Category Archives: Uncategorized

Tragic Texas Case: Minor on Life Support But Declared Brain Dead

The parents of a 9-year-old girl who was declared brain dead by a Fort Worth, Texas, hospital, have been denied a temporary restraining order extension that would keep their daughter on life support, a judge ruled this week.  Judge Melody Wilkinson of the 17th District Court of Texas said the parents of Payton Summons did not meet the burden of proof for injunctive relief, according to Justin Moore, a lawyer for Payton’s family.

The family’s current restraining order against Cook Children’s Medical Center, which has kept Payton on life support since late September, is set to expire soon.  Payton collapsed while visiting her grandmother after going into cardiac arrest apparently caused by a large, unknown tumor in her chest.  She was transported to the hospital, and doctors established a heartbeat but put her on a ventilator because she was no longer breathing. She was confirmed brain dead after a test determined that she did not have brain activity.  The parents attempted to move her to a facility that would accept her, but none would. 

“Brain death, by definition, is irreversible,” Dr. Sanjay Gupta of CNN has stated.  He continued, “In the United States and most places, it is legally synonymous with death — the same as if your heart stops”.  But brain death means a total loss of brain activity.”  Under Texas law, a person is considered dead when they have suffered an irreversible loss of all brain function, the hospital remarked in a statement from September.  The family has not decided whether to pursue further legal action.

 

 

Hashish Illegal in AZ; Not Part of Medical Marijuana

An Arizona court has ruled that medical marijuana patients can still face arrest when in possession of hashish because it isn’t mentioned or included by name in a marijuana initiative passed by the voters in 2010.

The Arizona Court of Appeals handed down the decision during the last week of June 2018 in the case of Rodney Jones, a cardholder in the state’s medical marijuana program who was arrested in March 2013 at a Prescott hotel and indicted on one count of cannabis possession and drug paraphernalia possession.

Police said at the time they had found Jones had 0.05 ounces of hashish in a jar, according to the appeals court ruling. After spending a year in jail, Jones waived his right to a jury trial in the case. He was later convicted and sentenced to more than two years in prison with credit for time served.

In his appeal, Jones sought to have his conviction and sentence overturned by the court. But two of the judges on the three-member appeals court panel rejected his request, saying that the state’s medical marijuana act approved in 2010 “is silent” on hashish. “If the drafters wanted to immunize the possession of hashish they should have said so,” the ruling said. “We cannot conclude that Arizona voters intended to do so.”

Hashish is a resin extracted from cannabis plants, and it is often used in oils and other medical marijuana products that are a part of the nation’s growing multi-billion dollar marijuana market. The ruling found that hashish is recognized under state law as a narcotic, distinct from marijuana by the state legislature because of its potency levels.

Divorce and Estate Plans – Arizona Law

What happens to a will upon divorce?

Under Arizona law, a divorced person’s will remains valid but the ex is disqualified as a potential beneficiary of the estate. But, a decree of separation does not terminate the marriage and does not disqualify the spouse as a beneficiary. If there is a divorce, the ex is removed from any position named in the will such as personal representative, executor, guardian or trustee. A new will could be drafted reinstating the ex.

What happens to a revocable trust upon divorce?

In the event of a divorce, Arizona law treats a living revocable trust similar to a will. If one or both spouses dies before the trust is dissolved as part of the divorce settlement, each spouse’s share of the trust would be distributed to the beneficiaries as if there was no surviving spouse. If there are separate trusts, the ex is disqualified as a beneficiary of the trust. The ex would also be removed as a successor trustee. However, if the trustmaker (settlor) wanted to keep the ex-spouse as a beneficiary or successor trustee, the trustmaker could sign a restatement of the trust to stating this.

What about powers of attorney?

An ex is automatically removed as an agent named in a financial or health care power of attorney. The power of attorney could still be used if an alternate agent is named.

What happens if a divorced person fails to remove the ex as a beneficiary on an IRA?

Under Arizona Revised Statute 14–2804, an ex is automatically removed as an IRA beneficiary. However, the IRA custodian may not have knowledge of the divorce. There are cases where an ex contested the matter in court.

What about pension, 401(k), profit-sharing and other plans governed by ERISA?

ERISA refers to the federal law governing federal retirement plan accounts such as 401(k), profit-sharing plans, pensions, and other federal retirement plans. These are not affected by Arizona law. The beneficiary designation on file with the plan administrator controls.

Is the ex-spouse automatically removed as beneficiary under a life insurance policy?

Yes. However, there are cases where it is part of the divorce settlement or the policy owner wants the ex to remain as beneficiary despite the divorce. To remove these complications, the policy owner should either rename the ex as a beneficiary after the divorce is final, or put a provision in the divorce decree stating the parties intend that the ex remain as beneficiary on a life insurance policy, or both.

How about payable-on-death, transfer-on-death, or in-trust-for provisions?

An ex is automatically removed as a beneficiary on an account with payable-on-death, transfer-on-death or in-trust-for designations. An account holder should update these accounts immediately upon divorce.

What about property held as joint tenants with right of survivorship or community property with right of survivorship?

Upon divorce, the property automatically becomes tenants in common – each party owns a separate 50% interest, and his or her interest becomes part of his or her estate at death.

Supreme Court rules for New Jersey in sports betting case  

The U.S. Supreme Court ruled Monday that states can legalize sports betting, breaking up Nevada’s monopoly on the practice.

The court upheld the legality of a 2014 New Jersey law permitting sports betting at casinos and racetracks in the state and voided the federal Professional and Amateur Sports Protection Act. Some states see sports betting, like lotteries, as a potentially important source of tax revenue.

The Supreme Court justices struck down the entire federal law on a 6-3 vote, with Justices Ruth Bader Ginsburg, Sonia Sotomayor and Stephen Breyer dissenting.

“The legalization of sports gambling requires an important policy choice, but the choice is not ours to make. Congress can regulate sports gambling directly, but if it elects not to do so, each state is free to act on its own,” Justice Samuel Alito wrote in the majority opinion.

The state law at issue would allow people age 21 and above to bet on sports at New Jersey casinos and racetracks but would ban wagers on college teams based in or playing in the state.

“Today’s ruling will finally allow for authorized facilities in New Jersey to take the same bets that are legal in other states in our country,” New Jersey Gov. Phil Murphy said in a statement. “I look forward to working with the Legislature to enact a law authorizing and regulating sports betting in the very near future.”

The ruling takes the U.S. a step closer to legal sports betting in numerous states, possibly even nationwide. Currently, the practice is legal only in select places such as Nevada, home to the gambling capital Las Vegas. While Nevada’s Gaming Control board reported $4.8 billion in sports bets last year, the black market total is considered to be many times the legal market.

Americans wager “$150 billion illegally each year through off-shore, black market bookies,” DraftKings CEO Jason Robins said in a statement. The fantasy sports company has nearly 10 million customers across the country. After the ruling, DraftKings announced plans to launch a mobile platform for sports betting to tap into the new market. FanDuel is an online based betting platform where you can bet for fun, and once you are confident, you can bet with cash. This could be a good place to start getting into online betting because you can start off playing whilst not risking any of your assets.

“States are now free to allow their residents to place mobile sports bets with licensed, trusted companies based in the U.S. and that pay taxes here,” Robins said.

New Tax Laws For 2018

Between the IRS and the recent changes in the tax law, here are a number of significant changes that will impact taxes now and going forward.

Those who are married and filing jointly will have an increased standard deduction of $24,000, up from $13,000 as under previous law.

Single taxpayers and those who are married and file separately now have a $12,000 standard deduction, up from the $6,500.

For heads of households, the deduction will be $18,000, up from $9,550.

The personal exemption has been eliminated with the tax reform bill.

A new 37 percent top rate will affect individuals with incomes of $500,000 and higher. The top rate applies for married taxpayers who file jointly at $600,000 and over. 

The estate tax exemption doubles to $11.2 million per individual and $22.4 million per couple in 2018.

The child tax credit has been raised to $2,000 per child — those under 17 — up from $1,000. A $500 credit is available for dependents who do not get the $2,000 credit.

The deduction for mortgage interest is capped at $750,000 for mortgage loans  taken out after Dec. 15 of last year. The limit is still $1 million for mortgages that were established prior to Dec. 15, 2017.


The itemized deduction is limited to $10,000 for both income and property taxes paid during the year.





Employees who participate in certain retirement plans ‒ 401(k), 403(b) and most 457 plans, and the Thrift Savings Plan – can now contribute as much as $18,500 this year, a $500 increase from the limit for 2017.

Savers who contribute to individual retirement accounts will have higher income ranges following cost-of-living adjustments. Note that the deduction phases out for individuals and their spouses who are covered by workplace retirement plans.
 For single taxpayers, the limit will be $63,000 to $73,000.
 For married couples, the phase out range will vary depending on whether the IRA contributor is covered by a workplace retirement plan or not. When the spouse who is investing has access to an employer plan, the range is $101,000 to $121,000.

For individuals who don’t have a retirement plan but are married to someone who does, the phase out has been raised to $189,000 to $199,000.
The phase out was not adjusted for married individuals who file a separate return and who are covered by a workplace retirement plan. That range is $0 to $10,000.





                   

           

Cell Phone Records Do Not Need A Warrant

Police don’t have to get a search warrant to obtain records about cellphone locations in criminal investigations, a federal appeals court ruled Tuesday in a case closely watched by privacy rights advocates.

 

The 12-3 decision by the full 4th U.S. Circuit Court of Appeals reversed a three-judge panel’s ruling last year that the constitutional protection against unreasonable search and seizure requires police to get a warrant for information obtained from cell towers.

 

The Richmond-based appeals court now agrees with the only other three federal appeals courts that have taken up the issue, making it less likely that the U.S. Supreme Court will consider the matter. Meghan Skelton, attorney for the two Maryland men who challenged the use of cell tower data, said she will ask for Supreme Court review anyway because there is disagreement among the circuits on some of the underlying issues.

 

The ACLU was one of several organizations that filed friend-of-the court briefs in the case involving two men convicted of a series of armed robberies in the Baltimore area. Police used cellphone tower records tracking the suspects’ movements to tie them to the crimes.

 

Judge Diana Gribbon Motz wrote in Tuesday’s majority opinion that the Supreme Court has long held that the Fourth Amendment does not protect information that a person voluntarily turns over to a third party — in this case, the defendants’ cellphone service providers.

 

“The government did not surreptitiously listen to, record, or in any other way engage in direct surveillance of defendants to obtain this information,” she wrote.

Arizona Ban on Same Sex Marriage Struck Down

A federal judge has struck down Arizona’s ban on gay marriage and cleared the way for legally recognized same-sex unions in the state. The ruling last week by U.S. District Judge John Sedwick bars state officials from enforcing a 1996 state law and a 2008 voter-approved constitutional amendment that outlawed gay marriage. Judge Sedwick ordered the state to “permanently cease” its ban on gay marriage and did not stay his order.

The Arizona decision came after the 9th Circuit Court of Appeals ruled on Oct. 7 that gay marriage prohibitions in Nevada and Idaho violated the equal-protection rights of same-sex couples. The week prior, the U.S. Supreme Court declined to hear appeals from several states seeking to retain their bans on same-sex marriage. The move effectively legalized gay marriage in about 30 states.

Judge Sedwick’s ruling came in one of two lawsuits that challenged Arizona’s gay marriage ban. In that case, seven couples who live in Arizona challenged the law, including some who married in other states but were unable to have their union legally recognized in Arizona.

Lawyers for both lawsuits argued the state law violated equal-protection and due-process rights and wrongfully denied their clients the benefits of marriage, such as spousal pension benefits, spousal survivorship rights and the ability to make medical decisions for each other.

Attorneys representing the state urged the judge to uphold the state’s definition of a marriage as a union between a man and woman. They also argued the ban furthers the state’s interest in connecting a child to his or her biological mother and father and that voters and lawmakers enacted the ban to protect their right to define marriage for their community.

Disclaimer: The information contained in this blog is provided for informational purposes only and should not be construed as legal advice on any subject matter. No recipients of content from the site, the clients or otherwise, should act or refrain from acting on the basis of any content included in the site without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state. The content of this blog contains general information and may not reflect current legal developments, verdicts, or settlements. The Tucker Law Firm expressly disclaims all liability with respect to actions taken or not taken based on any or all of the contents of this blog.

Amazon Employees vs. Amazon

Ever thought of working filling Amazon’s orders? If you do, you may want to consider the litigation now going on over post-shift screening procedures.  Once your shift is over, you must stand in line and wait to be screened for stolen goods before you can leave. The process can take 20 minutes or more depending on how busy the warehouse is, and you don’t get paid for the wait, according to numerous lawsuits.

Workers across the country have sued to be paid for that time, and now they’ll have their day at the United States Supreme Court where oral arguments in Integrity Staffing Solutions v. Busk are expected to begin  soon.  Integrity, the temporary firm that assists staffing of Amazon’s warehouses, is arguing that the screenings aren’t “integral and indispensable” to the work, and therefore, it should not have to pay workers for the time. Arguably, the legal issue is whether the workers deserve to be paid for the time it takes to go through a theft search, said Eric Schnapper, a law professor at the University of Washington who’s part of the team representing the Integrity workers. But the broader and more significant question, he said, is whether or not an employer can require you to do other tasks deemed nonessential to the job — for free. “The argument is that once your shift ends, the employer has the ability to require you to do other things on the pain of dismissal and does not have to pay you,” Schnapper said. “You could imagine all sorts of things.”

When warehouse workers Jesse Busk and Laurie Castro first sued Integrity in 2010, they argued that the theft screenings should be compensated as work under the Fair Labor Standards Act, the law setting minimum wage and overtime standards. They noted that the waits were often 25 minutes at their Nevada warehouse. Busk’s team argues that the workers have no choice but to wait and go through the theft screening, which is ultimately for the benefit of Amazon and Integrity, not for the workers. Therefore, they say, the workers should be paid for the time. Integrity’s position compares the theft screening to the time workers spend walking to their work stations – time where workers are not entitled to be paid.

The company has found a surprising ally in this fight: the Obama administration. In June, officials with the Justice and Labor Departments filed an amicus brief in support of Integrity’s position in the case, as mysterious as that may be. After all, the President is leading the charge to raise the minimum wage nationally; why weigh in on the side of the employer in this matter?  The White House declined to comment on the brief, and Amazon has remained mum, citing a policy of not commenting on pending litigation.

Disclaimer: The information contained in this blog is provided for informational purposes only and should not be construed as legal advice on any subject matter. No recipients of content from the site, the clients or otherwise, should act or refrain from acting on the basis of any content included in the site without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state. The content of this blog contains general information and may not reflect current legal developments, verdicts, or settlements. The Tucker Law Firm expressly disclaims all liability with respect to actions taken or not taken based on any or all of the contents of this blog.

Ruling Roils CA: CalPers May Not Be Sacrosanct

California municipalities may turn to bankruptcy courts to ease pension obligations after a judge ruled the California Public Employees’ Retirement System (CalPers) has no special protection, a decision that may reverberate across the country as municipalities struggle with their finances.  You may recall Stockton, California filed for bankruptcy protection in 2012 triggering over a billion dollars in claims in U.S. Bankruptcy Court.  Bankrupt municipalities can cancel contracts with CalPers because federal law trumps state protections; so said U.S. Bankruptcy Judge Christopher Klein last week.

Stockton’s bankruptcy pits public-pension advocates against Wall Street creditors who stand to get pennies on the dollar for their bonds. The ruling would make it more attractive for California governmental entities with unmanageable pensions to use bankruptcy law to cut debt, just as private companies do.

Bankruptcy lawyers and public-pension advocates nationwide have watched Stockton’s case to see whether CalPers contract would be honored or if the judge would side with another creditor, money manager Franklin Resources Inc. Judge Klein stated that the pension fund’s claims against a city in bankruptcy are unsecured and are not superior to debts, including unsecured bonds.  The judge ruled that the state’s public employee retirement law “is simply invalid in face of the U.S. Constitution,” an argument that invokes the Supremacy Clause of the U.S. Constitution.  However, the plan to exit bankruptcy contemplates CalPers being completely paid.

Under the proposed bankruptcy plan, CalPers would be fully repaid while Franklin Resources would get back only about 1% of the unsecured portion of the $36 million they’re owed. Even though the judge concluded that Stockton can cancel the CalPers contract, the city still has a chance to convince him the plan should be approved anyway. Judge Klein has said previously that if he ruled against CalPers, he may still approve Stockton’s proposal.

Disclaimer: The information contained in this blog is provided for informational purposes only and should not be construed as legal advice on any subject matter. No recipients of content from the site, the clients or otherwise, should act or refrain from acting on the basis of any content included in the site without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state. The content of this blog contains general information and may not reflect current legal developments, verdicts, or settlements. The Tucker Law Firm expressly disclaims all liability with respect to actions taken or not taken based on any or all of the contents of this blog.

Australian Federal Police: Oops!

Australian Federal Police (AFP) have apologized after leaving 230 grams of plastic explosive in an unclaimed suitcase at the Sydney Airport. The Newcastle Herald reports the explosive was discovered after the unclaimed bag was given to a woman as a replacement for her damaged bag. The explosives were left behind after a training exercise on August 14 but discovered last week after the woman took the unclaimed bag. After finding the device, the woman immediately took it to the local police.

The local police station was temporarily evacuated as a safety precaution. The device was not live, no detonator, AFP said. AFP Sydney Airport Commander Wayne Buchhorn issued an apology, saying the device was left behind after a dog training exercise.

“The AFP takes this error seriously and the canine instructor who inadvertently left this device behind has been identified and will be the subject of a formal Professional Standards Investigation,” Commander Buchhorn said.  “Although the travelling public was not in danger at any time, we regularly review our processes in this area, and we will do again in the light of this incident.” Commander Buchhorn thanked the woman and the local police, the Cessnock police, for their help. This sort of thing also happens in the USA, but the law enforcement officials involve don’t make it a habit of apologizing . . .

Disclaimer: The information contained in this blog is provided for informational purposes only and should not be construed as legal advice on any subject matter. No recipients of content from the site, the clients or otherwise, should act or refrain from acting on the basis of any content included in the site without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state. The content of this blog contains general information and may not reflect current legal developments, verdicts, or settlements. The Tucker Law Firm expressly disclaims all liability with respect to actions taken or not taken based on any or all of the contents of this blog.