Fourth Circuit Holds Gender Dysphoria is not Excluded by the ADA’s Gender Identity Disorder Exclusion

We just moved our daughter into college this week and are back home now. Now, the roller coaster begins. So far so good. One thing I did realize is that I now have about an extra 15 hours per week I calculated. My brother says that I should get a new hobby, but I already love legal writing. I do look forward to having the ability to do more trainings and to take on more matters.

 

When a case comes down, it usually doesn’t have much of a shelf life before people move on to other things. William v. Kincaid, here, is not such a case. I am still seeing people blogging on it, and I am still getting Google alerts on this case even though it came down August 16, 2022. By now, you may already know what this case is. The case is the Fourth Circuit published decision saying that gender dysphoria is protected under the ADA. There was also a statute of limitation question and the question of whether gross negligence had been sufficiently alleged. We are not going to focus on those two questions. Finally, there was a concurrence/dissenting opinion as well. As with the majority opinion, we will just focus on the ADA part of the concurrence/dissent. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that gender dysphoria is not covered by the gender identity disorder exclusion in the ADA; court’s reasoning that gender dysphoria in this case may very well be based upon a physical impairment; Judge Quattlebaum’s concurrence/dissent; and if I were on the panel and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Kesha Williams, a transgender woman with gender dysphoria who had not undergone trans feminine bottom surgery, spent six months incarcerated in the Fairfax County Adult Detention Center. Though prison deputies initially assigned her to women’s housing, they quickly moved her to men’s housing when they learned she was transgender. There, she experienced delays in medical treatment for her gender dysphoria, harassment by other inmates, and persistent and intentional misgendering and harassment by prison deputies. Following her release from the detention center, Williams filed a § 1983 action against the Sheriff of Fairfax County, a prison deputy, and a prison nurse alleging violations of the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, the United States Constitution, and state common law. The district court dismissed the case, holding that the complaint failed to state grounds for relief with respect to some claims and that the statute of limitations barred others.

 

For those interested in the specific facts, the opinion goes into greater detail. Considering you are talking about a transgender inmate who had not undergone bottom surgery even though she had been on hormone for years, I can’t say any of things that happened to her were particularly surprising.

 

II

 

Court’s Reasoning That Gender Dysphoria Is Not Covered by the Gender Identity Disorder Exclusion in the ADA

 

1. The ADA, 42 U.S.C. §12211(b), excludes from the ADA coverage transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorder not resulting from physical impairments, and other sexual disorders as well as compulsive gambling, kleptomania, pyromania, or psycho active substance use disorders resulting from current illegal use of drugs.
2. In 2008, Congress amended the ADA and stated that the ADA needs to be construed in favor of broad coverage of individuals to the maximum extent permitted. They also said that courts need to construe the ADA as amended as broadly as possible, which also means that courts must construe the exclusions narrowly.
3. The text of the ADA does not define the term gender identity disorders and does not mention gender dysphoria at all.
4. Looking at the meaning of the ADA’s terms at the time of its enactment, leads to the conclusion that gender identity disorders did not include gender dysphoria.
5. In 1990, the medical community did not acknowledge gender dysphoria either as an independent diagnosis or as a subset of any other condition.
6. In 2013, the American Psychiatric Association decided to remove gender identity disorders from the DSM manual. At the same time it added a diagnosis of gender dysphoria, which did not exist as a diagnosis in 1990.
7. The very fact of revision mean that a meaningful difference exists between gender identity disorder and gender dysphoria and that difference is more than just semantic. In fact, the definition of gender dysphoria differs dramatically from the now rejected diagnosis of gender identity disorder. Rather than focusing on gender identity, gender dysphoria focuses on clinically significant distress felt by some of those experiencing an incongruence between the gender identity and their assigned sex. In a footnote, the court notes that WPATH (World Professional Association for Transgender Health), standard also focuses on the discomfort or distress caused by a discrepancy between a person’s gender identity and the persons assigned sex at birth.
8. Being trans alone does not sustain a diagnosis of gender dysphoria under the DSM 5 as a code for a diagnosis of gender identity disorder under the earlier versions of the DSM.
9. The Fourth Circuit and other courts have explained that a diagnosis of gender dysphoria unlike that of gender identity disorder concerns deals primarily with distress and other disabling symptoms rather than simply being transgender.
10. Not only are gender identity disorder and gender dysphoria characterized by different symptoms, they affect different populations. That is, gender dysphoria is a disability suffered by many but certainly not all transgender people, since many transgender individuals are completely comfortable living with an incongruence between the gender identity and their assigned sex.
11. Gender nonconformity is not in itself a mental disorder.
12. The ADA excludes from its protection anything falling within the plain meaning of gender identity disorders as the term was understood at the time of its enactment. However, nothing in the ADA, then or now, compels the conclusion that gender dysphoria constitutes a gender identity disorder excluded from ADA protection.
13. Given Congress expressed instruction that courts construe the ADA in favor of maximum protection for those with disabilities, it is not proper to adopt an unnecessarily restrictive reading of the ADA. To do otherwise would mean that the court would pencil in a new condition into the list of exclusions in the ADA. It would also erase Congress’ command to construe the ADA as broadly at the text permits.
14. A growing number of district courts have reached the conclusion that gender dysphoria and gender identity disorder are not at all the same thing.

 

III

Court’s Reasoning That Gender Dysphoria in This Case May Very Well Be Based upon a Physical Impairment

 

1. The ADA does not define the phrase, “physical impairments.”
2. EEOC has promulgated regulations, 28 C.F.R. §35.108(b)(1)(i), defining the term expansively as any physiological disorder or condition affecting one or more body systems, such as neurological and endocrine. The court must defer to the EEOC’s reasonable interpretations of ambiguous terms in the ADA.
3. Plaintiff has alleged sufficient facts to render plausible the inference that her gender dysphoria results from physical impairments. In particular, she alleged that medical treatment for her gender dysphoria consisted primarily of hormone therapy that she used to effectively manage and alleviate the gender dysphoria she experienced. She also alleged that she had received that medical treatment for 15 years.
4. In her complaint, she stated that gender dysphoria for her required hormone treatment. In fact, she said as much in her complaint upwards of 10 times. In her complaint, she explained that hormone treatment enabled both feminization or nationalization of the body and said that without it (the prison failed to provide that treatment), she experienced emotional, psychological, and physical distress. These allegations sufficed to raise the reasonable inference that plaintiff’s gender dysphoria resulting from the physical impairment.
5. Medical and scientific research identifies a possible physical basis of gender dysphoria, and the DOJ has agreed that this emerging research renders the inference that gender dysphoria has a physical basis sufficiently plausible to survive a motion to dismiss.
6. Courts typically lacks sufficient expertise in physiology, etiology, psychiatry, and other potentially relevant disciplines to determine the cause or causes of gender dysphoria. So, dismissing a case based on such unknowns is wholly premature and speculative.
7. Statutes should be interpreted to avoid a serious constitutional question.
8. The court has little trouble concluding that a law excluding from ADA protection both gender identity disorders and gender dysphoria discriminates against transgender people as a class in violation of the equal protection clause of the 14^th
9. The Fourth Circuit has held that intermediate scrutiny applies to laws discriminating against transgender individuals. Accordingly, such laws fail unless they are substantially related to a sufficiently important governmental interest. Further, to survive intermediate scrutiny the state must provide an exceedingly persuasive justification for the law.
10. One does not need to look too closely to find evidence of discriminatory intent toward transgender people in the enactment of §12211(b). The evidence of such intent include: 1) the provision listing gender identity disorders appears alongside pedophilia, exhibitionism, and voyeurism. Such a grouping implicitly brands all transgender individuals as equivalent to criminals thereby making it more difficult for them to be treated in the same manner as everyone else; and 2) the legislative history of the ADA reflects the moral judgment implicit in that list. In fact, Senator Helms specifically mentioned on the floor that people in wheelchairs were one thing but how in the world can you not exclude transvestites? Senator Armstrong said something similar as well.
11. By carving a safe harbor for discrimination out of broad antidiscrimination protections, the ADA exclusion bears a striking resemblance to the Colorado law at issue in Romer v. Evans, which repealed municipal antidiscrimination ordinances to the extent they prohibited discrimination on the basis of LGB conduct practices or relationships.
12. In Romer, the Supreme Court held that laws of that kind raise the inevitable inference that the disadvantage imposed born of animosity toward the class of persons affected.
13. The Fourth Circuit has previously recognized that the ADA’s exclusion of gender identity disorders itself is evidence of such discriminatory intent.
14. In light of the basic promise of equality animating the ADA, there is no legitimate reason why Congress would intend to include from the ADA’s protections transgender individuals suffering from gender dysphoria.
15. The only reason for the exclusion that can be gathered from the text and the legislative record is a bare desire to harm a politically unpopular group, which simply cannot constitute a legitimate governmental interest.
16. There are two ways to avoid the serious constitutional question. First, the argument that gender dysphoria does not constitute a gender identity disorder for purposes of the ADA exclusion. Second, the argument that gender dysphoria results from a physical impairment. Plaintiff has properly alleged both of those claims.

 

IV

Judge Quattlebaum Concurrence/Dissent

 

Judge Quattlebaum concurs in the majority’s decision concerning the district court’s dismissal on statute of limitations grounds. He also concurs in remanding the Eighth Amendment deliberate indifference claim against Wang, the Fourteenth Amendment Equal Protection claim against Garcia and the gross negligence claim against Wang. He also agrees with the majority that the district court erred in concluding that Garcia followed the prison’s policies and, therefore, could not have committed gross negligence as a matter of law and joins with the majority in remanding that claim as well. And because the district court granted Sheriff Kincaid’s motion for summary judgment as to the gross negligence claim based on the theory of respondeat superior as to Garcia’s conduct, he would likewise vacate and remand that portion of the order as it relates to Sheriff Kincaid.

 

1. As noted in the majority opinion, the ADA specifically excludes, “gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.
2. The ADA does not define gender identity disorders. For that matter, the phrase has not been interpreted by the Supreme Court or any of the other circuit courts. Accordingly, one has to look to the understanding of gender identity disorders at the time the statute was written, 1990.
3. In 1990, the DSM was in the third, revised edition. That edition of the DSM provided that the essential feature of gender identity disorders was an incongruence between the assigned sex and gender identity. It added that even in mild cases of gender identity disorder, discomfort and a sense of inappropriateness about the assigned sex are experienced. In fact, the first diagnostic criteria for gender identity disorder under the DSM at the time was persistent or recurrent discomfort and a sense of inappropriateness about one’s assigned sex.
4. Plaintiff’s allegations that referred to discomfort or distress caused by the discrepancy between her gender identity and her sex assigned at birth would have fallen into the gender identity disorder exclusion as understood at the time the ADA was written.
5. Even accepting plaintiff’s allegations as true does not require turning a blind eye to the plain language of the statute. It also does not permit the plaintiff to use a word and declare it means just what the plaintiff chooses to have it mean.
6. From 1990 to today, gender identity disorder has been understood to include distress and discomfort from identifying as a gender different from the one assigned at birth.
7. In a footnote, Judge Quattlebaum notes that gender identity disorder and gender dysphoria are often cross-referenced or referred to as synonyms in a variety of different publications.
8. The text of 42 U.S.C. §12211(b)(1) excluded gender identity disorders not resulting from a physical impairment. The plural use of the term “disorders,” should not be overlooked because it indicates that Congress considered this class to include more than one diagnosis. In fact, the DSM in effect at the time specified certain gender identity disorders and also included a category of gender identity disorders not otherwise specified.
9. Whether gender dysphoria is a new diagnosis or replacement for gender identity disorder isn’t the point because the plain language of the statutory exclusion excludes gender identity disorders, which at the time included an alleged disability involving discomfort or distress caused by a discrepancy between one’s gender identity and the sex assigned at birth.
10. To say that gender identity disorder did not extend to those who experience distress and discomfort from that identification is not consistent with the actual language of the DSM in effect at the time. It is also further undermined by consistent references to gender identity disorder and gender dysphoria in dictionary medical publication from 1990 to the present. It is also inconsistent with the statutory language excluding gender identity disorders contained within the ADA itself.
11. Evidence exists that the DSM-5’s change from gender identity disorder to gender dysphoria primarily involved nomenclature so that it could avoid the stigmatizing effect of the existing nomenclature.
12. Gender identity disorders meaning in effect at the time the ADA was enacted, and its evolution to the meaning of words and phrases does not modify the statute’s terms. It is the legislature with the responsibility of amending statutes and not courts or the APA or WPATH. That is, the focus must be on what gender disorders meant in 1990 and not what the American Psychiatric Association or other organizations have done since. Those organizations do not have the power to effectively modify statutes passed by Congress and signed into law by the president.
13. Judicially modifying the meaning of a statute because of society’s changing attitudes not only invades the proper space for the legislature, it also turns a statute into a moving target.
14. The amendments to the ADA are of no help because the policy of interpreting it liberally does not justify ignoring the plain words of limitation.
15. The amendments to the ADA did not touch the exclusion of gender identity disorders in the ADA. Therefore, the understanding of that phrase from 1990 should be the guiding principle.
16. The majority makes quite a big deal about avoiding a constitutional issue, but before you can even use that principle the statute itself must be ambiguous, which is not the case. Further, the constitutionality of §12211(b) has not properly been brought before the court as the plaintiff did not plead that issue or raise it before the district court.
17. With respect to the equal protection issue, plaintiff did not raise that issue before the district court. So, no record was developed about whether the exclusions are discriminatory, the government’s interest in the exclusions, or the relationship of the exclusions to those governmental interests.
18. The court should not wade into a constitutional question on its own when it was never presented to the district court.
19. Plaintiff’s reliance on gender identity disorder being sufficiently alleged because of physical impairment does not help her either. In particular, the amended complaint does not identify any part of plaintiff’s body that is impaired or how or why it became impaired. She does not even allege a physical impairment generally.
20. Plaintiff’s allegation that an individual with gender dysphoria may require feminization or masculinization of the body through hormone therapy and/or surgery in order to effectively alleviate or treat the condition does not imply the existence of a pre-existing physical impairment. At most, it implies that hormone therapy and/or surgery may be helpful to treat the condition.
21. 12211(b)(1) requires that a person’s gender identity disorder result from a physical impairment. That means the physical impairment has to come first.
22. What Williams really seems to be arguing is that for transgender individuals experiencing stress and discomfort about their gender incongruity, the physical impairment is that for those individuals were assigned a gender at birth and have the accompanying physical characteristics different from the gender that they identify with. However, that cannot be an impairment for purposes of the exclusion because it would read “not resulting from physical impairment,” out of the statute. After all, anyone with a gender identity disorder or gender dysphoria under the respective diagnostic statistical manual was born with physical characteristics differing from the gender they identify with.

 

V

If I Were on the Panel and Thoughts/Takeaways

 

1. If I were on the panel, I would agree with both the majority and the dissenting opinion. I would agree with the majority with respect to a question of fact being present that the plaintiff has a physical impairment that needs investigating for the reasons laid out by the majority in its opinion. Particularly significant, is that the plaintiff had been on hormone therapy for 15 years and that therapy worked very well for her. I would agree with the dissent, that gender dysphoria must have been included within the definition of gender identity disorders at the time the ADA was enacted for the reasons laid out by the dissenting opinion. I would also agree with the majority that the gender identity disorder exclusion from the ADA is undoubtedly unconstitutional. As a result of Bostock, which we discussed here, transgender individuals, as noted by the majority, fall within an intermediate scrutiny class. As the majority opinion discusses, prejudice was clearly a big factor in the gender identity disorder exclusion. Between the legislative history and Bostock, there is little doubt in my mind that the gender identity disorder exclusion is no longer constitutional.
2. Both the majority and dissent agree that the exclusion must be viewed as it existed in 1990. However, they reach opposite conclusions from there.
3. The decision came down August 16, 2022. So, it is simply too early to tell what is next. It wouldn’t surprise me to see a rehearing en banc petition filed. I set a law 360 alert for this case. Today, 8/31/2022, it alerted me that the individuals sued in the case did request an en banc rehearing.
4. Transgender and being gay or lesbian are undoubtedly subject to intermediate scrutiny in light of Bostock. Persons with any other disability may be subject to rational basis scrutiny or not in light of Board of Trustees of the University of Alabama v. Garrett and Tennessee v. Lane. For a group of individuals that silo terribly, which people with disabilities do, it is unfortunate that equal protection jurisprudence now sets persons with disabilities against each other.

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Do Passive Owners Get Access to Corporate Record Books?

In the practice of handling business disputes, questions regarding the innerworkings of an entity inevitably come up. A passive owner should know: what is the value of the entity; if it is making profit distributions, and how corporate funds are being handled.

These questions often lead to a “push-pull” in business litigation between companies and owners regarding access to corporate books and records. On the one hand, a company wants to run its business without getting mired in data requests. On the other hand, owners of a company want information about how that company is running. Our business litigation lawyers have justified both positions, always depending upon the circumstances.

So, can an owner of a company get access to that company’s books and records? The answer is that it depends, but here are a few factors that will impact the outcome:

• What sort of a business entity are we talking about? Is it a limited liability corporation (LLC), a corporation, or a partnership? The type of entity affects an owner’s statutory right to inspect company records.
• What do the organization’s documents say about books and records inspections? Oftentimes, a company agreement (for instance) will speak to this very issue.
• What is the owner’s percentage of ownership in the entity, and how long has that owner had such an ownership interest? In some cases, this impacts what information the owner is entitled to.
• What is the purpose of the request for information? Is it to value shares, investigate corporate misconduct, or otherwise? An owner will usually need to have an articulable “proper” purpose to justify the corporate record book
• How broad is the request?

In commercial litigation, these factors will impact whether and to what extent the owner of an entity can access that entity’s business information and corporate record book. Be sure your legal advisor has answers to each.

BoyarMiller’s commercial litigation attorneys have experience across a wide range of business disputes. Contact us for more information.

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What Happens to Social Media Accounts after a User’s Death?

I know someone who uses Facebook as somewhat of a digital diary. She regularly shares photos and stories that document her daily life, major life events, and milestones. Her feed is a historical record of her life.

An estimated 295 million Americans use social media, some more prolifically than others, and for family members, these accounts provide an enduring link to a loved one who has passed away.

But what will happen to your account after you’re gone? Will your family members be able to access the accounts? Will they be able to download your feed or shut down your account?

Unfortunately, there is no uniform way in which social media companies deal with accounts after death. So it’s important to understand each company’s requirements for dealing with social media accounts after a user dies

Below is a listing of some of the most popular social media platforms and how they deal with accounts when a user dies.

Facebook

Facebook gives you two options. The first option you have is to deactivate your account (which will delete everything associated with the account, including messages, photos, and comments). Alternatively, you can appoint a “legacy contact” who will manage a memorialized account after you die. The legacy contact will be able to:

• Manage tribute posts on your profile, which includes deciding who can post and who can see posts, deleting posts, and removing tags;
• Update your profile photo and cover photo;
• Respond to new friend requests; and
• Delete your account.

If you don’t name a legacy contact, Facebook will memorialize your account when someone provides proof of your death. The content on a memorialized account will remain visible to those with whom you have shared it.

Instagram

Unlike Facebook, Instagram does not permit you to appoint a legacy contact. Rather, the only two options after an Instagram user dies are deleting the account completely or memorializing the account.

Deleting the account requires someone to submit a request to Instagram online, along with verification that the account owner has died, such as a death certificate or other document verifying that the person submitting the request is an immediate family member or executor of the account owner’s estate. This will delete all data related to the account.

Memorializing the account requires a different submission.  After an account owner has passed away, family members or friends can submit a request to memorialize the account. This will leave all your posts visible to those with whom you’ve shared the content. Once memorialized, it will no longer be possible to make any changes to the account.

Pinterest

Like Instagram, Pinterest does not permit an account owner to appoint a legacy contact. However, family members or authorized representatives can submit a request online to delete your account.

Twitter

Twitter will work with an immediate family member or an executor to deactivate the account of a deceased user. To initiate the deactivation process, your family member or authorized representative should submit a request online.

Twitter will then email instructions for providing proof that the account owner has died and the person submitting the request is actually authorized to act on behalf of the estate.

Twitter also routinely removes deletes accounts due to prolonged inactivity.

The post What Happens to Social Media Accounts after a User’s Death? appeared first on Rania Combs Law, PLLC.

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Texas Correction Deed Statute Revisited … Again

You might recall this post on Broadway National Bank, Trustee v. Yates Energy Corporation. We now have Yates Energy Corporation et al v. Broadway National Bank, Trustee, the court of appeals’ ruling after remand. Recall the result from the Supreme Court: Execution of the 2013 Amended Correction Mineral Deed by the parties to the original 2005 Mineral Deed and the 2006 Correction Mineral Deed, without joinder of the current owners of the minerals, complied with Texas Property Code §5.029. The question remaining was whether the current owners were bona fide purchases for value without notice. Skipping all sorts of rulings on side issues, the result is that current owner Yates was not a BFP.  Other appellants survived to fight another day.

Yates

Yates et al acquired their interests in the minerals before execution of the 2013 deed. But in 2006 Broadway sent Yates recorded copies of the 2006 deed which recited that the 2005 deed had conveyed interests to John in fee simple by oversight, that the conveyance should have been limited to a life estate, and that specific individuals owned remainder interests.

Yates’ concession that it received the 2006 deed before it acquired its interest satisfied Broadway Bank’s threshold summary judgment burden that Yates had received actual notice of the claims. The burden shifted to Yates to present evidence raising a genuine issue of material fact about whether it had actual notice. Yates argued:

• Actual notice is a question of fact not of law. The court concluded that was no room for reasonable minds to differ about whether Yates received actual notice.
• Actual notice would not defeat its BFP defense because the 2006 deed was ineffective and unenforceable and notified Yates only of an alleged mistake that had never been proved or properly corrected. The court declined to hold that an invalid correction instrument is wholly ineffective to impart notice on the subsequent purchaser. The validity of the remainderman’s claimed interest was irrelevant to whether Yates had notice of that claim. Yates did not raise a genuine issue of material fact about whether the deed’s factual recitations were “sufficient to excite the suspicions of a person of ordinary prudence”.
• Only a correction instrument that complies with §5.029 could defeat a BFP defense. Not so; a purchaser who acquires property with constructive or actual notice of a potential third party claim cannot successfully assert a BFP defense. It didn’t matter that the recording of the 2006 deed was insufficient as constructive notice because it was outside of Yates’ chain of title. Yates received actual notice.
• John as holder of a life estate could sell the property in fee simple as long as he held the proceeds for the remaindermen. But John did not have unlimited power to dispose of the fee estate and there was no evidence that John held the proceeds for the remainderman.

Broadway conclusively showed that Yates received actual notice of the remainderman’s claim and Yates presented no evidence that raised a genuine issue of material fact. The court affirmed the probate court judgment that Yates was not entitled to protection as a BFP.

Appellants Jalapeno, Curry Glassell, ACG3, Glassell Nonoperating, and EOG.

While Yates could pass no greater interest than it owned, that general rule applies only if the grantee fails to show himself to be a BFP. There was no evidence that Jalapeno and Curry Glassell received actual notice of the facts in the 2006 deed. A subsequent purchaser is only deemed to have constructive notice of recorded documents within its direct chain of title. Jalapeño and Corey Glassell’s chain would not have included any instruments executed by Broadway after it conveyed the property to John. Broadway did not show as a matter of law that Jalapeno or Curry Glassell had constructive notice of the remainderman’s claims.

Broadway and ACG3 and Glassell Nonoperating all moved for summary judgment. The evidence did not conclusively establish either the BFP defenses or that those appellants had actual or constructive knowledge of the remainderman’s claims. Summary judgment for Broadway against ACG3 and Glassell Nonoperating was reversed.

Broadway and EOG filed competing MSJ’s. The evidence did not conclusively establish that EOG had actual knowledge of the 2006 deed when it acquired its interest in the minerals. A fact issue remained on that subject. An affidavit from an EOG landman asserting that EOG acquired John’s interest without notice was not conclusive proof of the fact. Summary judgment against EOG was reversed.

Result: Yates is out.  Its back to the probate court for the others. More likely, it’s on to the Supreme Court for another round.

Your musical interlude. Some things never change.

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No Standing, No Claim, No Matter What Congress Said

In the unlikely event that any litigation proceeds under Texas’ SB8 law after Dobbs, a useful reference will be Perez v. McCreary, Veselka, Bragg & Allen, P.C., which found that a plaintiff’s claim under the Fair Debt Collection Act about an inaccurate demand letter failed to satisfy Article III standing requirements:

“’Congress’s creation of a statutory prohibition or obligation and a cause of action does not relieve courts of their responsibility to independently decide whether a plaintiff has suffered a concrete harm under Article III.’ Any other rule would allow Congress to grant private plaintiffs a personal stake in enforcing regulatory law and ultimately usurp the President’s Article II authority to execute the laws. And that would aggrandize our power by letting us resolve disputes that are not ‘of a Judiciary Nature.’

No. 21-50958 (Aug. 15, 2022) (citations omitted) (applying TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021)).

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Fact Issue on Waiver?

Fritz American Mangagement LLC v. Huge American Real Estate, Inc. reversed a summary judgment in a contract case, noting, inter alia, fact issues on the defense of waiver. Points from the Fifth Court’s opinion include:

• Legal standard. In addition to the often-used definition of waiver as “an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right,” the Court further observed: “The elements of waiver include
  (1) an existing right, benefit, or advantage held by a party; (2) the party’s actual
  knowledge of its existence; and (3) the party’s actual intent to relinquish the right,
  or intentional conduct inconsistent with the right.” In the specific setting of a contractual right, the Court further said: “A waiver of a right granted in a contract can occur in any of three ways: the right may be expressly renounced; the renunciation may be shown when a party knowingly possessing the right is inactive or silent for an unreasonable period of time such that the intention to waive is implied; or waiver can occur if a party knowingly possessing the right acts in such a manner that the party misleads the other party into believing that a waiver has occurred.”  (all citations omitted).
• Factually. “[Plaintiff] gave this permission after declining to respond either affirmatively or negatively to Fritz’s e-mail seeking permission for the remodel. … This is particularly true in light of the evidence showing that both parties were experienced Burger King franchisees that understood the nature of franchisor requirements. That is, Fritz’s evidence supported a reasonable inference that Huge Real Estate would have understood the sort of remodel sought by Fritz, which was required to maintain a Burger King franchise on the premises pursuant to the lease.”  (emphasis added).

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Busted Land Transaction Violated the Statute of Frauds

Co-author Max Brown

In the Estate of Terry Banta presents yet another purported Texas land transaction doomed because of disregard for the Statute of Frauds. Terry Banta and the Herriotts entered into an oral agreement for the Herriotts to purchase a piece of property from Banta. In an unfortunate turn of events for everyone, Banta died before signing the written contract that would have memorialized the sale.  The Herriotts claimed to have made a down payment of $40,000 and regular monthly payments under the oral contract, paid ad valorem taxes, carried homeowners’ insurance while residing there, and made a number of repairs and improvements. (Discuss among yourselves: Why did they do this without a written contract?)

The administrator of Banta’s estate filed an application to sell the property. The Herriotts’ claim to the property was rejected by the administrator, who contended that the oral contract violated the SOF and was therefore unenforceable. The Herriotts cited the the “partial performance” exception to the SOF.  But the Herriotts failed to offer into evidence any exhibits supporting partial performance.  The trial court denied the Herriotts’ claim for a variety of reasons, one of which was their failure to satisfy the SOF, and granted the administrator’s application to sell the property.

On appeal the Herriotts challenged the legal and factual sufficiency of the evidence supporting the trial court’s adverse finding. After analyzing whether it had jurisdiction to review the claims (Appellate nerds: If jurisdiction is your thing, read the opinion), the court reviewed the ruling for an abuse of discretion and affirmed the trial court’s order.

What about the partial performance exception?

It was undisputed that the SOF applied because there was no written agreement evidencing the transaction.  The partial performance exception “requires more than just one party’s performance of some obligation under the alleged oral contract.”

The exception applies only when the following three factors are present:

• payment of the consideration, whether in money or services;
• possession by the vendee; and
• making by the vendee of valuable and permanent improvements upon the land with the consent of the vendor—or, without such improvements, the presence of such facts as would make the transaction a fraud upon the purchaser if it were not enforced.

The Herriotts relied on a letter sent to the administrator (not in evidence), their own pleadings, affidavits and documents attached to their pleadings, and counsel’s arguments at the hearing.  However, none of these things are admissible evidence.  Because the record contained no proof substantiating the Herriotts’ assertions concerning the payments and improvements, they offered no evidence to carry their burden on the exception.

Moreover, the court held that even if the evidence had been entered, the Herriotts may not have met their burden.  The purported evidence showed that their occupancy of the property and payment of nearly $600/month to Banta and his wife was just as consistent with a lease as with a purchase.  Even the alleged down payment, though it be in full, is, by itself, not sufficient.  The repairs and improvements did not necessarily constitute conclusive proof of the kind warranting the partial performance exception.  The judgment was affirmed.  The trial court did not abuse its discretion.

Your musical interlude. Apologies to Elvis for missing the anniversary of his passing. You can’t imagine any better leader of the Heavenly choir that greeted Mr. Banta at the pearly gates … the $40K, the rent and the land in tow.

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Jury trial waiver, waived.

In In re Five Star Global, LLC, the Fifth Court granted mandamus relief to restore a case to the jury-trial docket, when the effort to enforce a jury waiver came too late:

“In addition to paying the jury fee, real parties also explicitly demanded a jury in six pleadings filed between November 15, 2019 and October 21, 2020. Although real parties deleted the “Jury Demand” paragraph in two of the pleadings, those pleadings still requested a jury in the prayer section, and the “Jury Demand” paragraph even re-appeared in their October 21, 2020 pleading. Moreover, real parties never objected to FSG’s jury demand until they filed their motion to strike in February 2021, which was fifteen months after they initiated the lawsuit against FSG.”

No. 05-22-00153-CV (Aug. 15, 2022) (mem. op.).

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What Williams v Kincaid tells us about interpreting the ADA

Williams v Kincaid, 2022 WL 3364824 (4th Cir. August 16, 2022) is not the first case to consider gender dysphoria as a disability, and marks the second time the Fourth Circuit has considered the difference between gender identity and gender dysphoria.¹ However, as a circuit court opinion holding that gender dysphoria can be a disability covered by the ADA it has special prominence, not only because of its possible effect on individuals suffering from gender dysphoria, but also because of what it teaches about interpreting the ADA in light of changing science and technology and the possible need for updating the ADA’s definitions in light of those changes.

The ADA has a specific exclusion from the definition of disability for homosexuality and bi-sexuality (42 U.S.C. §12211(a) and for “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders” (42 U.S.C. §12211(b)(1)). Although these were treated differently in the statute, both exclusions appear to be based on the fear that employers and others would not be able to exclude LGBTQ people based on issues of sexuality.²

To understand the importance of Williams v. Kincaid as a guide to interpreting the ADA requires a little history. When the ADA was introduced in 1989 the Diagnostic and Statistical Manual of Mental Disorders III treated anything but traditional straight gender identity or behavior as a form of mental illness. The DSM is the standard reference for mental disorders, and because the ADA definition of disability begins with “a physical or mental disorder” it was not hard to see that gay, lesbian, bisexual, transsexual and other people might claim that the ADA prohibited discrimination against them based on questions of sexuality. This was morally abhorrent to many legislators and so the ADA was written with a specific exclusion from the definition of disability for homosexuality and bi-sexuality (42 U.S.C. §12211(a) and for “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders” (42 U.S.C. §12211(b)(1)). Although these were treated differently in the statute, both exclusions appear to be based on the fear that employers and others would not be able to exclude LGBTQ people based on issues of sexuality² and a belief that these behaviors represented a moral failing rather than a mental disorder.³ The only issue with the exclusion appeared to be that it might exclude individuals with HIV/AIDS because of the association of that disease with homosexual behavior. The exclusion remained after different legislators pointed out that HIV/AIDS was not limited to homosexuals. What the ADA ended up doing was excluding conditions that were regarded as mental disorders in the scientific community but which most legislators thought were merely moral failings.

The treatment of LGTBQ sexuality as a mental disorder continued in DSM IV, but the current version of the DSM – version 5 – no longer treats questions of sexual identity as a mental disorder. It recognizes instead that “gender dysphoria” can be a mental disorder because individuals whose sexual identity does not match their gender at birth may suffer from severe mental distress as a result. In the thirty years since the ADA was passed science has advanced and the notions about sexual identity current in 1989 are no longer considered to have a scientific basis. Note that this is not an observation about social change. Societal attitudes about LGBTQ individuals have also dramatically changed in the last thirty years, but the DSM understanding of sexual identity is based on science, not social change.

This brings us to the analysis in Williams v. Kincaid. Williams is a transgender woman who had lived for fifteen years as a woman and was shown female on her drivers license. She was diagnosed as having gender dysphoria and received hormone therapy as part of her treatment. When arrested and jailed she was originally treated as a woman, but later transferred to male prisoner housing in the county jail and otherwise treated as a man. She was denied her hormone therapy for at least two weeks and only received it irregularly after that. Not surprisingly she was mocked by male prisoners and suffered at least some abuse from male guards. After her release she sued under the disability discrimination provisions of the ADA and Rehabilitation Act. Kincaid, the sheriff, defended on the exclusion of transsexuality from the definition of disability under the ADA.

The Fourth Circuit rejected this defense based only on principles of statutory interpretation. In its simplest form the argument went like this:

• transsexuality as used in the ADA must have been based on the definitions of mental disorders in the DSM III (4) in which it was one of several “gender identity disorders.”
• “gender dysphoria” was not mentioned as a mental disorder in the DSM III.
• DSM 5 no longer recognizes gender identity disorders, but does recognize “gender dysphoria” as a mental disorder.
• therefore Congress could not have intended to exclude gender dysphoria from the definition of disability in the ADA.

In other words, Congress only intended to exclude what it knew to be mental disorders in 1989 and the exclusion in the statute could not be re-written to encompass a newly recognized mental disorder even if that mental disorder arose out of transsexuality. As the Fourth Circuit wrote:

Thus, the ADA excludes from its protection anything falling within the plain meaning of “gender identity disorders,” as that term was understood “at the time of its enactment.” Bostock, 140 S. Ct. at 1738. But nothing in the ADA, then or now, compels the conclusion that gender dysphoria constitutes a “gender identity disorder” excluded from ADA protection. For these reasons, we agree with Williams that, as a matter of statutory construction, gender dysphoria is not a gender identity disorder.

2022 WL 3364824, at *6 (emphasis added).

This is interesting enough, but does it have broader ramifications in interpreting the ADA? It should. After all, advances in science and technology since 1989 have not been limited to the understanding of mental illness. Courts arguing one way or the other concerning the application of the ADA to websites and internet based applications almost always assert that Congress never thought about the internet when the ADA passed because it was relatively insignificant at the time. The Fourth Circuit approach – what Congress didn’t think about it didn’t include – supports the law in the various circuits that find stand-alone websites are not places of public accommodation.(5)

This approach may also require re-thinking the meaning of phrases like “architectural barriers” or “communication barriers.” Is the definition of an architectural or communication barrier frozen in terms of assistive technologies available in 1989 or will improvements in technology change the way these phrases are understood? The same may become true of technologies that ameliorate a disability. Congress explicitly stated that the ameliorative effects of various physical devices would not be considered in determining whether a physical disability substantially limits a major life activity(6), but there is no similar provision for gene therapy, another technology not available in 1989. There may be a time when some mental or physical disorders are not reasonably considered disabling because of the effectiveness of new therapies that don’t fit the definition of “medication” in the list of things not to be considered when determining whether a disability exists.

The very high profile controversy about websites as public accommodation has prompted efforts at legislative change(7).The decision in Williams v. Kincaid tells us that this may not be the only statutory reform needed. In Williams v. Kincaid the Fourth Circuit was able to bring the ADA in line with modern medical practice because of a change in vocabulary, but that may not always be true. Congress went to a lot of much trouble to specifically exclude the ameliorative effect of different technologies without considering whether those technologies might, in the future, become the equivalent of “ordinary eyeglasses” whose effects can be considered. Courts can only do so much to bring an old law into a new millennium. Congress may need to do some work as well.

++++++++++++++++++++++++++++++++++++++

¹ See my blog https://accessdefense.com/?p=5193#more-5193 for a discussion of earlier district court cases, and see Grimm v. Gloucester County Sch. Bd., 972 F.3d 586, 611 (4th Cir. 2020), as amended (Aug. 28, 2020), cert. denied, 141 S. Ct. 2878 (2021) for an earlier discussion of gender dysphoria discrimination.

² In the Congressional Record a poll showing widespread opposition to laws that would forbid discrimination against homosexuals was entered in the record on the same day the first draft of the ADA was presented. (C.R. 101 – May 9, 1989 at pp. 39, 138). The Fourth Circuit certainly viewed the ADA exclusion as evidence of discrimination in Grimm v. Gloucester County Sch. Bd. writing:

First, take historical discrimination. Discrimination against transgender people takes many forms. Like the district court, we provide but a few examples to illustrate the broader picture. See Grimm, 302 F. Supp. 3d at 749 (“[T]here is no doubt that transgender individuals historically have been subjected to discrimination on the basis of their gender identity, including high rates of violence and discrimination in education, employment, housing, and healthcare access.” (collecting cases)). As explained in the Brief of the Medical Amici, being transgender was pathologized for many years. As recently as the DSM-3 and DSM-4, one could receive a diagnosis of “transsexualism” or “gender identity disorder,” “indicat[ing] that the clinical problem was the discordant gender identity.” See John W. Barnhill, Introduction, in DSM-5 Clinical Cases 237–38 (John W. Barnhill ed., 2014). Whereas “homosexuality” was removed from the DSM in 1973, “gender identity disorder” was not removed until the DSM-5 was published in 2013. See Kevin M. Barry et al., A Bare Desire to Harm: Transgender People and the Equal Protection Clause, 57 B.C. L. Rev. 507, 509–10, 517 (2016). What is more, even though being transgender was marked as a mental illness, coverage for transgender persons was excluded from the Americans with Disabilities Act of 1990 (ADA) after a floor debate in which two senators referred to these diagnoses as “sexual behavior disorders.” See Barry et al., supra, at 510; see also 42 U.S.C. § 12211(b)(1). The following year, Congress added an identical exclusion to the Rehabilitation Act of 1973, “stripping transgender people of civil rights protections they had enjoyed for nearly twenty years.” Barry et al., supra, at 556; see also H.R. Rep. No. 102-973, at 158 (1992).

972 F.3d 586 at 611.

³ I found these in the materials collected at The ADA Law Project

(4) Although it did not survive into the final statute the DSM III was explicitly included in one of the early versions as part of the description of what was excluded from the meaning of disability. https://www.congress.gov/bill/101st-congress/house-bill/2273/text?r=7

(5) The Fourth Circuit has not ruled on this issue, but District Courts in the Circuit have held that stand-alone websites are places of public accommodation. The Ninth and EleventhCircuits say that stand-alone websites are not places of public accommodation and the Third and Sixth have excluded non-physical places of business in other contexts. The First, Second and Seventh have suggested in non-website cases they would extend the ADA to definition of public accommodation in ways that include websites. District courts in all but the Ninth and Eleventh Circuits have taken varying views of the question.

(6) 42 U.S.C. §12102.

(7) see my blog The Online Accessibility Act of 2020 – does it do what it needs to do?

 

 

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IRS Continues to Hunt for Cryptocurrency Investors with John Doe Summonses

UPDATE:  On August 15, 2022, Judge Otis D. Write II in the Central District of California entered an order approving service of the summons by the IRS on sFOX for account and transaction records.  The Department  of Justice entered a press release the following day with Commissioner Chuck Rettig quoted as saying “the John Doe Summons remains a highly valuable enforcement tool that the U.S. government will use again and again to catch tax cheats and this is yet one more example of that.”  Deputy Assistant Attorney General David A. Hubbert of the Department of Justice Tax Division was also quoted as well saying “taxpayers who transact with cryptocurrency should understand that income and gains from cryptocurrency transactions are taxable.”

---

The IRS knows it has a problem, in that it knows there are far more cryptocurrency transactions than are being reported on tax returns. The IRS may also get an $80 billion increase in funding for enforcement that will help solve that problem.  What can taxpayers and cryptocurrency service providers expect?  More John Doe Summonses.  If there was any doubt, the IRS filed two new John Doe Summons requests (here and here) this week on cryptocurrency service provider sFOX. sFOX is the full-service crypto prime dealer for institutional investors, providing brokerage services for digital assets. It’s also now a target for information by the IRS and the Department of Justice Tax Division.

John Doe Summonses

One of the most powerful tools in the IRS arsenal is the John Doe Summons. As a former Department of Justice Litigator, I myself used this tool multiple times, at the request of the IRS, to obtain information for various initiatives.  A normal IRS summons seeks information about a specific taxpayer whose identity is known; a John Doe summons involves taxpayers in a group the IRS cannot identify by name. At least, not yet. A John Doe summons allows the IRS to obtain the names of all taxpayers within a clearly defined group, so long as they receive judicial approval. This is exactly what happened with Coinbase, resulting in the release of information for 13,000 customers. The courts have also recently approved similar summonses for account holder information from Kraken and Circle.  The request to summons information enjoys a very low burden of proof (usually satisfied by a statement from and IRS Revenue Agent) and the approval process is done ex parte (i.e. only the government is involved with no opposing parties). The District Court Judge approving the summons for information from Kraken recognized that the interests of parties effected by the summons are unrepresented and specifically noted that “any further disputes as to the scope of the summons would benefit from the adversarial process.” The court also added that the permission to serve the summons was “without prejudice to any argument that Kraken or its users might raise in a motion to quash.” If the sFOX summons is approved, it and its users will be faced with the same choice.

The Taxpayer First Act changed Section 7609(f) of the Internal Revenue Code – the section governing John Doe Summonses.  Effective August 16, 2019, a John Doe Summons must be “narrowly tailored to information that pertains to the failure (or potential failure)” to comply with the Internal Revenue laws. The government’s interest is in a wide a net as possible to get as much information as possible to feed into its analytics and promote its current “Operation Hidden Treasure” initiative for finding unreported cryptocurrency.  sFOX and its customers interest in maintaining the privacy and confidentiality of its customers and transactions. Although there are legal costs involved, if the government continues to seek information without challenge the requests will only get broader and broader with each approved summons.  The government cited the approval of the Coinbase summons when seeking the Kraken summons and now cites the Kraken summons approval as support for approving the sFOX summons. The purpose of the Taxpayer First Act restrictions was to limit the intrusion into private financial information of taxpayers to only what is necessary. However, if nobody fights for that limitation it may be rendered meaningless.

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How a default finds fault

Full of Faith Christian Center, Inc. v. May affirmed a no-answer default judgment, making several points of general interest about that area of Texas procedure:

• Some service problems are fixable:  “T]he order denying the motion for default judgment was without prejudice and noted the returns failed to show Calvin’s authority to receive service. … The default judgment specifically referenced the second amended returns as support for the judgment and the court found all defendants were served properly and that the returns of service were on file at least ten days before the hearing on the motion to reconsider on July 31, 2020. These orders were ‘tantamount to formal amendment of the return of citation,’ and the record is sufficient to show valid service. An amended return relates back to the original return and is regarded as filed when the original return was filed.” (citation omitted).
• Even for a default judgment, basic damages principles must be followed: “The judgment awards punitive damages against appellants jointly and severally. This was error. See Tex. Civ. Prac. & Rem. Code § 41.006 (‘In any action in which there are two or more defendants, an award of exemplary damages must be specific as to a defendant, and each defendant is liable only for the amount of the award made against that defendant.’).”
• “86” Rule 44: “Rule 44.1(b) provides that when liability is contested, the court may not order a separate trial solely on unliquidated damages. Tex. R. App. P. 44.1(b). However, when a defendant appeals a no answer default judgment, liability is not contested for purposes of this rule.”

No. 05-20-00859-CV (Aug. 11, 2022) (mem. op.).

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Grievance Oversight Committee seeks input on attorney disciplinary system at September 16 meeting

The Grievance Oversight Committee is seeking public feedback regarding the Texas attorney disciplinary system.

The committee will meet on September 16 in Austin. If you have suggestions, observations, or other input regarding the attorney grievance system and are interested in scheduling a time to meet with the committee during its September 16 meeting, please email info@txgoc.com.

The Texas Supreme Court has charged the committee with reviewing the Texas attorney disciplinary system and reporting its observations and recommendations to the court. The committee is not a part of the attorney disciplinary process and cannot accept, consider, resolve, or interfere with any grievances or individual complaints involving attorney-client issues.

To learn more about the committee, visit www.txgoc.com.

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Government Motion in Kepke Case to Exclude Expert Testimony About the Law

I picked up an argument in a Government Motion to Exclude Defendant’s Proffered Expert Witness in the Kepke prosecution, United States v. Kepke(N.D. Cal. Criminal No. 3:21-CR-00155-JD), Motion dated 8/5/22, here. In general, the Government claims that Kepke’s expert witness disclosures were too cryptic to understand the expert witness’s proffered testimony, but the Government inferred that the expert witness would improperly testify about the law. Here are the three key paragraphs I focus on (Motion pp, 7-9):

             Expert witnesses are not permitted to offer opinions consisting of their interpretation of the law. See Hangarter v. Provident Life and Acc. Ins. Co., 373 F.3d 998, 1018 (9th Cir. 2004) (quoting Mukhtar v. Cal. State Univ., Hayward, 299 F.3d 1053, 1066 n. 10 (9th Cir. 2002), overruled on other grounds by Barabin v. AstenJohnson, Inc., 740 F.3d 457, 467 (9th Cir. 2014)); see also Snap-Drape, Inc. v. Comm’r, 98 F.3d 194, 198 (5th Cir. 1996). “[I]instructing the jury as to the applicable law is the distinct and exclusive province of the court.” Nationwide Transp. Fin. V. Cass Info. Sys., Inc., 523, F.3d 1051, 1058-59 (9th Cir. 2008); see also United States v. Caputo, 517 F.3d 935, 942 (7th Cir. 2008) (“The only legal expert in a federal courtroom is the judge.”); United States v. Weitzenhoff, 35 F.3d 1275, 1287 (9th Cir. 1993); CZ Services, Inc. v. Express Scripts Holding Co., 3:18-cv-04217-JD, 2020 WL 4518978, at * 2 (N.D. Cal. Aug. 5, 2020) (“[L]egal opinions are not the proper subject of expert testimony. Reed v. Lieurance, 863 F.3d 1196, 1209 (9th Cir. 2017). An expert may not give opinions that are legal conclusions, United States v. Tamman, 782 F.3d 543, 552-53 (9th Cir. 2015), or attempt to advise the jury on the law, Strong v. Valdez Fine Foods, 724 F.3d 1042, 1046-47 (9th Cir. 2013).”).

            In at least one criminal tax case, the Ninth Circuit approved expert testimony about the law where “the theory of the defense [was] that there [was] a good faith dispute as to the interpretation of the tax laws.” See United States v. Clardy, 612 F.2d 1139, 1153 (9th Cir. 1980) (citing United States v. Garber, 607 F.2d 92 (5th Cir. 1979) (distinguished by United States v. Burton, 737 F.2d 439, 444 (5th Cir. 1984)). But that does not mean that legal evidence is automatically admissible in all criminal tax trials. To the contrary, courts regularly exclude legal experts in criminal tax cases. See, e.g., United States v. Boulware, 558 F.3d 971, 974-75 (9th Cir. 2009) (affirming exclusion of expert testimony that specific “corporate distributions were legally non-taxable” as an impermissible legal opinion); see also United States v. Curtis, 782 F.2d 593, 598-600 (6th Cir. 1996) (affirming exclusion of expert testimony and distinguishing Garber); United States v. Harris, 942 F.2d 1125, 1132 n.6 (7th Cir. 1991) (evidence “may include expert testimony about case law, to the extent that the defendant claims actual reliance on that case law. Case law on which the defendant did not in fact rely is irrelevant because only the defendant’s subjective belief is at issue.”); United States v. Ingredient Tech. Corp., 698 F.2d 88, 96-97 (2d Cir. 1983) (affirming exclusion of expert testimony and distinguishing Garber); United States v. Alessa, 3:19-cr-00010, 2021 WL 4498638, at *4 (D. Nev. Sept. 30, 2021) (evidence of a conflict in the law is irrelevant if Defendant was not aware of the conflict).

            Here, Mr. Read’s proposed testimony must be excluded because, reading between the lines (as we must because the disclosures do not reveal Mr. Read’s actual opinions), it seems likely that Mr. Read plans to testify about his understanding of the law. At best, Mr. Read’s opinion that certain offshore structures are permissible or even common is tantamount to testimony that, in his opinion, Defendant’s actions were legal. This is exactly the type of opinion that is prohibited under Ninth Circuit law because “‘[w]hen an expert undertakes to tell the jury what result to reach, this does not aid the jury in making a  decision, but rather attempts to substitute the expert’s judgment for the jury’s.’” United States v. Diaz, 876 F.3d 1194, 1197 (9th Cir. 2017) (quoting United States v. Duncan, 42 F.3d 97, 101 (2d Cir. 1994)). And any minor probative value the proffered testimony might have would be substantially outweighed by a danger of unfair prejudice, confusing the issues, and misleading the jury.

This is fair argument, I suppose, to exclude or limit what the expert can testify to before the jury. The concern, I think, is that a jury may infer that a defendant relied upon the at least uncertain state of the law as the expert presents it to the jury without the defendant testifying that he in fact did rely (requiring the defendant to testify rather than choosing to remain silent at trial).

There is a related strategy to use legal uncertainty at the threshold of the case to argue to the judge (rather than the jury) that the law is sufficiently uncertain that a defendant cannot be prosecuted for violating that law. This argument is what I call the James issue, based on James v. United States, 366 U.S. 213 (1961), GS here, and James’ progeny. Basically, the concept is that, in order to convict for a crime requiring knowledge or intent to violate the law, the crime must be both known and knowable. Known goes to the defendant’s subjective intent which is a jury issue. Knowable goes to a purely legal issue, such as addressed in James, that the law is sufficiently certain to be knowable. The knowable inquiry is for the judge rather than for the jury. In James, the jury had convicted James thus finding that he had known what he thought was the law and intended to violate that “law.”  The Supreme Court held that, regardless of his intent as found by the jury, the law was sufficiently uncertain that, as a matter of law, he could not be convicted of an intent to violate the law crime, such as tax crimes.

Over the years, I have addressed that knowable issue in several blogs (that can be picked up through searches on “known,” “knowable,” and “James,” but a good blog on the issues is Fourth Circuit Fuzzes the Issue as to Whether Legal Uncertainty Is an Issue for the Court(Federal Tax Crimes Blog 11/5/18), here.

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Window Tint Laws in Texas

Many vehicles on the road have some type of tint on the windows. Tinting vehicle windows helps protect them from heat and harmful rays. It can also reduce glare.

However, there are restrictions on tinting vehicle windows in Texas. Rule 21.3 of the Texas Administrative Code sets the standards for privacy window devices for motor vehicles.

Window Tint Laws Texas Drivers Need to Know

The amount of tint you can have on vehicle windows depends on the window’s location. Below is a summary of the tinting standards in Texas:

Front Windshield

The rules for tint devices on the front windshield include:

• Tint cannot be above the AS-1 line. If the windshield does not have an AS-1 line, the tint must stop five inches below the top of the windshield.
• 25% or less for the luminous reflectance value when measured in combination with the original glass
• 25% or more for the light transmittance value when measured in combination with the original glass.
• Blue, amber, and red tint colors are prohibited.

You may use an un-tinted (clear) UV film over any section of the windshield. A medical exemption is not required for this type of tint.

Rear Windshield

The type of tint on the rear windshield depends upon whether the vehicle has outside mirrors on the sides of the vehicle.

There are no restrictions for tinting rear windows if:

• The vehicle has an outside mirror on each side of the vehicle; AND,
• The windows allow the driver to see the roadway for at least 200 feet from the rear of the vehicle.

However, if the car does not have outside mirrors that provide the minimum distance view, tinting must have a light transmittance value of 25% or more in combination with the original glass. The luminous reflectance value must be 25% or less in combination with the original glass.

Side Windows

The side windows to the left and right of the driver can have sunscreen. However, the same rules apply for light transmittance (25% or more) and luminous reflectance (25% or less) values.

The side windows to the rear of the driver are exempted from tinting regulations.

Are There Exceptions to the Window Tint Laws in Texas?

Law enforcement vehicles and vehicles used to transport passengers regularly for a fee (i.e., buses, limos, and taxis) are exempt. There are also some medical tint exceptions.

If a person requires tint on the two front windows that is darker than the 25% requirement, they must meet the following requirements:

• A licensed optometrist or physician must sign a medical exemption statement
• The medical statement must identify the driver or occupant of the vehicle with the exemption
• The medical professional must state that it is their opinion that the tinting is required to safeguard the health of the occupant or the driver

The signed medical exemption statement must be kept in the vehicle at all times. The driver must present the exemption statement to a police officer when requested. Also, the statement must be presented during annual vehicle inspections.

Can Window Tinting Affect the Outcome of a Car Accident Claim?

Texas is a fault-based state for car accident claims. If a driver causes a car crash, the driver can be held financially liable for damages caused by the car accident.

The types of damages you could receive for a car accident claim include economic and non-economic damages. Examples of those damages include:

• Physical pain and suffering
• Medical bills and expenses
• Emotional distress
• Loss of income, including benefits, future lost wages, and diminished earning capacity
• Physical therapy and nursing care
• Out-of-pocket expenses
• Loss of enjoyment of life
• Permanent disabilities and impairments
• Decrease in quality of life
• Personal care and household services

You have the burden of proving that the other driver caused the accident and the accident resulted in your injuries and damages. However, if you are partially to blame for the cause of the crash, you might not receive the full value of your damages.

Texas has a modified contributory fault law. The law bars a victim from receiving any money for damages if they are more than 50% to blame for the cause of their injury.

Furthermore, the proportionate responsibility law in Texas states that a victim’s compensation is reduced by their level of fault when they are less than 51% at fault. In other words, if your actions contributed to the cause of the car wreck by 30%, the compensation for your damages is reduced by 30%.

Typically, legal tinting does not impact a driver’s visibility, so it should not affect a car accident claim. However, if the other party can prove that illegal tinting on your vehicle played a role in the cause of the car accident, you might not receive the full amount of your damages.

Illegal tinting can complicate a car accident case. Therefore, it is best to seek legal advice from a car accident lawyer before speaking with an insurance adjuster about the claim.

Contact the Houston Car Accident Lawyers at Attorney Brian White Personal Injury Lawyers For Help

For more information, contact the Houston car accident law firm of Attorney Brian White Personal Injury Lawyers by calling (713) 500-5000.

Attorney Brian White Personal Injury Lawyers
3120 Southwest Freeway, Suite 350
Houston, TX 77098
United States

Attorney Brian White Personal Injury Lawyers – East Fwy
11811 East Fwy, Suite 630-06
Houston, TX 77029
United States

Attorney Brian White Personal Injury Lawyers – South Loop
2600 S Loop W, Suite 293
Houston, TX 77054
United States

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Who Decides Existence

By an 8-8 vote over a dissent, the full Fifth Circuit declined to review Newman v. Plains All Am. Pipeline, L.P., a case about a court’s power to determine arbitrability when a nonsignatory seeks to enforce an arbitration clause. The breakdown of votes was as follows (Senior Judge King was the third panel member):

 

 

 

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TABC Proposing Major Changes to Credit Law

The Texas Alcoholic Beverage Commission is proposing major changes to how it punishes Retailers for violations of Credit Law, i.e. delinquent payments, and late payments made outside of statutory credit terms.

A Retailer is prohibited from purchasing liquor on credit outside the terms provided under Tex. Alco. Bev. Code § 102.32(c). Liquor means any alcoholic beverage other than a malt beverage (which falls under Cash Law). A Seller is prohibited from selling to any Retailer who is delinquent to any Seller. Tex. Alco. Bev. Code § 102.32(d). Retailer becomes delinquent if they fail to make a payment four business days after payment becomes due. Purchases made by a Retailer between the 1st through the 15th of the month are due four business days after the 25th of the month. Purchases made by a Retailer between the 16th through the last day of the month are due four business days after the 10th of the next month. Purchased means the delivery date for purposes of computing deadlines. See MPA065. Sellers are required to inform the Commission of any delinquent accounts. Tex. Alco. Bev. Code § 102.32(d). The Commission in turn publishes a Delinquent List which puts Sellers and Retailers on notice of the delinquencies.

The purpose of Credit Law statute is to maintain independence between the distribution and retail tiers, as opposed to a debt collection mechanism for the distribution tier. Specifically, “prevent[ing] parties in the wholesale distribution system from controlling their retail customers through the leveraging of debt to accomplish[ing] other illicit gains” and “preventing those engaged in the distribution of alcoholic beverages from exerting undue influence over any level of the industry selling or service alcoholic beverages to the ultimate consumer”. See Tex. Alco. Bev. Code § 6.03(e) and (h). Credit Law also reinforces the Code’s prohibition against consignment sales, i.e. using extended credit as a subterfuge to sell on consignment, see generally Tex. Alco. Bev. Code §§ 1.04(2), 61.71(a)(8), 101.68, 102.01(i), 102.04(b)(3), 102.07(a)(4), 104.05(f).

Under the current guidance, the Commission affords a Retailer six (6) credit law violations per outlet in a rolling 12 month period. The seventh violation in the rolling 12 month period results in disciplinary action. The Commission proposes to change that in two material respects. First, the number of rolling violations is reduced from six (6) to three (3). Second, that all of the Retailer’s outlets are considered for purposes of counting violations. If a Retailer has one hundred outlets, and three different outlets each receive one violation in the rolling 12 month period, a fourth violation will result in disciplinary action.

Disciplinary action is generally meted out on an individual permit basis. See Tex. Alco. Bev. Code § 11.61(b) and 61.71. While the Code does allow the punishment of a Retailer on a wholesale basis, see Tex. Alco. Bev. Code § 11.66 and 61.72, depriving individual outlets of three warnings results in disparate and unequal treatment. Furthermore, it fails to take into consideration attendant circumstances, such as decentralized operations, separate books, different payment systems, different staff, etc.

We recommend that the Commission consider taking the above into consideration, and also use the rulemaking process to update existing portions of the existing rule, so it is conformance with other law. The current and proposed rules as written, give the Commission unfettered discretion to collect debt that is not enforceable due to limited liability protections under the Business Organizations Code, statute of limitations under the Texas Practice and Remedies Code, and the automatic stay and discharge provisions of the Bankruptcy Code.

Our public comments which go into more specific details, including revisions to the proposed rule are available below.

If you disagree with the direction the Commission is going with the proposed changes to the rules, make your opinion heard by submitting public comments to rules@tabc.texas.gov, participating online at the next Stakeholder Meeting on August 12, 2022 at 10:00a, and following the progress of the same by signing up for Industry Briefs and Industry Notifications. Also, keep track of stakeholder meetings and commission meetings on the Commission’s website.

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Louisiana Legacy Lawsuit Survives Motion to Dismiss

Withrow v. Chevron is another Louisiana legacy lawsuit, this one claiming that defendants Chevron and Vernon E. Faulconer, Inc., and their predecessors, improperly disposed of toxic and hazardous oilfield wastes in unlined earthen pits causing leaks, spills and other surface and subsurface damages and contaminating the soil and groundwater.

Defendants’ filed a Rule 12(b)(6) motion to dismiss the whole shebang for failure to state a claim. To defeat the motion the plaintiff had to plead specific facts, not mere conclusory allegations or legal conclusions masquerading as factual conclusions. On the other hand, a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

This the court did not offer much in the way of reasoning for its rulings; there will be plenty of time for that. The order is helpful as a laundry list of claims often asserted by legacy plaintiffs.

The court considered the following claims:

Civil Code Art. 667 absolute liability: Defendants claimed oil and gas E&P activities are not ultrahazardous. They can be and routinely are performed safely with the exercise of reasonable care. Plaintiff responded that it acquired the land before 1996 and an amendment limiting the definition of ultrahazardous activity did not apply to pre-1996 activities.

Mineral Code Article 11: The owner of land burdened by mineral rights and the owner of the mineral rights must exercise their respective rights with reasonable regard for those of the other.  The court declined to dismiss these two claims; their viability will be developed in discovery.

Civil Code Arts 2317 and 2322, premises liability: Defendants argued Art. 2322 does not apply because the unidentified equipment that Chevron owns is not a “building” as required. The Court was “not inclined to dismiss these claims at this point” (its phrasing throughout the order).

Civil Code 4864, for civil fruits from property. Defendants framed the question to be whether the plaintiff is seeking recovery of profits earned or costs avoided.  Plaintiff asserted that a lessee is impliedly obligated by law to remediate to pre-lease condition less normal wear and tear and to remediate damage resulting from unreasonable, negligent or excessive operations. This pleading was sufficient to withstand the challenge.

Civil Code Art 2688 failure to give notice was dismissed.

Land loss, subsidence and cost of backfilling canals. The court allowed this claim to stand. These were not causes of action but items of damage, and the defendants will have the opportunity to refute them at trial.

“Act 312” (La. R.S 30:29) does not create or deprive a plaintiff of a cause of action and withstood the challenge.

Continuing tort, trespass and nuisance. The court accepted plaintiff’s argument that whether the tort is continuing or otherwise is an issue of prescription. Also, as long as an oilfield pit remains open, torts committed by virtue of the construction or use of the pit continue.

Section 324A, Restatement (Second) of Torts, the Good Samaritan Doctrine. The complaint alleged sufficient facts to survive the challenge. Discovery will determine whether there is proof to support the allegations.

Mineral Code Art. 134 imposes a third-party beneficiary obligation on lessee/defendants as a matter of law said the plaintiff. This claim passed the Rule 12(b)(6) sufficiency test.

Plaintiff’s claim for unjust enrichment could not proceed because there are viable tort, contract and Mineral Code claims. Plaintiff agreed to dismiss.

Your musical interlude.

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Could someone appeal a child custody ruling with new evidence?

When a couple goes to court during a divorce, one job that the court has is the rule on custody of their children. The general process here is for the court to try to consider the best interests of the children and rule in a way that is consistent with them. But there are situations in which the ruling may not be fair or just.

In some cases, parents may even claim that they have new evidence that should change the way that the court views their situation. Maybe they think it disproves accusations made before or simply paints the situation in a different light. Can that person appeal the child custody ruling and then bring this new evidence to court so that the higher court can make the proper ruling?

 New evidence is not permitted

If you’ve never been through an appeal like this before, it’s important to point out that new evidence is generally not permitted during an appeal. The goal is not to bring more evidence to the court or to change the facts of the case.

Rather, the goal of an appeal is to have a higher court reinterpret that evidence and apply the law to it. The appellate law can look at the evidence and transcripts that the lower court already examined, and they can determine if they need to rule in a different manner.

What the parent would be arguing in a case like that is that the court made a mistake in the sense that they applied the law incorrectly or inconsistently. But they’re not going to bring new evidence to change the facts of that case.

Seeking change

Remember that appealing the ruling is not necessarily your only option. If it’s too late for that, you may be able to seek a modification. Either way, be sure you know what legal steps to take.

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Is a Store Liable for a Customer Injury?

Most of us make a trip to one store or another at least once a week if not more often. If we are visiting a gas station, department store, makeup counter, or other retail establishment and get injured there, who is responsible? Many things can make a person fall unexpectedly, including wet floors, slippery surfaces, insufficient lighting, and dangerous entryways. While many injuries in a supermarket or other store are accidental, sometimes a property owner is at fault for creating a hazard or failing to remedy it. So, how does someone injured at a business know if a store owner is liable for a customer injury? While many people may think being injured on someone else’s property means the property owner is automatically liable for their injuries, this is far from the truth. Proving property owner liability is legally challenging.

Negligence on the part of a store owner means they are responsible for the dangerous situation that led to your injuries. No matter if management overlooked a hazard that created a dangerous situation or recklessly created the danger, if you suffered injuries in a store and the store or property owner’s negligence played a role in causing you to get hurt, they may be legally responsible for the resulting damages. Dealing with a catastrophic injury after a slip and fall isn’t easy. If a store’s lack of reasonable care caused your injury, you deserve compensation for such negligence.

Texas Premises Liability Law

Texas law classifies those who visit another’s property into three categories: trespasser, licensee, and invitee; and, the classification of the visitors determines which standard of care the property owner owes them:

• Trespasser: A trespasser is someone who enters or remains on another’s property with or without the property owner’s knowledge or consent. If the property owner does not know the trespasser is entering their property, there is no duty of care owed to the trespasser. If the owner knows, then they must warn of all unnatural hazards. A property owner owes a trespasser only the slightest duty to keep them safe.
• Licensee: A licensee is a person who has the owner’s permission to be on the premises, but is there for the licensee’s own purposes. A licensee is owed a higher duty of care than a trespasser but a lesser duty of care than is owed to an invitee. A licensee is often described as a social guest, as they are invited to enter and/or remain on another’s property for reasons other than business. The invitation can either be expressed or implied.
• Invitee: An invitee is a customer that visits a store at the property owner’s invitation. An invitee enters a property with the property owner’s (or controller’s) knowledge and for their mutual benefit. The owner not only wants the customer to come into their place of business but also needs them to spend money there to help the company stay operational. The law imposes the highest duty of care on a store owner concerning the safety of an invitee. Most people who are hurt in a store are invitees. The property owner owes the invitee a duty to protect the invitee from reasonable risks that he or she is aware of and foreseeable risks that could be identified after a reasonable inspection.

In addition, Texas law maintains strict deadlines within which injury victims must file a lawsuit called statutes of limitation. The statute of limitations for a premises liability case in Texas is two years from the date of the incident – meaning, you only have that long to take action against the liable party for financial compensation.

Proving Negligence in a Premises Liability Claim

If you are injured while patronizing a store, your personal injury lawyer will need to prove the following elements of negligence existed:

1. Duty: The property owner owed you a reasonable duty of care to prevent your injury on their premises
2. Breach: The store owner breached the duty of care they owed you
3. Cause in fact: If it wasn’t for the store owner’s actions or failures to act, you would not have suffered an injury
4. Proximate cause: The store owner’s actions and nothing else caused your injury
5. Damages: You incurred damages as a result of the premises liability accident

Premises liability issues can be complex. The available evidence should show the store owner knew about the hazardous conditions or that a reasonable person would have known about them.

Common Causes of Slip and Fall Accidents in Retail Stores

Like all businesses open to the public, stores are legally obligated to maintain reasonably safe property conditions for the protection of visitors and customers. While any number of scenarios can cause a customer injury in a store, some of the more common causes include:

• Spilled liquids, food, or other such items
• A wet or slippery floor after mopping or cleaning
• Uneven surfaces
• Slippery or broken floor tiles
• Dangerous stairs
• Poor lighting
• Inadequate security
• Weather conditions
• Poor visibility
• Lack of handrails or broken handrails or stairs
• Lack of slip-resistant or skid-resistant material
• Merchandise left in the aisles
• Failure to post warning of temporary hazards

Houston Customer Injury Lawyers

Property owners’ insurance companies will always try to avoid paying for injuries that occur on the properties they insure. You need experienced legal counsel on your side to ensure you hold the responsible parties accountable for the dangerous conditions they created and the damages that resulted. Your premises liability damages for a customer injury can include medical bills, lost wages, loss of earning capacity, pain, and suffering, and more.

The post Is a Store Liable for a Customer Injury? appeared first on Adame Garza LLP.

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