Tuesday, July 31, 2012

Supreme Court Asked to Rule on Gay Widow's Estate Tax Refund Case

The surviving spouse of a lesbian couple is asking the U.S. Supreme Court to rule on her case challenging a federal law that defines “marriage” as a union between a man and a woman.  If she wins, the woman, Edith Windsor, will receive a refund of more than $363,000 in estate taxes she was forced to pay because the federal government did not consider her married to her spouse.

As ElderLawAnswers reported, a federal district court judge ruled in June that the Defense of Marriage Act's (DOMA's) denial of equal benefits to same-sex couples violates the Equal Protection Clause of the Fifth Amendment, and the judge awarded Ms. Windsor reimbursement for the tax bill she paid on her wife's estate.  (Heterosexual spouses can leave any amount of property to their spouses free of federal estate tax.)

A congressional legal group authorized by Republicans to defend DOMA quickly filed an appeal of the district court’s ruling with the U.S. Court of Appeals for the Second Circuit.  Ms. Windsor’s lawyers are hoping to speed up the case by jumping to the Supreme Court, which has been asked to hear two other cases challenging the statute.  “The Court will likely decide the constitutionality of DOMA this coming term, using one or more of these cases as vehicles for addressing the issue,” according to a blog post by the American Civil Liberties Union, which is helping to represent Ms. Windsor.

"Edie Windsor, who recently celebrated her 83rd birthday, suffers from a serious heart condition," said Roberta Kaplan, a partner at the firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP and counsel to Ms. Windsor. "Because the District Court's ruling in her favor is entitled to an automatic stay of enforcement, Edie cannot yet receive a refund of the unconstitutional estate tax that she was forced to pay simply for being gay. The constitutional injury inflicted on Edie should be remedied within her lifetime." 

In the meantime, Ms. Windsor will continue to defend her victory before the Second Circuit, which has agreed to hear her case on an expedited basis, with oral argument scheduled for September.

Background of the Case

Edith Windsor and Thea Spyer became engaged in 1967 and were married in Canada in 2007, although they lived in New York City. When Ms. Spyer died in 2009, Ms. Windsor had to pay Ms Spyer's estate tax bill because of DOMA, a 1996 law that denies federal recognition of gay marriages.

Although New York State considered the couple married, the federal government did not and taxed Ms. Syper's estate as though the two were not married. Ms. Windsor sued the U.S. government seeking to have DOMA declared unconstitutional and asking for a refund of the more than $363,000 federal estate tax she was forced to pay.

On June 6, 2012, federal court judge Barbara Jones from the U.S. District Court for the Southern District of New York ruled that there was no rational basis for DOMA's prohibition on recognizing same-sex marriages. Jones stated that it was unclear how DOMA preserves traditional marriage, which is one of the stated purposes of the law.  

As ElderLawAnswers reported last year, President Obama decided to stop defending DOMA, so members of Congress formed an advisory group to defend the law. This was the fifth case to strike down DOMA.

For more on the decision to appeal the case to the Supreme Court, click here and here.

Reprinted with the permission of ElderLawAnswers.com

140Law - Legal Headlines for Tuesday, July 31, 2012

- Rachel Spence, Law Clerk

Monday, July 30, 2012

140Law - Legal Headlines for Monday, July 30, 2012

Here are the leading legal headlines from Wise Law on Twitter for Monday, July 30, 2012:
- Rachel Spence, Law Clerk

Workers’ Compensation Benefits Curtailed for Injured Antiques Aficionado

An October, 2011, decision by the Nova Scotia Workers’ Compensation Appeals Tribunal should signal to those of us who not only collect, but also repair, show or deal in antiques, that our hobby activities may be scrutinized by adjudicators determining entitlement to benefits arising out of a workplace injury.

The names of the injured worker and his employer are not disclosed in the reported decision. However the details of the injury, treatment, ongoing physical and emotional difficulties, and expert opinions are each enumerated in detail. The worker had been employed since 1988 as a Division Crewman, performing general labour duties; but he worked primarily as part of an asphalt crew doing brush cleaning and traffic control. He was injured in October, 2005, when he lifted a steel ramp on the back of a truck. He stated that since his injury he has had pain in his low back and numbness in his left leg, and could not work at his job.

The worker was an antique car and machinery collector. He had been off work for a number of years, he had undergone extensive treatment and testing, and he was now being offered an alternate, less stressful position with the employer which he had begun pursuant to a back-to-work program. The worker claimed that the subsequent onset of migraines, and bowel and bladder problems were causally connected to the initial injury, and thus should be taken into consideration during a review of his case, and his application for additional benefits. In addition he claimed he was unable to fulfill the requirements of the newly offered job.

The appeals tribunal reviewed the prior decision of the Workers’ Compensation Board which found that these additional medical problems were not related to the injury, that the offer of an alternate position with the employer was reasonable and appropriate, and that the worker was not entitled to further treatment at a pain management clinic. The worker’s appeal of that decision was denied in its entirety by the Appeals Tribunal. The final two issues (offer of alternate employment and denial of ongoing treatment) are relevant to our discussion of the worker’s passion for antiques and should serve as a warning to those of us who are injured on one job, but carry on with another vocation, even if it’s a hobby.

Most of us have heard stories about insurance companies sending out private investigators to spy on people who have been injured in car accidents, to speak to their neighbours, and to otherwise dig up information which suggests that they are not as injured as they claim or are simply malingerers. Workers’ compensation boards have a similar right to test the veracity of the claims of injured workers by hiring investigators. And now, in the age of the internet, it’s much easier to find out how injured individuals are really spending their time while away from the workplace, ostensibly recovering.

The evidence at the appeals hearing disclosed that the antiques aficionado, while off work had been participating in events involving antique cars and machinery, including a plowing event. He stated that because of his condition he wasn’t able to participate in the festivities “to any great extent.” He said that he would still drive an antique car around, but not while taking medication.

The worker owned four antique cars and some antique trucks and tractors, and would work on their restoration. He said that his friends would help him out to some extent working on his cars, but admitted that he did spend time on his own in his home workshop. When asked about coming to work (the back-to-work program) with grease under his nails, he admitted to working at things at his shop and showing his son how to do mechanical things, such as replacing a bicycle chain. But in an effort to rehabilitate his testimony, he stated that the mechanical jobs he was doing around the house now took longer since he had difficulty concentrating since the accident. He also said that his doctors had told him to challenge the pain, and therefore that was why he’d been seen doing strenuous activities.

On cross-examination the worker admitted that he had also been spending time on eBay and Kijiji while at work. He had been conducting business on these two internet sites while at the work at the new position offered to accommodate him. He stated that he found the websites difficult to use.

The Appeals Tribunal decision noted all these activities that the worker had been engaging in while either off work entirely, or at the back-to-work program. Yet supposedly he was unable to return to his usual job duties because of ongoing medical issues and in fact new problems which, he alleged, arose as a result of the 2005 accident.

As indicated, the worker’s claims were denied in their entirety. His claim for further treatment at a pain management clinic was denied. The Tribunal determined that he was medically able to perform the duties of the alternate position that had been made available to him, and which he in fact had been working at.

The lesson to be learned is straightforward. If you’re an antiques collector or dealer and are attempting to advance claims arising out of an accident or injury, be careful. Whether it’s an insurance company, an employer, or a workers’ compensation board, each has means of delving into your day-to-day activities. A couple of decades ago those investigations were restricted to having private eyes looking into your comings and goings. While these investigations continue today, in the modern age of internet technology, sites like eBay, Facebook and other social media networks and websites make it much easier to determine if you’re in fact entitled to the benefits and entitlements you claim. Investigators can now go online rather than follow you around and speak to your neighbours.

- Alvin Starkman, Oaxaca, Mexico
Alvin Starkman received his Masters in Social Anthropology in 1978. After teaching for a few years he attended Osgoode Hall Law School, thereafter embarking upon a successful career as a litigator until 2004. Alvin, a good-standing member of the Law Society of Upper Canada, now resides with his wife Arlene in Oaxaca, Mexico, where he writes, leads small group tours to the villages, markets, ruins and other sights, is a consultant to documentary film production companies, and operates Casa Machaya Oaxaca Bed & Breakfast.

Sunday, July 29, 2012

Introducing WiseLii, Canada's Mobile Legal Research Tool

We are very happy to announce the launch today of WISELII, Canada's Mobile Legal Research Tool, an access to justice initiative for all Canadians by Wise Law Office.  

WISELII is a free app that makes Canadian legal information, legislation,  jurisprudence and searches instantly available on the iPhone mobile platform.

See our User Guide at the WISELII Home Page for more information on the app, with numerous screenshots.

WISELII is an independent project from Wise Law Office.  It is in no way affiliated with CanLii or any Legal Information Institute.

We would like to express our thanks to CanLii, nonetheless, for its exceptional research tools and for permitting WISELII to access its data for this iPhone application.

For more on WISELII from the Financial Post, see: New free mobile app gives greater access to justice to all Canadians.
- Garry J. Wise, Toronto

Tuesday, July 24, 2012

Don't Text and Drive (OMG, LOL)

This Colorado road sign is making the rounds on Facebook and the web:

- Garry J. Wise, Toronto

Developments in Access to Legal Information Online

Here are a couple of items that I've been meaning to mention, each highlighting new ways in which the online world is expanding to provide enhanced access to information and services for the legal profession and the public:
  • Lawline.com recently opened up its entire continuing legal education course catalogue for free access to lawyers. As its press release noted, this unlimited access "is a game changer for the legal industry and online education everywhere."  I am hoping this model may be of interest to the Law Society of Upper Canada, which is amassing an impressive and growing catalogue of videotaped CPD programmes. Wouldn't it be useful for the LSUC to give members easy, on demand online access  to archived CPD video and materials? My thought is that LSUC membership should include unlimited, free access to any video programmes and materials in "the LSUC vault" from one year after original presentation dates. The time has arrived for a CLE portal of this nature in Ontario. 
  • Congratulations are in order for our friend, Omar Ha-Redeye, who joined My Support Calculator as General Manager several months ago. (Omar is also continuing in his own, private law practice with Fleet Street Law). My Support Calculator is an essential new resource for Canadians who find themselves involved in the nation's family court system. Delivering quick, easy and free access to the child support and spousal support "numbers" that separated parents and spouses need to know, My Support Calculator is a near-godsend for Canada's unrepresented litigants - and the judges and counsel working with them.
- Garry J. Wise, Toronto

140Law - Legal Headlines for Tuesday, July 24, 2012

Here are the leading legal headlines from Wise Law on Twitter for Tuesday, July 24, 2012:
Have a fantastic day and be sure to visit us tomorrow for more leading legal headlines.

- Rachel Spence, Law Clerk

Monday, July 23, 2012

Big News! Vethan Law Firm Successfully defends Business in Trademark Case!

Big News!!!!

In a recent trademark case, the Vethan Law Firm successfully defended a company’s general manager in a lawsuit where the manager was accused by a competitor of unfair competition and fraudulently obtaining a trademark.  Despite the Competitors’ use of seven attorneys at trial, (including two law firm partners), the competitor’s claims of wrongdoing against the Vethan Law Firm’s client were dismissed by a Federal Judge before the claims made it to the jury.  The competitor had claimed over $800,000.00 against the VLF client in attorney fees.  The Federal Judge denied the competitor’s enormous claim, finding the case “unexceptional” and refusing to award the competitor any fees. 

“They challenged our client’s integrity, and they lost.”  said Charles Vethan, managing partner of the Vethan Law Firm.  The amount of liability sought against the VLF client was over four times the competitor’s original estimate.  “We were able to use the opposing party’s own statement against them. You can’t request an award of nearly a million dollars when you have previously said the amount would be around $150,000.00.  We proved our client had done nothing wrong, so there was no way the opposing party was going to get a money judgment.  The fact that the amount requested had grown out of control could not have helped.”  

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(713) 526-2222

140Law - Legal Headlines for Monday, July 23, 2012

Here are the leading legal headlines from Wise Law on Twitter for Monday, July 23, 2012:
- Rachel Spence, Law Clerk

Sunday, July 22, 2012

Scalia, Textualism and The Interpretive "Rule of the 18th Century Brits"

In an illuminating interview with CNN's Piers Morgan last week,  U.S. Supreme Court Justice Antonin Scalia discussed freedom of speech, flag burning, and the unchecked influx of corporate money into Presidential politics.

Justifying the Court's decision in Citizens United,  Scalia contended "Thomas Jefferson would have said  'the more speech the better - that's what the First Amendment is all about," and claimed it is "utterly impossible" to separate speech from the money that facilitates the speech.

Then there was this fascinating exchange, as Scalia articulated his view on the limits of freedom of speech, as  intended by the Framers:
Piers Morgan: Is there any limit, in your eyes. to freedom of speech? What are the limitations to you?
Justice Scalia: Oh. Of course.  I am a textualist.  And what the provision reads is "Congress shall make no law abridging the freedom of speech..."
So they had in mind a particular freedom.   
What freedom of speech? 
The right of freedom of speech that was the right of Englishmen at that time.
Is Scalia truly contending that U.S. constitutional interpretation must ultimately be frozen in time - to be determined solely with reference to the rights and expectations of 18th century Brits?

If so, doesn't this pose a bit of a conundrum for America?  

Having just overthrown the British in a bloody revolution, the textualists argue, the framers then opted to permanently tie the constitutional hands of American lawmakers to the sensibilities and statutes of the old men of another country, far away in distance and time - a country, in fact, from which America had just declared its independence. 

British lawmakers, of course,would not have been handicapped by any parallel limitation on how their nation's laws could evolve and adapt, moving forward from the 18th century. 

According to Scalia, then, while the British would have retained the luxury of interpretive constitutional modernity, America did not.  

(Who won the American Revolution, again?)

Apparently, such "textualism" passes as an enlightened and persuasive point of view in conservative legal corners of the U.S.  


Video of the exchange is below:


- Garry J. Wise, Toronto