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Posts Tagged ‘Nevada Supreme Court’

Appellate Courts Rule on Discrimination Against Gay Jurors

Posted on: May 7th, 2018 by Art Leonard No Comments

 

On May 3, two appellate courts issued rulings on appeals of criminal convictions in which gay men in the jury pool were dismissed on “peremptory challenges” by the prosecuting attorneys.  The California 3rd District Court of Appeal decided that the defendant in People v. Douglas, 2018 Cal. App. LEXIS 403, a gay man, is entitled to a new trial.  The Nevada Supreme Court ruled in Morgan v. State, 2018 Nev. LEXIS 31, 134 Nev. Adv. Rep. 27, against the defendant’s appeal.  While both courts agree that striking jurors from a panel just because they are gay violates the constitution, they adopted different approaches to the issue.

Brady Dee Douglas’s former boyfriend, described in the opinion for the California court by Justice Elena J. Duarte as “a male prostitute,” told Douglas that a man, identified in the opinion as Jeffrey B., had “shorted him money following a prearranged sexual encounter.  Douglas and another man “tracked down Jeffrey and demanded payment,” but Jeffrey fled.  The men gave chase.  “During a high-speed freeway chase, [Douglas] pointed a gun at Jeffrey and shot at his car several times.”  The court does not mention how Douglas and his confederate came to be arrested.

Douglas was prosecuted on multiple charges and convicted by the jury.  The trial judge sentenced him to six years in prison.  Appealing his conviction, he objected that the trial judge allowed the prosecutor to strike the only two openly gay men in the juror pool using peremptory challenges.  During the jury selection process, parties can move to strike potential jurors “for cause” by convincing the judge that the juror could not fairly decide the case.  In California, each party is allowed to excuse a certain number of jurors without providing any explanation – called a peremptory challenge – but the other party can object if it appears that the challenger is engaging in unconstitutional discrimination based on the juror’s race, sex or sexual orientation.

Douglas’s lawyer objected to the peremptory challenges to the gay jurors.  The trial judge asked why they were being challenged. The prosecutor said he challenged one man because he had a close friendship with a public defender (a lawyer employed in defending indigent people charged with crimes) who had told the juror that she considered prosecutors to be on “the dark side.”  The other man was challenged based on his demeanor during voir dire, the prosecutor noting that the man leaned forward and seemed attentive when defense lawyers were speaking but leaned back and gave short and non-descriptive answers when the prosecutor was speaking.

Then the prosecutor added, as to both of them, “In addition, in a case in which the victim in the case is in a relationship and is not in a relationship with a female but is not out of the closet and actually was untruthful with the police about the extent of his relationship with a male prostitute, I think that that particular person’s testimony may be viewed with bias by those who are willing to be openly gay and not – not lie about it and can be frank about it, and he would view that as a negative character trait, and an individual who attempts to maintain given whatever grave idea, sexuality he has, but is willing to lie about it.  So I think there is a number of reasons, both specific to the case that are sexuality neutral, not – I’m not asserting in any way that is an adequate basis for a Wheeler motion, but even given that I think there are bases not only in their reaction in court to answering questions, but also given the specific facts of this case.”  The quote above is from the transcript made during jury selection, which suggests the prosecutor is verbally challenged or the court reporter had trouble keeping up with the statement.  A Wheeler motion relates to a California Supreme Court opinion, People v. Wheeler, 22 Cal. 3d 258 (1978), concerning objections to peremptory challenges.  Clearly, the prosecutor assumed that openly gay men would be biased against a closeted gay witness (Jeffrey B.) who patronized escorts.

The defense attorney responded that “under that justification, anyone who is openly gay” would automatically be challenged, and the lawyers for both defendants formally objected.  The trial court denied the defense’s objection to the peremptory challenges, and excused the two gay men from the jury pool, after finding that the prosecutor’s objections to the two gay men were non-discriminatory justifications.  “In effect,” wrote Justice Duarte, “that was the rough equivalent to applying a mixed-motive analysis to the challenges,” although not entirely so because that trial judge had questioned “in passing whether a Wheeler motion based on sexuality discrimination was appropriate.”

In a prior ruling on Douglas’s appeal, this panel of the Court of Appeal sent the case back to the trial court, confirming that a Wheeler motion based on sexuality discrimination is appropriate, and directing the trial judge to reconsider whether these jurors should have been dismissed.  If not, a new trial would be needed. But Douglas petitioned for a reconsideration by the Court of Appeal, arguing that a mixed-motive analysis is inappropriate on a Wheeler motion, and that the verdict should be vacated and a new trial ordered because it was clear that the prosecutor challenged the jurors because they are openly gay.

The Court of Appeal agreed to reconsider its ruling, and amicus briefs were submitted by Equality California, Lambda Legal, and National Center for Lesbians Rights, and the Los Angeles County Public Defender’s Office.

In a rare move, the three-judge panel changed its mind and decided, by a vote of 2-1, that a mixed-motive analysis is improper in such a situation, so the conviction must be vacated.

Justice Duarte summarized the decision simply: “This case is about fairness and equality in our criminal justice system.  When a party exercises a peremptory challenge against a prospective juror for an invidious reason, the fact that the party may also have had one or more legitimate reasons for challenging that juror does not eliminate the taint to the process.  We reject the application in these circumstances of the so-called “mixed motive” or “dual motive” analysis, which arose in employment discrimination cases as a way for defendant-employers to show that they would have taken an adverse action against a plaintiff-employee whether or not an impermissible factor also animated the employment decision.  We hold it is not appropriate to use that test when considering the remedy for invidious discrimination in jury selection, which should be free of any bias.”

In this case, the prosecutor assumed that openly gay men as jurors would be biased against the victim, a closeted man who hired escorts, when the defendant was an openly gay man.  By this thinking, any openly gay man, even if he swore during voir dire that he could be unbiased, would be presumed to be biased and excused from the jury.  This is exactly the kind of thinking that the U.S. Supreme Court was combatting in the leading case of Batson v. Kentucky, 476 U.S. 79 (1986), where it condemned the practice of prosecutors using peremptory challenges to keep African-Americans off juries in cases involving African-American parties.  This issue isn’t just one of fairness as between the parties, but also fairness to the potential jurors. The Supreme Court observed that people called to jury duty should not suffer discrimination based on bias and stereotypes about them.  Citizens have an equal right to serve on juries, regardless of their race or, as the California courts have held, their sexual orientation.

Associate Justice Harry Hull, Jr., argued in his dissenting opinion that the mixed-motive analysis was the correct one, that the defendant was tried “before an impartial judge and found guilty beyond a reasonable doubt by an unbiased jury while represented by competent counsel.”  He objected to the idea of vacating this verdict where, according to him, “the record is devoid of any evidence showing the non-neutral reason was determinative in striking the prospective jurors or that the two facially valid reasons were unsupportable.

Of course, vacating the verdict is not the end of the case, since the prosecutor can retry the defendant.

In the Nevada case, a criminal prosecution in which the defendant was African-American, sexual orientation was not really an issue.  However, the defense objected to the prosecution’s use of a peremptory challenge that kept a gay man off the jury after he had expressed approval of media criticism of the police in their dealings with African-Americans.  The prosecution relied on this comment to justify its peremptory challenge, but the defense argued that heterosexual jurors who expressed similar views had not been excused from the panel.

The Nevada Supreme Court ruled that the trial judge had correctly overruled the defendant’s challenge to the removal of the gay juror.  However, before stating that conclusion Chief Justice Michael Douglas wrote for the court, “Before addressing Morgan’s contention that the district court erred in  overruling his Batson challenge based on sexual orientation, we take this opportunity to first address whether sexual orientation should be recognized under Batson – a novel issue before this court.  In answering in the affirmative, we align this court with the Ninth Circuit.”

The reference is to the U.S. Court of Appeals for the 9th Circuit, which ruled in a 2014 case that as a result of the U.S. Supreme Court’s ruling striking down the Defense of Marriage Act in 2013, it appeared to the 9th Circuit judges that the Supreme Court was treating sexual orientation discrimination as meriting “heightened scrutiny” in equal protection cases.  This is, in fact, the test for whether a party can challenge discrimination in the jury selection process.  If it appears that a party is trying to eliminate jurors due to a characteristic that gets heightened scrutiny in a constitutional discrimination case, the other party can bring a Batson challenge, and the reasons for striking the juror become a subject of inquiry for the court.

The Nevada Supreme Court found the 9th Circuit’s reasoning persuasive, particularly noting that this was not just a question of fairness for the litigants but also for prospective jurors, quoting the 9th Circuit opinion, which stated that “strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rights and rituals.” Such strikes “deprive individuals of the opportunity to participate in perfecting democracy and guarding our ideals of justice on account of a characteristic that has nothing to do with their fitness to serve.”

Turning to the peremptory challenge in this case, the court held that the trial judge was correct to allow it over the defense’s objection.  As in the Douglas case, there were two jurors in the pool for Morgan’s case who revealed by their answers during voir dire that they were gay.  But the prosecutor challenged only one of them, and the prosecutor did not bring a peremptory challenge to the other gay juror.  “Accordingly, there is no pattern of strikes against gay members, and no disparate treatment of gay members,” wrote Chief Justice Douglas.  Furthermore, he noted, “the nature of Morgan’s criminal case did not involve an issue sensitive to the gay community.  Therefore, because we are not convinced that the totality of the circumstances gave rise to an inference of discrimination, Morgan failed to make out a prima facie case of discrimination.”  The prosecutor had also given an explanation having nothing to do with the juror’s sexual orientation, the juror’s approval of media criticism of the police, and the court found this a satisfactory reason, noting that some heterosexual jurors may have voiced criticisms, but they were not as strongly stated as by the gay potential juror.

It is possible that the California Court of Appeals would have agreed with the Nevada Supreme Court’s handling of the case, since the Nevada ruling did not embraced a mixed-motive analysis, but instead concluded that there was no basis to infer that the challenged juror’s sexual orientation had anything to do with the prosecution’s decision to keep him off the jury.

Nevada Supreme Court Affirms Parental Rights for Former Gay Partner of Adoptive Dad

Posted on: June 28th, 2017 by Art Leonard No Comments

The Nevada Supreme Court has unanimously affirmed a District Court decision granting a gay man paternity over a child adopted by his former partner.  Four members of the court based their June 22 ruling on the concept of “equitable adoption,” while the other three based their ruling on an interpretation of the state’s “presumption of paternity” under Nevada’s parentage statute, NRS 126.041. The case is Nguyen v. Boynes, 2017 Nev. Adv. Rep. 32, 2017 Nev. LEXIS 45, 2017 WL 2733779.  Justice Ron D. Parraguirre wrote the opinion for the majority of the court, and Justice Lidia S. Stiglich wrote for the concurring justices.

Ken Nguyen and Rob Boynes began dating in November 2009.  “At some time during the relationship,” wrote Justice Parraguirre, “a decision was made to adopt a child.”  They approached Catholic Charities of Southern Nevada, but that organization would not arrange joint adoptions for same-sex couples, so the men agreed that Ken would adopt the child and then Rob would later initiate a second-parent adoption.  They went through Catholic Charities’ procedure beginning in July 2012, and in February 2013, Catholic Charities notified Ken that it was placing a newborn child with him for adoption.  Both men “were present to receive the newborn child,” and both participated as parents after the placement.

When Ken’s co-workers arranged a baby shower, it was held at Rob’s house. The child was baptized at the Desert Spring United Methodist Church, with both men standing in as fathers and listed on the baptism certificate.  However, shortly after that they ended their relationship. “Rob asked Ken to add his name to the child’s birth certificate, and Ken refused,” wrote Justice Parraguirre.  The formal adoption by Ken was finalized in October 2013.  “Both parties sat at the plaintiff’s table during the adoption hearing, and Ken reiterated once again that he would not place Rob’s name on the child’s birth certificate, nor would he allow a second-parent adoption.”

Despite Ken’s position on the legal issues, the men continued to share parental duties, as they had done from the outset. Indeed, “Since the child’s first day of placement with Ken, he has primarily been under Rob’s care.”

“The child stayed overnight at Rob’s house during the first night of placement and continued to do so for more than a month,” after which he spent weekends at Ken’s house. After two months of placement, Ken decided to hire a neighbor as a full-time babysitter, but after several weeks they reverted back to their previous arrangement of the child staying with Rob during the week until Ken enrolled the child in daycare in May 2014.  “Rob primarily took the child for doctor visits and provided most of the baby supplies,” wrote Parraguirre.  “Additionally, in November 2013, Rob took the child to North Carolina to visit Rob’s sister during Thanksgiving.”

Rob filed a petition for paternity and custody in the Clark County Family Court Division in May 2014. After a full hearing, Judge Bill Henderson decided that Rob was entitled to a “presumption of paternity” under the Nevada parentage statute, and held that the men were to have joint legal and physical custody.  Judge Henderson also referred to the “equitable adoption” theory in reaching his decision.  Ken appealed the order.

The Supreme Court explained that equitable adoption is “an equitable remedy to enforce an adoption agreement under circumstances where there is a promise to adopt, and in reasonable, foreseeable reliance on that promise a child is placed in a position where harm will result if repudiation is permitted.”

“This case concerns whether there was an agreement by the parties to adopt the child together that was formed at the beginning of the adoption process, and whether accompanying that agreement was an intent and promise by Ken to allow Rob to adopt the child second due to Catholic Charities’ policy disallowing joint adoptions for same-sex couples,” wrote Justice Parraguiree. “The parties do not dispute their non-biological relations with the child,” he continued, so “Nevada’s Uniform Parentage Act is not implicated.  We thus conclude that the equitable adoption doctrine is applicable to enforce an adoption agreement under the unique factual circumstances of this case.”

The Supreme Court agreed with District Judge Henderson that Rob had satisfied the four element test set forth in Nevada’s case law: Intent to adopt, promise to adopt, justifiable reliance, and harm resulting from repudiation. The Family Court’s decision would be reviewed under the “abuse of discretion” standard, so Judge Henderson’s decision to recognize Rob as a father would be upheld if substantial evidence supports it.

The court found evidence supporting every aspect of the four-element test: that the parties intended that both would ultimately be adoptive fathers of the child, that Ken had promised Rob to facilitate his adoption second, and that Rob was an integral factor in the adoption process and was “intimately involved.”  Indeed, there was testimony at the Family Court hearing by officials from Catholic Charities that both men participated in the process, “including the background check, post-placement visits, orientation, and adoption classes.”

Furthermore, from the commencement of the placement of the child with Ken, Ken treated Rob as a second parent and Rob took on parental responsibilities. Furthermore, Rob was regarded as a father to the child by others, who testified at the hearing.  In a footnote, Parraguirre mentioned that “the district court found that the deterioration of Ken and Rob’s relationship during the summer of 2013 seemed to be the driving factor in Ken’s decision to not follow through with the second adoption for Rob.”

The court also found plenty of evidentiary support for Rob’s reliance on Ken’s promise. “Rob dedicated a substantial amount of his time to the adoption process.  Moreover, Rob primarily cared for the child post-placement.”  Rob provided the baby supplies and “made substantial changes to his house and lifestyle to accommodate the child’s needs, which included changing one of the rooms in his house to a nursery.”  The court found that Ken’s repudiation of the promise produced harm: “the deprivation of Rob’s emotional and financial support to the child.”  Since letting Ken repudiate his promise would be to the child’s detriment, “equity cannot allow such a result,” insisted Justice Parraguirre.

The court upheld the grant of joint legal and physical custody, finding that the Judge Henderson had not abused his discretion in light of the trial record, and rejecting Ken’s allegations of disqualifying misconduct by Rob.

The court also rejected Ken’s argument that the parentage and custody award violated his constitutional rights as an adoptive parent. He argued that the district court’s ruling was unprecedented, and had treated the men differently than it would have treated an unmarried heterosexual couple.  “Here,” wrote the court, “Ken does not challenge the constitutionality of a particular statute; rather, he alleges generally that the district court treated the parties differently than it would have a heterosexual couple.  However, ‘child custody determinations are by necessity made on a case-by-case basis,’ and, here, ‘there is nothing to indicate that the ultimate decision of the district court turned on [the couple’s sexual orientation].”

Justice Stiglich, writing for herself and two others, contended that “the Nevada Parentage Act provides a more appropriate analysis in this case than the doctrine of equitable adoption.” She pointed out that in a prior case, St. Mary v. Damon, 309 P.3d 1027 (2013), the court had “clearly concluded that Nevada law does not preclude a child from having two mothers under the Nevada Parentage Act,” stating in that opinion that “the Legislature has recognized that the children of same-sex domestic partners bear no lesser rights to the enjoyment and support of two parents than children born to married heterosexual parents.”

Consequently, she wrote, “Pursuant to St. Mary, if a presumption of parentage can apply to a woman in a same-sex relationship, there appears no reason why the provision of [the parentage statute] cannot apply to a man in a same-sex relationship. Because Rob submitted ample evidence to support the presumption of parentage under [the statute], I concur with the majority’s holding affirming the decision of the district court, but on different grounds.”

Rob is represented by the Pecos Law Group and Bruce I. Shapiro and Jack W. Fleeman, of Henderson, Nevada. Ken is represented by McFarling Law Group and name-partner Emily M. McFarling of Las Vegas.

Nevada Supreme Court Answers Questions of First Impression in Lesbian Custody Dispute Involving Donor Insemination and Co-Parenting Agreement

Posted on: October 8th, 2013 by Art Leonard No Comments

The Nevada Supreme Court ruled unanimously on October 3 that a child can have two mothers and that a co-parenting agreement made by two women before their child was conceived through anonymous donor insemination with one woman providing the egg and the other being the gestational mother, can be enforceable as an agreement by parents who are presumed to have the best interest of their child at heart.   Reversing a trial court decision that treated one of the women as a mere surrogate mother with no legal rights, the court returned the case to the trial court for a new determination of parental rights.

Justice Nancy M. Saitta wrote the opinion in St. Mary v. Damon, settling several questions of first impression under Nevada law, and giving heavy weight to California decisions that interpret similarly-worded statutes.

Sha’Kayla St. Mary and Veronica Lynn Damon moved in together about a year after their relationship began, and decided to have a child together.  According to St. Mary, they decided to have Damon contribute the egg for in vitro fertilization with sperm through an anonymous donor, the resulting ovum to be implanted in St. Mary, in order that both of the women would have parental status, St. Mary as the birth mother and Damon as the genetic mother.   After the procedure was performed they both signed a co-parenting agreement, under which they agreed that if their relationship ended, they would “each work to ensure that the other maintained a close relationship with the child, sharing the duties of raising the child, and make a ‘good faith effort to jointly make all major decisions” affecting the child.

St. Mary gave birth to the child in June 2008, and was listed on the birth certificate as the child’s only parent, but the child was given a hyphenated last name to reflect both mothers.  About one year after the child’s birth, the women ended their relationship, St. Mary moved out of the home, and they disagreed about how to share their time with the child.  However, St. Mary cooperated with Damon by signing an affidavit declaring that Damon was the biological mother of the child, which Damon used to get a court order to have the child’s birth certificate amended to list her as a mother.  The court declared that Damon was “the biological and legal mother” of the child, and ordered that the birth certificate be amended to add Damon’s name as a mother.

Then St. Mary filed the lawsuit seeking to establish custody, visitation, and child support, but Damon responded that as the biological mother she was entitled to sole custody, attaching the 2009 court order.

The trial judge treated St. Mary as a mere surrogate.  Damon had filed a motion to limit the court’s evidentiary hearing to the issue of whether St. Mary would have visitation, arguing that Damon’s sole parental status had been established by the court’s order.  The trial judge agreed with Damon, excluding St. Mary’s custody claim from the hearing, and focused solely on the visitation issue.  At the conclusion of the hearing, the trial court found that St. Mary should have “third party visitation,” finding that she “has no biological or legal rights whatsoever under Nevada law.”  Further, the trial judge found the co-parenting agreement unenforceable, concluding that it fell outside the scope of enforceable surrogacy agreements, which under Nevada law could be made only by a married couple with a surrogate.

St. Mary appealed from the denial of her parental rights, and the Nevada Supreme Court unanimously reversed, finding that the trial judge was mistaken about Nevada law.

Following the lead of the California courts, the Nevada Supreme Court held that a child can have two legal mothers, and that a co-parenting agreement such as the one made in this case could be enforceable.  Most significantly, the court found that under Nevada statutes St. Mary could be deemed a parent to the child because she was its birth mother under circumstances where, as she claimed, the women had agreed that both were intended to be parents of the child.  The trial judge had misconstrued the effect of Damon’s prior legal action to establish her parental rights, said the court.  Although the prior court order had established her status as a legal mother of the child, it had not ordered that St. Mary’s name be removed from the amended birth certificate.

That is, finding that the child had two legal mothers was not inconsistent with the prior decision.

The facts are contested however.  Damon claims that St. Mary was intended to be a surrogate and not an intended parent, and that the “co-parenting agreement” was actually an invalid surrogacy contract that the women had signed because the clinic that performed the procedure required a written agreement.  When the case goes back to the trial court, there will have to be an evidentiary hearing to determine whether St. Mary or Damon is more credible, but Justice Saitta’s narration of the facts implicitly suggests that St. Mary’s account of what happened makes more sense.

Nevada is now a domestic partnership state, but that development post-dates the relevant facts in this case, as the child was conceived in 2007 and born in 2008, and Damon’s initial action seeking a declaration of her status took place in 2009, which is also when St. Mary filed her complaint in this case.  Had the women been registered Nevada domestic partners at the relevant time, the law would have recognized both as parents of the child.  But many lesbian couples have children without undertaking to register as partners or marry, so the court’s ruling remains important, and continues a trend in applying the up-to-date version of the Uniform Parentage Act as construed in California and followed in New Mexico to encompass the legal situation faced by non-traditional families.