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New Jersey Appeals Court Rules Lesbian Co-Parent May Seek “Bystander” Emotional Distress Compensation for Death of Child She was Raising With Her Same-Sex Partner

Posted on: August 21st, 2018 by Art Leonard No Comments


The New Jersey Appellate Division, the state’s intermediate appeals court, issued an important decision on August 17 expanding the range of “bystanders” to whom negligent actors may have liability for causing emotional distress to include non-marital same-sex families. A unanimous three-judge panel, taking account of the momentous developments in public attitudes about LGBT families over the past 38 years, ruled in Moreland v. Parks, 2018 WL 3945312, 2018 N.J. Super. LEXIS 120, that the lesbian co-parent of a young child who died as a consequence of a tragic traffic incident should not have been dismissed from the case by a Mercer County trial judge.

It was as recently as 1980 that the New Jersey Supreme Court first recognized, in the case of Portee v. Jaffee, 84 N.J. 88, that a mother who witnessed the agonizing death of her young son, who had become trapped between an elevator’s outer doors and the wall of the elevator shaft, could sue for the emotional distress she suffered due to the negligence of the defendant building owners and the elevator company in causing her son’s death. Through a slow process of doctrinal evolution, the courts have gradually shed their earlier reluctance to award damages for emotional distress to people who had not themselves suffered a direct physical injury, but the courts were cautious about expanding the range of such potential liability.

Portee is New Jersey’s controlling state Supreme Court precedent in “bystander” cases, and the Portee court ruled that bystanders eligible to seek compensation for severe emotional distress in such cases should be limited to “a marital or intimate, familial relationship between the plaintiff and the injured person.” In a further development in New Jersey law, the Supreme Court ruled in Dunphy v. Gregor, 136 N.J. 99 (1994), that the fiancé of a man killed in a traffic incident, who had witnessed the vehicle strike his body and attempted to comfort him while awaiting an ambulance, could sue the driver of the vehicle for negligent infliction of emotional distress, even though couple were not yet legally married.  The court emphasized that they were cohabiting and engaged to be married at the time, and considered this a sufficient “familial relationship.”

In the Moreland case decided on August 17, co-plaintiff Valerie Benning was standing on a street corner with her then-same-sex partner (now spouse), I’Asia Moreland and their children. Benning and Moreland had been living together for seventeen months, and were jointly raising Moreland’s two children (who were born before their relationship began) and Benning’s young godson.  Benning was holding the hand of two-year-old L’Maya as they waited for the traffic signal to change so they could cross the street to attend the “Disney on Ice” show playing at the Sun Bank Arts Center in Trenton.  Suddenly, a fire truck collided in the intersection with a pickup truck, and the pickup truck struck L’Maya, who was “propelled” sixty-five feet south of the intersection, and who later died from her injuries in the hospital.

Benning was also knocked down, and the next thing she remembered was lying on the ground and the confused panic that ensued around her, struggling to her feet and running towards L’Maya and hearing screaming from observers of the scene, then the ambulance trip to the hospital and the hysteria she suffered upon learning L’Maya was dead. The opinion quotes extensively from her deposition describing her experience, and the emotional and psychological trauma she suffered.

Moreland and Benning filed suit against multiple defendants, claiming a variety of damages. The Appellate Division’s ruling was about the trial judge’s decision to grant the defendants’ motion to dismiss Benning’s claim for compensation for the emotional distress she suffered as a “bystander” to the events causing L’Maya’s death.

At the time of this incident in 2009, Moreland and Benning were not legally related to each other, and Benning was not legally related to L’Maya. (Marriage equality did not come to New Jersey until several years later, at which time the women did marry, but as of 2009 they had not registered as N.J. civil union partners.)

The trial judge had to determine whether Benning’s relationship to L’Maya came within the scope of the New Jersey Supreme Court’s ruling in Portee, of an “intimate, familial relationship between plaintiff and the injured person.” The trial judge, who is not named in the court’s opinion, said that an “intimate” relationship would not “suffice” unless it could be considered “familial.”  “There is a requirement that they have to be family,” wrote the judge.  “Portee talks about familial relationship but it didn’t say family-ish or something similar to a family.  It says familial and there are cases that must use the word family.  It has to be family and there’s no question of fact that Ms. Benning was not.  The evidence is that she was a girlfriend and she might have been part of the child’s household, but by any definition that I can find in the law about family, Ms. Benning doesn’t meet it.  The undisputed facts are that she was neither a biological or adoptive parent.”

The judge also noted the lack of any expert psychological testimony. To the trial judge, it wasn’t enough that there was evidence that within weeks of Benning and Moreland living together, L’Maya had begun referring to Benning as “mom.” Said the judge, “just using the word mom all by itself doesn’t count for much, whether there’s a secure relationship, a bonded relationship, a reliant relationship, whether this is someone that the two-year-old would have looked to for a comfort, the facts just aren’t there to be able to know those things.”

The trial judge pointed out that the kind of evidence that would exist if there was a custody or visitation or adoption proceeding, such as a psychologist’s report, was unfortunately missing in this case.

The court also distinguished the Dunphy case, writing, “Ms. Moreland and Ms. Benning weren’t even engaged at the time. I understand the laws regarding same sex relationships had change over time but there was a statute that did allow for that in New Jersey and whether they could have availed themselves of any such laws in other jurisdictions hasn’t been addressed in any of the papers” submitted to the court.  In ruling to dismiss the claim, the trial judge wrote, “Ms. Benning was a part of a very small child’s life for 17 months at most.  There’s no evidence that there was any permanent bond or that the relationship that she shared with the decedent was one that was deep, lasting, and genuinely intimate.”

Benning’s lawyer argued that dismissing this claim was inappropriate, because the question of “familial relationship” required a full hearing of the facts about this relationship, and should not be disposed of as a “matter of law” without an opportunity for such a hearing. They asked the Appellate Division to review this dismissal of the claim, but at first it refused to do so.  Then they appealed to the New Jersey Supreme Court, which directed the Appellate Division to accept the appeal, solely to address the question “whether Benning falls within the class of litigants entitled to bring a civil action against defendants under the tort of negligent infliction of emotional distress.”

Writing for the Appellate Division panel, Judge Jose L. Fuentes traced the development of this legal doctrine in New Jersey through Portee and Dunphy, writing, “Critical to our analysis here is not only the Dunphy Court’s unambiguous rejection of any attempt to restrict the claimants to married persons, but also the articulation of the public policy underpinning the tort itself: ‘The basis for that protection is the existence of an intimate familial relationship with the victim of the negligence. . . When that emotional security is devastated because one witnesses, in close and direct proximity, an accident resulting in the wrongful death or grievous bodily injury of a person with whom one shares an intimate familial relationship, the infliction of that severe emotional injury may be the basis of recovery against the wrongdoer.”

The Appellate Division concluded that Benning had “presented sufficient evidence from which a jury could find that she and two-year-old L’Maya had an intimate familial relationship at the time of the child’s tragic death.” The trial court’s job in ruling on this type of motion was to view the evidence presented up to that point in “the light most favorable to the non-moving party,” and to ask whether a jury could conclude from that evidence that Benning and L’Maya had a familial relationship.  “A rational jury can find that Benning was a de facto mother to this child, and felt her loss as deeply as any parent facing that horrific event,” wrote Judge Fuentes.  “Benning’s deposition testimony supports this finding.”

Fuentes’ opinion noted how social change has expanded the public’s understanding far beyond what it was when Portee was decided in 1980. “Thirty-eight years ago,” he wrote, “gay, lesbian, and transgender people were socially shunned and legally unprotected against invidious discrimination in employment, housing, and places of public accommodation under our State’s Law Against Discrimination.  The notion of same-sex couples and their children constituting a ‘familial relationship’ worthy of legal recognition was considered by a significant number of our fellow citizens as socially and morally repugnant and legally absurd.  The overwhelming majority of our fellow citizens now unequivocally reject this shameful, morally untenable bigotry; our laws, both legislatively and through judicial decisions, now recognize and protect the rights of LGBTQ people to equal dignity and treatment under law.”

The court emphasized that “what constitutes a ‘familial relationship’ is perforce a fact-sensitive analysis, driven by evolving social and moral forces,” so to rely on the understandings prevailing when Portee was decided was inappropriate, and the trial judge should have denied the defendants’ motion and given Benning an opportunity to provide more evidence about the nature of the relationship. The court suggested that Benning would have been “better served” had her counsel introduced evidence in opposition to the defendants’ motion “with certifications from individuals who knew and saw these two women interact with these children on a day-to-day basis,” as this could have “assisted the motion judge in his decision.”

Benning was represented on appeal by Robin Kay Lord, with Clifford D. Bidlingmaier III, of Kardos, Rickles, Hand & Bidlingmaier, assisting on the brief. The case attracted amicus participation in briefing and arguing the appeal from Garden State Equality, New Jersey’s state LGBT rights organization, represented by Jennifer L. Hamilton, and from the New Jersey State Bar Association, whose out gay former president Tom Prol also presented a brief and oral argument.

Supreme Court Rules that Same-Sex Spouses are Entitled to Be Listed on Birth Certificates

Posted on: June 26th, 2017 by Art Leonard No Comments

When a child is born to a woman married to another woman, both women should be listed as parents on the child’s birth certificate. So ruled the Supreme Court, voting 6-3 and reversing a decision by the Arkansas Supreme Court on the last day of its October 2016 Term, which was coincidentally the second anniversary of the Court’s historic marriage equality ruling, Obergefell v. Hodges, 135 S. Ct. 2584 (2015), which provides the basis for this new ruling in Pavan v. Smith, No. 16-992 (June 26, 2017), reversing 505 S.W.3d 169 (2016).

The petitioners in this case were two married same-sex couples, Leigh and Jana Jacobs and Terrah and Marisa Pavan. Both couples resided in Arkansas when their children were born in 2015, having previously married out of state.  Both couples filed paperwork with the state seeking birth certificates listing both mothers as parents.  The state turned them down, issuing birth certificates listing just the birth mothers and leaving the space for fathers blank.

The state’s Health Department argued that this was compelled by a state statute that provides that when a married woman gives birth, her husband will be listed on the birth certificate. (This is frequently referred to as the parental presumption.) This is so even if the woman conceives through donor insemination and her husband is not the biological father of the child, or even if some other man got the wife pregnant.  Incredibly, the Health Department sought to justify its refusal to name both parents on birth certificates by saying that the purpose of the birth certificate is to record biological lineage, which is pretty strange if husbands get listed regardless of their biological relation to the child.  Furthermore, Arkansas, like other states, issues amended birth certificates if children are adopted, listing their new legal parents, again regardless of the fact that one or both of the adoptive parents are not biologically related to the child.

The women sued the Commissioner of the health department and the trial court agreed with them that this result was unconstitutional under Obergefell, because the statute “categorically prohibits every same-sex married couple from enjoying the same spousal benefits which are available to every opposite-sex married couple.” In Obergefell, the Supreme Court ruled that same-sex couples have the same right to marry as opposite-sex couples, which means they are entitled to be treated the same by the state for all reasons of law.

The Arkansas Supreme Court was divided in this case. A majority sided with the Health Department, buying the incredible argument that birth certificates are supposed to be a record of biological lineage.  Wrote the Arkansas court, “The statute centers on the relationship of the biological mother and the biological father to the child, not on the marital relationship of husband and wife,” and so it was consistent with Obergefell.  Not so, argued the dissenters, writing that under Obergefell “a same-sex married couple is entitled to a birth certificate on the same basis as an opposite-sex married couple.”

The majority U.S. Supreme Court agreed with the dissenters, finding this case so clear that it simultaneously granted the petition for review and issued a decision, without waiting for briefing on the merits or oral argument. The decision was issued “Per Curiam” (Latin for “by the Court”) without identifying an individual justice as its author.

The Court concluded that the Arkansas Supreme Court’s decision “denied married same-sex couples access to the ‘constellation of benefits that the State has linked to marriage,’” in violation of the Obergefell ruling. Under Arkansas’s statute, “same-sex parents in Arkansas lack the same right as opposite-sex parents to be listed on a child’s birth certificate, a document often used for important transactions like making medical decisions for a child or enrolling a child in school.  Obergefell proscribes such disparate treatment.”

The Court pointed out that in the Obergefell decision it had included “birth and death certificates” in its list of “rights, benefits, and responsibilities” of marriage to which same-sex couples are entitled on the same basis as different-sex couples.   “That was no accident,” said the Court, as “several of the plaintiffs in Obergefell challenged a State’s refusal to recognize their same-sex spouses on their children’s birth certificates.  In considering those challenges, we held the relevant state laws unconstitutional to the extent they treated same-sex couples differently from opposite-sex couples.”  The Court said this applied with “equal force” to the Arkansas statute.

Rejecting Arkansas’s argument that birth certificates were all about biological relationships, the Court insisted, to the contrary, that “Arkansas law makes birth certificates about more than just genetics,” citing as a prime example the provision involving donor insemination. “Arkansas has thus chosen to make its birth certificates more than a mere marker of biological relationships: The State uses those certificates to give married parents a form of legal recognition that is not available to unmarried parents.  Having made that choice,” the Court continued, “Arkansas may not, consistent with Obergefell, deny married same-sex couples that recognition.”  The case was sent back to the Arkansas courts for “further proceedings not inconsistent with this opinion.”

The Per Curiam Court included all of the justices who had voted in the majority in Obergefell plus Chief Justice John Roberts, who was the principal dissenter in the marriage case. Roberts’ vote in this case is notable, given the vehemence of his dissent in Obergefell, but apparently, accepting that Obergefell is now a precedent and that there are not five votes on the Court to overturn it, Roberts was willing to agree that the Arkansas Supreme Court’s ruling was inconsistent with it.

Not so the three dissenters, Justices Samuel Alito, Clarence Thomas, and the recently installed Neil Gorsuch, who wrote a dissent on their behalf. When Gorsuch was nominated, it was predicted that he would be as bad for LGBT rights as his predecessor, Justice Antonin Scalia, if not worse. His dissent here vindicated that view.

First, he scolded the Court for deciding the case summarily, arguing that the law in question is not “settled and stable.” He did not deem it clear that Obergefell would invalidate state laws restricting who could be listed on a birth certificate, when justified by a policy of recording biological ties.

He took a narrow view of Obergefell, as some lower courts have done in birth certificate litigation around the country, arguing that “nothing in Obergefell spoke (let alone clearly) to the question whether [the Arkansas statute], or a state supreme court decision upholding it, must go. The statute in question establishes a set of rules designed to ensure that the biological parents of a child are listed on the child’s birth certificate.”  This is, of course, incorrect, as the Per Curiam opinion demonstrated.  The state’s rules, requiring that the husband of a woman who conceives through donor insemination be listed as the child’s father, clearly do not “ensure” that the biological parents of a child are listed on the certificate.  Indeed, as the Court noted in passing in its Per Curiam opinion, the “rules” in Arkansas even provide that if the birth mother, her husband, and the actual biological father of the child all agree in sworn statements, the actual father can be listed instead of the husband, but otherwise the husband would be listed.  Clearly, listing people on birth certificates in Arkansas under current statutes is not all about biological relationships.

Gorsuch also noted that since this litigation has been under way Arkansas officials have come around to agree that the birth mother’s spouse should be listed on the birth certificate. Since the state has now agreed (without amending its statute) that it should list same-sex spouses on birth certificates, Gorsuch professes to see no reason for this ruling.  “Indeed,” he wrote, “it is not even clear what the Court expects to happen on remand that hasn’t happened already.  The Court does not offer any remedial suggestion, and none leaps to mind.  Perhaps the state supreme court could memorialize the state’s concession.”  Indeed, exactly so, the proper action on remand is a judicial declaration that same-sex spouses are entitled to be listed on birth certificates, and a permanent injunction requiring that result. This is not superfluous, since the state legislature has not amended the statute.

The Court’s decision will affect pending litigation elsewhere. In Arizona, the state’s intermediate court of appeals ruled on June 22 in Turner v. Steiner, 2017 WL 2687680, that a lesbian co-parent was not entitled to be listed on a birth certificate, conflicting with a ruling by another panel of the court of appeals, McLaughlin v. Jones, 382 P.3d 118 (2016), which was recently granted review by the Arizona Supreme Court.  The Turner decision cited the Arkansas Supreme Court’s ruling in this case, as well as a Wisconsin Supreme Court ruling from 2015, In re P.L.L.-R., 876 N.W.2d 147.   Plaintiffs in the Wisconsin case should be able to file a new suit based on Pavan, if necessary, but perhaps Pavan v. Smith will encourage state officials to drop their obstructions and accord equal treatment to same-sex married couples.

The plaintiffs in this case were represented by the National Center for Lesbian Rights, with local counsel Cheryl Maples of Heber Springs, Arkansas. Attorneys from the Washington and Boston offices of Ropes & Gray, LLP, worked on the case in collaboration with NCLR, and R&G’s Douglas Hallward-Driemeier, who shared the oral argument in the marriage equality cases two years ago, was Counsel of Record who might have argued the case had the Court scheduled a hearing.

N.Y. Appellate Division Approves Comity for California Parentage Rights of Lesbian Co-Parent

Posted on: April 11th, 2016 by Art Leonard No Comments

The New York Appellate Division, Second Department, an intermediate appellate court based in Brooklyn, issued a unanimous ruling on April 6 affirming a decision by Suffolk County Family Court Judge Deborah Poulos recognizing the parental status of a lesbian co-parent, now resident in Arizona, who is seeking visitation with two children who were conceived through donor insemination while she was legally partnered with their birth mother, first as a California domestic partner and then as a California spouse.  The birth mother and children live in Suffolk County.  The case is Matter of Kelly S. v. Farah M., 2016 N.Y. App. Div. LEXIS 2533, 2016 N.Y. Slip Op 02656.

The lead sentence above is complicated, but not more so than the decision by Justice Sheri S. Roman, which methodically works its way through several complex issues to arrive at a total affirmance of Judge Poulos’s decision from March 2015, which not only upheld the co-parent’s standing to seek visitation but also rejected the birth mother’s attempt to institute a paternity action against the sperm donor for both children. Justice Roman’s opinion refers to the parties as Kelly S. and Farah M., but an article about the decision published in Newsday on April 9 identifies them as Kelly Steagall and Farah Martin.

According to the decision, Kelly and Farah began their relationship around March 2000 and became registered domestic partners in California in January 2004. Shortly afterwards they asked a close friend, Andrew S., to donate sperm so they could have a child together.  Kelly became pregnant and bore their first child, whom Farah legally adopted.  That child is not a subject of this lawsuit.

Kelly and Farah decided to have another child, and Andrew again donated sperm. This time Farah became pregnant, giving birth in March 2007 to Z.S.  Kelly was listed as a parent on the birth certificate and the child’s legal surname is Steagall.

After the California Supreme Court ruled for marriage equality in 2008, Kelly and Farah decided to get married, which they did that August. A few months later the voters approved Proposition 8, ending new same-sex marriages in California until it was declared unconstitutional several years later.  In the meantime, however, the California Supreme Court ruled in 2009 that same-sex marriages performed prior to the passage of Prop 8 remained valid.  Kelly and Farah decided to have a third child and Andrew again donated sperm so that Farah could become pregnant.  Their third child, E.S., was born in April 2009.  Kelly was again listed on the birth certificate as a parent, and E.S. received Kelly’s surname.

In 2012 the family relocated to New York State, but Kelly and Farah soon split up and Kelly moved to Arizona in the summer of 2013. The children remained in New York with Farah.  As diplomatic relations between the women were poor, Kelly filed a visitation petition in the Suffolk County Family Court, seeking visitation with Z.S. and E.S.  She alleged that the women were legally married in California and Kelly was a legal parent of the two children, whom she had helped to raise until the parties split up.

Farah moved to dismiss the case, arguing that Kelly lacked standing under New York law to seek visitation, invoking the old New York precedent of Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), under which same-sex co-parents were deemed to be “legal strangers” to their children. She also sought to drag Andrew into the case as the children’s biological father by filing a paternity petition.  Although Andrew had never sought to establish his paternity, he was a close friend of the women and had formed a loving relationship with the children and they with him.  Farah evidently hoped that if the court declared Andrew their legal father, that would cut off Kelly’s claim, because New York does not recognize that a child can have more than two legal parents at the same time.

Farah argued in opposition to Kelley’s standing that Z.S. was born before the women were married, and that Kelly should not be deemed their parent because the insemination did not follow the prescribed route under either California or New York donor insemination statutes, which specify the involvement of a doctor in performing the insemination and a written consent from the birth mother’s spouse in order to raise a presumption of parental status for the spouse. Both of these children were conceived through insemination at home without the aid of a physician.

LGBT family law has advanced so significantly in both California and New York since the turn of the century that Farah’s arguments clearly lacked merit. Same-sex marriage is legal in both states, and New York’s Marriage Equality Law, enacted in 2011, makes clear that same-sex and different-sex marriages are to be treated the same, a point driven home as a matter of constitutional rights by the U.S. Supreme Court’s 2015 Obergefell decision.

New York courts have several times used the doctrine of “comity” to rule that somebody who is a parent of a child under the law of another state will be recognized as their parent in New York, despite the precedent of the Alison D. case. Under California law, when a registered domestic partner gives birth to a child her partner is presumed to be a legal parent of the child and, of course, when a married woman gives birth to a child in California, her legal spouse is presumptively the child’s parent.  The family court found that both of these presumptions applied in this case, and the Appellate Division agreed.

The court rejected Farah’s argument that failure to comply with the statutory donor insemination procedures of the two states would bar Kelly from parental status, pointing out that court decisions in both California and New York establish that the donor insemination statutes are not the exclusive way to create parental rights. These laws provide that partners of birth mothers who comply with the statutory requirements will obtain parental status, but don’t explicitly provide that failure to comply will forfeit any claim to parental status. The general rule for recognition of parental status in New York for a child born in a sister state is comity unless there is a strong public policy reason for New York to refuse to recognize the status.  California law clearly provides that a child born to a woman who has a registered domestic partner is also the child of the partner, and similarly, of course, that a child born to a married woman is the child of her spouse, and New York courts have extended comity in such situations in the past.  In this case, since Kelly was listed on both birth certificates and the children were given her surname, it is clear that the parties intended that she be a parent of both children when they were born.

The Appellate Division also upheld Judge Poulos’s decision to dismiss Farah’s paternity petition. Poulos determined that Farah filed the “in an attempt to terminate Kelly S.’s parental rights.”  But this would be inconsistent with the ultimate factual findings in the case.  Wrote Justice Roman, “The record reflects that the parties made an informed, mutual decision to conceive the subject children via artificial insemination and to raise them together, first while in a registered domestic partnership in California, and, later, while legally married in that state.  Additionally, the children were given Kelly S.’s surname, Kelly S. was named as a parent on each birth certificate, and the parties raised the children from the time of their births, in March 2007 and April 2009, respectively, until the parties separated in or around the summer of 2013.  Under the circumstances presented, the court properly determined that Farah M. may not rebut the presumption of parentage in favor of Kelly S. arising under California law by filing paternity petitions against the sperm donor and correctly determined that Kelly S. has standing to seek visitation with the subject children at a best interests hearing.”

Kelly Steagall’s appellate attorney is Christopher J. Chimeri of Hauppague, N.Y. Farah Martin is represented by Sari M. Friedman of Garden City.  Regina M. Stanton was appointed by the court to represent the interest of the children.  Friedman told Newsday that she doubted her client would appeal, but she criticized the decision as “not good law.”  Steagall told Newsday, “As unfortunate as the situation is, I’m happy that some good came out of my rough situation and could help families in the future.”

The New York Court of Appeals will hear oral argument on June 2, 2016, in Matter of Brooke S.B. v. Elizabeth A. C.C., an appeal challenging the continued validity of Alison D. v. Virginia M. The Court of Appeals gave leave to appeal a ruling by the Buffalo-based Appellate Division, 4th Department, Matter of Barone v. Chapman-Cleland, 129 A.D. 3d 1578, 10 N.Y.S.3d 380 (June 19, 2015), which had matter-of-factly applied the Alison D. precedent to hold that a lesbian co-parent lacked standing to seek custody and visitation with her son.  The Court of Appeals reaffirmed the holding of Alison D. as recently as 2010, in Debra H. v. Janice R., 14 N.Y.3d 576, but since then Democratic Governor Andrew Cuomo has appointed six new judges of the seven-member court, leaving only one appointee by former Republican Governor George Pataki on the bench, an almost complete turnover of membership since Alison D. was last affirmed, so it is highly possible that the court granted leave to appeal with a view to overruling the obsolete precedent.

Nassau County (N.Y.) Family Court Rejects Lesbian Co-Parent Custody Petition

Posted on: July 24th, 2014 by Art Leonard No Comments

Nassau County (NY) Family Court Judge Edmund M. Dane rejected a lesbian co-parent’s joint custody petition on June 30, finding that despite the 2011 passage of New York’s Marriage Equality Law, the state’s child custody laws fail to acknowledge parental claims of a co-parent who was not married to the child’s birth mother when the child was born.  Jann P. v. Jamie P., NYLJ 1202664272007 (published July 23, 2014).

According to Judge Dane’s opinion, the child, named John, was born to Jamie P. in 2011.  Jamie P. and Jann P. were married on January 20, 2012.  The opinion does not specify whether the women were living together when the child was born, or whether the child was conceived through donor insemination by their agreement.  The women’s relationship evidently soured, and they executed a written separation agreement dated August 7, 2013.  The separation agreement described John as “a child of the marriage” and it provided that John would be raised only by Jann and Jamie, referring to both parties as “wife” and apparently providing that Jamie would have residential custody.  Under the agreement, Jann would have visitation rights at her home every Saturday and on alternate Sundays, with holidays being spent together but ultimately split between the parties upon finalization of a divorce.  The separation agreement also provides that “joint custody will be determined at a later date upon further and in depth discussions.”  No divorce petition has been filed, however.

Jann P. filed suit in Family Court on December 9, 2013, seeking joint custody of John.  The petition identifies Jann P. as John’s parent, and identifies Jamie P. as John’s mother.  The petition alleges that joint custody would be in the best interest of John, citing the “mental well being of the child.”  Jamie filed a motion to dismiss the petition, arguing that Jann is not John’s legal parent and, in the absence of extraordinary circumstances that would support terminating Jamie P.’s custody, Jann would not have standing under New York law to seek custody of John.  The attorney appointed to represent John’s interest also opposed the custody petition.

Opposing Jamie’s motion, Jann argued that the court should use equitable estoppel to block Jamie’s argument, pointing to the separation agreement under which both women were identified as parents and the reality that Jann acted as a parent to John while the women were living together and married.  Equitable estoppel is a legal doctrine that courts sometimes use to block a party from making a legal argument that would be inconsistent with their past actions.  In this case, Jann argued that Jamie had conceded Jann’s parental status by signing the separation agreement and should not be allowed to take a contrary position in court.

“This case presents a timely and important issue,” wrote Judge Dane, “the likes of which the courts and legislature of this State will likely be addressing for some time to come, namely, are there circumstances under which a spouse in a same-gender marriage has standing to seek custody of a child who is not biologically related to the petitioning spouse, but was considered by both spouses to be a child of the marriage?”  Dane observed that passage of the Marriage Equality Act in 2011 “took a significant step in redefining long-standing concepts of what constitutes a family under the laws of this State,” but that “it is apparent that this process of evolution is incomplete.”

Specifically, Dane referred to a New York Court of Appeals decision from 2010, Debra H. v. Janice R., 14 N.Y.3d 576, in which the court rejected the use of equitable estoppel by a same-sex co-parent of a child’s birth mother seeking to establish parental rights.  In that case, the women had been in a Vermont civil union when the child was born, and the court concluded that it could find standing based on the Vermont Civil Union Act, which established the presumption that a child born to a married woman was the legal child of the women’s spouse.  Also in that case, the Court of Appeals reaffirmed its terrible old decision of Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), which has continued to haunt LGBT family law in New York State with its refusal to readjust the interpretation of antiquated family law statutes in light of modern family realities.  Relying on these cases, both of which pre-date the Marriage Equality Law, Dane found that Jann’s equitable estoppel argument had to be rejected, and he observed that a traditional legal presumption concerning a child born to a married woman being the legal child of her spouse was a presumption of fact concerning biological parenthood that could not logically be entertained in the case of a same-sex couple.  Such a presumption would not apply in this case anyway, since John was born before the women were married.

Alternatively, Jann pointed to New York cases allowing a man who married a woman who already had children to seek to establish parental rights based on the relationship he developed with the children, but Judge Dane observed that New York law does not provide a procedure for establishing maternity, just paternity, and that the principal case cited by Jann, Jean Maby H. v. Joseph H., 246 App. Div. 2d 282 (2nd Dep’t 1998), was of questionable authority after the Court of Appeals ruling in Debra H.

The problem as Judge Dane identified it was that New York’s existing legal framework provides for paternity actions but not maternity actions.  “Accordingly,” he wrote, “it stands to reason that if the petitioner were a man who held himself out as John’s father for a period of time sufficient to establish a paternal bond with John, he would have standing to file a petition seeking a declaration of paternity under article 5 of the Family Court Act and then, if successful in the paternity proceeding, would have standing to seek custody or visitation with the child.  Unlike a man in the same position, the petitioner cannot employ a paternity proceeding as a means of establishing standing to seek custody of John because she cannot allege that she is John’s father and the law does not provide for a proceeding to declare maternity.”

Dane also dismissed as irrelevant a New York statute concerning donor insemination within marriage, under which the husband can be deemed the legitimate parent of a child conceived through donor insemination of his wife with his consent.  Dane pointed out that there was no information in the court record about whether John was conceived through donor insemination, and furthermore “he was conceived and born prior to the marriage.”

Dane suggested that the legislature should address this issue, perhaps by amending the Family Court Act to provide same-sex co-parents with the same legal remedies that a man in the same situation would have.  “The inequity of the imbalance of remedies available to the petitioner is highlighted in this case,” wrote Dane, “by the parties’ separation agreement, which clearly indicates that the parties viewed the petitioner as John’s parent, contemplated the possibility of the parties sharing custody of John, and gave the petitioner specific visitation rights. Until such time as the legislature addresses the issue, however, the court agrees with the attorney for the child’s position that the petitioner may not use equitable estoppel as a ground to establishing standing to seek custody.”

Judge Dane pointed out that separation agreements “are not enforceable in Family Court,” but that “they may be enforceable in a matrimonial action,” so it’s possible that Jann would get somewhere in her quest for custody by filing a divorce petition.  He mentioned that Jann argued that denying her standing in this case violated her constitutional right to equal protection, but then never addressed that argument anywhere in his opinion.  Certainly the one-sided statutory framework suggests that stereotypes about women and men concerning parental roles were at play when the legislature set up the statutory scheme, which should heightened scrutiny in the context of an equal protection challenge, but Dane evidently considered Jann’s lack of standing to preclude any constitutional argument.

In its article reporting on the case on July 24, the New York Law Journal quoted Jann’s attorney, William Scheeckutz, Jr., as saying that the women were a couple when John was born, that no divorce proceedings are pending, and that since the court ruled, John had been removed from Jamie and put into foster care because of a neglect petition.  Sheeckutz said that he had filed a notice of appeal from Judge Dane’s ruling, and that Jann was also considering attempting to intervene in the neglect proceeding.

Jamie is represented by the Legal Aid Society of Nassau County, and attorney Dennis Monahan was appointed by the court to represent John.



Jamie is represented by the Legal Aid Society of Nassau County, and attorney Dennis Monahan was appointed by the court to represent John.

European Court Rules on Equal Benefits Case for Same-Sex Couple

Posted on: December 12th, 2013 by Art Leonard No Comments

Responding to a request from a French court for an interpretation of European law, the 5th Chamber of the European Court of Justice ruled today, December 12, that an employee of a French bank who requested leave and a marriage bonus under the employer’s policy on the occasion of his entering into a pact civil (the French equivalent of a civil union) with his same-sex partner in 2007 had suffered direct discrimination on the basis of sexual orientation by the employer’s denial of the benefit under Article 2(2) of Council Directive 2000/78/EC, which implements the obligation for Member States to prohibit sexual orientation discrimination in employment.  The unanimous decision in Hay v. Credit agricole, Case C-267/12, constitutes a preliminary ruling which returns the case to the French Court of Cassation that is now considering Frederic Hay’s appeal from an adverse ruling by a local Labor Tribunal in Saintes and the Court of Appeal in Poitiers.

The Labor Tribunal and the Court of Appeal had focused on the differences between marriage and the PACS under French law at the time these events occurred.  The PACS, which are open to both different-sex and same-sex couples, provide a limited list of rights and thus were not intended to be an equivalent status to marriage, unlike, for example, the civil partnerships presently authorized under British law for same-sex couples.  (Effective March 29, 2014, same-sex couples will be able to enter into civil marriage in Britain.)  Finding that these differences were significant, the Tribunal and the Court of Appeal found that any discrimination here was indirect on the part of the employer, and justified by the French national policy of providing a different and lesser status open to same-sex couples.

The Court of Cassation referred to the European Court the following question: “Must Article 2(2)(b) . . . be interpreted as meaning that the choice of the national legislature to allow only persons of different sexes to marry can constitute a legitimate, appropriate and necessary aim such as to justify indirect discrimination resulting from the fact that a collective agreement which restricts an advantage in respect of pay and working conditions to employees who marry, thereby necessarily excluding from the benefit of that advantage same-sex partners who have entered into a [PACS]?”

Chamber 5 of the European Court, a five-member panel made up of judges from five different member countries of the European Union, unanimously concluded that the Council Directive did apply to this kind of employee benefit, but dismissed the relevance of the difference between marriages and the PACS, writing “it is required not that the situations be identical, but only that they be comparable and, on the other hand, the assessment of that comparability must be carried out not in a global and abstract manner, but in a specific and concrete manner in the light of the benefit concerned.”  The court referred to a prior ruling involving Germany’s registered life partnerships open to same-sex couples, and comparisons could be drawn to other national laws, such as the civil unions provided for same-sex couples in Austria.

“As regards the days of paid leave and the bonus which the provisions at issue in the main proceedings grant to employees on the occasion of marriage,” wrote the court, “it is necessary to examine whether persons who enter into a marriage and persons who, being unable to marry a person of their own sex, enter into a PACS, are in comparable situations.”  The court found that the PACS is “a form of civil union under French law which places the couple within a specific legal framework entailing rights and obligations in respect of each other and vis-à-vis third parties.  Although the PACS may also be concluded by persons of different sexes, and although there may be general differences between the systems governing marriage and the PACS arrangement, the latter was, at the time of the facts in the main proceedings, the only possibility under French law for same-sex couples to procure legal status for their relationship which could be certain and effective against third parties.”

Thus, the court found that entering into a PACS by a same-sex couple was comparable to entering into a marriage for a different-sex couple.  In the court’s view, this meant that Credit agricole’s marriage leave and bonus policy was a form of direct discrimination because of sexual orientation, not indirect discrimination. This was important, because indirect discrimination may be defended by reference to legitimate government aims, but direct discrimination may only be justified by grounds listed in Article 2(5) of the Directive: public security, maintenance of public order, prevention of criminal offenses, protection of health, and protection of the rights and freedoms of others.  The court found that none of these grounds would justify excluding same-sex couples from enjoying the benefit when they enter into a PACS.  Consequently, the court advised the French Court of Cassation that Article 2(2)(a) of the directive, the provision concerning direct discrimination, “must be interpreted as precluding a provision in a collective bargaining agreement . . . under which an employee who concludes a civil solidarity pact with a person of the same sex is not allowed to obtain the same benefits, such as days of special leave and a salary bonus, as those granted to employees on the occasion of their marriage, where the national rules of the Member State concerned do not allow persons of the same sex to marry, in so far as, in the light of the objective of the conditions relating to the grant of those benefits, that employee is in a comparable situation to an employee who marries.”

The court’s decision is very narrowly focused on the situation pertaining when Mr. Hay concluded his PACS with his partner.  The following year — perhaps in response to Mr. Hay’s complaint? — Credit agricole and the unions representing its employees amended its collective bargaining agreement to extend the marriage benefits to employees who entered into PACS, and in 2010 a general agreement to this effect was included in the bank’s national collective bargaining agreement, and the French Ministry for Labor Employment and Health extended this throughout the banking sector in France.  And, of course, since then France has legislatively opened up marriage to same-sex couples, making this controversy moot as to the future IN FRANCE.  But the opinion is significant because there are many Member nations subject to the Council Directive that do not provide same-sex marriage at present but do authorize some equivalent, such as a registered partnership or civil union, for same-sex couples, so the interpretive principle established in this opinion would carry over to them.

It may also be worth noting that the Chamber phrased its ruling in terms of a country that does not provide for same-sex marriages.  Presumably this means that the ruling no longer pertains to France going forward, even though PACS are still available for same-sex couples who do not desire to embrace the full legal status of marriage.  The court’s finding of discrimination was premised on the denial of marriage to same-sex couples, leaving the PACS the only way they could form a legally recognized relationship.  Although now the banking sector of France is working under a policy of treating those who enter into a PACS as equivalent to marriage for purposes of this type of benefit, it is not clear from this opinion how the matter will be handled in other sectors that might not be subject to the same policies.

Mr. Hay’s lawyer for this appeal is A. Lamamra.  The court received submissions from lawyers for Credit agricole, the governments of France and Belgium and the European Commission, as well as the Advocate General for the Council of Europe.

The Colorado Wedding Cake Case

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

A Colorado Administrative Law Judge ruled on December 6, 2013, that a bakery had violated the state’s public accommodations law when its owner refused to sell a wedding cake to a gay male couple on July 19, 2012.

Colorado does not have same-sex marriage, and only enacted a civil union law open to same-sex couples early in 2013.  Back in 2012, however, Coloradans Charlie Craig and David Mullins planned to get married in Massachusetts and then have a big celebration event for family and friends back home.  Accompanied by Charlie’s mom, they went to Masterpiece Cakeshop, which sells wedding cakes, and sat down with the proprietor, Jack Phillips, at the “cake consulting table.”  According to the factual findings in the opinion by ALJ Robert N. Spencer, “They introduced themselves as ‘David’ and ‘Charlie’ and said that they wanted a wedding cake for ‘our wedding.'”  Phillips immediately said no, he doesn’t make wedding cakes for same-sex weddings.  “I’ll make you birthday cakes,” he said, “shower cakes, sell you cookies and brownies, I just don’t make cakes for same-sex weddings.”  Without any further discussion, David and Charlie and Charlie’s mom got up and left, went to another bakery, and make their cake arrangements without incident.  The next day, Charlie’s mom called Phillips, who told her that he refused to make a wedding cake for David and Charlie because of his religious beliefs and because Colorado does not recognize same-sex marriages.

Although Charlie and David got their wedding cake, they felt humiliated by their experience with Phillips and decided to file a discrimination complaint to establish that his actions were unlawful.  The Civil Rights Commission sided with Charlie and David, ruling that Phillips violated their statutory rights.  When Phillips rejected that ruling, the case was referred for trial before an administrative judge.   As an administrative judge, Spencer does not have authority to declare statutes unconstitutional, but he does have authority to determine whether the application of a statute in a particular case violates the constitutional rights of the defendant.

Judge Spencer found, based on Phillips’ testimony, that he is a practicing Christian who believes that “the Bible is the inspired word of God, that its accounts are literally true, and that its commands are binding on him.”  He finds in the story of Adam and Eve and in a passage from Mark 10:6-9 (NIV) that only different-sex couples can marry.  “Phillips also believes,” wrote Spencer, “that the Bible commands him to avoid doing anything that would displease God, and not to encourage sin in any way.  Phillips believes that decorating cakes is a form of art and creative expression, and that he can honor God through his artistic talents.  Phillips believes that if he uses his artistic talents to participate in same-sex weddings by creating a wedding cake, he will be displeasing God and acting contrary to the teachings of the Bible.”

Phillips did not contest that his bakery is a public accommodation subject to the state’s anti-discrimination law, but he argued in defense that the law could not be applied in such a way as to violate his 1st Amendment rights of freedom of speech and free exercise of religion.  His bakery is incorporated but wholly owned by him, and he claims for his business the same 1st Amendment rights that he enjoys.  Judge Spencer pointed out that at least for now in the states comprising the federal 10th Circuit, which includes Colorado, family-owned closely-held corporations do enjoy 1st Amendment free exercise of religion rights (as a result of a 10th Circuit decision that the Supreme Court recently agreed to review), and the Supreme Court held several years ago in the notorious Citizens United case that corporations have 1st Amendment free speech rights.  Thus, Phillips argued, he should enjoy immunity from this discrimination charge on 1st Amendment grounds.  In effect, Phillips was arguing that the 1st Amendment protects businesses and individuals from having to comply with anti-discrimination laws if their personal beliefs based on religion would be violated by compliance with the law.

In addition, Phillips argued that he did not actually discriminate because of David and Charlie’s sexual orientation, and thus could not be found to have violated the statute.  He said that he would be happy to do business with them, so long as it didn’t involve a wedding cake for a same-sex wedding.  He testified he would also refuse to sell a wedding cake to a same-sex couple to celebrate a civil union, so his ground of objection is not really that Colorado does not recognize same-sex marriages, but rather that he feels that selling a cake for any celebration of a same-sex relationship would be state-compelled speech that violates his freedom of speech, as well as forcing him to act in conflict with his religious beliefs.

Judge Spencer first rejected Phillips’ argument that his refusal to sell the wedding cake was not sexual orientation discrimination.  “The salient feature distinguishing same-sex weddings from heterosexual ones is the seuxla orientation of its participants,” he wrote.  “Only same-sex couples engage in same-sex weddings.  Therefore, it makes little sense to argue that refusal to provide a cake to a same-sex couple for use at their wedding is not ‘because of’ their sexual orientation.”  Drawing a telling analogy, he wrote, “If Respondents’ argument was correct, it would allow a business that served all races to nonetheless refuse to serve an interracial couple because of the business owner’s bias against interracial marriage,” but this kind of theory was refuted by the Supreme Court in 1983 in Bob Jones University v. United States, where the Court upheld the IRS action in revoking the university’s tax exempt status because it denied admission to interracial couples in violation of laws forbidding discrimination because of race.

On the free speech claim, Spencer rejected Phillips’ argument that “preparing a wedding case is necessarily a medium of expression amounting to protected ‘speech,’ or that compelling Respondents to treat same-sex and heterosexual couples equally is the equivalent of forcing Respondents to adhere to ‘an ideological point of view.'”  Spencer distinguished between wedding cakes and “saluting the flag, marching in a parade, or displaying a motto,” all forms of conduct that have been found to constitute protected speech.  Spencer noted that Phillips refused to do business with David and Charlie without any discussion about how the cake would be decorated or what might be written on it.  “For all Phillips knew,” wrote Spencer, “Complainants might have wanted a nondescript cake that would have been suitable for consumption at any wedding.”  In a footnote, Phillips mentioned that the cake they had eventually obtained from another bakery had a “filling with rainbow colors,” but questioned whether that could be seen as some sort of endorsement of same-sex marriage by the baker.  Spencer characterized Phillips’ attempt to elevate making a wedding cake to the symbolic level of a compelled flag salute as an argument that “trivializes the right to free speech.”

Finally, Spencer rejected Phillips’ free exercise of religion argument.  He said that this case is not about the government trying to regulate what Phillips believes, but rather a regulation of commercial conduct.  “The types of conduct the United States Supreme Court has found to be beyond government control typically involve activities fundamental to the individual’s religious belief, that do not adversely affect the rights of others, and that are not outweighed by the state’s legitimate interests in promoting health, safety and general welfare,” Spencer commented, and cited a list of Supreme Court cases upholding neutral laws that incidentally regulate conduct, where the conduct involves some religious belief.  “Respondent’s refusal to provide a cake for Complainants’ same-sex wedding is distinctly the type of conduct that the Supreme Court has repeatedly found subject to legitimate regulation,” he asserted, mentioning that the Supreme Court itself had ruled that laws prohibiting sexual orientation discrimination by public accommodations have specifically been mentioned by the Supreme Court as legitimate.   The Supreme Court has ruled that a valid law that is neutral with respect to religion and generally applicable will be upheld if it is rationally related to a legitimate government interest.  The Colorado public accommodations law meets that test.

As an administrative judge, Spencer does not have authority to impose fines or penalties.  Upon finding that Masterpiece Cakeshop and Phillips had violated the law, his remedy was to issue a “cease and desist order” and take such other corrective action as is deemed appropriate by the Colorado Civil Rights Commission.  If Phillips appeals this ruling, it might get to a stage where he would incur financial liability, however.

The ACLU LGBT & AIDS Project and the ACLU Foundation of Colorado and attorneys from King & Greisen, LLC, represented the complainants at the hearing before ALJ Spencer.  Phillips enjoys legal support from Alliance Defending Freedom, a law firm that specializes in opposing gay rights under the guise of preserving the 1st Amendment rights of those who discriminate against gay people.   Given ADF’s participation, it is likely this ruling will be appealed.

The Colorado bakery case is one of only several contesting the applicability of public accommodation laws to businesses that want to avoid providing goods and services for same-sex ceremonies.  In Washington State, litigation proceeds against a florist shop, and in New Mexico, the state Supreme Court ruled earlier this year that a wedding photographer had violated the state’s public accommodations law by declining to provide photographic services for a same-sex commitment ceremony.  The Supreme Court has received a petition to review the New Mexico case.

Same-Sex Couples: Avoid Intestacy and Avoid Litigation!

Posted on: August 18th, 2013 by Art Leonard No Comments

An August 8 decision by the Superior Court of Pennsylvania (an intermediate appellate court) shows why same-sex couples, especially in states that do not provide any legal status for same-sex couples, should take the trouble to make wills and other legal documents to deal with contingencies, pending the time that same-sex marriage becomes available in the state.  Although the court’s ruling in In re Estate of Richard A. Devoe, 2013 Pa. Super. LEXIS 2129, may eventually turn out well for his surviving former domestic partner, James B. Mooney, some prudent advanced planning could have avoided some of the mess that resulted when Devoe unexpectedly died intestate in his 40s as the result of an accident at home, survived (in addition to Mooney) by his parents and two siblings.

Under Pennsylvania law, when an unmarried person without children dies without a will but is survived by his parents, the property (real estate, goods, money) that he owns at his death goes to his parents.  (When a marriage person without children but with surviving parents dies, the surviving spouse automatically gets $30,000.00 plus half of the remaining balance of the estate, the other half going to the parents.) When a person dies without a will, the court will appoint somebody to administer the estate, and preference will normally be given to surviving relatives, such as siblings or parents.  And a surviving unmarried same-sex partner will be pretty much left out in the cold to fend for himself.  Things can get complicated, as they did in this case.

The opinion for the court by Judge Shogan is a bit terse in relating the facts.  Shogan describes Mooney and Devoe as “at one time, domestic partners,” but does not make clear whether their partnership had ended prior to Devoe’s death.   Perhaps they had registered as domestic partners with the city of Harrisburg.  They bought a resident there in 1998 as “joint tenants with the right of survivorship,” a status that means if one of them dies, the other automatically becomes the sole owner of the property.  Both of their names would be on the deed of purchase.  The opinion does not mention whether they bought this property with cash, and does not mention them having jointly taken any kind of loan to finance their purchase.  The opinion also doesn’t mention whether, when Devoe later took out a mortgage loan against the property in 2008, the men were still domestic partners.  One suspects they were not, but the opinion doesn’t specify.  At any rate, Devoe took out this loan in order to purchase some commercial property, which he leased to a company, Monard Testing, LLC, of which he was a 5o% owner.  (So, in effect, he borrowed against his home in order to finance his business.)  Mooney had no interest in the business.  Until his death, Devoe continued to make the payments on this loan.

In October 2009, Devoe, then age 43, died when he fell down the stairs at home, without having made a will.  Upon Devoe’s death, Mooney became the owner of the residence, which was encumbered by the balance due on the mortgage Devoe had taken out the previous year.  given how mortgages work, less than a year of payments would mean that the principal due at that point was close to the full amount of the loan, since a large share of monthly payments in the early years of a mortgage goes to interest. 

In January 2010, the court appointed Devoe’s brother and sister to be co-administrators of his estate.  Mooney asked them to have the estate pay off the outstanding loan against the house.  (Recall that upon Devoe’s death, Mooney became sole owner of the house, so it was not part of the estate.)  The administrators declined, stating that the estate did not have the cash to do so, and would not have any cash until they could sell off some of the assets held by the estate, which included the commercial property (whose purchase, recall, was financed by the mortgage against the residence), Devoe’s ownership share in the business, and some personal property (like his BMW).  Although the estate contacted the bank about the mortgage loan and said they intended to pay it, they asked the bank to hold off on any foreclosure while the estate got together the necessary funds, but they never did pay it, having evidently figured out that because the estate no longer owned the property, they didn’t have to pay it, and the bank filed a foreclosure action.

In February 2010, Mooney filed a Notice of Claim with the Estate for the principal amount of the loan that was due, but no money was forthcoming.  Mooney then sold the house in September 2010, using the proceeds to pay off the bank loan and put a stop to the foreclosure proceeding.  The next month, the Estate sold the commercial property privately to one of Devoe’s friends for less than he had paid for it, and later sold Devoe’s interest in the business to his business partner for a pittance.  The Estate did not sell any of Devoe’s personal property (including the BMW), purportedly for “sentimental” reasons.  When the Estate filed its petition for a final settlement, Mooney filed objections, seeking to be repaid the $132,400.00 that he had to cough up to clear the title to the residence before he could sell it.  (He sold it for about $136,000.00.)

The trial court denied Mooney’s petition for payment, finding that since he was not personally obligated on the loan, he had paid it off as a “volunteer,” and was thus not entitled to reimbursement.  The Superior Court reversed. 

“Upon careful review of the record,” wrote Judge Shogan, “we are compelled to disagree with the conclusion reached by the trial court in its refusal to apply the doctrine of equitable subrogation.  Rather, we are constrained to conclude that the trial court erred in finding that Mooney could not be equitably subrogated as a surety who provided financing for a defaulting debtor, Decedent and the Estate.”  In this case, “it is undispute that the Estate defaulted on the HSBC Loan, issued solely to Decedent, and HSBC initiated foreclosure proceedings on the Residence, which was owned by Mooney.  Mooney testified that he was compelled to sell the Residence in order to stop the foreclosure proceedings on the Residence, protect his own personal credit, and satisfy the HSBC Loan. . .  Thus, due to the Estate’s refusal to pay the HSBC Loan, Mooney had a legal duty to compensate HSBC with proceeds from the sale of the Residence, by virtue of the mortgage granted upon the Residence.  It makes no difference that Mooney’s legal duty was triggered following the default by Decedent and the Estate.  The law will not penalize a surety for good faith conduct that resulted in a party being completely and promptly paid.  Further, allowing subrogation will not cause injustice to the rights of others.  Accordingly, we conclude that the trial court abused its discretion in reaching a contrary conclusion with regard to this issue.”  Having decided on this theory, the court said there was no need to address Mooney’s alternative theories for recovery, including that the Estate (and, ultimately, Devoe’s parents) would be unjustly enriched if not required to compensate Mooney for paying off the mortgage loan against the property.  (They would be unjustly riched because they enjoyed the proceeds from sale of the commercial property, which Devoe had bought using the money from the loan he took out against the residence.)

The ambiguous wording of facts by the court makes it difficult to unravel this story, which reads quite differently depending upon whether Mooney and Devoe were still domestic partners at the time of Devoe’s death, or whether they had separated, with Mooney moving out.  If the men were no longer domestic partners when Devoe applied for the mortgage loan against the house, one has to question why HSBC was willing to make the loan without insisting on including Mooney as a debtor, since both men’s names presumably appeared on the original deed of sale of the residence to them?  Shouldn’t Mooney’s permission have been required, inasmuch as he would become owner of the property in case Devoe died, and the property was being encumbered by the loan.  If Devoe had made a will, instructing his executor to pay off the loan upon his death notwithstanding that ownership of the residence would not be part of his estate, the problem in this case would not have occurred; the executor would have sold the commercial property and used the proceeds to pay off the mortgage on the residence (and Moooney’s sale of the property shows that it could be sold for more than the remaining principal balance of the loan). 

If Pennsylvania recognized same-sex common law marriages, or had a marriage equality or civil union law in place under which Devoe and Mooney could have become legal spouses, this would likely have played out differently, even had Devoe died intestate.  But the lack of such a legal framework makes it all the more important for same-sex couples to make wills, financial powers of attorney, and other documents against the possibility of unforeseen accidental death.

Things are moving along in the quest for marriage equality in Pennsylvania.  The ACLU has filed a lawsuit, premised on the reasoning of U.S. v. Windsor, to challenge the existing legal ban on same-sex marriage.  Presumably, a Pennsylvania court could, even in the absence of this lawsuit, rule in another case that a cohabiting same-sex couple should be considered to have a common law marriage, using fedearl equal protection doctrine to overturn earlier Pennsylvania precedents to the contrary.  One county clerk (in Montgomery County) and one mayor (in Allegheny County) have engaged in civil disobedience on this issue, performing marriages for same-sex couples, and a lawsuit by the state government is on file seeking injunctive relief against them.  Things are definitely coming to a boil in Pennsylvania.  The court’s ruling in Estate of Devoe is just one more piece of evidence that the state’s failure to adjust its legal framework to take account of same-sex couples and their business dealings is an example of governmental negligence.  Time to update the law to cope with the reality of modern family life in PA.

First Fruits of the DOMA/Prop 8 Decisions – Quick Response from the Obama Administration, Resumption of Marriages in California, and a Decision Striking a Michigan Law Against Partner Benefits

Posted on: June 30th, 2013 by Art Leonard No Comments

Response by the “defendants” in the DOMA and Prop 8 cases to the Supreme Court’s June 26 rulings was swift.

Within hours after the Court announced that Section 3 of DOMA was unconstitutional, the President had announced his “applause” for the decision and instruction to the Attorney General to coordinate with executive branch department heads to seek “smooth” implementation for federal recognition of lawfully-contracted same-sex marriages.  Some of the quickest responses came rolling in right away: Defense Secretary Hagel said steps would immediately be taken to extend spousal benefits to for same-sex spouses of military personnel, and Homeland Security Secretary Napolitano said that Customs & Immigration would immediately accord equal recognition to same-sex marriages.  The first green card was issued for a same-sex spouse just two days later, on Friday, for a Florida couple that included a Bulgarian citizen, and even more quickly, an immigration judge in New York halted a deportation hearing on Wednesday morning after being handed a copy of the DOMA decision fresh off the presses.  President Obama called Edie Windsor to congratulate her on the victory, but he did not, as far as we know, say “The check is in the mail,” which would have been a nice touch.  The IRS bureaucracy does not grind that quickly.  Indeed, the IRS may end up being one of the main sticking points for implementation, having emitted a non-committal statement that it would be providing guidance for taxpayers, employers and corporations, but not indicating when that would be forthcoming.  Office of Personnel Management sent out a notice to executive branch heads that same-sex spouses should immediately be recognized, and that an open enrollment period would commence for federal employees to enroll their same-sex spouses in benefits programs.   Nobody in the executive branch seemed inclined to wait until the Court issues its official mandate later in July before taking action, but that’s not surprising, given the government’s posture on the merits of the case!

Also within hours of the Prop 8 decision being announced, Governor Jerry Brown of California issued a statement attaching an opinion letter he had solicited weeks ago from Attorney General Kamala Harris about the scope of Judge Vaughn Walker’s Order.  Harris advised that when the stay was lifted by the 9th Circuit, same-sex marriage should be immediately available in every county.  In other words, she was rejecting the contention by the initiative proponents that the Order was limited to the plaintiff couples or the two counties where clerks were named defendants in the case. Brown followed her advice and had the Department of Public Health send a notice to all County Clerks and Recorders that upon lifting of the stay, same-sex couples should be treated the same as different-sex couples.  Harris contacted the 9th Circuit and urged that the stay be lifted right away.  The 9th Circuit panel that had issued the now-vacated decision expeditously responded on Friday, June 28, lifting the stay, opening the way for the plaintiff couples to get married that afternoon.   The San Francisco County Clerk’s office decided to stay open over the weekend to accommodate the demand for marriage licenses and ceremonies during Gay Pride Week, which was expected to draw 1.5 million to San Francisco for the annual festivities.

The Proponents tried to throw a wrench into the works, filing an “emergency motion” with the Supreme Court to halt the marriages, contending that the 9th Circuit could not lift the stay until the Supreme Court’s formal mandate arrived later in July.  Justice Kennedy, to whom the motion was referred, quickly denied it without comment.  Proponents are still expected to try other legal strategems in the days ahead.

Meanwhile, the first court to cite and rely on the Windsor case issued its ruling on Friday, June 28.  District Judge David M. Lawson, relying in part on the reasoning of Windsor as well as the Arizona domestic partnership benefits case, ruling in Bassett v. Snyder, 2013 WL 3285111 (E.D.Mich.), that plaintiffs were entitled to a preliminary injunction against the operation of a Michigan law that had been adopted to block public employers from providing domestic partnership benefits to their employees.  Under Public Law 297, employee benefits may be extended only to legal spouses, legal dependents, or legal heirs (those who could inherit from an employee under the intestacy laws) who are living with the employee.  The legislative history shows that this was passed specifically to override local governments that had extended benefits to non-marital partners.  Michigan’s Supreme Court had construed the state’s marriage amendment to forbid extending benefits to same-sex domestic partners as such, but many localities and government institutions had contrived a work-around to extend benefits to cohabitants who met certain minimal requirements, regardless of sex, and the law was intended to end this loophole as a means of enforcing the the marriage amendment.  The court found this to be a transparently discriminatory measure aimed mainly at same-sex couples — agreeing with the Arizona district court and the 9th Circuit (but failing to note the new development that the Supreme Court denied Arizona Gov. Jan Brewer’s cert petition on June 27) — and finding, in light of the reasoning of Windsor, that this would be an equal protection violation. 

Things are happening so fast, it’s difficult to keep up.  Lambda Legal announced it was filing a summary judgment motion in its pending N.J. Superior Court lawsuit seeking a ruling that the civil union act fails to provide equal rights for civil union partners, and the DOMA decision gives added weight to that contention.  A state legislator who represents the plaintiffs in a New Mexico marriage equality lawsuit announced he would petition the state supreme court to take up the case directly, in light of Windor, and of course the 9th Circuit will soon hear arguments in the Hawaii and Nevada cases.  (The Supreme Court denied a petition by the defenders of the Nevada marriage amendment, who were trying to leapfrog the 9th Circuit, also on June 27.)  Racing to keep up….