D.C. Superior Court Opinions
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STRICT LIABILITY / NEGLIGENCE / BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY UNDER U.C.C.
Précis: The main purpose of the D.C. Water and Sewage Authority is to deliver potable water to the citizens of the District of Columbia for purposes of drinking, cooking, and bathing. Neither its original mandate nor that imposed on it by the federal Safe Drinking Water Act imposes any further obligation with regard to the effect of the water on pipes in residential or other buildings. A negligence claim requires a plaintiff to prove the usual tri-partite elements: (1) an applicable standard of care; (2) a breach thereof; and (3) a causal relationship between that breach and said injuries. A strict liability claim must show by a preponderance of the evidence that: (1) the seller was engaged in the business of selling the product that caused the harm; (2) the product was sold in a defective condition which was “unreasonably dangerous” to the consumer user; (3) the product was one which the seller expected to, and did, reach the plaintiff consumer or user without any a substantial change from the condition in which it was sold; and (4) the defect was a direct and proximate cause of the plaintiff’s injuries. In turn, a product may be found to be defective if it has one of the following three shortcomings: (a) a manufacturing defect; (b) an absence of sufficient warnings or instructions; or (c) an unsafe design. A product is “unreasonably dangerous” when it is “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” Generally speaking, therefore, “a product is not in a defective condition when it is safe for normal handling and consumption.” A breach of the implied warranty of merchantability under the U.C.C. requires the plaintiff to prove by a preponderance of the evidence that: (1) the defendant was a merchant dealing in the goods in question; (2) the goods did not conform to the merchantability factors listed in the Code; and (3) the product lacked the fitness which caused the plaintiff’s injuries.
Abstract: After a 10-year fight with the District’s Water and Sewer Authority, through three Trial Judges and a previous appeal, the Plaintiff in this case was adjudged to have failed to show a nexus between the chemical, metal, and bacterial content of the District’s water supply and the alleged corrosion and resulting leakage damage in several multi-unit apartment complexes that he owned in the City. Facts: The factual and trial backgrounds to this case are as follows: (A) The Problem. From 1983 to 1993, through three limited partnerships, Plaintiff acquired ownership of four multi-unit apartment buildings, Property A on 19th Street (built c. 1911), Property B on 13th Street (built c. 1946), Property C on Ontario Road (built c. 1925), and Property D on Emerson Street (built c. 1965), all in the Northwest quadrant of the District. Each property was fully occupied at the time of trial, except for Property C, which was vacant. The duty of the agency responsible for delivering water to the residents of the District of Columbia, the D.C. Water and Sewage Authority (WASA), is to provide “potable water” for purposes of “drinking, cooking, and bathing.” WASA does not acquire or treat the water itself, but contracts as a wholesale purchaser for treated water from the Washington Aqueduct System (WAS), owned, operated, and maintained by the U.S. Army Corps of Engineers, which filters approximately 180 million gallons of water per day from the Potomac River to create “finished water” after it has been through two filtration systems. After it chemically treats the water and controls its pH level, it provides it to WASA through a 1,300-mile network of transmission lines, pump stations, water mains, storage tanks, and fire hydrants throughout the City. WASA is only responsible for the pipes that lead directly up to, but not into, buildings. Starting in 2000, the Plaintiff noticed various “pinhole leaks” in the copper pipes in some of his rental units and began attempting to discover the source of the problem. He retained the services of a civil and environmental engineer, (the Engineer), who had previously been a consultant to the Washington Suburban Sanitary Commission (WSSC), which is responsible for providing drinking water to residents of Montgomery and Prince George’s Counties in Maryland. In that capacity, he reported that the increased water pipe leaks in those areas were pinhole leaks caused by high levels of chlorine and aluminum in the water clustering in various spots on interior walls of the pipe causing a process known as “pitting.” His investigation of Plaintiff properties reported that the leaks in those buildings were due to elevated levels of aluminum, chlorine, and a high pH level. In addition, he found that, because WASA’s distribution system was very old, the majority of the pipes were “unlined” which allowed high concentrations of bacteria to grow on their interior surfaces, contributing to the pitting. In 2000, the same year that the Plaintiff started to experience the leaking pipes in his rental units, WASA switched from using chlorine to using chloramine, a combination of chlorine and ammonia, resulting in a higher lead content. This led Plaintiff’s Engineer to conclude that “the vast majority” of copper pitting damage and pinhole leaks are caused by the chemical makeup of the water provided by WASA. The only effective solution to the problem, he opined, was to completely re-plumb all of the buildings, although, he conceded that “all… pipe systems can fail… in different ways.” Plaintiff also retained an expert with 50 years’ experience in construction costs who, after examining drawings, conducting in-person inspections, and taking measurements of the buildings, estimated that the total costs for entire pipe replacements would be nearly $4.5 million and, overall, would take more than a year. (B) The Trial. In 2003, the Plaintiff filed suit against WASA on theories of negligence, strict liability, and breach of the implied warranty of merchantability under the U.C.C., seeking damages in the amount of $5 million dollars. At the ensuing bench trial, the Plaintiff presented the foregoing evidence and expert opinions, together with his own testimony regarding the history of these problems. Like his Engineer, the Plaintiff acknowledged “that no piping, whether it was galvanized steel, copper, or plastic, would last forever because, eventually, all pipes have to be replaced.” In its defense, WASA presented eight witnesses, including three expert witnesses. Their testimony is summarized, by category, as follows: (1) Expert Witnesses. (a) Dr. A, an expert on municipal water management and quality, specifically on compliance with the federal Safe Drinking Water Act (SDWA), testified that both WASA and the WAS, which supplied it water, were “heavily regulated” by the EPA. The purpose of the SDWA, he testified, is “to safeguard water for human consumption,” and to that and, the EPA sets standards for the amount of chemicals and bacteria permissible therein. He also reported that in 2004, WASA tested the water at the Plaintiff’s properties and found that the pH and aluminum levels “were consistent with EPA-regulated levels.” (b) Dr. B, an expert in the fields of plumbing, corrosion, water treatment and chemistry, materials performance, failure analysis, and the standard of care for water utility distribution systems, testified that the SDWA and related statutes, were implemented “to address corrosion concerns … [in order] to protect public health, not plumbing.” The related statutory “Lead and Copper Rule,” he testified, was intended to measure the release of copper and lead particles into drinking water and requires corrective measures in the event that certain high levels are detected. He further stated that the WAS, the source of WASA’s supply, “produces high-quality water and uses an effective corrosion control program,” resulting in “remarkably low levels of copper release in residential plumbing across the District.” He reported that neither chlorine nor chloramine levels, as generally used by American water utilities, causes copper pitting and has ever been documented to cause pinhole leaks. In addition, significantly, he testified that, although the American Water Works Association is the recognized industry group for larger water utilities, “there is no single consensus in the scientific community on a water chemistry standard to prevent pinhole leaks because, among other reasons, we know there are certain conditions that create pitting regardless of the water chemistry,” including crevice corrosion, galvanic corrosion, poor workmanship, sediments from hot water heaters, and high concentrations of bacteria. Finally, Dr. B testified that in 2009, in response to Plaintiff’s complaints, WASA Inspectors visited his properties, but that Plaintiff could not point to any specific location where there had been leaks. Although three leaks were discovered in hot water lines on that visit, none was identified as a pinhole leak. Dr. B personally examined the pipes in these properties and found them to be “very old,” including some galvanized iron pipes and copper tubing dating back to the 1940s. Obviously, he pointed out, “older pipes are far more likely to develop concentration [of bacteria and metal] cells because the older plumbing materials have carried water for decades.” His opinion was that “it took 40-50 years to get to that point.” (c) Mr. C, a defense expert on building construction and repair, estimated the cost for replacing all the pipes in the Plaintiff’s buildings would be approximately $2.7 million and would take anywhere from 14 to 22 weeks for each building, in contrast to the Plaintiff’s Estimate of approximately $4.5 million. (2) Lay Witnesses. WASA’s remaining witnesses were the following: (a) The principal scientist from the WSSC water authority in Maryland for which Plaintiff’s Engineer had consulted, testified that it did not respond to complaints for pinhole leaks, other than giving customers General Information about the problem. (b) The former Director of Utilities for the City of Falls Church, Virginia, which is also a user of WAS water, reported that out of approximately 34,000 customers in that city during his tenure, he had received only proximately 25 pinhole leak complaints. (c) Similarly, the Chief Operating Engineer for the water system in Arlington County Virginia, also a user of WAS water, found that during the period at issue, he had “found little indication of a pinhole leak problem.” (d) WASA subpoenaed the co-managers of Plaintiff’s Property D who both testified that there were no leaks in their building and that the drinking water was not damaging the pipes there. Rulings: The Court issued findings of fact and conclusions of law on the issues presented as follows: (A) WASA Responsibility. The Court found that WASA’s purpose “is to sell and transport potable water for drinking, cooking, and bathing to its customers in the District of Columbia.” Based on the “substantial evidence” that the chemical makeup of the water supplied by WASA “complied with all applicable federal statutes” to that end and that there was no argument that the water was defective or otherwise unsuitable for its intended purpose, the Court ruled that WASA had no causal responsibility for plumbing defects in the Plaintiff’s properties. (B) Property D. In view of the fact that both property managers at this housing unit testified that there were no leaks and no complaints there, the Court quickly rejected all the Plaintiff’s claims with regard thereto. (C) Remaining Properties. The Court found that the Plaintiff had produced evidence of pinhole leaks in the copper pipes in the three remaining properties. On a negligence claim therefor, he was obligated to prove the usual tri-partite elements: (1) an applicable standard of care; (2) a breach thereof; and (3) a causal relationship between that breach and said injuries. The Court found that the Plaintiff had failed to do so for the following reasons: (a) Plaintiff’s own expert admitted that “there is no particularized standard of care that the utility must adhere to in order to prevent pinhole leaks from developing and copper plumbing.” (b) Collaterally, it was evident that the relevant federal statutes “are directed at providing safe, drinkable water, and do not regulate pinhole leaks caused by corrosion.” (c) Even if a national standard of care had been established, the Plaintiff presented “no evidence that Defendant breached any standard of care for a water facility,” even though WASA is “highly regulated by the EPA.” (d) Consequently, Plaintiffs had failed to show by a preponderance of the evidence that WASA actions had caused the pinhole leaks in the properties at issues. (e) Finally, the Court ruled that Plaintiff could not meet his burden with respect to future damages in the pipes because he could not show that such damages were “reasonably certain” to occur. Up to this point, the evidence showed that there had been “only a minimal number of leaks in the properties,” that there was no way to know if and when a building will experience pinhole leaks, and that, even if the pipes were totally replaced in all the buildings, there was “no guarantee that the new pipes wouldn’t leak at some point, too.” (D) Strict Liability. A complaint on this theory must show by a preponderance of the evidence that: (1) the seller was engaged in the business of selling the product that caused the harm; (2) the product was sold in a defective condition which was “unreasonably dangerous” to the consumer user; (3) the product was one which the seller expected to, and did, reach the plaintiff consumer or user without any a substantial change from the condition in which it was sold; and (4) the defect was a direct and proximate cause of the plaintiff’s injuries. In turn, a product may be found to be defective if it has one of the following three shortcomings: (a) a manufacturing defect; (b) an absence of sufficient warnings or instructions; or (c) an unsafe design. A product is “unreasonably dangerous” when it is “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” Generally speaking, therefore, “a product is not in a defective condition when it is safe for normal handling and consumption.” Here, the Court found that the “overwhelming nature” of the evidence at trial “was that water sold by … WASA … [is] safe for its intended ordinary purpose,” which is for human consumption. Since it was not found to be “unreasonably dangerous,” therefore, the Court ruled “that Plaintiffs have failed to meet their burden on the issue of strict liability,” as well. (E) Warranty of Merchantability. A successful U.C.C. Claim on this issue requires the Plaintiff herein to have proven by a preponderance of the evidence that: (1) WASA was a merchant dealing in the goods in question; (2) the goods did not conform to the merchantability factors listed in the Code; and (3) the product lacked the fitness which caused the Plaintiff’s injuries. The Court rejected Plaintiff’s argument that the content of the product provided by WASA violated its implicit “agreement to deliver water … in a way that would not damage” the properties at issue. Once again, the Court found that this argument “misses the larger picture regarding the merchantability of water,” the primary purpose of which was to provide water that was “safe for drinking, cooking, and bathing .… not to keep Plaintiffs’ pipes from corroding.” In conclusion, the Court found “that all types of pipes, including galvanized steel copper, or plastic, course experience leaks from water, which is a naturally corrosive substance,” but that the Plaintiffs had “not met their burden to show that … WASA improperly packaged the water when it sold and distributed … [it] through its pipe system.” (F) Conclusions. Accordingly, the Court’s judgment was in favor of the Defendant on the grounds that the Plaintiffs had not proven negligence, strict liability, or violation of the implied warranty of merchantability.
PETITIONS FOR PATERNITY AND SUPPORT / REQUIREMENTS THEREOF
Précis: The D.C. paternity and support statute requires that every custodial parent who applies to the District of Columbia for public assistance benefits on behalf of a child, assign to the District any rights the parent has to collect support for the child from any other person, including the biological father. A petition to determine paternity must include, inter alia: (1) the approximate date of conception of each child; (2) a short and plain statement of the District’s entitlement to the relief sought; and (3) notice of any other cases based on, or including the same claim or subject matter, or a statement that no such cases exist. Once a petition has been filed, the Clerk of the Family Court must issue a Notice of Hearing and Order Directing Appearance (NOHODA). Each NOHODA must be served upon each respondent space in order “to ensure that respondents in paternity and support cases received clear and straightforward notice of the allegations against him.” Failure to do so subjects the petition to involuntary dismissal pursuant to Rule 41(b). If appeal is sought from any final judgment or order of a Superior Court Magistrate Judge, the decision must first be reviewed by an Associate Judge of the Court; that ruling becomes a final order of the Superior Court, subject to appeal to the Court of Appeals. An Associate Judge of the Superior Court reviewing a Magistrate Judge’s final decision applies the same standard of review used by the Court of Appeals on review of a judgment or other order of the Superior Court. Accordingly, a Magistrate Judge’s decision “may not be set aside except for errors of law, unless it appears that the judgment or order is plainly wrong, without evidence to support it, or an abuse of discretion.”
Abstract: Comporting with the threshold elements of adequate notice and meaningful opportunity to be heard as to the allegations contained in a petition or complaint, pursuant to the Due Process Clause of the Fifth Amendment, a Magistrate Judge’s ruling that paternity and support petitions filed in the D.C. Family Court did not meet those standards, in that they failed to include vital factors of notice, was affirmed by a Reviewing Judge of the Superior Court. Facts. Pursuant to D.C. paternity and support statute, which requires that every custodial parent who applies to the District of Columbia for public assistance benefits on behalf of a child assign to the District any rights the parent has to collect support for the child from any other person, including the biological father, the District commenced paternity proceedings against each of the 14 Respondents in this case. Each petition alleged that the Respondent is the “putative father” of the child(ren) at issue, citing statutory provisions establishing subject matter jurisdiction; the name and date of birth of each child; the type of public assistance the District is providing; the purpose of the action to establish the parentage and support of each child; and the basis for the assertion of personal jurisdiction over each Respondent. These were general assertions and were not accompanied by any specific allegations in the petition. After these filings, the Clerk of the Family Court issued a Notice of Hearing and Order Directing Appearance (NOHODA). Each NOHODA must be served upon each respondent in order to provide adequate notice and meaningful opportunity to be heard under the Due Process Clause of the Fifth Amendment. These matters are initially assigned to designated Magistrate Judges in the Family Court. Although the District was granted at least one extension to do so, it failed to effect service of process on any of the Respondents herein. It then requested that the Magistrate Judge presiding to place the case and what is called a “relocate status,” which has the effect of holding it in “an informal inactive status” that would give the District additional time to re-bring the case, once the Respondent was located and served with process. The Magistrate Judge, however, found other deficiencies in the petitions as filed. In a written order, he ruled that all had one or more of the following defects: (1) failure to state the approximate date of conception of each child; (2) failure to include a short and plain statement of the District’s entitlement to the relief sought; and (3) failure to identify other cases based on, or including the same claim or subject matter, or to state that no such cases exist. He then sua sponte dismissed all 14 cases, without prejudice, pursuant to Rule 41(b) governing “involuntary dismissals,” but gave the District the option of avoiding dismissal by filing amended petitions within 30 days to cure the defects. The District, however, apparently for policy reasons, declined to cure the petitions as identified by the Judge, and opted instead to seek judicial review of the dismissals before an Associate Judge of the Court. It raised issues as to (a) the basis for the dismissals; (b) the efficacy of stating the birth dates, rather than the approximate dates of conception in the petitions; (c) its entitlement to relief; backspace by virtue of the public assistance statutes cited; and (d) public policy considerations. Noting the similarities and the legal issues presented in these cases, Presiding Judge of the Family Court consolidated them for review and assigned them to the Associate Judge who issued the Memorandum Opinion herein. Because none of the Respondents had even been served at that point, the Associate Judge appointed the D.C. Legal Aid Society as amicus curiae to represent their interests. After full briefing, this opinion issued. Rulings. The Court ruled on the issues presented as follows: (A) Standard. If appeal is sought from any final judgment or order of a Superior Court Magistrate Judge, the decision must first be reviewed by an Associate Judge of the Court; that ruling then becomes a final order of the Superior Court, subject to appeal to the Court of Appeals. An Associate Judge of the Superior Court reviewing a Magistrate Judge’s final decision applies the same standard of review used by the Court of Appeals on review of a judgment or other order of the Superior Court. Accordingly, a Magistrate Judge’s decision “may not be set aside except for errors of law unless it appears that the judgment or order is plainly wrong, without evidence to support it, or an abuse of discretion.” Here, the Reviewing Judge discussed each of the adjudicated the effects in the petitions seriatem: (B) Approximate Conception Date. Superior Court Domestic Relations Rule 405(a) requires, in pertinent part, that a paternity petition “set forth … all relevant information concerning the allegations of paternity including … the approximate date of conception (and date and place of birth, if appropriate).” In 13 of the 14 petitions herein, however, the District provides no such dates, although the date of birth for each child was set forth in each petition. The absence of a date of conception is probably due to the fact that the printed form petition for this purpose does not contain a space for this information. The District argued that the “approximate date of conception” is implicit in each stated date of birth, one needing only to “count backwards” over the typical 37-42 week gestation period to obtain the date of conception within the traditional five-week leeway. But it was just this 12.5% margin that led the Court to reject this rationale, noting that the most recent statistics for live births in the District of Columbia show that an even greater variance, 15.5%, were “pre-term,” occurring earlier than the 37th week of pregnancy. The Court concluded that, inasmuch as most putative fathers defend themselves without counsel in these proceedings, it is only with notice containing accurate information that they are able to make informed decisions about whether and how the challenge the allegations. Few, if any of them, the Court ventured “have ready access to medical encyclopedias or understand that the approximate date of conception can be inferred from the date of birth.” All this aside, the fact remains that Rule 405 expressly requires a statement of the approximate date of conception “to ensure meaningful notice to the respondent.” In short, the Court ruled, “[i]t is not up to a litigant, no matter how powerful, to make a unilateral decision that a requirement of the Court’s rules is superfluous and may be ignored.” Accordingly, the Court ruled that the District must do more than make inferred references by merely “paying lip service to The Magistrate Judge’s concerns” on these required factors. (C) Entitlement to Relief. The Court harkened back to Civil Rule 8(a)(2), which requires that a plaintiff for petitioner must include in a claim “a short and plain statement of the claim, including appropriate facts, showing that the pleader is entitled to relief.” In the petitions at issue herein, however, the District checked off boxes in its form submissions identifying certain types of public assistance benefits it provides on behalf of the minor children named therein, but it did not explain “under the pertinent statute how it is entitled to seek support from non-custodial parents.” This, the Court found, was “by no means self-evident, particularly to persons unfamiliar with the child support laws or the functioning of the judicial process.” It therefore concluded that the petitions “failed to provide a reasonably clear statement of the legal theory on which the District claims to be entitled to the relief sought in these cases,” and “thereby violated a fundamental pleading requirement of Rule 8(a). (D) Related Cases. Based on experience, the Court noted that “it is not at all unusual” that one man has fathered children by two or more mothers, either in the District of Columbia or from neighboring jurisdictions, and that each mother may be unaware of the other children. In order to protect the interests of all concerned, including the father, it is therefore important that all paternity cases in which he is, or may become, involved are of record in the Court’s Paternity and Support Branch. Domestic Relations Rule 108(b)(8) likewise plainly requires that this information be included in each petition. Even on review, the Court pointed out, the District provided no explanation for its failure to do so in these cases, and it agreed with the Magistrate Judge that these omissions constitute “material violations” of the Rule. (E) Dismissal. To the dismissal, the District argued that, despite these omissions, it was error for the Magistrate Judge to dismiss the petitions for failure to state a claim, because under a Rule 12(b)(6) rubric, all such petitions and complaints must be construed “in a light most favorable” to the party submitting them and may be dismissed only if it appears “beyond doubt” that the complaining party “can prove no set of facts in support of its claim that would entitle it to relief.” The Reviewing Court found this argument unavailing for three basic reasons: (1) The Magistrate Judge’s dismissal was not under Rule 12(b)(6), but under Rule 41(b), which grants the Court independent authority to dismiss an action sua sponte “for failure of the claimant … to comply with these Rules,” multiple instances of which the Reviewing Court had already found. (2) Even if a Rule 12(b)(6) analysis were to be applied, the Court found that the District had “erroneously relied in its motions on outdated decisions in civil cases that cannot properly be applied to these paternity and support actions.” (3) As already pointed out, D.C. Rules 8, 10, and 405 require that a paternity in support petition is subject quote to certain heightened pleading requirements and must provide greater details of the petitioner’s factual and legal claims than an ordinary civil complaint,” to say nothing of the U.S. Supreme Court’s recent rulings under their federal counterparts that require civil complaints “to include well-pleaded factual allegations giving rise to plausible claims of relief,” not simply claims for possible relief. (F) Public Policy. The District argued further that insistence on these particularized inclusions “frustrate the rights of … [D.C.] children to receive support and for District taxpayers to be compensated by the non-custodial parents for at least a portion of the public assistance benefits the District has provided,” in contravention of the public policy of this jurisdiction. The Court disagreed with this argument, acknowledging the importance of its premises, but holding that “a party’s claim does not excuse the parties obligation to comply with the Court’s rules,” which it deemed “vital to the Court’s efforts to advance the fair administration of justice for the residents of our community and, in particular, for the unrepresented persons who make up a large majority of the respondents in such cases.” (G) In Mentionem. The Court noted in passing that none of this “time-consuming” review litigation would have been necessary if the District had simply taken advantage of the opportunity provided by the Magistrate Judge’s dismissal order simply to file amended petitions with the necessary information included. It faulted the “District’s own carelessness and questionable litigation strategy … [as] particularly responsible for the unfortunate delays in the resolution of these important cases on their merits.” (H) Conclusions. The purpose of the Domestic Relations Rule 405 (a) is “to ensure that respondents in paternity and support cases received clear and straightforward notice of the allegations against them.” Moreover, under Rule 108 (b)(8) “[it] it is critical that a Judge charged with deciding such a case know whether the allegations set forth in the petition (or related allegations) have been, or are being, litigated in another case and, if so, the status of the other case and/or its outcome.” The Reviewing Court concluded that, “[t]he Magistrate Judge therefore was fully within his authority and [had] good reason to insist on compliance with the pleading requirements set forth in the rules” and “[b]ecause the defects in the petitions were material, the Magistrate Judge acted well within his discretion in dismissing the petitions without prejudice.”
PROSECUTION OF CRIMINAL CONTEMPT ALLEGATIONS / VIOLATION OF CIVIL PROTECTION ORDERS AND TEMPORARY PROTECTION ORDERS
U.S. ATTORNEY’S OFFICE IS PROPER PROSECUTORIAL AUTHORITY / APPOINTMENT OF PRIVATE COUNSEL, IF DEEMED NECESSARY, IN THE ABSENCE OF DETERMINATION OF THAT OFFICE NOT TO PROSECUTE / GUIDELINES FOR SAME
Précis: In light of a recent decision by the D.C. Court of Appeals in the case of In re John Robertson (2011), which held that the power to prosecute criminal contempt allegations for violations of Civil Protection Orders (CPOs) and Temporary Protective Orders (TPOs) issuing from the Domestic Violence Unit of the Superior Court rests with the Office of the United States Attorney, not with the office of the D.C. Attorney General, the Trial Court in this case set forth guidelines for the appointment of pro bono private counsel to prosecute such allegations in order to vindicate the integrity of the Court’s orders, should the Office of the United States Attorney find it not in the public interest to do so. These include: (1) Consulting with the Office of the United States Attorney as to its view regarding whether prosecution of the contempt is in the public interest. (2) If that Office believes that a particular contempt prosecution does not qualify, it should be heard on that matter and the fact that it takes that position should be given some weight by the Court, although it is not dispositive. (3) Where that Office declines to prosecute, the Court retains its independent authority to appoint a private lawyer as a prosecutor to assess whether it is in the public interest to pursue criminal contempt charges in connection with alleged violations of a CPO. (4) Such appointees would represent the United States, not the party that is the beneficiary of the court order allegedly violated, because such prosecutions are in the public interest by vindicating the Court’s authority, not simply the interests of the individuals involved. (5) Anyone appointed via this process must not have been involved in the case at issue and, beyond that, must not ever have had any prior connection to any interested party. (6) Because no funds currently available under the D.C. Criminal Justice Act (CJA) to compensate any attorney making himself or herself available for such appointments, their service will be on a pro bono basis.
Abstract: In a thoughtful opinion, a D.C. Superior Court Judge attempted to reconcile a recent holding by the Court of Appeals which distinguishes between the prosecutorial interests involved in contempt proceedings stemming from Civil Protection Orders (CPOs) and Temporary Protection Orders TPO’s). Facts: On April 28, 2011, the Petitioner filed a pro se petition for a Civil Protection Order (CPO). The same day the court issued a TPO requiring the Respondent to stay at least 100 feet away from her person, home, workplace, and vehicle, and not to contact her in any manner, either directly or indirectly. By its terms the TPO would remain effective until May 12, 2011, the date of the CPO hearing. Two days after the Respondent had been served, however, on May 3, 2011, the Petitioner filed a pro se motion for criminal contempt, alleging three prohibited telephone communications to her over the previous two days in violation of the TPO. At the scheduled CPO hearing before a Superior Court Judge, an Assistant D.C. Attorney General (AAG) made an appearance “on behalf of” the Petitioner, and private Counsel appeared on behalf of the Respondent. No one from the U.S. Attorney’s Office participated in the hearing. Respondent was arraigned on the criminal contempt allegation and entered a plea of not guilty. A criminal contempt status hearing was set for June 2, 2011. At that hearing, the Respondent filed a motion to dismiss the allegation pursuant to the holding of the Court of Appeals in the Robertson II case (May 2011). The concern before the Trial Court was whether an AAG could serve as both advocate for the Petitioner in the CPO and as Prosecutor of the criminal contempt, a dual role which presented potential conflict of interest issues under the Robertson ruling. Respondent contended that the contempt matter must proceed in the name of the Petitioner personally, inasmuch as it had been filed pro
se. Even if there was a government role in the matter, he further argued, Robertson held that the proper governmental authority for a contempt prosecution was the sovereign, which in this case must be represented by the Office of the U.S. Attorney, not the Office of the D.C. Attorney General. The AAG in attendance denied any conflict of interest and argued that the position of her office was that its attorneys can simultaneously serve both as counsel for petitioners in such matters and as representative of the of the sovereign in connection with the prosecution of a criminal contempt of the jurisdiction’s Trial Court. After further briefing was ordered, the parties and respective counsel appeared on June 7, 2011, for both the criminal contempt status hearing and the CPO trial. The Court held the latter trial first, during which the AAG served as the Petitioner’s Counsel. The Court found good cause for entry of a CPO and referred the still-pending criminal contempt motion to the Judge who ultimately issued this Memorandum Opinion. That Court heard oral argument on the Robertson issue on August 8, 2011, considering the Petitioner’s opposition via the AAG to the Respondent’s motion to dismiss and that Office’s Memorandum of Law on its role in the pending contempt action, as well as the Respondent’s written replies to both these submissions. Rulings: The Court ruled on the issues presented as follows: (A) Mechanisms. The Intrafamily Offense Act of 2008, provides a mechanism for victims of domestic violence to petition the Domestic Violence Unit (DVU) of the D.C. Superior Court for a CPO to protect them and associated individuals from further criminal acts by a victimizer. It also provides for the issuance of a TPO on an ex parte basis until such time as the respondent appears in court to contest the CPO. The Act is silent as to who may initiate a contempt action if an order is violated, but the Superior Court Rules governing proceedings in the DVU provide that contempt actions may be initiated either by an individual, the Office of the D.C. Attorney General (OAG), or a private attorney appointed by the Court; neither, however, makes any provision as to who may prosecute those charges. In the Robertson case, the Court of Appeals held that prosecution of criminal offenses, including criminal contempt for alleged violations of the orders of the DVU, must “be brought in the name and pursuant to the sovereign power of the United States.” In the instance authorized by the statute, wherein an individual petitioner as filed a motion for criminal contempt, that person may be “assisted” by attorneys from the OAG “so long as the beneficiary’s CPO enforcement action is brought in the name of the United States.” This amalgam of private, governmental, and judicial interests, the Court found, “suggests a range of possible outcomes flowing from Robertson.” This opinion is meant to sort them out and provide guidance for the respective roles in prosecuting such criminal contempt allegations. (B) Competing Options. Two antithetical options emerge from Robertson, the Court found. At one extreme is the Respondent’s position that Robertson requires that henceforth all criminal contempt prosecutions to enforce CPOs must be pursued by the Office of the United States Attorney, as the sole authorized representative of the sovereign. At the other extreme, the OAG argued that Robertson requires only an “essentially ministerial” approach, allowing that Office to prosecute contempt actions “in the name of the United States” as the “substituted … name of the individual petitioner.” (C) The Mean. The Court rejected both positions, finding it “impossible to believe” that the Robertson Court intended a wholesale repudiation of precedent in these matters, particularly inasmuch as one panel of the Court of Appeals may not overrule the decision of another panel, a prerogative reserved to the Court en banc. Moreover, it found that the “entire thrust” of Robertson was to allow “a contempt proceeding … initiated by a private party … with the involvement of and OAG attorney, but without the involvement of the [Office of the U.S. Attorney].” At the same time, however, the Court found it equally implausible that the Robertson requirement that a contempt action must proceed “in the name and pursuant to the sovereign power of the United States” could be ignored as being “entirely devoid of substantive meaning.” It was obvious to the Court, however, that although a petitioner could initiate a contempt proceeding, s/he could not proceed pro se to prosecute it because such a party does not have the capacity to represent the public interest beyond his or her own. The Court therefore laid out a set of procedures that it deemed would reasonably preserve the interests of all entities concerned. (D) As Applied. The Court set forth the following prosecutorial pre-requisites: (1) To conform to the “in the name of the sovereign” requirement, the Office of the United States Attorney “must at least be consulted as to its view regarding whether prosecution of the contempt is in the public interest.” (2) If that Office believes that a particular contempt prosecution does not qualify, it should be heard on that matter and the fact that it takes that position should be given some weight by the Court, although it is not dispositive. (3) Where that Office declines to prosecute, the Court retains its independent authority pursuant to DV Rule 12(d) & (e)(2), to vindicate its orders and “the settled public policy” is for it to appoint a private lawyer as a prosecutor “to assess whether it is in the public interest to pursue criminal contempt charges in connection with alleged violations of a CPO.) (4) Such appointees would represent the United States, not the party that is the beneficiary of the court order allegedly violated, because such prosecutions are in the public interest by vindicating the Court’s authority, not simply the interests of the individuals involved. (5) Anyone appointed via this process must not have been involved in the case at issue and, beyond that, must not ever have had any prior connection to any interested party. (6) Because the Chief Judge of the Superior Court advises that there are no funds currently available under the D.C. Criminal Justice Act (CJA) to compensate any attorney making himself or herself available for such appointments, their service will be on a pro bono basis. (G) Conclusion. In this particular case, the Court scheduled a criminal contempt status hearing for August 24, 2011, at which the Office of the United States Attorney was directed to informant whether it will proceed with contempt charges herein, the Court reserving the authority to take the alternative steps set forth herein if deemed necessary.
D.C. HUMAN RIGHTS ACT
ELEMENTS FOR SEXUAL HARASSMENT AND HOSTILE WORK ENVIRONMENT / “SEVERE AND PERVASIVE” STANDARD / RETALIATION / PUNITIVE DAMAGES
Précis: To prove a viable hostile work environment claim, a plaintiff must demonstrate that (1) s/he is a member of a protected class, (2) has been subjected to unwelcome harassment, which (3) was based on membership in that class, and (4) the harassment was “severe and pervasive” enough to affect “a term, condition, or privilege of employment.” Discrimination claims under the HRA are subject to the same guidelines as those under Title VII of the Civil Rights Act of 1964, the case law on which provides that “the entire time of the hostile environment may be considered by a court for the purposes of determining liability” because an initial act may still be part of the one hostile work environment claim and a charge may be filed at a later date and still encompass the whole. The D.C. Human Rights Act has a one-year statute of limitations, which requires that a discrimination suit under it must be filed “within one year of the unlawful discriminatory act, or the discovery thereof.” It also comprehends conduct which is arguably retaliatory in nature, which is relevant to a hostile work environment claim whether or not it would support a separate statutory retaliation claim. For statute of limitations purposes, any dates at issue constitute a factual dispute which must be decided by the jury, rather than by summary judgment motion. A claim alleging a hostile work environment by its “very nature involves repeated conduct based on the cumulative effect of individual acts.” Thus, to satisfy the one-year limitation only one act contributing to the claim need to occur within the statutory period. The conduct in question need not be “overtly sexual” to contribute to a sexual harassment-hostile work environment claim and all adverse conduct is relevant as long as it would not have taken place but for the gender of the alleged victim. In making that determination, a court must consider “the entire mosaic” of the hostile work environment. Demonstrating that harassment has occurred requires a balancing test that includes factors such as the amount and nature of the conduct, the plaintiff’s response, and the relationship between the plaintiff and the harassing party. No specific number of incidents and no specific level of egregiousness need be set forth; nor is the fact that each incident may not be individually actionable determinative of whether harassment has occurred. Instead, the trier of fact must consider the “totality of circumstances.” The gravamen of a sexual harassment claim is that the conduct complained of was “unwelcome.” To establish a prima facie case of retaliation, a plaintiff must establish that (1) s/he was engaged in a statutorily-protected activity; (2) the employer took an adverse employment action; and (3) there was a causal relationship between the protected activity and the adverse action. An award of punitive damages is proper only when the tort is aggravated by “evil motive, actual malice, deliberate violence, or oppression.” In order to recover on such a claim, a plaintiff must demonstrate evidence – though not necessarily direct evidence – of “malice or reckless indifference” to his or her rights.
Abstract: Perhaps recalling the lesson that the Prophet Samuel learned when he made the mistake of appointing his ne’er-do-well sons as governors, but allowed his daughters to become only cooks and bakers (Samuel 8:1 & 13), the Plaintiff in this case fought for his position as a longtime cook for a major local church and won the initial battles, at least. Facts: Starting in 1987, the Plaintiff was employed as a cook at the Theological Seminary of Georgetown University and in the rectory of its local parish, Holy Trinity Roman Catholic Church, both Jesuit institutions. Five years later, he was allegedly subjected to sexual abuse by a Jesuit priest at the Seminary. The allegation was resolved privately, accompanied by a non-disclosure agreement. During the next 20 years he remained the cook at the Holy Trinity rectory. He learned in 2008, that his alleged abuser might be assigned to the Holy Trinity Parish and expressed his concern to Father A, one of the resident priests at the church. He claimed that in the ensuing weeks Father A’s attitude and tone with him “became more personal,” making him feel increasingly uncomfortable around the priest. He reported that, starting in the Spring of 2008, Father A began to approach him from behind as he worked in the kitchen and, using both hands, would grab him around his midsection “in a sexually provocative manner.” Although Plaintiff contends that he attempted to avoid such situations after that, Father A’s conduct of approaching him from behind continued. In mid-July of 2008, the Plaintiff went to his own supervisor, informing him of his alleged previous unfortunate experience with a local priest, and told him that he no longer wanted Father A putting his hands on him. The supervisor immediately sent an e-mail concerning the situation to the Director of Human Resources for the Washington Archdiocese, who instructed him to discuss the matter with Father B, the new senior pastor at the church, who “would settle the matter.” Although Father A was not disciplined, Father B asked him “to limit his contact with” the Plaintiff. Shortly thereafter, Father A was re-assigned to a suburban Washington church. Although this obviated any further problems with Father A, in the months that followed his transfer Plaintiff contended that he was subject to a “hostile work environment” perpetrated by other resident priests, who began to find fault with his procurement of their food, his cooking, the cleanliness of the rectory kitchen, and the general manner in which he performed his job. These putative concerns were further expressed to the Plaintiff in a letter from Father B, dated August 26, 2008, which stated that that he “would provide him with additional feedback regarding his performance.” The Plaintiff considered this letter “as a retaliatory notice of probation in direct response to his earlier complaints” regarding Father A’s conduct toward him. Fifty-two days after that, on October 17, 2008, Father B called the Plaintiff into a meeting in which he allegedly told him that, although his performance was satisfactory, the priests in the rectory would henceforth “cook for themselves” and he was terminated after nearly 20 years’ service, with a six-month severance package. Notably, however, within two weeks the church hired a woman to serve as cook in the rectory. One day short of a year after his termination, on October 16, 2009, Plaintiff filed his initial complaint in this case in Superior Court, claiming sexual discrimination and harassment in violation of the D.C. Human Rights Act (HRA), together with a count for retaliation in further violation thereof, and seeking both compensatory and punitive damages. The Defendant filed a Motion for Summary Judgment, arguing that (1) the statute of limitations barred the count on sexual harassment and (2) the Plaintiff never engaged in a protected activity that would support his retaliation claim. The Defendant further contended that the Plaintiff had been terminated, not in retaliation, but for a legitimate business reason. Rulings: After recounting the well-known pre-requisites regarding summary judgment motions, the Court addressed the substantive issues presented as follows: (A) Sexual Harassment/Retaliation. The HRA has a one-year statute of limitations, which requires that a suit under it must be filed “within one year of the unlawful discriminatory act, or the discovery thereof.” The Defendant asserted that the limitation commenced in mid-July 2008, the date of the Plaintiff’s last interaction with Father A, and therefore that his suit filed in mid-October 2009, was two months out of time. The Plaintiff responded that the allegedly retaliatory termination on October 17, 2008, was inseparable from the pattern of sexual harassment to which he had been subjected and therefore his complaint was timely filed, by at least one day. Our Court of Appeals has held that “conduct retaliatory in nature is relevant to a hostile work environment claim whether or not it would support a separate statutory retaliation claim.” Even at that, bearing in mind that it was a summary judgment motion before the Court, it found that any dates at issue constituted a factual dispute which must be decided by the jury, rather than by motion. (B) Timeliness/Hostile Work Environment. To prove a viable hostile work environment claim, a plaintiff must demonstrate that (1) s/he is a member of a protected class, (2) has been subjected to unwelcome harassment, which (3) was based on membership in that class, and (4) the harassment was “severe and pervasive” enough to affect “a term, condition, or privilege of employment.” Discrimination claims under the HRA are subject to the same guidelines as those under Title VII of the Civil Rights Act of 1964, the case law on which provides that “the entire time of the hostile environment may be considered by a court for the purposes of determining liability” because an initial act may “still be part of the one hostile work environment claim and a charge may be filed at a later date and still encompass the whole.” Our Court of Appeals has also held that a claim alleging a hostile work environment by its “very nature … involves repeated conduct … based on the cumulative effect of individual acts.” Thus, to satisfy the one-year limitation, the Court ruled, only “one act contributing to the claim need to occur within the statutory period.” The Court further ruled that if the jury found that the Plaintiff was terminated within the limitations period, after he had complained about discriminatory conduct, there could be no question that his termination was “adverse conduct relevant to the claim of a hostile work environment.” The Court of Appeals has also found that the conduct in question need not be “overtly sexual to contribute to a sexual harassment-hostile work environment claim” and that “all adverse conduct is relevant as long as it would not have taken place but for the gender of the alleged victim.” In making that determination, a court must consider “the entire mosaic” of the hostile work environment. (C) “Severe and Pervasive” Standard. The Court considered the requisite elements for a prima
facie case of sexual harassment as follows: (1) Protected Class. Although the Plaintiff is a male of apparently Italian descent (it being the same name as that of a famous 16th-century Italian Mannerist engraver of the late Renaissance), the Court initially observed that “[u]nder the circumstances,” he “would be considered a member of a protected class if the allegations prove meritorious.” Inasmuch as it is a rare case, however, that a male would be deemed a member of a protected class, in a separate section of the opinion the Court found that “it is clear that the alleged behavior and the touching could be plausibly motivated by the Plaintiff’s gender,” a conclusion that the Court arrived at by noting that Father A was not known the touch any the females present in the rectory. (2) Harassment. Demonstrating the second factor requires a balancing test that includes “factors such as the amount and nature of the conduct, the plaintiff’s response, and the relationship between the plaintiff and the harassing party.” No specific number of incidents and no specific level of egregiousness need be set forth; nor is the fact that each incident may not be individually actionable determinative of whether harassment has occurred. Instead, the trier of fact must consider the “totality of circumstances.” The gravamen of a sexual harassment claim is that the conduct complained of was “unwelcome.” Here, the Court found, the Plaintiff asserted that the alleged advances by Father A occurred several times, were unwelcome, and caused him distress. It ruled, therefore, “that a jury could reasonably find that there was outrageous behavior amounting to sexual harassment and a hostile working environment.” (3) Effect on Employment. This element, the Court found, was demonstrated for summary judgment purposes by the fact that Plaintiff’s initial complaint about Father A’s conduct resulted in negative performance reviews and eventual termination, which was plausibly retaliatory in nature. In sum, therefore, the Court ruled that “Plaintiff has shown that the alleged sexual harassment was sufficiently severe or pervasive to create a genuine issue of material fact for jury.” (D) Retaliation. To establish a prima facie case of retaliation, a plaintiff must establish that (1) s/he was engaged in a statutorily-protected activity; (2) the employer took an adverse employment action; and (3) there was a causal relationship between the protected activity and the adverse action. The Plaintiff alleged in this case that after he reported Father A’s behavior in July 2008, he became subject to increased scrutiny and criticism of his work, which constituted a pattern of antagonism culminating in his termination within three months. The Court ruled that the Defendant’s assertion that Plaintiff’s termination was based on a legitimate business reason was a matter still in dispute and could not be resolved by means of the Defendant’s summary judgment motion. The same is to be said, it ruled, on the third factor, causation, regarding the Defendant’s contention that Plaintiff’s termination was unrelated to the alleged protected activity. Finally, the Court pointedly observed that the church hired a female cook for the rectory within two weeks of terminating the Plaintiff. (E) Punitive Damages. An award of punitive damages is proper “only when the tort is aggravated by evil motive, actual malice, deliberate violence, or oppression.” In order to recover on such a claim, a plaintiff must demonstrate evidence – though not necessarily direct evidence – of “malice or reckless indifference” to his or her rights. The Court found that the record as to this issue is as yet not fully developed and therefore it elected, for the time being, to allow the request for a punitive damage award to go forward. (F) Conclusion. All aspects of the Defendant’s Motion for Summary Judgment were denied.
CIVIL PROCEDURE / PERSONAL AND SUBJECT MATTER JURISDICTION
TRUSTS / ALTER EGO BASIS FOR PERSONAL LIABILITY OF GRANTOR
Précis: Many corporations and trusts are established under Delaware law. In the case of trusts, Delaware law requires the transfer of all assets into an irrevocable trust placed in the hands of a resident trustee. The transferor, however, may retain the power to veto a distribution from the trust, to appoint a new trustee, or even to remove a trustee, thereby making it a revocable trust. It does not make the trust revocable if the transferor receives income from the trust, so long as the transferor does not have a “substantially unfettered right” to receive or use the principal. If a transferor makes a “qualified disposition” into a trust, a creditor can breach the trust only if the transfer was made with actual intent to defraud the creditor. The District of Columbia recognizes trusts which have a “spendthrift provision.” Ordinarily, the law will not enforce a spendthrift provision in a “self-settled” trust, where the creator is also the beneficiary, on the theory that one may not create a trust for one’s own benefit and place the income beyond the reach of one’s creditors. Delaware law, however, is not in accord with this basic principle, allowing the grantor to shelter assets in the trust and at the same time benefit fully from both the income and assets thereof. Only if it can be shown that there is a “collusive relationship” between the grantor and the trustee can there be an action for abuse. In such a case, it may be that the trustee is simply a conduit for doing the grantor’s bidding, treating the trust as the grantor’s alter ego. There are four basic types of court jurisdiction (1) In Personam. If judgment is sought against a person, a court cannot impose liability unless it has in personam jurisdiction over that person by means of residence or transaction of business within the court’s territory. (2) In Rem. This is a question of the disposition of property located within the Court’s territory, as against all claimants. (3) Quasi in Rem. This term refers to a legal action based on property rights of a person absent from the jurisdiction. It refers to the power of the court to hear a case and enforce a judgment against a party, even if the party is not personally before the court, solely because the party has an interest in real property or personal property within the geographical limits of the court. A quasi in rem action determines the rights of a person in a thing, rather than the rights of the world in it. (4) Long Arm. This is another version of in personam jurisdiction seeking to reach an out-of-state defendant which has at least some “minimum contacts” of a purposeful nature with the forum court’s territory, typically transacting business therein. Where liability is sought against the assets of a trust, the focus must be on the trustee in terms of in personam jurisdiction. Where that authority is sought via means of a long-arm statute, it requires a showing of “transacting any business in the District …. that can be reached jurisdictionally without offending the Due Process Clause.” That threshold can be crossed by a showing of even “minimum contacts” with the forum, consisting of “purposeful, affirmative activities within” it, so that “the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” The fact that an asset of a trust was once in the District or that one of the beneficiaries might have contacts here are not sufficient. Just as a corporation as an independent entity in its own right has a legal façade or “veil” protecting the person who established it, a trust may be similarly “pierced” to establish personal liability so that the alter ego theory is available in such a case. Where a foreign corporation’s subsidiary has local contacts, liability may attach to the parent corporation on an alter ego theory, if corporate formalities are not observed, fraud was perpetrated, or it would be unjust to require the plaintiff to bring suit against the parent entity. The same is true in reverse, where jurisdiction is sought over the subsidiary by way of the parent’s contact. The alter ego principle also applies in determining whether there exists personal jurisdiction over a trustee, where the trust is the alter ego of the grantor, the trustee holds legal title to the property, and the beneficiary holds an equitable interest. The determinative elements are (1) unity of ownership and interest, (2) use of the trust form to perpetrate fraud or wrong, and (3) control of the trust.
Abstract: Presenting a tour d’ force on the complex issues of in personam, in rem, quasi in rem, and long-arm jurisdiction, the Trial Court in this matter resolved the question of whether a trust follows the person who establishes it for purposes of coming under the jurisdiction of the court on an alter ego theory. Facts: In April 2001, Mr. and Mrs. A (the A’s) established B1 LLC and B2 LLC in which they persuaded the various Plaintiffs herein to invest. The incoming funds, however, were not invested in any ongoing business but were diverted to B3 LLC, the principal asset of which was the A’s home, which they had conveyed to it without consideration. All three LLC’s were established in the District of Columbia. In November 2001, under Delaware law, they created the Mr. A Irrevocable Trust and the Mrs. A Irrevocable Trust, the Trustee of both eventually became, as successor in interest, a Delaware Trust Company (the DTC). The assets of the B3 LLC, including the home, were then transferred to the Mrs. A Trust. Thus, eventually, the investment funds ended up in the coffers of a completely different and independent legal entity. Once the Plaintiffs discovered the existence of this line of conveyance, they filed this suit against the A’s et al., alleging that the trusts as terminal recipients were shams and the alter egos of the A’s. Immediately an issue of personal and subject matter jurisdiction arose in the suit when the Plaintiffs attempted to serve the trusts by serving the A’s. The Court, however, ruled that the proper target for service was the joint trustee, the DTC. After the DTC was served, motions were filed by separate attorneys to dismiss the suit for lack of personal jurisdiction over it as a Delaware entity with no significant contacts with the District of Columbia. The Court permitted discovery while it considered the motions and the provisions of Delaware law applicable to the case. Rulings: The Court ruled on the issues presented as follows: (A) Delaware Trust Law. Delaware law requires the transfer of all assets into an irrevocable trust in the hands of a resident trustee. The transferor, however, may retain the power to veto a distribution from the trust, to appoint a new trustee, or even to remove a trustee, thereby making it a revocable trust. It does not make the trust revocable if the transferor receives income from the trust, so long as the transferor does not have a “substantially unfettered right” to receive or use the principal. If transferor makes a “qualified disposition” into a trust, a creditor can breach the trust only if the transfer “was made with actual intent to defraud” the creditor. Mr. A made himself, his wife, and their respective offspring the beneficiaries of his trust. The Trustee was granted discretion to make distributions to any or all of the beneficiaries for their support, maintenance, health, or education needs, or “for the reasonable comfort of the Grantor of his wife,” but only with the approval of Mr. A. The Trust also appointed a Law Firm as its “protector” but the Firm never formally accepted the assignment via the required signed instrument. Mr. A was also made the “advisor” to the Trust, thus effectively retaining control over the entire corpus in several roles. The Trust also contained a “spendthrift” proviso. (B) Delaware Spendthrift Provisions. The District recognizes spendthrift trusts. Ordinarily, the law will not enforce a spendthrift provision in a “self-settled” trust, where the creator is also the beneficiary, on the theory that “one may not create a trust for his own benefit and place the income beyond the reach of his creditors.” Delaware law, however, is not in accord with this basic principle, allowing the grantor to shelter assets in the trust and at the same time benefit fully from both the income and assets thereof. Only if it can be shown that there is a “collusive relationship” between the grantor and the trustee can there be an action for abuse. In such a case, it may be that the trustee is simply a conduit for doing the grantor’s bidding, treating the trust as the grantor’s alter ego. In this case Mr. A took full advantage of the Delaware law. Thus, when the Plaintiff’s sought to attach liability to the trusts by naming them, rather than the trustees, as defendants, the threshold issue became that of personal jurisdiction. (C) Types of Jurisdiction. The Court itemized the basic types of jurisdiction as follows: (1) In Personam. Citing the classic Shaffer case (1977), the Court noted that if judgment is sought against a person, a court cannot impose liability unless it has in personam jurisdiction over that person by means of residence or transaction of business within the court’s territory. (2) In Rem. This is a question of the disposition of property located within the Court’s territory, as against all claimants. (3) Quasi in Rem. This term refers to a legal action based on property rights of a person absent from the jurisdiction. It refers to the power of the court to hear a case and enforce a judgment against a party, even if the party is not personally before the court, solely because the party has an interest in real property or personal property within the geographical limits of the court. A quasi in rem action determines the rights of a person in a thing, rather than the rights of the world in it. (4) Long Arm. This is another version of in personam jurisdiction seeking to reach an out-of-state defendant which has at least some “minimum contacts” of a purposeful nature with the forum court’s territory, typically transacting business therein. (D) Discovery Issues. Plaintiff’s discovery requests the location of any Trust property which might be located in the District of Columbia, that would give the Court quasi in rem jurisdiction over it and would empower it to compel the foreign Trustee to answer here for those assets. The Court found, however, that the complaint did not allege any such assets in the District which would give rise to quasi in rem jurisdiction. The Court ruled that the focus must be on the Trustee in terms of in personam jurisdiction. Inasmuch, however, as the Trustee in this case was neither domiciled in the District nor had its principal place of business here, any personal jurisdiction would have to be predicated on a long-arm theory by a showing of “transacting any business in the District …. that can be reached jurisdictionally without offending the Due Process Clause.” (Mouzavires (1981)). That threshold can be crossed by a showing even “minimum contacts” with the forum consisting of “purposeful, affirmative activities within the District” so that “the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” (International Shoe (1945). The Court found that the fact that asset of the Trusts was once in the District, that one of the beneficiaries might have contacts here, or that the Law Firm as counsel to the Trusts transacted legal business here, would not suffice. (E) Jurisdiction re Trusts. The issue in this case is whether the Court is empowered to impose judgment against the Trusts. But, the Court noted, the real party in interest is the Trustee who has legal title to the Trust property. Drawing a parallel with a corporation as an independent entity in its own right which has a legal façade or “veil” protecting the person who established it, the Court, citing persuasive authority from at least seven other jurisdictions, held that a trust may be similarly “pierced” to establish personal liability so “that the alter ego theory is available to the plaintiffs in this case” (merely opening the door to possible access to that theory, but not formally holding that a judgment could be predicated on it at this stage of the case). (F) Alter Ego Jurisdiction. The law of the District of Columbia is that where a foreign corporation’s subsidiary has local contacts, liability may attach to the parent corporation on an alter ego theory, if corporate formalities are not observed, fraud was perpetrated, or it would be unjust to require the plaintiff to bring suit against the parent entity. The same is true in reverse, where jurisdiction is sought over the subsidiary by way of the parent’s contact. The Court found “that there is sound reason to apply the alter ego principle in determining whether there exists personal jurisdiction over the Trustee in the present case,” where the trust is the alter ego of the grantor, the Trustee holds legal title to the property, and the beneficiary holds an equitable interest. Thus, the Court ruled, “if the Plaintiffs can show that, with respect to the trusts, … [either Mr. or Mrs. A] was the alter ego of the trusts they established …, the Court can attribute their contacts with the District to … [the DLC] and exercise jurisdiction over … [it as Trustee], so long as the [A]’s minimum contacts satisfy the long-arm statute and due process.” (G) Evidence of Alter Ego. Without making a ruling on the issue, the Court pointed out evidence that supported the Plaintiffs’ alter ego theory. Those elements are (1) unity of ownership and interest and (2) use of the corporate form to perpetrate fraud or wrong. In either of those events, the equitable remedy of “piercing the veil” may obtain, against the Trusts, based on similar “considerations of who should bear the risk of loss and what degree of legitimacy exists for those claiming the limited liability protection of a corporation.” The “key” factor, the Court ruled, “is not motive, but control.” In this case the Court found that there was “evidence that the trusts were used to commit fraud,” which would justify holding the grantors personally liable. That remains to be determined, the Court ruled. (H) Discovery Rulings. That determination, however, would turn on pending discovery. The Court ruled that no discovery could be promulgated against the Law Firm, largely because it had never officially “signed on” with the Trusts and even if it had information, it would likely be protected by the attorney-client privilege. Discovery could, however, the directed against Mr. and Mrs. A concerning their contacts with the District and on the alter ego theory. Discovery was also allowed against the DTC relating to its actions (or inactions) as Trustee.
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.