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Federal Magistrate Rejects Retroactive Marital Privilege Claim for Connecticut Couple in Antitrust Case

Posted on: June 6th, 2018 by Art Leonard No Comments

In Antech Diagnostics, Inc. v. Veterinary Oncology and Hematology Center, LLC, 2018 U.S. Dist. LEXIS 82947, 2018 WL 2254543 (D. Conn., May 17, 2018), U.S. Magistrate Judge Sarah A. L. Merriam had to deal with a claim by defendants that certain correspondence between two men (one of them a named defendant) that was sought in discovery by the plaintiffs was protected by marital privilege.  Judge Merriam’s opinion does not set out the underlying facts of the lawsuit, focusing solely on two contested discovery issues, one of which is the marital privilege issue.  However, from references in the opinion discussing the question of applicable law, it appears that this case is in federal court under federal question jurisdiction invoking the Sherman Anti-Trust Act, with a host of supplementary state law claims that also might qualify for diversity jurisdiction.  As a preliminary matter, Judge Merriam determined that the source of law governing the privilege question would be Connecticut common law.

The plaintiffs sought to compel production of 26 communications between Dr. Gerald Post, a defendant, and David Duchemin. Dr. Post and Mr. Duchemin were legally married in Connecticut on December 20, 2013, five years after the Connecticut Supreme Court issued its marriage equality ruling in Kerrigan v. Commissioner of Public Health, 957 A.2d 407 (Conn. 2008), and about six months after the U.S. Supreme Court struck down the federal Defense of Marriage Act, under which, inter alia, same-sex marriages performed in Connecticut could not be recognized by the federal government.  However, Post and Duchemin’s relationship dated back to 1995, and they claimed that they considered themselves effectively to have been married back to then.  The communications in question, for which they sought to invoke marital privilege, dated from 2009-2013. They argued to the court that it should consider the men to have been married, for purposes of this privilege claim, retroactively to 1995, asking the court to “extend the privilege on public policy grounds to communications made prior to the issuance of a valid marriage license.”

First, Judge Merriam rejected their claim that their relationship could be deemed a common law marriage, inasmuch as the Connecticut Supreme Court stated in McAnerney v. McAnerney, 334 A.2d 437 (1973), “Although other jurisdictions may recognize common-law marriage or accord legal consequences to informal marriage relationships, Connecticut definitely does not.”  Furthermore, the judge noted that plaintiffs had introduced evidence to contradict the claim that the men had considered themselves to be married prior to their legal marriage in 2013, including deposition testimony in which Dr. Post testified, in response to the question of what year he and Duchemin had married, “2013,” identifying their anniversary date as December 20.  “There was no confusion, and no attempt to explain, the anniversary date in light of Dr. Post’s purported consideration that he and Mr. Duchemin had been married since 1995.”  The judge also referred to an email offered in evidence, dated January 2014, in which Duchemin responded to a friend’s congratulations on the wedding by stating, “It’s so weird calling another man my husband but it is nice.”  If they had considered themselves to be spouses since 1995, perhaps this would presumably not have felt “weird” in 2014, but we do not think that necessarily follows.  Two men might have considered themselves to be virtually married but have not adopted the convention of calling themselves husbands until they had legally tied the knot….

“Regardless,” wrote Merriam, “under Connecticut law, it is well-established that for a legally valid marriage to exist, there must be a marriage contract ‘with certain formalities.’ Accordingly, because the marital communications privilege attaches only to those communications made during a legally valid marriage, and leaving aside for the moment the date on which same-sex marriage became legal, the privilege here would only attach to those communications made after December 20, 2013.”

However, defendants argued that the court should, as some other courts have done in varied contexts, take account of the fact that in 1995 Connecticut was unconstitutionally denying these men the right to marry, that they swear that they would have married then had the option been available, and thus it was equitable to treat them as married for that period of time when same-sex marriage was denied to them. A decent argument, especially in light of Mueller v. Tepler, 95 A.3d 1011 (Conn. 2014).  “There,” wrote Merriam, “the Connecticut Supreme Court recognized a loss of consortium claim by unmarried partners in a same-sex relationship, where at the time the claim arose the partners would have been married, but for the existence of a state law barring same-sex marriage.”  The Connecticut court premised its ruling on public policy concerns, stating that “marriage cannot logically serve as a proxy for the existence of the commitment that gives rise to the existence of consortium in the first instance when marriage is not an option.”  Thus, there is Connecticut precedent for retroactive recognition of a marital relationship in certain circumstances.

But Judge Merriam found that the argument did not work in this case due to issues of timing. “Mueller is plainly distinguishable from the current facts,” she wrote.  “There, the individual in a same-sex relationship sought to assert a loss of consortium claim for a tort that occurred in 2001, some seven years before same-sex couples had a right to marry in the State of Connecticut.  At the time the claim arose in Mueller, legal marriage between a same-sex couple was not an option.  Here, by contrast, the [defendants] claim privilege for communications between Dr. Post and Mr. Duchemin from 2009 to 2013.  During that time period, Dr. Post and Dr. Duchemin were able to marry in the State of Connecticut.  There was no obstacle to legal marriage in this state at that time, as there was at the time the claim in Mueller arose.  Accordingly, the holding and rationale of Meuller are not persuasive, nor entirely applicable, to the facts presently before the Court.”

While disclaiming any ruling on whether the men could claim privilege in any communications between them before marriage equality was established in Connecticut in 2008 by the Kerrigan opinion, Merriam pointed out that “the only communications implicated in the current dispute date from 2009 to 2013.  Additionally, the Court is not adjudicating the general rights of same-sex couples.  Rather, it is constrained to consider the specific facts of the current dispute before it – which simply does not implicate the ‘bewildering and unjust anomaly’ suggested by the [defendants].”

Judge Merriam mentioned that Dr. Post claimed that he and Duchemin had not married as soon as it was possible in Connecticut “out of solidarity with those to whom this recognition was still denied.” While she said that this “is certainly a noble position,” it carried “real legal consequences.  Although the [defendants] present an emotionally compelling argument with respect to extending the marital communications privilege to a date before Dr. Post and Mr. Duchemin’s legal marriage, the Court must apply the law as it stands. . . .  Here, Dr. Post and Mr. Duchemin were not legally married until December 20, 2013.  They had the legal right, in Connecticut, to marry as early as 2008.  Therefore, communications between Dr. Post and Mr. Duchemin between 2009 and December 20, 2013, are not protected by the marital communications privilege.”  In a footnote, she added, “The Court notes the discrepancy between the statement that Dr. Post and Mr. Duchemin delayed obtaining a marriage license ‘out of solidarity with those to whom this recognition was still denied,’ and the date on which marriage became legal through the United States.  Dr. Post and Mr. Duchemin married on December 20, 2103. The Supreme Court ruled in Obergefell on June 26, 2015, about a year and a half after Dr. Post and Mr. Duchemin obtained a marriage license.”

Although not stated by Judge Merriam, it seems likely that the decisive timing factor for Post and Duchemin was probably the June 2013 U.S. v. Windsor decision, after which it became clear in the ensuing months that same-sex couples who had refrained from marrying under state law because they had diminished practical incentive to do so in light of lack of federal recognition, should now get married in order to obtain whatever advantages they might derive from federal recognition of their marriage.  By December 2013, the Obama Administration had issued enough guidelines, advisories, and other pronouncements in response to Windsor’s impact on federal rights that those holding back may have decided the time was right to proceed without awaiting the next step of a marriage equality ruling under the 14th Amendment binding on all the states.

Judge Merriam ordered the defendants to produce the challenged 26 communications, with a June 11 deadline to do so.

Dr. Post’s legal representative on this issue is Edward D. Altabet (lead attorney), Gerard Fox Law P.C., New York, with Richard J. Buturla and Ryan Driscoll (local counsel) from Berchem, Moses & Devlin P.C., Milford, CT.