D.C. Superior Court Opinions
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ADMINISTRATIVE DETERMINATION OF GOVERNMENT EMPLOYEE DEMOTION
CIVIL PROCEDURE / WHISTLEBLOWER PROTECTION ACT / SUMMARY JUDGMENT
Précis: Summary judgment is a useful means of avoiding full-dress trials in unwinnable cases, thereby freeing courts to utilize scarce judicial resources in more beneficial ways. It serves to pierce the boilerplate of the pleadings and to assay the parties’ proof in order to determine whether trial is actually required. The movant has the initial burden of proving that there is no genuine issue of material fact in dispute. The non-moving party may not simply rest on conclusory allegations or denials, but must, in turn, show that there is sufficient trial-worthy evidence in support of its position to submit to a factfinder. The D.C. Whistleblower Protection Act was enacted on the premise that the public interest is served when employees of the District are free to report waste, fraud, abuse of authority, violations of the law, or threats to public health and safety, without fear of retaliation or reprisal.” A “whistleblower” is defined as an employee “who makes, or is perceived to have made, a protected disclosure.” The Act prohibits a supervisor from “threatening to take or taking a prohibited personnel action or otherwise retaliate against an employee because of the employee’s protected disclosure or because of an employee’s refusal to comply with an illegal order.” A “prohibited personnel action” is defined to include any “recommended, threatened, or actual termination, demotion, suspension, or reprimand, involuntary transfer, reassignment or detail … or retaliating in any other manner against an employee because that employee makes a protected disclosure.” In turn, a “protected disclosure” is one of that reveals “to a supervisor or a public body” (a) gross mismanagement; (b) gross misuse or waste of public resources or funds; (c) abuse of authority in connection with the administration of a public program or the execution of a public contract; (d) violation of a federal, state, or local law, rule, regulation, or contract provision “which is not of a merely technical or minimal nature”; or (e) a substantial and specific danger to the public health and safety. As to the nature of the disclosure that the definition included “any disclosure of information” which the employee “reasonably believes” evidences one of the proscribed activities. Conforming to the steps set forth by the well-known McDonnell Douglas procedures in Title VII employment discrimination cases, the WPA provides that, once an employee establishes a prima facie case, if “protected disclosure” was a “contributing factor” in a subsequent “prohibited personnel action,” the burden then shifts to the District agency to prove by clear and convincing evidence that the action would have occurred anyway, based on “legitimate, independent reason” and is not a “pretext” for retaliation.
Abstract: A police detective who was found by a departmental investigation to have been grossly neglectful of his duty to properly investigate and officially close out hundreds of missing children cases, but who avoided dismissal on an administrative statute of limitations issue and was allowed to keep his job, nevertheless filed suit against the District, claiming that he had been retaliated against as a whistleblower. His charmed professional life continued when, in this case, the Trial Court denied the District’s motion for summary judgment. Facts: Plaintiff was an MPD Detective assigned to the Youth Investigations Division, composed of nine detectives responsible for investigating and locating missing children. Each detective typically managed 40-50 cases a month. In March 2009, however, due to budget cuts, five detectives were dropped from the unit and the individual caseloads of the remaining four increased dramatically. After the head of the Fraternal Order of Police notified the Office of the Inspector General (OIG) that these detectives were facing “overwhelming” tasks, seven additional detectives were immediately assigned to the unit. Further investigation revealed that it was taking several months before cases were being assigned and that reports closing cases were heavily backlogged. The Department conducted an individual audit in which it discovered that not only was the Plaintiff behind in closing his cases, like other detectives, but also that he had set aside 91 cases in a filing cabinet which had never been formally closed by the signature of a supervisor because, he asserted, they were untimely assigned to him and the overwhelming caseload caused him to forget them. In July 2009, a final report found that the Plaintiff had failed to conduct follow-up investigations on 223 cases between 2001 and 2008, and had failed to properly submit specified documentation in 14 other cases during 2008-09. It charged him with neglect of duty and with willfully making an untruthful statement during the investigation, recommending that he be demoted from Detective Grade II to a patrol officer and removed from the unit. Although the report also found numerous managerial deficiencies that helped account for these oversights, it declined to recommend any actions against Plaintiff’s supervisors because the deadline for imposing any discipline had long since passed as to them. That same month, however, the Plaintiff was notified of proposed adverse action based on findings that his dependability, work performance, work ethic, truthfulness, justification to hold his current rank, and duty to hundreds of unfortunate children were all “in question,” with no mitigating circumstances. The report recommended demoting him to rank-and-file officer status and that he attend professional training, including a course in ethics in law enforcement. He appealed to the Chief of Police who issued a “final agency action” which granted the appeal based on the same limitations period which had been applied to his supervisors, but ordered that his “obvious failures to properly manage your cases be documented … [and] taken into consideration when developing your [next] performance evaluation. Dissatisfied even with that ruling, he then filed the complaint in this case in September 2009, asserting multiple claims against the District and several individuals, including an action under the D.C. Whistleblower Protection Act (WPA). Except for the whistleblower claim, all counts were eventually dismissed. In April 2011, the District moved for summary judgment on that claim and this memorandum opinion ensued. Rulings: The Court ruled on the issues presented as follows: (A) Summary Judgment. Quoting new appellate language, the Court noted that summary judgment is a useful “means of avoiding full-dress trials in unwinnable cases, thereby freeing courts to utilize scarce judicial resources in more beneficial ways.” It serves “to pierce the boilerplate of the pleadings and [to] assay the parties’ proof in order to determine whether trial is actually required.” The movant has the initial burden of proving that there is no genuine issue of material fact in dispute. The non-moving party may not simply rest on conclusory allegations or denials, but must, in turn, show that there is sufficient trial-worthy evidence in support of its position to submit to a factfinder. (B) Whistleblower Act. (1) Terms. The WPA was enacted on the premise that “the public interest is served when employees of the District are free to report waste, fraud, abuse of authority, violations of the law, or threats to public health and safety, without fear of retaliation or reprisal.” A “whistleblower” is defined as an employee “who makes, or is perceived to have made, a protected disclosure.” The WPA prohibits a supervisor from “threatening to take or taking a prohibited personnel action or otherwise retaliate against an employee because of the employee’s protected disclosure or because of an employee’s refusal to comply with an illegal order.” A “prohibited personnel action” is defined to include “recommended, threatened, or actual termination, demotion, suspension, or reprimand, involuntary transfer, reassignment or detail … or retaliating in any other manner against an employee because that employee makes a protected disclosure.” In turn, a “protected disclosure” is one of that reveals “to a supervisor or a public body” (a) gross mismanagement; (b) gross misuse or waste of public resources or funds; (c) abuse of authority in connection with the administration of a public program or the execution of a public contract; (d) violation of a federal, state, or local law, rule, regulation, or contract provision “which is not of a merely technical or minimal nature”; or (e) a substantial and specific danger to the public health and safety. (2) Procedures. Conforming to the steps set forth by the well-known McDonnell Douglas procedures in Title VII employment discrimination cases, the WPA provides that, once an employee establishes a prima facie case, if “protected disclosure” was a “contributing factor” in a subsequent “prohibited personnel action,” the burden then shifts to the District agency to prove by clear and convincing evidence that the action would have occurred anyway, based on “legitimate, independent reason” and is not a “pretext” for retaliation. In its summary judgment motion, the District argued that (i) the Plaintiff did not make a “protected disclosure” because he did not convey any information to a supervisor or public body; (ii) in the final analysis, the Plaintiff was not demoted and therefore did not suffer any “adverse employment action”; and (iii) the Department had an independent legitimate non-retaliatory reason for taking the challenged employment action. The Court considered these contentions as follows: (C) Reporting. To the District’s contention that the Plaintiff himself never made a report of any kind at all, but rather, what information was conveyed came at the hands of the FOP, the Court pointed out that the statutory definition of an employee making a protected disclosure includes one who is “perceived to have made” such a disclosure, which it concluded was subsumed in the FOP communication using his name. Further, although the Court acknowledged that the statutory phrase “to a supervisor or public body” did not definitively include others, it also noted that it was undisputed that the head of the FOP reported the negligent supervision in Plaintiff’s unit to the OIG, which is a public entity. Finally, the Court noted as to the nature of the disclosure that the definition included “any disclosure of information” which the employee “reasonably believes” evidences one of the proscribed activities. Taken together, the documents “coalesce to form a more complete disclosure,” the Court concluded. Finally, while it is technically true that, because of the excusatory ruling by the Chief of Police, the Plaintiff did not suffer any actual adverse employment action, the Court pointed out that the WPA proscribed even “recommended” adverse action, which was a condition of the final investigatory report. Based on these findings, the Court ruled that the Plaintiff had made out a prima facie case of retaliation, which required the District to go forward to show a valid, non-retaliatory or pretextual reason for its actions. (D) Non-Retaliatory Reason. The Court found not unreasonable the District’s contention that, even absent WPA considerations, the Plaintiff’s gross neglect of hundreds of missing children cases would have resulted in the same, or worse, actions against him. Finding this to be “a legitimate, non-retaliatory reason for the adverse employment action,” the Court concluded that the District had shouldered its burden at this point in the case, validly joining the issue for resolution by a factfinder. (E) Pretextual Reason. Further, the Court found that, for summary judgment purposes, it was “unable to determine as a matter of law that the District’s non-retaliatory reason either was or was not a pretext for retaliation against” the Plaintiff, reserving it, too, for resolution by a factfinder. (F) Conclusion. Accordingly, the District motion for summary judgment on the sole remaining WPA claim was denied.
CRIMINAL LAW AND PROCEDURE
RULE 23(e) MOTION TO WITHDRAW GUILTY PLEA
Précis: In December 2004, despite having a series of emotional, mental, and physical difficulties, the Defendant in this case, a highly intelligent person who was represented by experienced legal counsel, was not permitted to withdraw his guilty plea under a plea arrangement to three counts of fraud against a senior citizen and one count of theft. Under the plea bargain, the Government agreed to ask for no more than five years’ imprisonment. The Defendant had a history mental illness, for which he was taking psychotropic medicine, and was suffering from kidney failure, for each of which he was also taking prescription medications. At the plea disposition hearing in December 2004, he was also recovering from surgery on his left arm and stated that he was taking Tylenol 3 (with Codine) for the residual pain. At the disposition hearing, but prior to the Rule 11 colloquy, the Judge perceived that the Defendant “was not feeling well” and seemed to be physically weak. When the Judge inquired of him, however, the Defendant responded that he was able to go forward. Because of the fact that he was on kidney dialysis, which might have enervated him, the Court allowed him to be seated throughout the proceeding. No further questions on the topic of his mental acuteness were forthcoming. During the Rule 11 aspect of the disposition hearing, the Defendant affirmatively responded under oath to all other questions from the Court, including affirmative responses that (1) he understood the nature of the plea proceeding; (2) he was waiving all his trial rights and related rights; (3) he understood the written plea agreement; (4) he wished to plead guilty to all four remaining charges; (5) he understood the maximum penalty he was facing on each; (6) he was satisfied with the services of his attorney, and (7) he had had sufficient time to discuss with him the decision to plead guilty. In its memorandum opinion, the Court pointed out that “the record clearly demonstrates that the Court did not observe anything about Defendant’s demeanor that suggested his ability to understand the proceedings was compromised in any way.” The Court noted that “his answers were clear, timely, and appropriate.” His posture was good, showing no indication of disorientation or drowsiness from any medication. Moreover, there had been “nothing about the Defendant’s presentation or responses to the Court’s questions [that] suggested that Defendant was laboring under a mental impairment that might undermine his ability to understand the proceeding.” The Court “did not observe anything about Defendant’s demeanor that suggested his ability to understand the proceedings.” Finally, neither the Defendant nor his lawyer alerted the Court to any such concerns. The Court completed the Rule 11 colloquy and, satisfied on this record, it accepted the Defendant’s plea, later noting that “beyond cavil … he [had] knowingly, intelligently, and intelligently entered his guilty plea.” Eight days after entering his plea, and well before any sentence was imposed, the Defendant field a pro se Motion to Withdraw Guilty Plea, asserting that during the plea hearing (1) he was under the influence of prescription drugs; (2) “not aware” that he was pleading guilty, believing instead that he was in court for a ruling on a pending motion; (3) had been pressured by the Court to plead guilty; and (4) had not received effective assistance of counsel. Following that motion, his lawyer was granted leave to withdraw and new counsel was appointed, who filed a supplemental Motion to Withdraw the Guilty Plea two months later in August 2005. The gravamen of Defendant’s argument was that his various medications “impaired his ability to knowingly and voluntarily enter the guilty plea.” This supplemental motion contained separate reports from two psychologists, both of whom concluded that it was probable that the Defendant was incompetent during the disposition hearing. In November 2005, at the sentencing hearing – during which the Defendant asked incisive questions about the limits of the Court’s sentencing discretion -- the Court imposed consecutive sentences for a total of 65 months (5.4 years), with credit for time served, and three years of supervised probation. The Defendant immediately appealed and the Court of Appeals issued an order in March 2009, remanding the case for further consideration on the issues of the Defendant’s mental history and ingestion of various prescribed drugs at the time of the plea. Following the remand, the Trial Court appointed a third lawyer, this one from the D.C. Public Defender Service, in June 2009. The Government obtained leave to conduct additional competency evaluations, both as to the Defendant’s present and retroactive mental conditions, and later produced competing reports from two other experts. Pursuant to the remand, the Court conducted an evidentiary hearing in May, continued for another session in October 2010. It thoroughly addressed all aspects of the issue of competency, dividing the issue into parts, retrospective competency (at the time of the plea) and whether granting leave to withdraw the pleas would serve the “interests of justice.” (A) Retrospective. From the outset, the Court ruled that there is a statutory presumption that “a defendant is presumed to be competent.” Challenges to competency must be considered on a case-by-case basis, particularly when they are nun pro tunc. Thus, whether to permit withdrawal of a plea “is within the sound discretion of the trial court.” Mindful of the remand order to reconsider the Defendant’s mental state, giving “due consideration to the … reports” of the various experts, the Court conducted “specialized competency hearing,” in which it considered the reports of the Defendant’s experts, Dr. A, a behavioral psychologist and Dr. B, a behavioral pharmacologist, as well as those of the Government’s experts, Dr. X, a medical doctor and forensic psychiatrist, and Dr. Y, a clinical psychologist. (1) Defense Reports. As to the Defense experts, the Court found both their reports deficient. It did not dispute clinical history aspects of Dr. A’s report which reported that the Defendant was suffering from paranoid schizophrenia with both internal and external auditory hallucinations, post-traumatic stress disorder, other personality disorders, advanced kidney failure requiring dialysis, coronary artery disease, hypercholesterolemia, and hypertension, for all of which he was taking several medications, together with the post-operative painkiller, as well as a history of opiod dependence and cocaine abuse. Without discounting the severe effects of paranoid schizophrenia or hallucinatory affect, the Court faulted as too vague, Dr. A’s conclusion that “it is quite possible that such cognitive impairments rendered … [the Defendant] incompetent to understand the [initial plea] proceedings.” In rejecting Dr. A’s report, the Court found it to be “largely conditional” with “no particularized discussion of Defendant’s competency … [at the disposition hearing itself,” but rather offering “only general information concerning the possible side effects of Defendant’s various mediations and … hallucinations,” and failing to state which records were relied upon for that conclusion. Although not doubting that the Defendant had been having occasional hallucinations anywhere from 22 days before and 15 days after he pled guilty, the record plainly indicated that “the Defendant’s competency varies from day to day” and there was no finding that he was experiencing any such condition on the day of the plea. Dr. B conducted several cognitive tests on the Defendant in which he scored in the bottom 5%, suggesting, he reported, that the Defendant had elements of schizotypal and paranoid thinking, depressive, narcissistic, and antisocial affect, and aggressive behavior. He concluded that “it seems reasonable to assume that Defendant’s assertion that he was having trouble focusing, thinking and deciding upon things around … [the time of the plea disposition] was accurate. The Court found that Dr. B’s report was “devoid of the kind of information needed to allow the Court to conclude that the Defendant was incompetent at the time of the entry of his guilty plea, even under … [a] lower standard,” bereft as it was of any opinion based on “a reasonable degree of medical certainty.” Based on these reports, the Court concluded “that Defendant has failed to established that he was incompetent on” the day of his guilty plea. (2) Government Reports. In contrast, the Court found persuasive the reports from the Government’s experts, Dr. X, a medical doctor, and Dr. Y, a forensic psychiatrist, both employed by St. Elizabeths Hospital. During his joint interviews with both doctors, the Defendant denied experiencing any symptoms of post-traumatic stress disorder, obsessional thoughts, changes in appetite, ability to concentrate, or diminished energy level. His speech was spontaneous, logical, and coherent, he was able to discuss various types of criminal pleas intelligently, and the doctors found no evidence of disordered thought process. The Court also found that his pro se motions, filed less than two weeks after the plea, “revealed a substantial appreciation of the legal procedures and related concepts.” The doctors found that his erratic mental “symptoms seemed to be fairly well controlled by psychotropic medications.” Finally, they found that the Defendant “attempted to feign or exaggerate his symptoms in almost every question asked of him” and was malingering. On the foregoing bases, the Court credited the testimony and reports of the Government’s experts, found that the Defendant, in fact, had been competent on the day he entered his plea, and concluded that the origin of his post-trial efforts was “his resentment of the Court’s failure to abide by the Government’s five year sentencing cap,” when it was made clear to the Defendant at all times that the Court was not necessarily bound by the plea agreement. (B) Interests of Justice. A defendant may withdraw a plea under this standard if he/she establishes “that justice demands withdrawal under the circumstances of the particular case.” Timing is important. If the motion is made before sentencing, as here, it is examined under a more lenient standard, which with permits withdrawal for any reason that seems fair and just. Indeed, the practice is that such motions filed during this interval “should be freely allowed.” At the same time, however, withdrawal of a guilty plea “is not a right and the determination … is left to the discretion of the trial judge.” The judge must consider several factors in making that determination, no one of which is determinative, as follows: (1) whether the defendant has, in fact, asserted legal innocence; (2) the length of delay between the plea and the motion; (3) the degree of prejudice to the Government; and (4) whether the defendant had the full benefit of competent counsel. After considering the record and the foregoing factors, the Court concluded that the interests of justice would not be served by allowing the Defendant to withdraw his guilty plea. The most convincing factor to the Court was that at no time did the Defendant ever assert that he was innocent of the charges. It found that even if he was having mental or physical problems, or difficulties with his original lawyer, his level of intelligence and the ample time during which this controversy had been pending, he could easily have made this declaration, but did not. Even though the timing of his motion was short – “a swift change of heart being a strong indication that the defendant pled guilty in haste and confusion” – the Court found no such haste or confusion in entering the plea. All of the Rule 11 inquiries had been made while he was under oath, and neither he nor his lawyer at the time – nor his two lawyers since then – ever intimated that the Defendant was innocent. Concluding that the Defendant had had ample time to think about his plea, had the assistance of competent counsel throughout, had knowingly, voluntarily, and intelligently waived his rights, had not provided persuasive medical evidence as to his contentions regarding his mental state at the time, and had never asserted his innocence, the Court denied his motion to withdraw his guilty plea on all of the foregoing grounds.
LANDLORD AND TENANT
SECTION 8 HOUSING / USE OF SECURITY DEPOSIT / LIABILITY FOR DAMAGE / CLAIM FOR DOUBLE RENT FOR HOLDOVER
Précis: D.C. law permits a landlord to demand a security deposit from a tenant and requires that it be deposited into some interest-bearing account during the term of the tenancy. The law allows a landlord to apply the full amount of the security deposit plus interest to either unpaid rent, physical damage to the unit, or for other amounts the tenant owes under the lease. If a landlord intends to do so, however, s/he must conduct an inspection and within 45 days after the termination of the tenancy, provide the tenant in writing, by personal delivery or via certified mail at the tenant’s last known address, including the premises at issue, with a list of all items and the corresponding amounts properly charged against the security deposit. The landlord then has 30 days from the notice to the tenant to refund any portion of the security deposit not withheld, along with an itemized statement of repairs and other uses to which the funds were applied. The law specifies that a landlord’s failure to follow these procedures constitutes prima facie evidence that a tenant is entitled to a full refund of the security deposit. Even though the lease may allow the landlord to keep the security deposit under these circumstances, it cannot trump the requirements of the statute. It is no defense that written notice could not be made, either in person or by certified mail, because the Tenant had absented himself and had left no forwarding address. The statute only requires a mailing and does not require proof of receiving and because, in any event, the mailing could have been made to the “last known address,” which was at the premises at issue. Where the tenancy is one under the Section 8 housing program, the tenant proceeds under two agreements – one with the Section 8 program and the other with the landlord. While these are two distinct documents they run concurrently with each other. If a tenant is terminated from the Section 8 program because of his or her own misconduct, the financial burdens s/he has accrued cannot be shifted entirely to that program. If, while the Tenant had been a participant in good standing in the Section 8 program, s/he did not have an obligation for the full rent, it follows that once s/he had breached that guaranty contract and been terminated from the program, s/he would. At the same time, however, the pertinent Section 8 regulation requires the agency to provide notice and an informal hearing before terminating the tenant. Failure to do so may result in a finding that there is insufficient evidence to support a conclusion that the tenant is liable for the full rental amount claimed due and the landlord may have to pursue his or her remedy for the bulk of the back rent due against the Section 8 agency. Where the record does not make it possible for the Court to determine how long a Tenant has held over, a statutory claim for double rent for impermissible holdover may not be deemed warranted.
Abstract: This Small Claims case delivers a stern lesson with the Trial Court’s ruling that an irresponsible tenant may not benefit from her defalcations. Facts: This case involves (I) the Plaintiff/Tenant’s claim for return of her security deposit and (II) the Landlord/Defendant’s counterclaim for back rent and damage to the premises. (I) Claim. The Plaintiff was a tenant in a house which owned by the Defendant who was receiving a rent subsidy under Section 8 of the D.C. Housing Choice Voucher Program, which helps provide housing for the underprivileged but imposes safeguards as to both quality control of rental premises and financial control of the rent and security deposit payments. In June of 2009, the premises at issue, a single-family house, failed a required initial inspection because of numerous violations attributed to both the Landlord and the Tenant. After the Landlord was given notice to cure, a second inspection a month later still found sufficient defects to fail the house, this time due to multiple Tenant violations. Consequently, under the local practice, the inspector recommended that the Landlord be terminated from the Section 8 program, even though the disqualifying factors were the Tenant’s fault. On the same day as the second inspection, the Tenant transmitted to the Landlord her Notice of Intent to Vacate no later than August 16, 2009, but that the premises would be vacant for one full month thereafter, at which time the keys would be returned. The record showed, however, that the Tenant did not vacate by the date given, though it does not show by long she overstayed her tenancy. Meanwhile, the Landlord conducted an inspection of the premises and found conspicuous damages attributed to the Tenant which ultimately cost more than $3,000 to repair. Following the expiration of the Tenant’s holder, she was expecting the return in full of her security deposit of $1,000 plus the statutorily-required interest. D.C. law permits a landlord to demand a security deposit but requires that it be deposited into some interest-bearing account during the term of the tenancy. The law allows a landlord to apply the full amount of the security deposit plus interest to either unpaid rent, physical damage to the unit, or for other amounts the tenant owes under the lease. In this case, the lease expressly provided that “all or part” of the security deposit could be applied to these factors, without prejudice to the Landlord’s seeking other legal remedies. That remedy, however, is predicated on legal, rather than simply contractual, provisions. D.C. Law, effectuated through Section 8, requires that as a pre-requisite for using the security deposit to defray such expenses, the landlord must conduct an inspection and within 45 days after the termination of the tenancy, provide the tenant in writing, by personal delivery or via certified mail at the tenant’s last known address, including the premises at issue, with a list of all items and the corresponding amounts properly charged against the security deposit. The landlord then has 30 days from the notice to the tenant to refund any portion of the security deposit not withheld along with an itemized statement of repairs and other uses to which the funds were applied. Significantly, the law specifies that a landlord’s failure to follow these procedures “constitutes prima facie evidence that a tenant is entitled to a full refund of the security deposit. The Landlord conceded that he did not comply with the 45-day notice requirement in any form, protesting that the tenant had not left a forwarding address. After he had retained counsel, however, a letter was sent to the tenant on January 23, 2010, regarding the intent to retain the entirety of the security deposit.” Although the record is not clear exactly as to when the tenant vacated the premises, there was no issue that this letter was sent beyond the 45-day notice period. (II) Counterclaim. Having been sued for the return of the security deposit, the Landlord counterclaimed for the independently-verified damage to the house and for back rent due to the holdover. The landlord provided a list of repairs and costs, even to the extent of withdrawing part of the claim due to mistakenly including a bill for painting which did not apply to this house, leaving a claim of $3,035. The list comported with the claims for damage set forth in the counterclaim. As to the rent, the Section 8 aspect somewhat complicated that matter because a Section 8 tenant is only responsible for her portion of the rent under that program, with the agency being responsible for the balance. The Landlord claimed the full amount of a one-month holder against the Tenant, which was $1,300, supplemented with a contention that he was entitled to double damages under the statute which provides for same when a tenant on notice holds over “without reasonable excuse.” The primary questions on the counterclaim then became whether any rent was due and, if so, how much the Tenant should pay under the Section program. Rulings: The Trial Court ruled on the issues presented as follows: (I) Security Deposit Claim. Citing the terms of the pertinent statute and accompanying regulation, the Court ruled that the Landlord’s failure to notify the Tenant in a timely manner of the amount claimed against the security deposit for damage to the property “constitutes prima facie evidence that a tenant is entitled to a full refund” thereof. Even though the lease allowed the landlord to keep the security deposit under these circumstances, it could not, of course, trump the statute. The argument that written notice could not be made, either in person or by certified mail because the Tenant had absented herself and had left no forwarding address was ruled unavailing because the statute only requires a mailing and does not require proof of a receiving and because, in any event, the mailing could have been made to the “last known address,” which was at the premises at issue. Since the Landlord had not rebutted the statutory prima face presumption in favor of a full return of a security deposit to a tenant under these circumstances, the Court held that he must return the entirety of the corpus of security deposit. As a collateral issue, although the statute requires that a security deposit be placed in some type of interest-bearing account, the Landlord also conceded that he had failed to do so. Nevertheless, since neither party pressed this issue during the case, the Court ruled that it was not obligated to rule on it. (II) The Counterclaim. This aspect of the case involved the Landlord’s demand for (A) back rent (B) double rent, and (C) damage to the property, which are addressed as follows: (A) Back Rent. The amount of rent attributable to the Tenant personally in this matter was complicated by the fact that the bulk of the rent was being paid by the Section 8 program. The Tenant was therefore proceeding under two agreements – one with the Section 8 program and the other with the Landlord. Relying on persuasive authority, the Court found that while these “are two distinct documents, … they run concurrent with each other.” The Court noted, however, that the Tenant had been terminated from the Section 8 program. It was therefore clearly reluctant to allow the shifting of the entire obligation to the Section 8 agency, thus allowing the Tenant to benefit and be held harmless for her misconduct. This, the Court ruled, defied “common sense and equitable principles.” If, while the Tenant had been a participant in good standing in the Section 8 program, she did not have an obligation for the full rent, it followed that once she had breach that guaranty contract, she would. The pertinent Section 8 regulation provides that the agency may terminate the agreement for a tenant’s failure to maintain its housing quality standards. Although these regulations provide for notice and an informal hearing before terminating the arrangement with a Section 8 tenant there was no record of such an action. This presented the Court with an equitable conundrum: while there was clear evidence of the Tenant’s responsibility for the claimed damage to the premises, there was no evidence that the Section 8 agency had comported with its constructive due process obligation before stripping the Tenant of the partial rental protection she had under it. The Court’s conclusion was that “under these circumstances … there was insufficient evident to support a finding that Plaintiff[/Tenant] was liable for the full rental amount” claimed due. Although the Tenant was personally liable for her Section 8 share of the rent, the Landlord would have to pursue his remedy for the bulk of the back rent due against the Section 8 agency, the Court ruled. (B) Double Rent. Because the record made it “impossible” for the Court to determine how long the Tenant had held over, it found that the claim for double rent under the pertinent statute was “not warranted.” (C) Physical Damage. To the Court, the evidence of the Tenant’s responsibility for the physical damage to the premises was overwhelming. Crediting the Landlord’s testimony and his corroborating documentation for repairs, and expressly declining to credit the competing testimony of the Tenant, the Court found for the Landlord on this aspect of his counterclaim. (D) Conclusion. The Court held that the Plaintiff was entitled to the full return of her security deposit in the amount of $1,000 because of the Defendant’s failure to comply with the applicable law on that issue. It also found for the Defendant on the demand for Plaintiff’s personal share of the overdue rent plus the adjusted physical damages, totaling $3,066, leaving a judgment in the balance of $2,066 in favor of the Defendant.
UNIFORM INTERSTATE DEPOSITIONS AND DISCOVERY ACT (UIDDA)
FOREIGN SUBPOENAS ON PERSONS WITHIN THE DISTRICT OF COLUMBIA / LOCAL RULE REQUIREMENTS DISTINGUISHED / MEDICAL RECORDS EXCEPTION
Précis: The Uniform Interstate Depositions and Discovery Act (UIDDA) became effective in the District of Columbia in May 2010. Its provisions differ on significant points with Superior Court Civil Rule 28-I(b) as to the procedures for issuance of “foreign subpoenas” from courts in other jurisdictions to compel discovery via the Superior Court on persons located within the District. The purpose of the UIDDA is to simplify those procedures by obviating certain formalities, including the use of local counsel and the approval of a Superior Court Judge, while the local rules require both. The statute governs over the rule and the latter is in the process of being amended. Meanwhile, the ruling in this case by the Presiding Judge of the Civil Division of the Superior Court waives the formal “commission and notice” requirement of the local rule as well as the approval of the Judge in Chambers of the Court. All attendant fees, however, remain in effect. Finally, the statutorily-protected doctor-patient privilege remains in full force, despite the UIDDA, and advance judicial approval is still required to obtain such testimony or records.
Abstract: Because of differences between the recently-enacted Uniform Interstate Depositions and Discovery Act (UIDDA) and the residual requirements of the pertinent Superior Court Rule for issuance of foreign subpoenas on persons within the District of Columbia, the Presiding Judge of the Civil Division of the Superior Court issued an order for a temporary procedure on that issue, pending reconciliation between the statute and rule by amendment of the latter. Facts: Counsel for the Plaintiff in this matter applied for five subpoenas to be issued in the District of Columbia emanating from a case filed in Prince George’s County, Maryland. Law: The UIDDA became effective in the District of Columbia on May 22, 2010. It provides in part relevant to this case that (1) a request for a subpoena upon a person in the District for a case pending in another jurisdiction (“foreign subpoena”) must be made by submitting the subpoena from the issuing court to the Clerk of the Superior Court, (2) an action which does not constitute a formal appearance before the Court, meaning that if the submitting lawyer is not a member of the D.C. Bar s/he need not acquire local counsel, (3) whereupon the Clerk shall promptly issue the foreign subpoena “in accordance with the Rules of the Superior Court,” (4) which subpoena shall incorporate the terms of the foreign subpoena, including the names, addresses, and phone numbers of all counsel of record in the case, as well as of any party not represented by counsel. With some significant contrast, however, Superior Civil Rule 28-1(b) covers this procedure independently, stating that (a) when a foreign subpoena is requested for a witness within the District, it must include a certified copy of the “commission or notice” from the requesting jurisdiction, (b) which shall be submitted to the Judge in Chambers for approval, (c) and only upon such approval shall the subpoena issue compelling the designated witness to appear for deposition at a specified time and place, (d) which deposition shall be taken under the governing rules of the Court, (e) unless an appropriate motion to quash or for a protective order intervenes. As can be seen, the rule requires a commission or notice from the requesting court and approval by a local Judge, neither of which is required by the statute. Because the procedures under the statute and the rule differ, the rule must be amended, a process which is under way. Rulings: The Court ruled on the issues presented as follows: (A) Purpose. The UIDDA is intended to expedite the issuance of foreign subpoenas, and reduce concomitant expenses, via an abbreviated “ministerial” procedure through the clerk of the court, by requiring that the only documents that need be submitted to the Superior Court are the subpoena issued by the foreign trial court and the “draft subpoena” of jurisdiction in which the discovery is sought, obviating both local counsel and any ruling of a Judge in the target court, and allowing the court clerk simply to “re-issue” the original subpoena. (B) Waivers. Because of the interregnum between the implementation of the UIDDA and the existing rule, the Court in this case sua sponte waived the rule requirements of the commission or notice and the approval of the Judge in Chambers, making that ruling as the Presiding Judge of the Civil Division instead. Because the requesting lawyer has not yet filed the local “draft subpoenas,” with the information required by the rule, however, he will be required to do so before the foreign subpoenas issue. In addition, payment of the standard fees for same will be required. (C) Medical Records Exception. The Court deemed it necessary to emphasize the exception for such subpoenas for medical records under the UIDDA. There is a statutorily-protected doctor-patient privilege in the District of Columbia which prevents certain medical professionals and counselors from disclosing without consent confidential information acquired in such a professional capacity that was necessary to enable the professional to act in that capacity. Inasmuch as the doctor-patient statute provides for some exceptions, the party seeking such records has the burden of making the additional showing required by the statute prior to issuance of the subpoena. Thus, unlike simple subpoenas to compel the testimony or for documents from lay witnesses, which do not require prior judicial approval under the UIDDA, any such subpoenas for medical records do require it under the D.C. privilege statute, and the showing of an applicable exception must be made in advance.
D.C. HUMAN RIGHTS ACT / D.C. WHISTLEBLOWER ACT
RETROACTIVITY OF AMENDED PROCEDURAL FILING PROVISIONS AND STATUTE OF LIMITATIONS
Précis: The statutory provision of D.C. Code § 12-309 requiring six months’ advance notice to the District of Columbia before filing suit does not apply to the D.C. Whistleblowers Act. That statute was amended, effective March 2010, extending the one-year statute of limitations for filing suit from one year to three years. While it is true that where amendments to a statute affect claims on the merits there is general presumption against the retroactive application, absent a specific provision in the new statute providing for same, that presumption does not apply to procedural changes. In that instance, the presumption is turned inside out and it is presumed that the intent of the legislature is to apply those changes retroactively to suits pending at the time of the changes, unless the statute says to the contrary. This is particularly apt where the amended provision does not attach new legal consequences to the events completed before its enactment.
Abstract: By a fortunate ruling on the retroactivity of post-filing amended procedural requirements in this local employment discrimination case, the Plaintiff was permitted to proceed – mostly. Facts: The Plaintiff in this case had been employed by the D.C. Department of Human Services (DHS) in its Office of Grants Management. In August 2001, he was reassigned to a position within DHS’s Youth Services Administration at its juvenile detention facility, located in Oak Hill, Maryland (which has since been closed). In November 2004, however, his employment at DHS was terminated altogether. Six months later, in May 2005, he filed a “notice of claim” letter with DHS, alleging that the termination was illegally based on his age, race, gender, national origin, or political affiliation and stating that he intended to pursue “any and all legal claims” thereunder. He filed suit in the instant case sometime later in 2005, based on the D.C. Human Rights Act (HRA). About 18 months later, in November 2006, he filed a second notice of claim with the HRA in which he added contentions that the transfer to Oak Hill and his subsequent termination were illegal acts of retaliation that violated the D.C. Whistleblower’s Act (WBA). His motion to amend his complaint in this suit to add those counts was granted in August 2007. This brought his suit to three claims: (1) the original claim for employment termination based on the HRA, (2) retaliation under the WBA, and (3) a claim for violation of “public policy” embodied in those statutes. In addition to the well-known existing requirement that notice must be provided to the District of Columbia of intent to sue (within six months of the event) pursuant to Section 12-309 of the code, at the time of these actions, the WBA’s procedural requirement set a limitations period within which to sue (one year from the event or knowledge of same). In January 2010, focusing on the WBA claims, the Government moved for summary judgment on the grounds that these counts were filed outside the statute of limitations in effect at the time of their filing. Meanwhile, however, the WBA was amended in March 2009, effective in March 2010, extending the one-year limitations period to three years. Each side argued for applicability of the limitations period that supported its version of the filing requirement, with the Plaintiff arguing for retroactivity and the Defendant arguing for the status quo ante. Rulings: The Court ruled on the issues presented as follows: (A) Section 12-309. The Court had no difficulty in ruling that this basic notice provision did not apply to suits under the WBA because that statute explicitly excludes lawsuits under that statute, thus obviating a notice requirement altogether. (B) Whistleblower Act. The Court’s ruling made two distinct applications to proceedings under this statute. (1) Substantive Claims. The Court acknowledged that, where claims on the merits are concerned, there is “general presumption against the retroactive application,” absent a specific provision in the new statute providing for same. (C) Procedural Matters. Where procedural matters are concerned, however, that presumption is turned inside out. Where the new law impacts only upon procedure, it is presumed that the intent of the legislature is to apply them retroactively to suits pending at the time of the changes, particularly where, as the Court found here, the new provision does not attach “new legal consequences to the events completed before its enactment.” Thus, unless a contrary legislative intent appears, “changes in statute law which pertain only to procedure are generally held to apply to pending cases,” the Court ruled. To do otherwise, it reasoned based on precedential authority, would result in one body of cases ongoing under one set of procedures and another proceeding on new provisions, the result of which, it concluded, “would lead to chaos” on court dockets. The Court therefore held that the procedural changes in the WBA amendments applied to this case. (D) Applicability. The Court then applied this ruling to the WPA claims, in terms of (a) the notice provision and (b) the limitations provision. (1) Notice. Ruling that “pre-filing notice statutes are procedural in nature,” the Court concluded that “changes in these statutes must be applied in lawsuits based on conduct that occurred prior to the enactment of the changes.” It was clear to the Court that the City Council “viewed the elimination of the notice claim requirement as a change in procedural law,” when it “specifically characterized the abolition of the § 12-309 requirement as the elimination of a ‘procedural barrier’” in WBA cases. Therefore, the 2009 amendment should apply to this case, affording no basis for the Defendant’s motion for summary judgment thereon. (2) Limitations Statute. Finding that the extended statute of limitations under the amendments did “not impinge on vested substantive rights” on the merits of the case, but only “constitute changes in procedure,” the Court held that the new three-year limitations period also applied to this case. The complaint here, having been filed within three years of eligibility, was thus salvaged it from being time-barred. (E) Other Claims. The Court’s ruling on the remaining “public policy” claims, however, was different. Noting that the alleged retaliation in the transfer to Oak Hill had occurred in 2001, three years before the Plaintiff was even terminated, the Court ruled that by any reasonable measure this claim was out of time. Thus, to the extent that any adverse actions were predicated on this aspect of the complaint, they were dismissed.
CORPORATE CAPACITY TO SUE / EX POST FACTO COMPLIANCE / PROPER DUE PROCESS NOTICE WHERE TITLE HOLDER IS DECEASED BUT ESTATE IS NOT YET CREATED / IN REM JURISDICTION / SUFFICIENCY OF SERVICE / POSTING / TAX SALE PROCEDURES / AFFIRMATIVE DEFENSE
Précis: A foreign corporation may not maintain any action at law or equity in any court of the District of Columbia until it has obtained a certificate of registration. A distinction is made between filing an action and maintaining an action, in that it is generally held that reinstatement of a repealed charter relates back to a filing. Thus, coming into compliance after an action has commenced is sufficient to enable the corporation to maintain the suit. All tax sales cases are in rem actions against the subject property itself, not in personam cases against particular individuals, although notice sufficient to satisfy statutory and due process requirements must still be given to those parties with an interest in the property which is reasonably calculated to apprise interested parties of the imminent prospect of their loss of valuable property rights. Such properties can only be conveyed pursuant to strict compliance with the tax sale statute and regulations, including adequate notice to the record title holder, while other parties may be designated as “all persons that have or claim to have any interest in the real property” at issue. Those parties can be identified by a search in accordance with generally accepted standards of title examination of the records of the Recorder of Deeds and in the probate filings of the Superior Court. Where such a search does not identify a property owner, s/he may be included as a defendant by the designation “Unknown owner of real property” and successors in right, title and interest. The pertinent statute provides that all property of a decedent, upon the decedent’s death, shall pass directly to the personal representative (PR), who shall hold the legal title for administration and distribution of the estate. The statute therefore constructively comprehends that a PR exists or will exist in an estate for tax sale. While there is nothing to prevent a plaintiff in such a involving a decedent title holder from filing an probate action, there is also nothing in the legal authority requiring that a purchaser do so. The statute does, however, require a purchaser to perform a diligent search in the probate records for any such interested parties. The statute also provides that (1) where a property owner, living or dead, is unknown s/he may be proceeded against as if she were living; and (2) where the proper party is known to be deceased, all unknown potential heirs and devisees may be initially notified by the usual method of publication, (3) after the court is satisfied that due diligence has been used to ascertain the unknown heirs. Those parties may then, if they wish, open an estate for the decedent. However, it is not the plaintiff’s burden to open an estate for a deceased party. Notices in such cases must be reasonably calculated to apprise interested parties of their imminent loss of valuable property rights. Under these circumstances, notice by publication alone would be insufficient for unknown heirs. A plaintiff must also performed due diligence to locate all the reasonably ascertainable heirs of the known decedent and add them as parties to the action, although it is not required that all defendants to a tax lien proceeding receive actual notice. In this regard, vicarious service made on a 16-year-old girl at her residence is sufficient under Rule 4(e)(2). Although the pertinent statute requires that a copy of a tax condemnation suit be posted on the property at issue, it only requires a posting of the original suit and does not require posting of any subsequent changed circumstances within the case itself. Thus it does not require that posting on a property occur more than once. In a tax sale suit, there is presumption of regularity. The plaintiff has no burden of proof and is not required to plead or prove the various steps for the assessment and imposition of the taxes for which the real property was sold. Rather, the validity of the procedure is conclusively presumed, unless a defendant, by answer, pleads any procedural defect as an affirmative defense.
Abstract. Confronted with a series of dull issues, the Trial Judge in this case wrote a methodical and comprehensive memorandum opinion, making important rulings in the area of tax sales law, and disposing of all issues presented by numerous parties involved in this combination in rem tax sale/prospective probate case. Facts: In mid-July 2007, a Limited Liability Partnership (LLP) purchased a tax sale certificate from the District Government for an occupied two-story rowhouse located in the 1700 block of M Street, N.E. In December of the same year, however, the record title holder of the property (the Decedent) died. No petition to open an estate in the Probate Division has ever been filed. The next month, the LLC filed the complaint in this case to “foreclose the right of redemption,” a threshold step in obtaining title to the property. Upon learning of the owner’s death, the LLC filed an amended complaint adding her estate as a Defendant, even though no formal estate existed at probate; it also added seven of Decedent’s heirs as Defendants. The LLC subsequently assigned its interest in the tax sale certificate to a related LLC and the Court granted a motion to substitute the latter as Plaintiff in the case (the Plaintiff). In November 2009, Plaintiff filed a Motion for Judgment, which brought before the Court several competing parties and interests in addition to the Plaintiff: (1) Heirs. These undesignated beneficiaries argued that (a) the original LLC could not have filed a valid lawsuit because it was not registered to transact business in the District at the time and therefore was statutorily barred against doing so; (b) even if it were, it had not properly posted notice of the suit, thereby denying the heirs notice due process; (c) the District had also failed to meet statutory mailing requirements for notice to the property owner; (d) a suit cannot be brought against a named defendant who was deceased at the time of filing; (e) the is no jurisdiction over an estate that has not been formally probated and is without a personal representative (PR); (f) therefore, a complaint against a non-existent party cannot be amended; and (g) consequently, a judgment could not be issued against it. (2) District of Columbia. In defense of its tax sales procedures, the District argued that (a) the statutory notice requirements in tax sale matters satisfy constitutional due process, particularly where, as here, they were accompanied by additional due diligence in locating and notifying interested parties; (b) opening an estate is the responsibility of a decedent’s heirs and if they do not do so, the foreclosure action should proceed against an ostensible PR anyway; and (c) the entire tax sale process would otherwise be disproportionately burdened if purchasers are required to open an estate in order to complete the sale, thus (d) reducing the number of sales and increasing the blight that would result from unsold properties on which taxes had not been paid. (3) AARP. The American Association of Retired Persons via its Legal Counsel for the elderly as amicus for the Heirs, argued that (a) property ownership is a fundamental right and should not be unnecessarily derogated; (b) the difficulty in rehabilitating nuisance properties should recede in the face of the right of owners and tenants to retain their property rights; (c) neither the District’s pre-sale nor the post-sale requirements adequately alert all interested parties as to the impeding loss of the property, particularly because (d) pre-sale notice is only required to be sent by regular mail to the record owner and (e) the Government is not required to conduct any follow-up diligence to assure that it has been received; (f) post-sale notice requirements likewise virtually foreclose the right of redemption without notice reasonably calculated for unknown owners, including a probate process for deceased original owners; (g) it is extremely difficult to re-open a foreclosure sale after the property has been sold, the reasons being limited to lack of jurisdiction or fraud, (h) a process which places a heavy emphasis on ex post facto proof of notice or lack thereof, (i) whereas many people involved in the sale and redemption processes are unsophisticated or economically unable to initiate these procedures; and (j) finally, the Plaintiff and the District overstate the difficulties to a purchaser in opening an estate for a deceased property owner. (4) Plaintiff. The Plaintiff responded to these various arguments as follows: (a) the current Plaintiff is a proper party because it acquired all rights to the property from the previous Plaintiff and subsequently became registered; (b) this is an in rem action against the property, not an in personam action against any individuals, and it therefore is only required to meet the less stringent notice requirements; (c) it did name the proper Defendants, including the deceased record title holder and her heirs, even if an estate has not yet been opened; (d) in order to pursue its property claim, the Plaintiff has no duty to open a suit for deceased property owner where that has not been done by the heirs or a PR, who alone have such a duty; (e) it properly posted notice concomitant with the filing of the original complaint and had no duty to post again following the filing of the amended complaint; and (f) as to entering judgment, pursuant to the pertinent statute a court may do so in a case where the plaintiff has exercised due diligence in attempting to identify and notify all concerned persons or entities. Rulings: The Trial Court ruled on the issues presented as follows: (A) LLC Plaintiff’s Capacity. According to statute, a foreign corporation “may not maintain any action at law or equity in any court of the District until it has obtained a certificate of registration.” The original LLC Plaintiff, however, was not registered in the District the time it filed this case and before assigning its rights to the substitute LLC, which did register. The Trial Court found that the operative phrase is “maintain an action” – distinguishing it from when the action was ‘brought” -- and that “it is generally held that reinstatement of a repealed charter relates back” to a relevant point in time. Thus, while our Court of Appeals has never ruled on this issue, the Trial Court found that “the vast majority of courts” interpret such statutes to mean that coming into “compliance after an action has commenced is sufficient to enable the corporation to proceed with [“maintain”] the suit.” (B) In Rem Action. All tax sales cases are in rem actions against the subject property itself, although “notice sufficient to satisfy statutory and due process requirements must still be given to those parties with an interest in the property” which is “reasonably calculated to apprise interested parties of the imminent prospect of their loss of valuable property rights.” (C) Procedures and Notice. Such properties can only be conveyed pursuant to “strict compliance with the tax sale statute and regulations,” including adequate notice to the record title holder, while other parties may be designated as “all persons that have or claim to have any interest in the real property” at issue. Those parties can be identified by a search “in accordance with generally accepted standards of title examination of the records of the Recorder of Deeds and probate decisions of the Superior Court.” Where such a search does not identify a property owner, s/he “may be included as a defendant by the designation ‘Unknown owner of real property, the unknown owner’s heirs, devisees, and personal representatives and their … heirs, devisees, executors, administrators, grantees, assigns, or successors in right, title and interest.’” Here, the Court ruled, the Plaintiff is not required to dismiss its case due to the fact that the originally-named owner is deceased, because, again, this is an in rem action and because the notice statute comprehends the research of “probate decisions” of this Court. (D) Probate Estate Vel Non. Considering the statutory scheme in these matters as a whole, the Court concluded that it provides that “all property of a decedent, upon the decedent’s death, shall pass directly to the personal representative, who shall hold the legal title for administration and distribution of the estate.” The Court concluded that the statute therefore constructively comprehends that a PR exists or will exist in an estate for tax sale and other purposes. That being so, the issue became what additional steps, if any, a plaintiff must take to identify a PR or other interested parties. One step is for a Plaintiff to file a petition to open an estate for a deceased title holder. The Court noted that, while there is nothing to prevent such an action, there is also nothing in the legal authority requiring that a purchaser do so. The statute does, however, require a purchaser “to perform a diligent search” in the probate records for any such interested parties. The statute also provides that (1) where a property owner, living or dead, is unknown s/he “may be proceeded against as if [s/]he were living”; (2) where the proper party is known to be deceased, all unknown potential heirs and devisees may be notified by the usual method of publication, (3) after the court “is satisfied that due diligence has been used to ascertain the unknown heirs.” Those parties may then, if they wish, open an estate for the decedent. The Court concluded, however, “that it is not the plaintiff’s burden to open an estate for a deceased party.” (E) Adequacy of Due Process. The Court then addressed whether the notices in the instant case satisfied due process. It concluded that the Plaintiff’s steps herein comport with the “requirement that it be reasonably calculated to apprise interested parties of their imminent loss of valuable property rights” under the long-standing Mullane Rule (1950). Here, the notice facts are not especially complicated. The title holder was both known and deceased, but since there was no PR for her estate, the Court concluded that the usual service by publication alone would “virtually assure that … persons who have an actual interest in the property … will not receive actual notice.” Yet, that was not the case here. The Court found that the Plaintiff had performed “due diligence to locate all … the reasonably ascertainable heirs” of the known decedent “and add them as parties to the action” and that “it is well-settled that defendants to a tax lien proceeding are not mandated to receive actual notice.” These “additional reasonable steps” satisfied the Court “that the actions taken by Plaintiff in this case comport with due process.” (F) Sufficiency of Service. In the face of a challenge to service by one of the heirs (who was, actually, not even a named party in the suit), the Court found that, even though vicarious service had been made on a 16-year-old girl at her residence, this was sufficient under Rule 4(e)(2) and, in fact, constituted “actual notice,” though adding that the ruling was limited to this case and “should not be read as a general rule allowing tax lien plaintiffs to proceed against known heirs … without making those persons parties to the action.” (G) Posting. The Heirs complained that, after the Plaintiff filed an amended complaint, it did not post same on the affected property, as required by statute, and that the posting of the original complaint had lapsed. But, the Court found, the statute only requires a posting of the original suit and does not require posting of subsequent “changed circumstances within the case itself.” Thus, the Court ruled, the statute does not require that posting on a property occur more than once.”(H) Sufficiency of Tax Sale Proceedings. Finally, the Court addressed the Heirs’ facial attack on the District’s procedures for tax sales who argued that a plaintiff bears the burden of proving that the District had complied with all aspects thereof, and that there was no evidence that it had done so. But the Court noted the “presumptive” effect of the pertinent statute which provides that “in an action to foreclose the right of redemption, the plaintiff shall not be required to plead or prove the various steps, procedure, and notices for the assessment and imposition of the taxes for which the real property was sold or the proceedings.” Rather, the statute goes on to say, “the validity of the procedure is conclusively presumed, unless a defendant … shall, by answer, plead [any such defect] as an affirmative defense.” Here, the Court found that the Heirs had failed to satisfy their standing to make such an attack – although it pointed out that they still had the opportunity to do so at this stage of the case. Yet, because their argument was predicated entirely on the misplaced premise that the Plaintiff had this burden of proof, their argument could not be heard. (I) Conclusions. The Court therefore arrived at the following conclusions: (1) The record “definitely establishes” that Plaintiff has complied with all statutory requirements. (2) The Plaintiff has been “duly diligent” in attempting to locate and joint all interested parties in the case. (3) The Government must issue to the Plaintiff within ten days of the Order herein a statement “detailing the amounts required to a deed” on the property at issue. (4) The Government is required to deliver an executed deed in fee simple to Plaintiff on the property. (5) The deed is to be subject to (a) the tax lien, (b) the tenancy of the current resident, and (c) any easements of record running with the land. (6) Completion of these processes “shall vest in Plaintiff fee simple title to the property free and clear form all claims, estate, or rights of Defendants or any person claiming through” them. Thus, the Plaintiff prevailed on all issues raised.
RULE 16 MOTION TO COMPEL CRIMINAL DISCOVERY
CRITERIA FOR PRODUCING DRUG CHEMICAL ANALYSIS AND RELATED PROCEDURES
Précis: Criminal Rule 16 mandates Government disclosure of pertinent information that is “material to the preparation of the defense.” The Defendant has the burden of demonstrating a relationship between the requested evidence and the issues in the case and there must exist a reasonable indication that the requested evidence will either lead to other admissible evidence, assist the defendant in the preparation of witnesses or in corroborating testimony, or be useful as impeachment or rebuttal evidence. In order to demonstrate materiality, a defendant must make some preliminary showing of a reason to doubt the chemical analysis provided by the Government. A trial court has discretion to determine what type of threshold showing of materiality is appropriate in each case and each discovery request must be evaluated independently to determine if there is a relationship between the requested evidence and the issues in the case. Even if the requested evidence is found to be material, however, the trial court must also consider the burden that producing it would cause the Government. A rule that flatly prohibits a trial court from considering the burden to the government would irrationally remove an obviously relevant factor from the analysis and would inevitably increase litigation costs exponentially. For “routine drug cases,” beyond the typical reporting forms, only documents relevant to the DEA Lab’s Standard Operating Procedures need be produced because this information is likely to assist a defendant in understanding the reports and paperwork that traditionally accompanying such cases. In a typical drug case, however, neither the Government is not required to produce the lab’s audit and accreditation information, the calibration record of any instrument used, or the proficiency testing record of the chemist.
Abstract: In a balanced ruling (though with much room for disagreement on certain critical points), the Trial Court in this matter responded meticulously to far-reaching, detailed, and substantive Defense requests to compel Rule 16 discovery in what all concerned was a “routine drug case,” regarding supplemental materials which should accompany the usual finding of a controlled substance in the usual DEA-7 form in such matters. Facts: On February 27, 2010, in a not untypical situation, a routine traffic stop resulted in the discovery of 100 empty zip-lock bags, usually associated with packaging for distribution of controlled substances, in the trunk of the driver’s car; presumptive cocaine was recovered from his person as well. A quantity of presumptive marijuana was recovered from the lone passenger. They were charged with simple possession of cocaine and possession with intent to distribute marijuana, respectively. A forensic chemist with the DEA tested both the purported marijuana and cocaine little more than a month later and confirmed them to be these controlled substances, as reported in a DEA-7 form. Defense Requests. The Government was served with a Rosser Letter requesting all “discoverable material related to scientific testing of the alleged controlled substances” pursuant to Criminal Rule 16, which requires the Government, upon request, to allow a defendant “to inspect and copy … documents [and] data [inter alia]” in its possession, custody or control if “the item is material to preparing the defense.” The Rule also requires such disclosure, under the same circumstances, of “the results or reports of any … scientific test or experiment if … the item is material to preparing the defense or the government intends to use the item in its case-in-chief at trial.” The Rosser Letter sought the chemist’s case file; the record of the chain of custody; statistical information; copies of all protocols, handbooks, guidelines, and training materials; results of validation studies; source and usage records for all reagents involved; instrument and equipment manuals and maintenance records; laboratory production data and audit reports; and background information on all personnel involved in the testing process, together with a request to allow its own expert to inspect the DEA laboratory. Initially, the Government declined to provide the Defense with anything more than the DEA forms. The Defense then filed a Motion to Compel (joined by Counsel for both Defendants), supplemented by the affidavit of an expert witness in forensic chemistry, who stated that it would be “impossible to evaluable the validity and reliability” of the Government’s drug analysis without the kind of “analytical information” requested by the Defense. The Defense pointed out that the kinds of materials it was requesting were turned over “as a matter of course” in DNA cases. It also relied on a recent ruling by another Superior Court Judge who had made a ruling in a similar case, using the same methods, which was favorable to some of the disclosure requests being made herein. The Court then set a briefing schedule for the Government to reply to six categories of information that the Defense was seeking with regard to the DEA Lab: (1) proficiency testing records; (2) accreditation and inspection reports; (3) standard operating procedures; (4) calibration records for instruments used; (5) an expansion on what was meant by a “confidence level”; and (6) a glossary of terms used in completing reports. Government Response. The Government maintained that the extensive Defense requests were (1) overbroad; (2) immaterial to preparing the defense case; (3) without any “initial showing” that there was any “reason to doubt” the test results; (4) “incredibly burdensome” to comply with; and (5) an unnecessary precedent for all future drug cases. Aside from insisting that a “preliminary showing” was required for such extensive disclosures, the Government also presented an expert’s written declaration that “there are no mandatory methods” in these matters and that DEA chemists may rely on several approaches in conducting tests on any given suspected controlled substance. Results from any or a combination of methods used in a given test would “not be self-explanatory” and would require accompanying testimony, thus creating a new stratum of DEA obligations to the courts. As to proficiency tests, the Government contended that any failure on such a test would routinely be produced under the Giglio case (1972), requiring that all material evidence be disclosed. Moreover, any DEA chemist would know his or her proficiency test record and could be interviewed before trial and would be subject to cross-examination under oath at trial. Finally, prior to the hearing, the Government provided the Court, for in camera inspection, over a half dozen accreditation and related laboratory documents. Hearings. The Court conducted three days of hearings on these issues spaced throughout the month of September 2010. Defense Evidence. The Defense called the forensic chemist on which it was relying who testified that, although the DEA tests included such steps as a microscopic exam, color and chromatography analysis, and were the “common industry standard,” additional information would be needed in order to render an opinion about their “reliability and accuracy.” This included the following: (1) Access to the DEA Lab’s Standard Operating Procedures, including identification of plant material, reagents, coloration, explanations for “blanks” where there is no positive report for a chemical, the nature of a control element, and the solvent system used in the chromatography, among other factors. (2) Although no instrument was used to test the marijuana, the cocaine was subjected to such testing. The Defense expert testified to what seemed obvious, i.e., that “you could get bad data that could be misinterpreted … [as a] false positive.” (3) Proficiency testing results are extremely relevant to a chemist’s “ability to accurately and reliably perform these tests,” and to inform whether the chemist has ever conducted a test on a given putative controlled substance. Government Reply. At the second segment of the hearing, the Government announced that it would voluntarily provide the Defense with all the materials that it had previously provided for in camera inspection, but specified that it was doing so “as a courtesy” in this case only and that it still did not consider the disclosure mandatory under Rule 16. As to other materials, it provided the Director of the DEA Lab as its own expert witness, who testified regarding the following Defense requests: (1) Although averred that it was impracticable to produce the Lab’s Audit and Accreditation information, even the Defense Expert found this information not particularly useful. (2) He flatly contradicted the Defense Expert’s testimony that improper calibration of instruments could result in a false positive, stating that “a mis-calibrated instrument would never cause a false positive result because the data would be ‘errant’ and would not produce anything that would look like a drug,” so that the chemist “could immediately … tell if the instrument is working properly.” Apart from the irrelevancy of the information, he contended that it would be “very challenging” for the DEA Lab to keep track and report every instrument calibrations. (3) He repeated that DEA chemists undergo annual proficiency testing and that if any of them fail the test, not only does the Government routinely provide that information under Giglio but the chemist is also subject to being interviewed before trial and is subject to cross-examination on the issue at trial. He also added that it would be “very burdensome” to keep, peruse, pull, and provide these test results for the entire Lab in any given case. (4) He testified that the materials already voluntarily provided to the Defense were “the closest thing the DEA has to standard operating procedures for the chemists.” (5) Finally, the Government expert testified that it would be “crippling” for the DEA Lab to provide all the materials requested by the Defense “in every routine drug case.” Closing Arguments. At the third segment of the hearing, the Defense represented, despite all the Government disclosures, it “still had questions about whether additional documents might also fall under the rubric” of Standard Operating Procedures. The Government offered to make the entire panoply of those procedures available to the Defense in this case only, under a protective order. That being so, it continued to maintain, the Defense was now obligated “to come up with … more than just saying [that] maybe additional information would help” its understanding of the DEA testing procedures. The Defense rebuttal was a broad contention that “anything relevant to an issue in the case is material to the preparation of the defense,” whether inculpatory or exculpatory because it is necessary in order to determine whether the better course for the defendant is to seek a plea agreement or go to trial. The Defense also called attention to the recent Report of the National Academy of Sciences on the “potential weaknesses in forensic science” by way urging the Court not to apply a “heightened standard” to such discovery requests. Finally, the Defense argued that Rule 16 makes no mention of any burden on the Government and that factor should therefore not be a part of the Court’s consideration. In summary, the Defense still contended that the Government should produce the DEA’s (1) Standard Operating Procedures; (2) audit and accreditation information; (3) proficiency testing records; and (4) calibration records for instruments. Rulings: The Court ruled on the issues presented as follows: (A) Applicable Standard. Rule 16 mandates Government disclosure of pertinent information that is “material to the preparation of the … defense.” Whether evidence is material requires a pre-trial determination from the defendant’s standpoint “of whether the evidence has potential value for the … development of a defense.” In order to make that connection, the Court ruled under governing appellate case law, the defendant “must demonstrate a relationship between the requested evidence and the issues in the case, and there must exist a reasonable indication that the requested evidence will either lead to other admissible evidence, assist the defendant in the preparation of witnesses or in corroborating testimony, or be useful as impeachment or rebuttal evidence.” This showing “requires a ‘strong indication’ that evidence ‘will play an important role” in any of these categories. The Defense bears the burden of showing materiality by making “a threshold showing” of same. Thus, as the Government had argued throughout this matter, the Court ruled that “in order to demonstrate materiality, defendants must make some preliminary showing of a reason to doubt the chemical analysis provided by the Government” as, for example, where there is reason to believe that there has been a failure to maintain lab equipment properly or an opinion of a qualified witness as to a flaw in the testing procedure and the validity of drug test results. With seeming retrenchment, however, the Court quoted additional appellate case law which has followed a “liberal” interpretation as to materiality, stating that “the threshold showing materiality is not a high one” and that “trial courts must be solicitous of discovery motions and careful not to deprive a defendant of a critical, statutorily provided defense tool.” The Trial Court therefore concluded that the Court of Appeals did not “intend to impose a rigid rule under which the ‘higher’ standard is automatically triggered once a certain amount of discovery is provided, but, as it stated in the controlling case, it would “leave it to the discretion of the trial court to determine what type of threshold showing of materiality is appropriate in each case.” Noting that there was no question as to the good faith of the Defense requests in this case, the Court reasoned that “it seems most appropriate that each discovery request be evaluated independently to determine if there is a relationship between the requested evidence and the issues in the case.” The “material issue” in this case, the Court found, was “the accuracy and reliability of the particular drug analysis that will be admitted into evidence.” The Defense therefore had the burden of establishing the materiality of its requests as they would “assist the defense either … in understanding the paperwork … provided regarding the drug testing … or … in uncovering information that may be used to cross-examine the chemist about the testing itself or about the reports that describe the testing.” (B) Burdensomeness. Significantly, however, the caselaw proceeds on a liberal line, “absent a showing of undue burdensomeness.” Analogous to balancing the probity of evidence against its potential prejudice, however, the Court also ruled that even if the requested evidence is found to be material, it must also consider the prospect of the burden that producing it would entail, thus rejecting the Defense contention that this should not be a factor under Rule 16. “A rule that flatly prohibits a trial court from considering the burden to the government,” the Court asserted, “would irrationally remove an obviously relevant factor from the analysis and would inevitably increase litigation costs exponentially.” (C) Findings of Fact. Noting that a similar case had been reversed because the trial court had failed to make factual findings in denying the defendant’s motion, the Court made the following specific findings with regard to the Motion to Compel herein: Specific Inclusion. Finding that the Defense had met its burden, the Court granted its Motion to Compel only for the Standard Operating Procedures for the DEA Lab, including internal guidelines “that explain how the tests at issue … should be performed at the laboratory, or what procedures should be followed to produce the reports and paperwork that are contained in the relevant DEA files.” The Court found that this documentation is “likely to assist the defendants in understanding thee reports and paperwork that [already] have been disclosed to them, as well as how the DEA chemist produced the results and accompanying documentation that the Government will rely on at trial” for purposes of cross-examination. Specific Exclusions. Crediting the Government’s expert in excluding these factors from being compelled, the Court: (a) Declined to require the DEA Lab Director to review all of its system orders to determine if they are materially responsive to the Standard Operating Procedures because they ‘are highly unlikely to contain the type of information sought … and it would be unduly burdensome to require the Government to scour … [these records] … for relevant information.” (b) Found that the Defense had not met its burden in proving the materiality of the Lab’s audit and accreditation information and that “there is no reasonable indication that disclosure of … [this] information will lead to admissible evidence or appropriate questions on cross-examination. Moreover, such a task would be “unduly burdensome, the Court found. (c) That the production of the proficiency testing record of the chemist in this case would “not be particularly relevant” in the preparation of the defense because, if extant, such information would have been disclosed under Giglio and is already available via cross-examination. It, too, the Court found was too burdensome a task to collect and produce. (d) Crediting the Government expert that a mis-calibrated instrument would not have resulted in a false positive for the cocaine charged against the driver of the car, and finding that it could be derived from the spectrographs produced thereby, the Court found that “general calibration records are not material to the preparation of the defense because they would not assist … in understanding the spectrographs and there is no reasonable indication that the records could lead to the discovery of impeachment … or any other kind of admissible evidence.” Moreover, they also were deemed “extremely burdensome” for compelled disclosure “in a routine drug case.”
ISSUE PRECLUSION IN CIVIL CASE BASED ON GUILTY PLEA IN COMPANION CRIMINAL CASE / EFFECT OF STATUTE OF LIMITATIONS ON COUNTERCLAIM
Précis: For issue preclusion purposes between a prior criminal case and a civil case involving the same incident, a distinction is to be made between a guilty plea in the criminal case and a trial therein, where the common defendant had a full opportunity to contest liability. Only in the latter instance is issue preclusion applicable to the civil case. Case law by the D.C. Court of Appeals which varies from precedent set before the establishment of the current D.C. Court system in 1970, retains its precedential effect unless it was overturned by the U.S. Court of Appeals in the years between the local decisions, or is overturned by an en banc decision by the current D.C. Court of Appeals. As the case law now stands, the filing of an original claim tolls the running of the statute of limitations for all counterclaims and other claims relating to the events or occurrence is involved.
Abstract: This decision by a Superior Court Judge resolves two thorny procedural issues involving the application of issue preclusion between criminal and civil cases arising out of the same incident and the effect that the statute of limitations has on a counterclaim. Facts: Prior to being sued for assault in this civil case, the Defendant had pled guilty to assault in a companion criminal case arising out of the same incident. After being sued civilly herein, the Defendant counterclaimed for assault, battery, and intentional infliction of emotional distress. In a summary judgment motion, the Plaintiff moved to preclude the counterclaim based on (1) the collateral estoppel effect of the Defendant’s prior guilty plea, or alternatively (2) that it was time-barred as a counterclaim. Rulings. The Trial Court ruled on the issues presented as follows: (A) Issue Preclusion. The Plaintiff’s theory that the Defendant was precluded by his prior guilty plea was misplaced. In the case law which he cited, the common defendant had been tried, with a full opportunity to defend against liability. Here, however, the Defendant’s liability was never fully litigated. “In such cases, a criminal conviction does not estop the defendant from litigating the issue in a subsequent civil lawsuit,” the Court ruled. While the Defendant’s guilty plea may be used as evidence in the civil case, subject to rebuttal, it does not operate to preclude it altogether. Summary judgment on this theory was therefore denied. (B) Statute of Limitations. The judicial policy that the filing of an original claim tolls the running of the statute of limitations for all counterclaims and other claims relating to the events was established by case law antedating the creation of the Superior Court in 1970. The Plaintiff contended, however that 1972 case law from the D.C. Court of Appeals held that a counterclaim that goes beyond matters of defense is an affirmative cause of action that should be tested apart from the original claim in determining whether the statute of limitations would bar the counterclaim. The Trial Court ruled that intervening decisions by the U.S. Court of Appeals for the D.C. Circuit, which were rendered prior to the establishment of both the D.C. Superior Court and the D.C. Court of Appeals, are binding for that period, and are guiding precedents unless overturned by an en banc decision of the current D.C. Court of Appeals. Since the ruling relied on by the Plaintiffs was post-establishment of the current local court system, but was not a product of an en banc ruling, it was inapt to this issue, the Trial Court ruled. Consequently, the pre-establishment case is still good law and the Defendant’s counterclaim is therefore not barred under it. Accordingly, the Plaintiff’s motion for summary judgment was denied on this point as well.
CIVIL PROCEDURE / EQUITABLE REMEDIES
PROPERTY DIVISION / JOINT TENANCY / TENANCY IN COMMON / TENANCY BY ENTIRETY
Précis: Where a deed does not contain an express description of the property, all ambiguities must be resolved by endeavoring to determine the intention of the parties. Where land is concerned, basically all that is required is a description sufficient to afford the means of locating it. A factor in making the determination as to the parties’ intent is an evidence-worthy accounting of their actions subsequent to the deed at issue. A validly signed and notarized deed is effective upon its delivery to the grantee, irrespective of whether it is publicly recorded. There is no barrier to a joint tenant who marries and then conveys his share of a joint tenancy to the spouse as a tenancy by the entirety. Under those circumstances the remaining joint tenants can be held to pay their proportionate share of the property taxes. Rent could only be demanded of persons who are occupying premises without any legal right to be there. That is not the case with regard to joint tenants or tenants in common. Likewise, a contractual demand for quantum meruit does not lie under such circumstances because the occupation of the premises is entirely legal. Properly speaking, “contribution” is a concept inherent in tort law, not property or contract law, wherein one tortfeasor, if impleaded, must contribute to the payment of a judgment against one or more others. The equitable remedy of Contractual Reformation is available only when there has been an error in reducing the parties’ agreement to writing and the writing does not properly reflect that agreement. A court may therefore “reform” the language of the written contract to reflect the actual agreement of the parties.
Abstract: In this case, the Trial Court parsed through some arcane aspects of property law in order to arrive at a decision as to the interests of various survivors to a parcel of residential property. Facts. The Principal in this case was the mother of five sons, A, B, C, D, and E, and a daughter, F. Since 1972, the mother and her eldest son A, owned her residence in the 5000 block of Fifth Street, NW, as joint tenants with the right of survivorship. The mother’s next eldest sons, B and C, lived in the residence with her. When the mother died in or about 2001, the property fell to her oldest son, A, now living in Maryland, but his brothers B and C continued living in the house. Neither paid rent to A after their mother’s death but B paid the utility bills and maintained the upkeep of the premises. It was undisputed that this was the only property that A owned in the District. In September 2002, A, B and C went to the D.C. Recorder of Deeds to file papers transmitting title to the property to all three as joint tenants. There, the necessary notarized documents were filled out, signed by all three brothers, and filed, together with a notarized tax form, again signed by all three, designating C as the person to whom tax levies were to be returned. B took the deed for safekeeping and the deed was never publicly recorded. Two years later, A married his longtime girlfriend X, both still living in Maryland, who had known the family for years and who knew that originally the house had been owned by her husband and his mother. Several months after that, in April 2005, the newlyweds went to the Recorder of Deeds and filled out a deed by which A as the grantor, transferred the property from himself alone to him and his wife X as tenants by the entirety. Meanwhile A, B, and F (the sister) continued to pay taxes on the property until the deaths of F in 2005 and A in 2008. During that time, though, A had never sought reimbursement from his brothers B and C, who continued to live in the family house. After A’s death, his widow, X, who remained in the marital domicile in Maryland, paid the taxes on the property, together with the insurance premiums, and through this suit sought proportional reimbursement from B and C for same. She also sent B and C a notice to pay her rent or quit the premises. (brothers D and E were never involved in the litigation). Brothers B and C, however, ignored X’s demands, believing that after the deaths of their mother, Brother A, and Sister F, they were the rightful owners of the property. B and C then filed this lawsuit against X, seeking a declaratory judgment as to title to the property. X counterclaimed for “contribution” as to taxes and other expenses from B and C. Rulings. The judgment of the Court ruled on the issues presented as follows: (A) Liberal Interpretation. The rule is that where a deed does not contain an express description of the property, all ambiguities must be resolved by endeavoring to determine the intention of the parties. Where land is concerned, basically all that is required is a description sufficient “to afford the means of locating it.” A factor in making the determination as to the parties’ intent is an evidence-worthy accounting of their actions subsequent to the deed at issue. Here it was clear that A’s intent in the 2002 conveyance was to re-title the property jointly in himself and his two brothers B and C. This intention was buttressed by an external reference in the deed to a descriptive document, the signature of B and C as grantees on the conveyance (which were not even required by law), the concomitant signing and filing of the tax form, and because this was the only property owned by A in the District. (B) Notarization. The Court also found that the notary signature and seals on the documents qualified under D.C. law. (C) Effectiveness of Deeds. A validly signed and notarized deed, is effective upon its delivery to the grantee, irrespective of whether it is publicly recorded. (1) Thus, the Court found that the 2002 deed among the three brothers was effective. Moreover, inasmuch as X received her interest in the property gratis, and did not extend any credit secured by the property, the Court found her not to be a creditor, subsequent bona fide purchaser, or mortgagee of the property. (2) Likewise, the 2005 deed from her husband granting her title by the entirety, thus making her and part owner via right of survivorship, was also effective. This deed, too, was validly notarized, as well as having been publicly recorded, and was therefore effective in favor of X. (D) Tenancy by Entirety. There is no barrier to a joint tenant who marries and then conveys his share of a joint tenancy to the spouse as a tenancy by the entirety. Consequently, A’s enfolding X into an ownership in the property made her one-third tenant in common with her two brothers-in-law, B and C, as joint tenants, after her husband’s death (B and C remained joint tenants as to each other). (E) Judgment as to Title. Accordingly, in this suit for declaratory judgment as to title, the Court held that Plaintiffs B and C retained a two-thirds share in the property as joint tenants, the survivor as between them to acquire a full two-thirds share, and that X, the Defendant herein, retains a one-third undivided share in the property as a tenant in common. (F) Counterclaim. X’s counterclaim sought reimbursement for a share of all back property taxes and for back rent. (1) All parties agreed that if the Court were to find that Plaintiffs B and C had any title in the property, they had a right to occupy it without paying any rent to X. At the same time, however, the fact that X’s late husband, A, had been solely paying the taxes and had never sought reimbursement from his brothers B and C, was evidence of his intent not to burden his younger brothers with such obligations. Considering all the circumstances of the case, the Trial Court concluded that the surviving brothers were only liable for their share of property tax payments made by X since her husband’s death. Thus the Court ruled that B and C were only required to pay X their proportionate two-thirds share of the property taxes since their older brother’s death. (2) Rent can only be demanded of persons who are occupying premises without any legal tenancy right to be there. That is not the case here, the Court concluded. Brothers B and C, in fact, had a two-thirds portion of title to the property. Consequently, they had a right to occupy it without paying rent to the one-third owner, the widow X. (G) Quantum Meruit. The widow’s demand for quantum meruit was denied on the grounds that a proportionate debt due based on the impermissible occupation of the premises did not lie here because the occupation was entirely legal. (H) Contribution and Reformation. The Court took the time to distinguish these two legal terms. (1) Properly speaking, “contribution” is a concept inherent in tort law, not property or contract law, wherein one tortfeasor, if impleaded, must contribute to the payment of judgment against one or more others. What was at issue in this case, however, was whether by implied contract the brothers owed anything to the widow. (2) Contractual Reformation is available only when there has been an error in reducing the parties’ agreement to writing but writing does not properly reflect that agreement. A court may therefore “reform” the language of the written contract to reflect the actual agreement of the parties. The Court, however, found that this was not what occurred in this case and therefore had no need to resort to this equitable remedy.
CRIMINAL LAW AND PROCEDURE
FIREARMS AND TOOLMARK IDENTIFICATION TESTIMONY / FRYE TEST FOR GENERAL ACCEPTANCE / LIMITING LANGUAGE ON EXPERT OPINION
Précis: Although the process still requires some refinement, the principles of uniqueness and reproducibility in the current methodology of firearm and tool mark comparison identification have been demonstrated and validated sufficiently to date for its results to be admitted into evidence at a criminal trial. The methodology is buttressed by cross-checking, peer review, and proficiency testing and, accordingly, is generally accepted in the relevant scientific community. Moreover, the prejudicial effect of such testimony will not substantially outweigh its very high probative value. Any defects, deficiencies, or shortcomings can readily be brought out by well-prepared cross-examination or the testimony of contradicting experts, together with proposed jury instructions. Finally, limitations placed on the language which such an expert witness may use in concluding that a “match” has been made to “a practical certainty” or to “a reasonable degree of certainty within the field of firearms and toolmark identification” between objects, provide safeguards against juror misapprehension of the weight and quality as to this kind of evidence.
Abstract: In a trial-level opinion that possibly ranks second only to that of Judge Henry H. Kennedy Jr.’s initial rejection of forensic DNA evidence in United States v. Porter, 122 D.W.L.R. 2437 (Dec. 14, 1994), the Judge in this case admitted, but placed significant limitations on, the admissibility of comparison evidence and expert opinion testimony in firearm and toolmark case. Facts. The five Defendants in this case are charged in a 100-count indictment with conspiracy, murder, assault with intent to kill, obstruction of justice, and related firearms and other offenses, including violations of the Criminal Street Gang Act. The Government proffered that it intends to offer expert testimony regarding firearms evidence identifying spent projectiles as having been fired from the same weapon as well as toolmark evidence identifying spent shells for the same purpose. Since the 1930’s, firearms identification procedures, utilizing a comparison microscope, have been used to identify the following to be submitted into evidence in criminal trials: lands and grooves on fired projectiles created by the rifling inside the barrel of a firearm; firing pin imprints on the heel of a shell casing; extractor striations on the outside of a cartridge created by the mechanism which pushes a bullet out of the magazine into the firing chamber; and ejector striations on shell casings created by the mechanism which discards the spent shell. Nevertheless, the Defendants herein collectively filed motions to exclude or limit such identification and opinion evidence under the Frye Test on the grounds that the methods heretofore used in making such identifications “are not generally accepted as reliable by the relevant scientific community.” The foundation for this argument, and much of the Court’s discussion, is a 2009 Congressionally-mandated Report from the National Research Council (NRC) of the National Academy of Sciences which “calls into question the validity of many long-recognized scientific disciplines.” Alternatively, the Defendants sought to circumscribe the testimony of any expert in this field to expressing an opinion that any ballistics evidence from the crime scene is only “more likely than not” associated with a recovered firearm associated with one or more Defendants. Such factors as non-ballistic toolmarks, blood spatter, elevator functioning, eyewitness identification, psycholinguistics, drug-sniffing dogs, the manner of illicit drug trade, and field sobriety tests have all been subject to re-examination in recent years. Eschewing any claim to “absolute certainty” in firearm and toolmark identification, and recognizing that current procedures, like the machines which produce such artifacts themselves, “may change over time,” the Government proposed that its expert express his opinion either to a “practical certainty” or to a “reasonable degree of scientific certainty.” Rulings. After a careful consideration of all the submissions and referenced sources, the Trial Court made the following findings of fact and conclusions of law: (A) Firearms Examination. All reputable firearms examiners, including those with the D.C. Metropolitan Police Department, are member of the Association of Firearm and Tool Mark Examiners (AFTE) which is the leading proponent of “pattern matching” in such matters. To the extent that protocols are attributable to this practice, the AFTE’s theory is that an acceptable match occurs “when the unique surface contours of two toolmarks are in sufficient agreement” so as to allow an examiner to offer an opinion that a specific tool or firearm caused the evidential marks. Both the Government and the AFTE, however, acknowledge that such identifications “are largely subjective determinations based on the experience, training, and observations of the examiner.” (B) Fundamental Assumptions. The NRC Report concluded that the fundamental assumptions that firearm toolmarks are unique and reproducible “has not yet been fully demonstrated” and that “additional research on the uniqueness and reproducibility of firearms related toolmarks would have to be done to put the basic premise of firearms identification on a more solid scientific footing.” This would assure, as one expert contended, that “a sufficiently high number of corresponding individual characteristics” on an artifact would have “a very low probability of having occurred as a result of chance and therefore must be the result of a common cause.” Nevertheless, the Report pointed out, error rates in comparisons of striae validation studies are “extremely low” and several courts have found that “there is no [persuasive] evidence [thus far] that the tests are inaccurate or otherwise deficient.” (C) Science Vel None. Such decisions, the NRC Report stated, “involve subjective qualitative judgments by examiners and the accuracy of examiners’ assessment is highly dependent on their skill and training.” Because of the large degree of examiner interpretation in such matters, the Judge agreed with other courts that neither firearms nor toolmark identification is a “science,” though finding that this was a “threshold question … not a dispositive one.” Rather, the Court concluded, it “straddles the line between science and other specialized or technical expertise.” The pivotal question, it posited, is “whether it is supported by methodology that is sufficiently recognized in the relevant scientific community.” (D) Methodology. Acceptable methodology must be that which “is testable and has been tested; … has been subject to peer review and publication; [with an acceptably low] rate of error; … standards controlling the technique employed; and … [has general] acceptance within the [pertinent] scientific community.” Endemic to this procedure are “standardized practices” with the following requirements: (1) documented work product stating the reasons for a “match” conclusion; (2) review by another qualified examiner; (3) outside peer review via publication; and (4) regular proficiency testing for error rates. (E) Legal Standards. Our Court of Appeals has set forth in at least two major cases, the legal standards for the admissibility of unique scientific or -related evidence. In the Dyas case (1977) the Court imposed three basic pre-requisites which must be shown by a preponderance of the evidence: (1) the subject matter must be distinctly related to some science, profession, business, or occupation; (2) which is beyond the ken of the average layperson; and (3) the expert witness must have sufficient skill, knowledge, or experience in that field so that the opinion will aid the factfinder in the search for the truth. In the Porter case (1992), the Court required that the condition for introducing novel scientific evidence is a showing by the same standard that it is “generally accepted in the relevant scientific community.” (F) General Acceptance. The Court concluded that the AFTE standards for documentation, confirmatory testing, proficiency examinations, low error rates, supplemental intra-lab opinion, and peer review, all meet the over-arching requirements that the “pattern recognition” methodology used y AFTE-certified firearm and toolmark examiners “is reliable and that it is generally accepted in the relevant scientific community.” (G) Limiting Nomenclature. As to the language which the Government’s experts are to be permitted to use at trial, the Court took a middle road. It proscribed any testimony that this type of evidence can be presented with “absolute certainty.” Likewise, it would not permit testimony that there is another artifact that could match the proffered forensic evidence is “a practical impossibility,” finding that phrase to be essentially the same as “absolute certainty.” Similarly, having already found that this type of evidence is not yet a “science,” the Court also precluded any expert testimony that a match has been made to “a scientific certainty” or even to “a reasonable degree of scientific certainty.” At the same time, however, the Court concluded that experts in this field should not be limited to a pedestrian standard of “more likely than not.” Indeed, it is because “there can be no ‘perfect match’” in this type of imprint evidence that such comparisons need not be identical for an examiner to declare a “match” or to render some quantifiable “degree of statistical probability or certainty” as to same, the Court ruled. Instead, it settled on allowing the Government expert to state his opinions to “a practical certainty” or to “a reasonable degree of certainty in the field of firearms and toolmark identification.” This approach, the Court concluded, would keep the jury from relying to an impermissible degree on the expert testimony and would, at the same time, permit the Defendants to cross-examine the Government’s expert within the context of the actuality of the current state of such evidence, as well as to submit pertinent jury instructions at the end of trial. (H) Conclusions. (1) The Court was “satisfied that the principles of uniqueness and reproducibility have been demonstrated and validated sufficiently to support the basis of the AFTE theory and the methodology of firearms identification utilized in this case.” (2) The “efforts to develop the application of statistical probabilities to firearms identification methodology do not invalidate the traditional pattern matching theory.” (3) The methodology is buttressed by cross-checking, peer review, and proficiency testing and, accordingly, is “generally accepted in the relevant scientific community.” (4) Moreover, the prejudicial effect of such testimony “will not substantially outweigh its very high probative value.” (5) Any defects, deficiencies, or shortcomings can readily be brought out by well-prepared cross-examination or the testimony of contradicting experts, together with proposed jury instructions. (6) Finally, limitations placed on the language which such an expert witness may use in concluding that a “match” has been made to “a practical certainty” or to “a reasonable degree of certainty within the field of firearms and toolmark identification” between objects, provide safeguards against juror misapprehension of the weight and quality as to this kind of evidence.