Category Archives: News
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Virginia Real Estate Update | September 2019
On August 22, 2019, the Supreme Court of Virginia issued an opinion denying a developer’s claim of vested rights in a dedicated road. In Loch Levan Land L.P. v. Board of Supervisors of Henrico County, the Court affirmed the Circuit Court’s judgment and brought major disruptions to plans for development of 1,089 acres of land located only a few miles... Read More >
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Supreme Court of Virginia Holds That Insurer is Entitled to Equitable Contribution From Another Covering Insurer and that Consent to Settlement Conditions Are Waived by Denial of Coverage on Other Grounds
In a decision issued on July 18, 2019, the Supreme Court of Virginia vacated a judgment entered in favor of a liability insurer seeking contribution against another liability insurer and remanded the case to the trial court on the grounds that the complaint had stated a claim for equitable contribution. Nationwide Mut. Fire Ins. Co. v. Erie Ins. Exchange, 829... Read More >
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Commercial Recordation/Transfer Tax Increase and Mandatory Use of New FP7
The Washington, D.C. Office of Tax and Revenue has issued an official notice of the increase on transfer and recordation tax on commercial properties where the consideration (real or imputed) is more than $2 million. The increase is effective on October 1, 2019 and is scheduled to expire on September 30, 2023. A... Read More >
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The Best Lawyers in America 2020
Jackson & Campbell, P.C. is pleased to announce a number of our Directors have been named to The Best Lawyers in America© 2020 Edition. Congratulations to: Arthur D. Burger, Ethics and Professional Responsibility Law David H. Cox, Real Estate Law, Real Estate Litigation William E. Davis, Trusts and Estates, Trusts... Read More >
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Attorney Spotlight: Arthur F. Konopka
Arthur F. Konopka is of counsel in the Real Estate and Trusts and Estates Practice Groups. Previously, Mr. Konopka was at the National Science Foundation and NASA. As part of the 50th anniversary of the landing of the Apollo mission, Mr. Konopka shared his experience of witnessing the mission’s launch... Read More >
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D.C. Superior Court Amends Landlord/Tenant Rules
On July 23, 2019, the Superior Court of the District of Columbia issued amendments to the Landlord and Tenant Branch Rules of Procedure. Generally, the amendments made stylistic changes that are consistent with the recent amendments to the Superior Court Rules of Civil Procedure (i.e., the replacement of the word "shall" with "must"). Along with the stylistic changes, the amendments made several... Read More >
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Washington, D.C. Office of Tax and Revenue Homestead Unit Suspending Processing Of Homestead Applications
The division of the DC Office of Tax and Revenue that processes homestead, senior, and disabled applications (FP-100) has announced that, as of July 17, 2019, it will suspend the processing of applications, grant benefits, and tax account adjustments. This action was “taken to meet a demanding billing timeline to reconcile tax accounts” associated with the upcoming 2019 second half... Read More >
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SCOTUS Opinion: Police May Take Blood Test Of Unconscious Driver Without Warrant Under Exigent Circumstances Doctrine
After Gerald Mitchell was arrested for driving while intoxicated, his breath test came out three times over the legal limit. He then became unconscious. Wisconsin law presumed that an unconscious person consents to a blood test, so the police took him to a hospital where a blood test revealed his BAC well over the legal limit. During his prosecution, Mitchell... Read More >
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SCOTUS Opinion: Court Blocks The Citizenship Question From The 2020 Census Questionnaire For Now
The Constitution requires a census to be taken every 10 years, and Congress delegated that task to the Secretary of Commerce. In 2018, the Secretary announced that he would reinstate a citizenship question on the 2020 census questionnaire, a question that had been included in almost every census up through 2000. Opposition to the question claimed that the question would... Read More >
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SCOTUS Opinion: Auer Deference To An Agency’s Interpretation Of Its Own Regulations Survives, Barely
In Kisor v. Wilke, the underlying case concerned a Vietnam War veteran’s quest for disability benefits. The Department of Veterans Affairs interpreted its internal rule to deny the veteran benefits going back to when he first applied. The Federal Circuit affirmed the determination using Auer deference, established by the Court in Auer v. Robbins, 519 U.S. 452 (1997),... Read More >
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SCOTUS Opinion: Court Strikes Supervised Release Statute That Permitted Additional Prison Time Without A Jury Determination
In United States v. Haymond, Andre Haymond was found guilty by a jury of possessing child pornography, a crime that permitted a prison term of zero to 10 years. After serving his term and while on supervised release, Haymond was found with what appeared to be images of child pornography on his devices. Under 18 U.S.C. sec. 3583(k), a... Read More >
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SCOTUS Opinion: Court Clarifies What “Confidential” Information is not Subject to a Freedom of Information Act Request
In Food Marketing Institute v. Argus Leader Media, a newspaper filed a request under the Freedom of Information Act (FOIA) to the Department of Agriculture requesting information about retail stores who participate in the national food stamp program. The Department declined to provide store-level data on the basis that it was “confidential” and thus precluded from disclosure under... Read More >
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SCOTUS Opinion: Court Vacates Murder Conviction Under Batson Challenge
In Flowers v. Mississippi, Curtis Flowers, a black man, was tried six times for allegedly murdering four people in a small town furniture store. The first three times, he was sentenced to death but the convictions were overturned. The fourth and fifth trials ended in mistrials. Throughout those trials, the prosecution used their peremptory strikes to remove all black... Read More >
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SCOTUS Opinion: Under Due Process Clause, State Cannot Tax Foreign Trust Solely Because A Beneficiary Resides In the State
A family trust was created in New York state, with the trustee also located in New York, to distribute assets to the children of the trust creator under the trustee’s sole discretion. One of those children moved to North Carolina. The trustee then divided the trust into three separate trusts, one for each child, retaining full power and discretion over... Read More >
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SCOTUS Opinion: Government Must Prove Immigrant Had Knowledge Of Unlawful Residence For Gun Possession Conviction
Under 18 U.S.C. sec. 922(a)(2), it is illegal for an immigrant “illegally or unlawfully in the United States” to possess firearms and “knowingly violates” that prohibition. In Rehaif v. United States, an immigrant entered the country on a nonimmigration student visa, but was dismissed for poor grades, making his further residence unlawful. He then went to a firing... Read More >
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SCOTUS Opinion: Court Permits Fifth Amendment Takings Claim Without First Seeking Compensation Under State Law
In the prior case of Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), the Court ruled that before a property owner could bring a federal action against a state under the Takings Clause of the Fifth Amendment, the owner had to first seek just compensation under state law in state court... Read More >
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SCOTUS Opinion: Court Upholds Sex Offender Registration and Notification Act Against Delegation Challenge
The Sex Offender Registration and Notification Act required all convicted sex offenders to register with the government. For those offenders convicted of a sex offense before the Act was enacted, the Act authorized the Attorney General to “specify the applicability” of the Act’s registration requirements and prescribe rules therefore. The Attorney General issued a rule applying the Act’s requirements... Read More >
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SCOTUS Opinion: Court Treats Fabrication Of Evidence Claim As Malicious Prosecution For Statute Of Limitations Purposes
In McDonough v. Smith, a commissioner of a county board of elections in New York was indicted by the district attorney for forging absentee ballots. The district attorney used fabricated evidence to secure a grand jury indictment, and used fabricated testimony at trial. After a mistrial, the commissioner was ultimately acquitted on all charges. Just under three years later,... Read More >
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SCOTUS Opinion: Court Permits The Bladensburg Peace Cross To Remain Standing
The Bladensburg Peace Cross was erected in 1925 on public land as a tribute to the lives of 49 soldiers from the local area who died in World War I. Certain atheistic groups filed suit in federal court, arguing that the cross violated the First Amendment’s Establishment Clause. The district court dismissed the case under the tests set forth in... Read More >
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SCOTUS Opinion: Virginia’s House of Delegates Lacks Standing To Challenge Redistricting Order
After Virginia redrew its districts following the 2010 census, 11 of those districts were held to be unconstitutionally drawn as being racially gerrymandered. Virginia’s Attorney General, a Democrat, declined to appeal the ruling. However, the Virginia House of Delegates, controlled by the Republicans, chose to appeal that ruling directly to the Supreme Court, arguing that the districts were constitutional. Justice... Read More >
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SCOTUS Opinion: Court Retains Dual-Sovereignty Doctrine Exception To Double Jeopardy Rule
Under the Fifth Amendment, defendants may not be indicted for the same crime twice—otherwise known as double jeopardy. However, the Court had, since Heath v. Alabama, 474 U.S. 82 (1985), held that double jeopardy did not occur when the same offense was prosecuted by different sovereigns, thus creating the “dual-sovereignty doctrine.” In Gamble v. United States, Terance Gamble was... Read More >
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SCOTUS Opinion: Private Nonprofit Corporation Operating Public Access Channels Not A State Actor Subject To First Amendment
New York City designated Manhattan Neighborhood Network, a privately owned nonprofit corporation, to operate its public access channels on the cable system in Manhattan. Two filmmakers produced a film attacking the Network to be run on the public access channels. The Network aired the film, but then suspended the filmmakers from the Network’s services and facilities. The filmmakers sued, alleging... Read More >
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SCOTUS Opinion: Court Upholds Virginia Ban On Uranium Mining
Virginia law flatly bans uranium mining in the Commonwealth. In Virginia Uranium, Inc. v. Warren, a company sought to circumvent that state law by arguing that the federal Atomic Energy Act preempted Virginia’s law, and put the Nuclear Regulatory Commission in charge of uranium mining. The company lost before the district court and the Fourth Circuit. The Supreme... Read More >
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Bloomberg Law Quotes Arthur D. Burger’s Comments on Law Firm Risk Management Issues
This week's “Legal Ethics Highlights” from Bloomberg Law reported on the presentation titled, “Strengthen and Update Internal Risk Management,” which was part of the American Bar Association’s National Conference on Professional Responsibility in Vancouver, Canada. The panel, which included Arthur D. Burger, Chair of Jackson & Campbell, P.C.’s Professional Responsibility Practice Group, discussed various measures that law... Read More >
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SCOTUS Opinion: Court Broadens Definition Of Generic Burglary Under Armed Career Criminal Act
After Jamar Quarles pled guilty to being a felon in possession of a firearm, prosecutors sought to give him an enhanced sentence under the Armed Career Criminal Act because he had at least three prior “violent felony” convictions. The Act defines “burglary” as being a violent felony, meaning “unlawful or unprivileged entry into, or remaining in, a building or structure,... Read More >
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SCOTUS Opinion: The Government Is Not A “Person” That Can Institute A Patent Review Under America Invents Act
The Leahy-Smith America Invents Act contains provisions allowing a “person” other than a patent owner to use three types of administrative review to challenge the validity of a patent after it has been issued, with appeal rights to the Federal Circuit. In Return Mail, Inc. v. United States Postal Service, Return Mail obtained a patent for processing undeliverable... Read More >
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SCOTUS Opinion: Court Upholds Law Regarding Disposal Of Aborted Fetus Remains
Indiana passed a law preventing abortion providers from treating aborted fetuses as waste that could be incinerated with surgical byproducts, and also barred abortion providers from conducting abortions when the mother’s reason for aborting was sex, race, or disability selective. The Seventh Circuit invalidated both provisions, holding that the first was not rationally related to a legitimate government interest, and... Read More >
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Emotional Support Animals and Dangerous Dogs in Cooperative Apartment and Condo Communities
An emotional support animal (ESA) is a companion animal (typically a dog or cat) that provides therapeutic benefit to an individual with a mental or psychiatric disability. An ESA is not the same thing as a pet. Rather, for a resident of a co-op or condo who is living with a mental or psychiatric disability, an ESA may provide him... Read More >
TAGGED: esa, emotional support animal, Bronk v. Ineichen 54 F.3d 425 (7th Cir. 1995), Green v. Housing Authority of Clackamas County 994 F.Supp. 1253 (Or. 1998), Service Animals, Fair Housing Amendments Act of 1988, no pet rule, United States v. Cal. Mobile Home Park Mgmt. Co. 107 F.3d 1374 1380 (9th Cir. 1997), 24 C.F.R.100.201, Bronk, 54 F.3d at 429 (7th Cir. 1995), Nason v. Stone Hill Realty Ass’n, Pet Ownership for the Elderly and Persons with Disabilities, 73 Fed. Reg. 63834-01, 2008 WL 4690497, D.C. Code § 8-1901, D.C. Code § 8-1902(a), Campbell v. Noble 962 A.2d 264 (D.C. 2008)
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SCOTUS Opinion: Court Clarifies “Clear Evidence” Standard For Failure-To-Warn Claims
Merck manufactured the drug Fosamax to combat osteoporosis in postmenopausal women. Merck’s scientists theorized that use of Fosamax might cause atypical femoral fractures, but the drug label approved by the Food and Drug Administration in 1995 did not include a warning for those fractures. After 1995, evidence of such fractures started to develop. In 2008, Merck applied to the FDA... Read More >
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SCOTUS Opinion: Court Preserves Indian Treaty Hunting Rights
In 1868, the United States and the Crow Tribe entered into a treaty in which the U.S. got most of the Tribe’s land in modern-day Montana and Wyoming, in exchange for hunting rights in unoccupied land. In Herrera v. Wyoming, Tribe member Clayvin Herrera was charged with off-season hunting in the Bighorn National Forest, and Wyoming’s appellate courts affirmed... Read More >