News from Colorado
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Smoking legal pot can get you legally fired in Colorado
Court: Colorado Court of Appeals
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| In a case pitting federal law against state law, the Colorado Court of Appeals has held that, despite the use of marijuana for medical reasons being lawful under the state's constitution since 2000, employers in the state are allowed to fire an employee for using the drug on his or her personal time. The state legalized the general use of marijuana for all adults over 21 in 2012.
Brandon Coats began using marijuana for medical reasons after becoming quadriplegic. At that time in Colorado, Coats needed a prescription from a doctor, which he obtained, to legally use the drug. Dish Network, LLC, the former employer of Coats, tested its employees for drug use. When Coats' test returned a positive result for marijuana, he was fired by the company. Coats then sued Dish Network for wrongful termination, claiming Colorado employment law forbids employers from firing individuals for “lawful activity off the premises of the employer during nonworking hours."[6]
Unfortunately for Coats, on April 25, 2013, the Colorado Court of Appeals shot down his argument. The court held "that 'lawful activity' does not refer only to an activity's legality under state law."[6] Judge Janice Davidson, in her opinion,[7] stated:
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[B]ecause plaintiff’s state-licensed medical marijuana use was, at the time of his termination, subject to and prohibited by federal law, we conclude that it was not ‘lawful activity.’[6][8]
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Judge John Webb dissented from Davidson's opinion, however. He believes that the term "lawful activity" as it exists in state employment law should be defined by what is lawful activity in general under state law; therefore, if the use of marijuana, either for medicinal or recreational purposes, is legal in the state generally, then it should be considered a "lawful activity" under Colorado employment law, as well.
As Coats' attorney Michael Evans points out, this case is highly illustrative of the discord between federal and state law on the use of drugs, particularly marijuana, and indicated his client will appeal to the Colorado Supreme Court for a final decision under state law. However, some feel United States Congressional action is necessary to bridge the widening gap between how use of this drug is treated at the federal and state levels. According to the Marijuana Policy Project, "[a]s more and more states opt out of the federal government's failed policy of marijuana prohibition, Congress will simply need to take action to address these issues.”[6]
In a recent survey, 52 percent of Americans are said to be in favor of legalizing the use of marijuana across the country.[9] |
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News from Hawaii
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Victory for lesbian couple turned away by Hawaiian B&B
Court: O`ahu First Circuit Court, Hawaii
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| Last month, the O`ahu First Circuit Court ruled in favor of a lesbian couple who were denied a room while on vacation in Hawaii. In 2007, the owner of the Aloha Bed & Breakfast allegedly asked the couple if they were lesbians and, upon hearing their response, refused to allow them to stay. The B&B owner told the couple she was uncomfortable having lesbians in her house because of her religious views. A lawsuit was then brought against the Aloha Bed & Breakfast by the couple, claiming they were unlawfully discriminated against. The court agreed, ruling that the B&B had violated the state public accommodations law and ordered that the establishment stop discriminating against same-sex couples.[10]
The attorney representing Aloha Bed & Breakfast argued that the ruling did not consider the defendant's First Amendment rights, stating, "The public needs to be aware of this decision because it has far-reaching consequences."[11]
Peter Renn, a Lambda Legal Staff Attorney who represented the couple, commented:
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The Court today rejected a legal attack upon an important civil rights law that protects all people from discriminatory business practices. The Court made clear that no business is above the law. When you enter the commercial world, you take on an obligation not to discriminate against customers, no matter what the color of their skin, what religion they practice, or whom they love. That very simple but fundamental principle was vindicated today.[10][8]
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The Hawai‘i Civil Rights Commission also joined the lawsuit against the Bed and Breakfast.
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The Court’s decision is based on Hawai‘i’s strong state civil rights laws which prohibit discrimination. When visitors or residents are subjected to discrimination, they suffer the sting of indignity, humiliation, and outrage, but we are all demeaned and our society diminished by unlawful discrimination. The Court order reminds us that our state legal protections against discrimination are a priority of the highest order and will be vigorously enforced.[10] - William Hoshijo, Hawai‘i Civil Rights Commission Executive Director[8]
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News from Texas
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"Man's best friend" legally no more than property, Texas Supreme Court affirms
Court: Texas Supreme Court
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| Pet lovers state- and nation-wide are outraged over a Texas Supreme Court ruling that dogs are no more than property in the eyes of the law. The decision, reaffirming a century-old precedent set by the court in Heiligmann v. Rose (1891), restricts damage compensation to the market value of the pet—voiding lawsuits for a dog's "sentimental or intrinsic value."[12]
The controversy began in 2009 when Avery, a Labrador retriever belonging to Texas couple Kathryn and Jeremy Medlen, escaped in a storm and was picked up by Fort Worth animal control. The Medlens went to the shelter to recover their pet but did not have the $80 on hand to cover the fee, and when they returned a few days later they found that Avery had been put down; Fort Worth Animal Care employee Carla Strickland had mistakenly placed him on a list of animals to be euthanized.[13]
The couple sued Strickland, arguing in trial court that her negligence caused Avery's death. The dog had little market value, so their case, quickly dismissed by the judge, highlighted his sentimental worth. The Medlens appealed, and this time their lawyer found a foothold. He argued in the Second Court of Appeals that according to a 1963 Texas Supreme Court ruling (Brown v. Frontier), damages can be awarded for property's sentimental value even if its market value is little or nothing; if pets are property, why treat them differently? Justice Lee Gabriel conceded in the court opinion that the original court had erred in its ruling to dismiss further action against Strickland.[14]
While the Medlens—and Texas dog-owners—were happy with the ruling, the decision met surprising resistance from the American and Texas Veterinary Medicine Associations, who said that the liability from similar claims would make vet care unaffordable.[14] Said AVMA assistant director Adrian Hochstadt,
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If this becomes the law of the land, it will lead to higher costs to own a pet. The obvious consequences will include fewer people being able to own pets and, unfortunately, more animal abandonment.[14][8]
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When the case reached the Supreme Court, all nine members, while sympathetic to the Medlens' cause, struck down the appeals court decision on April 5.[15] Justice Don Willett wrote in the court's uncharacteristically sentimental opinion,
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Measuring the worth of a beloved pet is unquestionably an emotional determination—what the animal means to you and your family—but measuring a pet's value is a legal determination. We are focused on the latter, and as a matter of law an owner's affection for a dog (or ferret, or parakeet, or tarantula) is not compensable.[15][8]
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News from Ohio
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Payday lenders appeal to the Ohio Supreme Court
Court: Ohio Supreme Court
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| The Ohio Supreme Court has agreed to hear the case of Ohio Neighborhood Finance, Inc. v. Rodney Scott, a case involving a payday lender, Ohio Neighborhood Finance, Inc. doing business as Cashland, who sued Rodney Scott for failing to pay back $500 that they had loaned to him over a two-week period with a 25 percent annual percentage rate (APR).
The case comes from the Ohio Ninth District Court of Appeals, who held for Scott, stating that Cashland's attempt to bypass Ohio's Short Term Lender Law and have it analyzed under the Ohio Mortgage Loan Act, which would allow for higher APRs, was impermissible. The court concluded that "a loan is an interest-bearing loan under the Ohio Mortgage Loan Act only if interest is computed, charged, and collected from time to time." Since Scott's loan expressly stated that the payment was to be “[o]ne payment in the amount of $545.16" it did not fall under the Ohio Mortgage Loan Act and instead must be interpreted as a short term loan under the Short Term Lender Law, making Cashland’s two-week loan proscribed by Ohio law.[16]
In 2008, the Ohio General Assembly passed House Bill 545, also known as the Short Term Lender Law, in order to prevent usurious payday lending practices by regulating short term loans and capping interest rates at 28 percent instead of interest rates that are often in the triple digits.[17]
In response, the Payday lending industry tried to have the Bill overturned by referendum in November 2008. (See also Ohio Payday Lender Interest Rate Cap, Issue 5 (2008)). Ohio voters decided to keep House Bill 545 as it was, causing payday lenders to look for other means in which to continue their lending practices. They quickly found a loophole in previous state laws, such as Ohio's Mortgage Loan Act, as used in the Scott case, whereby lenders could continue to make small term loans but at the same time charge fees that would ultimately result in a higher APR than the set 28%.[17]
The Ohio General Assembly followed with the House Bill 486, or the Small Loan Consumer Protection Act, which was enacted to close loopholes in current Ohio law by prohibiting "the charging of fees to cash a check issued by the same lender and prohibits charging a credit investigation fee more than once per 90 day period on loans of $1000 or less." House Bill 486 further provides for emergency loans for borrowers, but without the excessive fees or interest rates that are commonly used by payday lenders.[17]
Payday lenders have widely ignored the Short Term Lender Law since the 2008 referendum, and while the opinion from the Ninth District Court of Appeals holds weight in Ohio's Lorain, Medina, Summit and Wayne counties, it is merely persuasive throughout the other courts in Ohio. As of now, according to The Plain Dealer, the Ninth District Court of Appeals “is the highest court in the state to rule that lenders who issue payday-style loans in Ohio must comply with the [Short Term Lender Law]’’, and currently there is little other case law pertaining to payday lending and the interpretation of House Bill 545 or 486.[18] A decision by the Ohio Supreme Court would resolve contradictory Ohio laws, close any future loopholes found in House Bill 545, and give effect to the Bill’s purpose in protecting Ohio consumers. |
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News from New York
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Tech mogul's taxes still unpaid
Court: New York Court of Appeals
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| William Millard, the founder of ComputerLand Corp, owes the Northern Mariana Islands $36 million in taxes. The islands, which are a U.S. commonwealth, tried to get their hands on some of Millard's assets, which were allegedly deposited with the Canadian Imperial Bank of Commerce (CIBC), through a subsidiary located in the Cayman Islands. The commonwealth asked the New York branch of the CIBC to hand over the assets, but the bank refused, citing New York law which says that one cannot be ordered to turn over the assets of a foreign bank subsidiary.[19]
When the commonwealth brought the matter to court, a federal judge in the Southern District of New York denied its request, which led to an appeal to the U.S. 2nd Circuit Court of Appeals. That court asked for help from the New York Court of Appeals, which was better able to interpret their own state laws.[19]
The Court of Appeals ruled that, since the CIBC didn't have actual possession of the assets, they did not have to turn over those assets. The CIBC does assert control over the subsidiary that has possession of the assets, but the decision hinged on the fact that the CIBC does not have possession themselves.[19]
Judge Jenny Rivera, wrote in the opinion:
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[T]he most reasonable way to interpret these provisions is to conclude that "possession, custody or control" contemplates constructive possession, whereas, "possession or custody," by its omission of the term "control," refers to actual possession. Accordingly, a section 5225 (b) turnover order cannot be issued against a garnishee lacking actual possession or custody of a judgment debtor's assets or property.[20][8]
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Overall, the ruling provides guidance relating to foreign banks with operations in New York and creditors' inability to take assets from foreign subsidiaries. |
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