"SCOTUS" UPDATE (SUPREME COURT OF THE UNITED STATES): NOVEMBER 2012 SITTING

This blog featuring the activities and work of the Supreme Court of the United States ("SCOTUS") was prepared by the national general practice law firm of Charles Jerome Ware, P.A., Attorneys and Counsellors.

November Sitting 2012

Argument	Docket	Case Page	Issue(s) or Holding	Opinion
10.31.2011 Tr. Aud.	10-444	Missouri v. Frye	The Sixth Amendment right to effective assistance of counsel ex­tends to the consideration of plea offers that lapse or are rejected, and that right applies to “all ‘critical’ stages of the criminal proceedings.”	3.21.2012
10.31.2011 Tr. Aud.	10-209	Lafler v. Cooper	Where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed.	3.21.2012
11.01.2011 Tr. Aud.	10-788	Rehberg v. Paulk	A witness in a grand jury proceeding is entitled to the same absolute immunity from suit under Section 1983 as a witness who testifies at trial.	4.2.2012
11.01.2011 Tr. Aud.	10-1104	Minneci v. Pollard	Because state tort law authorizes adequate alternative damages actions in this case, no Bivens remedy can be implied.	1.10.2012
11.02.2011 Tr. Aud.	10-895	Gonzalez v. Thaler	Section 2253(c)(3) is a mandatory but nonjurisdictional rule. The failure of a certificate of appealability to “indicate” a constitutional issue does not deprive a court of appeals of jurisdiction to adjudicate the appeal. Moreover, for a state prisoner who does not seek review in a state’s high­est court, the judgment becomes “final” for purposes of Section 2244(d)(1)(A) upon “expiration of the time for seeking such review.” The petitioner’s appeal in this case was therefore untimely.	1.10.2012
11.02.2011 Tr. Aud.	10-8974	Perry v. New Hampshire	The Due Process Clause does not require an inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances by law enforcement.	1.11.2012
11.7.2011 Tr. Aud.	10-577	Kawashima v. Holder	Violations of 26 U.S.C. §§ 7206(1) and (2), which preclude making (or assisting in the making of) a false tax return, are crimes “involv[ing] fraud or deceit” under 8 U.S.C. § 1101(a)(43)(M)(i) and are therefore aggravated felonies for purposes of the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., when the loss to the govern­ment exceeds $10,000.	2.21.2012
11.7.2011 Tr. Aud.	10-699	M.B.Z. v. Clinton	The political question doctrine does not bar courts from deciding whether § 214(d) of the Foreign Relations Authorization Act, which permits U.S. citizens born in Jerusalem to request that their passports state “Israel” as their place of birth, impermissibly intrudes on the President’s powers under the Constitution.	3.26.2012
11.8.2011 Tr. Aud.	10-1259	U.S. v. Jones	Attaching a GPS device to a vehicle and then using the device to monitor the vehicle’s movements constitutes a search under the Fourth Amendment.	1.23.2012
11.8.2011 Tr. Aud.	10-8145	Smith v. Cain	The substantial Brady claims in the case require a reversal of the petitioner’s conviction.	1.10.2012
11.9.2011 Tr. Aud.	10-879	Kurns v. Railroad Friction Products	Petitioners’ state-law design-defect and failure-to-warn claims fall within the field of locomotive equipment regulation pre-empted by the Locomotive Inspection Act, as that field was defined in Napier v. Atlantic Coast Line R. Co.	2.29.2012
11.9.2011 Tr. Aud.	10-224	National Meat Association v. Harris	The Federal Meat Inspection Act expressly preempts a California law regulating the treatment of non-ambulatory pigs at federal­ly inspected slaughterhouses.	1.23.2012

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For eight years in the 1990s, Attorney Charles Ware hosted the extremely popular and enormously successful legal advice radio program "The Lawyer's Mailbox", the Number One (#1) legal advice radio program in the Mid-Atlantic Region, on WEAA 88.9 FM, Morgan State University Radio, in Baltimore, Maryland.

[www.CharlesJeromeWare.com; http://thelawyersmailbox.blogspot.com]

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QUOTE FOR THE DAY: From the Desk of Attorney Charles Jerome Ware

"Life is a sum of all your choices."

- Albert Camus: French Philosopher, Author, Journalist. Recipient of the 1957 Nobel Prize for Literature.

"SCOTUS" UPDATE (SUPREME COURT OF THE UNITED STATES): Petitions for Conference on Friday, October 12, 2012

An update by Charles Ware, a principal in the national general practice law firm of Charles Jerome Ware, P.A., Attorneys and Counsellors: "Still working.  Still committed.  Still here to make a difference."

Arizona v. The Inter Tribal Council of Arizona, Inc.

(1) Whether the Ninth Circuit erred in creating a new, heightened preemption test under Article I, Section 4, Clause 1 of the U.S. Constitution (“the Elections Clause”) that is contrary to the Supreme Court’s authority and conflicts with other circuit court decisions; and (2) whether the Ninth Circuit erred in holding that under that test the National Voter Registration Act preempts an Arizona law that requests persons who are registering to vote to show evidence that they are eligible to vote.

E.T. v. Cantil-Sakauye

Whether the abstention doctrine announced in O’Shea v. Littleton requires federal courts to refrain from adjudicating claims under 42 U.S.C. § 1983 whenever it would “intrude” upon state-court administration in any manner, as the court below held in joining the Second and Sixth Circuits, or whether that doctrine requires abstention only when adjudication requires supervising specific state-court events or displacing their “day-to-day operations,” as the D.C. and First Circuits have held.

Ryan v. James

Whether the Ninth Circuit’s panel opinion conflicts with the Anti-Terrorism and Effective Death Penalty Act (AEDPA) and this Court's decisions in Harrington v. Richter, and Cullen v. Pinholster insofar as it (a) treated AEDPA’s deferential standard as a waivable defense, rather than an inherent restriction on a federal court’s authority, (b) refused to find that the state post-conviction (PCR) court issued a merits ruling on respondent’s ineffective-assistance-of-counsel claim, when the state court expressly ruled that none of respondent’s PCR claims were colorable, and (c) considered evidence presented for the first time in federal court to grant habeas relief.

Gray v. Citigroup, Inc.

(1) Whether, under Section 1104(a)(1)(B) of the Employee Retirement Income Security Act, a fiduciary of a plan that invests in qualified employer securities who knows, or should have known, that it is imprudent to invest in the employer’s securities is permitted to take no steps to protect plan participants and beneficiaries unless the employer is in a “dire situation” or near bankruptcy; and (2) whether, under Section 1104(a)(1)(B), a complaint by a plan participant against a fiduciary of such a plan need only plead facts making plausible the conclusion that the fiduciary failed to act with “care, skill, prudence, and diligence,” or whether instead the complaint must plead facts making plausible the conclusion that the fiduciary knew, or should have known, that the employer was in a “dire situation” or near bankruptcy.

Mount Holly v. Mt. Holly Gardens Citizens in Action

(1) Whether disparate impact claims are cognizable under the Fair Housing Act; and (2) whether, if such claims are cognizable, they should be analyzed under the burden shifting approach used by three circuits, under the balancing test used by four circuits, under a hybrid approach used by two circuits, or by some other test: (a) what the correct test is for determining whether a prima facie case of disparate impact has been made; (b) how the statistical evidence should be evaluated; and (c) what the correct test is for determining when a defendant has satisfied its burden in a disparate impact case.

[www.scotusblog.com/case-files/ petitions we're watching]

MARYLAND DRUNK DRIVING AND VEHICULAR HOMICIDE: A Primer by Attorney Charles Jerome Ware

Charles Ware is a principal in the national general practice law firm of Charles Jerome Ware, P.A., Attorneys and Counsellors. The firm's national headquarters are located in Columbia, Howard County, Maryland.

MARYLAND DRUNK DRIVING

As in other states, "drunk driving" in Maryland (i.e., DUI, or driving under the influence; and DWI, or driving while intoxicated) is a very serious offense which is treated as such by the State's law enforcement authorities. The odds are high that you can go to jail for drunk driving in Maryland.

(1) DUI (Driving Under the Influence) is the higher drunk driving alcohol violation in Maryland. Among other things, it means that the driver's BAC (blood alcohol concentration) registered a level of 0.08% or higher. It is treated severely in the sense that 12 points are automatically assessed against the defendant's driver's license, resulting in automatic revocation of the license; and the defendant could receive up to 1 year in jail and a 60-day driver's license revocation, etc.

Monetarily, the fine for a first DUI offense is $1,000, and it is $2,000 for a second offense. The real punishment, however, comes into play with the mandatory process of hiring a good attorney, going to court, getting alcohol assessments and evaluations, MVA (Motor Vehicle Administration) hearings, court-ordered monitoring, loss of pay or work, et al.

Proper response to a DUI charge can set the defendant back for over $10,000 in Maryland.

(2) DWI (Driving While Intoxicated) may be a slightly lesser offence to the DUI, but it is still a very serious offense in Maryland. Generally, if the defendant's blood alcohol concentration (BAC) is found to be between 0.04% and 0.07%, he or she will be charged with a DWI.

In many cases, people who ended up on the lower end of the BAC spectrum but fail on a field sobriety test can end up with this charge. Police Officer judgment is a major factor. The end result is 8 points tallied against your driving record and a $500 fine (for both a first and second offense). Jail time can range from 60 days from the first offense and up to a year for the second.

(3) Drunk Driving Minors (drivers under 21 years) are prosecuted for DUI or DWI under a zero (0) tolerance rule in Maryland. Drivers under 21 years of age with a BAC level of 0.02 can have their driver's license suspended or revoked.

MARYLAND VEHICULAR HOMICIDE

Driving deaths ("Vehicular Homicides"), i.e., when persons are killed through the use of cars or other vehicles, are very serious crimes in Maryland and other states. The penalties in these cases almost invariably include prison terms.

Depending upon the factual circumstances of each case, prison terms for defendants can be substantially increased.

(1) What is the penalty for vehicular homicide (manslaughter) in Maryland?

Md. Ann. Code Criminal Law Art. § 2-209(b) provides that "A person may not cause the death of another as a result of the person's driving, operating, or controlling a vehicle or vessel in a grossly negligent manner."

A person convicted of violating this statute is guilty of a felony and is "subject to imprisonment not exceeding 10 years or a fine not exceeding $5,000, or both." Md. Criminal Law Art. § 2-209(d).

[www.dmv.org/md-maryland/automative-law/dui.php; www.ehow.com/facts/ "DWI & DUI Laws in Maryland"; criminal.lawyers.com/ Vehicular Homicide: Driving Deaths in General; www.nolo.com/legal-encylopedia/ DUI Laws in Maryland]

SPECIAL NEEDS TRUSTS (SNTs): A Basic Primer by Attorney Charles Jerome Ware

I. "Special Needs Trusts", also referred to as "Supplemental Needs Trusts", are designed to provide benefits, by means of trusts, to beneficiaries who would otherwise lose eligibility for public assistance (i.e., Supplemental Security Income or Medicaid).

The "beneficiary" of the special needs trust is the person who qualifies for public assistance by reason of some disability that makes that person unable to hold meaningful employment and with insufficient assets to provide adequate support.

II. Generally, there are four (4) types of "Special Needs Trusts":

"Disability" or Self-funded Trusts: These trusts, recognized by federal and state statutes, are established with property or funds belonging to the person with the disability. It does not apply to trusts funded with property of someone other than the person with the disability. These would be third party trusts discussed below.

The disability trust may be established for any person under the age of 65 years. The law requires that the trust is established by the person’s parent, grandparent, guardian or the court. Finally, the primary remainder beneficiary, at the death of the disabled beneficiary, must the state department that provides the person’s benefits. The state may be reimbursed to the extent that the state paid expenditures for medical assistance under Medicaid.

Third Party Created Trusts: Trusts funded by someone other than the beneficiary are third party trusts. A third party trust may benefit a person with a disability as long as it is a special needs trust. This kind of trust may be established either as a living (or “intervivos”) trust or a testamentary trust (created by a will).

Living Trusts: The living trust is ideal for a parent who wants to create a trust for a child who has a disability but does not want the child to lose eligibility for public benefits. If there are other family members who want to leave something by will but do not want to create a special needs trust in their wills, they can merely make the devise to the existing trust. The parent, of course, can make either lifetime or a gift by will to the trust.

Testamentary Trusts: To create a testamentary trust the parent merely makes a will and includes in it a special needs trust for the child with the disability. This avoids the complication of the intervivos trust, but does not afford other relatives the vehicle to leave a devise to the disabled child without the relative having to do the same.

III. Fundamentally, "special" or "supplemental" needs refers to anything that constitutes non-support items.

In other words, paying for anything the beneficiary wants for personal use that is not in the category of food or shelter (support expenses). A trust that is deemed special needs cannot provide food or shelter expenses or the trust will be deemed an available resource:

1. Support expenditures are defined in the Social Security Procedures and Operations Manual System (POMS).
2. It is easy to say no food or shelter but it can be tricky. For example, basic utilities such as gas, water and electricity are basic shelter expenses that cannot be paid by the trust. Utilities such as telephone and cable service are not basic and can be paid by the trust.
3. Food cannot be purchased by the trust, but food supplements can. Non-consumable items such as toiletries, cleaning supplies and personal care items can be provided by the trust.
4. Personal use by the beneficiary is important. If the beneficiary wishes to purchase something that is a legitimate purchase for the trust but intends it to be used by someone else, the purchase may not be allowed.
5. As of March 9, 2005, there is no limit on the value of household goods as long as they are reasonably necessary for the person to live in his or her residence. Computers, furniture, and appliances are acceptable purchases.
6. Purchase and maintenance of a motor vehicle, as well as paying the insurance is allowable. A motor vehicle is an exempt resource if used for the beneficiary. Other transportation expenses may be paid by the trust.
7. Travel expenses, including a companion, can be paid by the trust. Travel expenses may include travel, accommodations and meals.

IV. Absolute and sole discretion for distribution of funds by the "trustee" of the special needs trust is extremely important:

1. There can be no way in which the beneficiary can “legally” compel distribution from the trust.
2. That does not mean that the trustee cannot ask the beneficiary what he or she wants (or vice versa). But the final decision is with the trustee.
3. Prior approval by the trustee is important. The beneficiary should not incur a debt and then expect the trustee to pay for it.
4. All purchases by the trust should be paid directly out of the trust. The trustee should never turn over cash to the beneficiary to buy a desired item. Cash is equivalent to support in terms of public benefit eligibility.

If the trustee is uncertain as to whether or not an expenditure constitutes a special or supplemental need, he or she should consult an attorney or other professional who is knowledgeable and specializes in special needs trusts.

Expenditures that are prohibited by federal or state regulations, or other mishandling of the trust, can result in the beneficiary being disqualified from public benefits.

[knowledgebase.findlaw.com/Kb/2009-09/ "What is a Special Needs Trust?"; www.olsentrager.com/ Denver, Colorado; www.dailyfinance.com/ 2012/09/28/ "Special Needs Trusts"/ Avoid the Biggest Mistake of Financial Planning for Special Needs Kids; www.hg.org/ Special Needs Trust-US]