argued that by denying the service dog to attend school with E.F., the school was not “allowing them to form a bond,” as well as preventing the specific “psychological and social assistance” the service dog would provide E.F. with that the human aide could not.[15] Even though the school already provided accommodations for E.F., they are not the type of accommodations E.F. requires. E.F. needs to learn to be self-sufficient and having a human aid will not help this process.[16] The purpose of a service animal is to provide people specified help so they can get through everyday activities on their own in hopes to not require a human aid for their entire life.

The court held that IDEA was designed to address the specific harms that the Frys alleged in their complaint and that the Frys should have been able to obtain relief under IDEA if followed correctly.[17] Even though the Frys were seeking money damages that were unviable under the IDEA, this does not excuse the exhaustion requirement. [18]

On appeal, the Frys argued that the circumstances in their specific situation rendered the exhaustion requirement of the IDEA futile because the Frys were seeking monetary damages and that is unavailable under IDEA.[19] In addition, IDEA procedures would force the school to allow the service dog to attend the school, but E.F no longer attends the school.[20] The relief that the IDEA procedures would produce were not needed by the Frys anymore, making the exhaustion requirement a waste of time and money for the family. Therefore, pursuing a more direct method in court was a better alternative for the Frys. The Frys relied on the federal district court decision in Sullivan v. Vallejo City Unified Sch. Dist. to prove that the exhaustion requirement should not apply to their claim.[21] The court dismissed the Frys’ reliance on Sullivan, holding that the “logic does not hold.”[22] The court discussed that the logic from Sullivan would permit any ADA complaint stating that an accommodation would enhance the child’s educational opportunity, to allow for avoidance of the exhaustion requirement.[23] The Frys did not directly state that the service dog would enhance E.F.’s educational opportunities.[24] The Frys complaint stated that the service dog would help E.F. become more self-sufficient. The court stated that at a minimum an exhaustion requirement must apply when there is a denial of an accommodation. If the Frys did start the process of going through the IDEA requirements, they might have had a better outcome. E.F. attended school without her service dog for some time, and if her parents followed the IDEA procedures there is a possibility that the school would have allowed the service dog to attend school with E.F. Following the IDEA exhaustion requirements might be in the best interest of the child. The Court affirmed the lower court’s decision that IDEA requirements must be followed and exhausted first, therefore, the Fry’s’ appealed to the Supreme Court.

The implications of the exhaustion requirement on families with special needs children are tremendous. Going through all the requirements can be time-consuming, which could negatively impact the child’s learning experience. Also, the requirements could be costly on families. One of the major implications of this exhaustion requirement is that even after a family has exhausted all other options they still might not have the desired outcome that their child needs. If the child needs something other than what IDEA can provide him or her, the direct route, like what the Frys did, is the way to go. The needs of the child should always come first; especially when it comes to special needs children and their education.

[1] Fry v. Napoleon City. Schs., 788 F.3d 622,623 (6th Cir. 2015). Fry v. Napoleon City. Schs., was argued before the Supreme Court on October 31, 2016, and we are still awaiting a decision.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Fry, 788 F.3d at 623.

[7] Id. 

[8] Id. at 624.

[9] Id.

[10] Id.

[11] Fry, 788 F.3d at 624.

[12] Id. at 626.

[13] Id. See F.H. ex rel. Hal v. Memphis City Sch., 764 F.3d 638, 644 (6th Cir. 2014).

[14] Id. at 627.

[15] Id. at 629.

[16] Fry, 788 F.3d at 629.

[17] Id. at 630.

[18]Id. 

[19] Id.

[20] Id.

[21] Fry, 788 F.3d at 630-631. See Sullivan v. Vallejo City Unified Sch. Dist., 731 F. Supp. 947 (E.D. Cal. 1990).

[22] Id. at 631.

[23] Id. 

[24] Id.