Tri-Custody: The New Wave Of Custody And Visitation Arrangements Or An Unworkable And Erroneous Arrangement?

By Bradley Kaufman, J.D. Class of 2018 Touro Law Review Junior Staff Member

In the matter of Dawn M. v. Michael M.,[1] decided on March 8, 2017, in Suffolk County Supreme Court, the Honorable Patrick Leis, III granted a “tri-custody” arrangement.[2] This ruling is considered “groundbreaking”[3] and “historic.”[4] In Dawn M., the husband (defendant) and wife (plaintiff) got married in 1994.[5] Shortly thereafter, the couple discovered their fertility issues after numerous failed efforts to conceive a child.[6] Several years later in 2001, the plaintiff met and became close friends with Audria G., a resident in a downstairs apartment in the same apartment building.[7] Audria had a boyfriend at the time she met the plaintiff, but ultimately ended that relationship and moved into the same apartment with the plaintiff and defendant.[8]

The three individuals then began to “engage in intimate relations.”[9] Husband Michael M., wife Dawn M., and Audria called themselves a family and agreed to conceive a child together, in which Audria would be artificially inseminated because Dawn was infertile.[10] The fertility doctor that the trio visited refused to artificially inseminate Audria with Michael M.’s sperm because she was not the wife of Michael M.[11] Audria eventually became pregnant after having unprotected sexual intercourse with Michael M. and the child was born in 2007.[12] Prior to conception of the child, however, the three individuals all agreed that they would raise a child together as a “thruple.”[13] Ultimately, the marital relationship between Dawn M. and Michael M. dissolved, in which Dawn M. filed for divorce, moved out of the apartment where the threesome resided and moved into a residence to live with Audria and the child.[14] A custody action was commenced and settled preceding the divorce action, which resulted in joint custody of the child between Audria and Michael M. with residential custody to Audria and liberal visitation for Michael M.[15] Because Dawn M. was not awarded custody or visitation and was fearful that she would not be in the child’s life because of her lack of biological connection to the child, Dawn M. petitioned the Court for her own custody and visitation rights of the child.[16]

Pursuant to New York Domestic Relations (DRL) law §70,[17] “either parent may apply to the Supreme Court for a writ of habeas corpus . . . and the Court . . . may award the natural custody . . . of such child to either parent.”[18] Ever since Alison D. v. Virginia M.[19] was decided in 1991, “parent” in the context of DRL §70 excluded non-biological individuals, who fostered significant relationships with the child.[20] However, the definition of “parent” from Alison D., was effectively overruled in 2016 in Brooke S.B. v. Elizabeth A.C.C.,[21] to include non-biological, non-adoptive partners, who establish “by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together.”[22] With respect to Custody and Visitation Orders, the Court is required to maintain the best interests of the child,[23] which is accomplished by recognizing what will “promote his welfare and happiness.”[24] The court in Dawn M. ordered a “tri-custodial arrangement”[25] and proffered that the child’s best interests “cry out for an assurance that [the child] will be allowed a continued relationship with the plaintiff,”[26] notwithstanding the plaintiff’s lack of a biological link to the child.[27]

Since before the child was born, Dawn M. acted like a mother to the child despite Dawn M. not carrying the child.[28] For example, Dawn M. went with Audria to a majority of her doctor appointments and Dawn M. used her medical insurance to cover the pregnancy and delivery of the child.[29] Upon the child being born, Dawn M. rotated with Audria to feed the child during the night and took the child to the doctor as well.[30] The only family the child knows consists of his three parents and refers to both Dawn M. and Audria as “mommy.”[31] The child makes no distinction based on biology and thus considers Dawn M. and Audria as “equal mommies.”[32] The court adamantly agrees with the child’s assertions and reasoned that the child would be devastated if his ability to see Dawn M. ceased.[33] The court opined that the child clearly demonstrated that “he enjoys his present living situation and would not want it altered in any way.”[34] Thus, the court granted a tri-custody arrangement because it would undoubtedly serve the best interests of the child.[35]

One of the rationales behind Dawn M. petitioning the court for custody and visitation was to avoid Dawn M. having to get permission from either Audria or Michael M. in order to see the child.[36] The court reasoned that this case “represents the logical next step,” in the expansion of who constitutes a “parent” to have standing to seek custody and visitation after Brooke S.B.[37] The court is confident that because of the thruple’s cohesive history in raising the child, in which the thruple have already made significant decisions pertaining to the child’s “health, education, and welfare,” it will continue to do so moving forward.[38] However, it is no guarantee that the thruple’s cohesiveness will stand the test of time.

Currently, Dawn M. and Audria are living together but separately from Michael M. The court rejected Dawn M.’s request for visitation of one weekend a month because it would take visitation time away between Michael M. and the child.[39] The court justified its denial of Dawn M.’s weekend visitation because she essentially has de facto residential custody of the child as a result of living with Audria, and thus sees the child almost daily, resulting in substantially more time with the child than Michael M.[40] It will be interesting to see if Dawn M. will be satisfied with the arrangement and her visitation schedule if her relationship dissolves with Audria and she moves out. Moving out will result in the loss of de facto residential custody and significantly reduce her overall visitation with the child because the court denied her one-weekend-a-month request. New York Supreme Courts deciding custody and visitation matters may have their hands full when ordering tri-custody arrangements if the above-referenced situation comes to fruition. This decision is also worth monitoring to see if it makes its way up to the Court of the Appeals to settle the tri-custody issue of first impression in New York.

[1] 2017 WL 923725 (Suffolk Cnty. Sup. Ct. 2017).

[2] Id. at *2.

[3] Julia Marsh, Historic ruling grants ‘tri-custody’ to trio who had threesome, New York Post (March 10, 2017), [hereinafter “Historic Ruling.”].

[4] Historic Ruling, supra note 3.

[5] Dawn M., 2017 WL 923725 at *2.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Dawn M., 2017 WL 923725 at *2.

[11] Id. at *2.

[12] Id. at *2-3.

[13] Id. at *3; “A sexual relationship . . . between three people.” MacMillian Dictionary, (last visited March 20, 2017).

[14] Dawn M., 2017 WL 923725 at *3.

[15] Id.

[16] Id.

[17] N.Y. Dom. Rel. §70 (McKinney’s 2017).

[18] Id.

[19] 572 N.E.2d 27 (N.Y. 1991).

[20] Id. at 29.

[21] 61 N.E.3d 488 (N.Y. 2016).

[22] Id. at 490.

[23] N.Y. Dom. Rel. §240 (McKinney’s 2017).

[24] Id.

[25] Dawn M., 2017 WL 923725 at *5.

[26] Id.

[27] Id. at *3.

[28] Id.

[29] Id.

[30] Dawn M., 2017 WL 923725 at *3.

[31] Id.

[32] Id. at *4.

[33] Id.

[34] Id.

[35] Dawn M., 2017 WL 923725 at *4.

[36] Id. at *3.

[37] Id. at *5, n.6.

[38] Id. at *4.

[39] Id.

[40] Dawn M., 2017 WL 923725 at *4.

Court Case Has ‘Sirius’ Impact on Common Law Copyright in NY

By Luann Dallojacono, J.D. Class of 2018 Touro Law Review Junior Staff Member

It’s 1967, and the band The Turtles has a no. 1 hit.[1] “So Happy Together” has people imagining me and you day in and day out.[2]

Fast-forward almost five decades later, and in 2013, the song is the subject of several lawsuits pitting the 1960s band against satellite radio giant SiruisXM.[3] Flo & Eddie, Inc., the company that controls the Turtles’ music and that is owned by original band members Mark Volman and Howard Kaylan sued SiriusXM in California, Florida, and New York for playing the band’s songs without the company’s permission.[4]

Flo & Eddie filed three class action suits claiming copyright protection under state law.[5] The plaintiffs were independent artists and record companies, including Flo & Eddie. [6] The suits have since uncovered some confusion about the applicability of copyright law to sound recordings made prior to 1972 and whether certain state’s laws allow the owners of those songs to control performing rights for the recordings.[7] As the New York District Court put it, “The long and short of this is—Sirius makes multiple copies, temporary, permanent, whole or partial, during its broadcast process; and it performs the copies it makes. Furthermore, as to pre–1972 sound recordings, it does so without obtaining licenses or paying royalties.”[8]

The parties are in the process of settling in California after Sirius was found liable under California law.[9] Sirius agreed to pay at least $25 million for playing pre-1972 recordings without a license and $5 million for each victory in state court if Flo & Eddie won its cases in New York, California and Florida.[10] The settlement also includes $59 million for a 10-year license for recordings by the plaintiffs at a 5.5% royalty rate.[11]

But legal developments last month may have some questioning the settlement. In February, Sirius saw victory when the case was dismissed in New York, overturning rulings in 2014 by the U.S. District Court.[12] The dismissal also reduced the amount of the settlement reached in California by $5 million as per the settlement agreement.[13]

The New York District Court described the case as one about copyright in sound recordings, which are media in or on which a particular performance of a song is fixed.[14] Congress gave sound recordings copyright protection in 1971 and in 1995 added a “limited public performance right” for sound recordings to give copyright holders of sound recordings the “exclusive right . . . to perform the copyrighted work publicly by means of a digital audio transmission.”[15] However, the 1971 Act has an important limitation in that recordings made prior to February 15, 1972, do not qualify for federal copyright protection.[16] Congress left the issue of pre–1972 sound recordings to the states.[17]

The Turtles’ recordings were all fixed before that February date in 1972, leaving none eligible for copyright protection under federal law.[18] Thus, Flo & Eddie looked to state law.[19] In New York, the company argued that pre–1972 sound recording owners have rights and remedies under the common law, which covers pre–1972 sound recordings and prohibits reproducing and publicly performing the recordings.[20]

This past February, New York’s Second U.S. Circuit Court of Appeals accepted a December 20, 2016, ruling by the state Court of Appeals holding that New York common-law copyright does not protect public performance for creators of sound recordings made before 1972.[21] The issue came before the high court after the Second Circuit Court of Appeals certified the following question to the court: “Is there a right of public performance for creators of sound recordings under New York law and, if so, what is the nature and scope of that right?”[22] It was an issue of first impression for the Court of Appeals.[23] After an exhausting look at relevant case law, the court concluded that New York’s common law has not recognized a right of public performance for those who have created sound recordings prior to 1972. [24] The court noted that recognizing such a right would rattle societal expectations and carry with it extensive economic consequences as well as pervasive and widespread ramifications. [25] The issue would be more appropriately addressed by the legislature, the court added.[26] Judge Rivera dissented and came to the opposite conclusion. [27] She argued that the benefits of a right of public performance coupled with the creator’s desire to be compensated for his or her labor in making the recording pair well with society’s interest in protecting artists and their works from exploitation.[28] She also said that the right aligns well with increasing the public access to artists’ endeavors, the expectations of the music industry, and the fact that “Congress has placed a time limit on common-law protections for pre-1972 sound recordings while providing a limited right of public performance for all sound recordings made after February 15, 1972.”[29]

Sirius also won the Florida case in 2015, making its legal record 2-for-3.[30] Perhaps it is as the singer Meat Loaf would say: “Two out of three ain’t bad.”[31]


[1] See Ben Sisario, SiriusXM Agrees to Pay Up to $99 Million to Settle Turtles-Backed Copyright Suit, N.Y. Times (Nov. 29, 2016),

[2] The Turtles, So Happy Together (White Whale Records 1967).

[3] See Sisario, supra note 1.

[4] See Sisario, supra note 1.

[5] Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 62 F. Supp.3d 325, 335 (S.D.N.Y. 2014); see Sisario, supra note 1.

[6] See Sisario, supra note 1.

[7] Ben Sisario, SiriusXM Agrees to Pay Up to $99 Million to Settle Turtles-Backed Copyright Suit, N.Y. Times (Nov. 29, 2016),

[8] Sirius, 62 F. Supp.3d at 334.

[9] In California, Flo & Eddie alleged violations of Cal. Civ. Code § 980(a)(2) and California’s Unfair Competition Law, Cal. Bus. & Prof. Code § § 17200, et seq., conversion, and misappropriation. The court granted the company’s motion for summary judgment on all causes of action insofar as the claims are based on Sirius XM’s public performance conduct. See Flo & Eddie Inc. v. Sirius XM Radio Inc., No. CV 13-5693 PSG RZX, 2014 WL 4725382 at *12 (C.D. Cal. 2014). See also Jonathan Stempel, Siruis XM Wins Dismissal of Turtles Copyright Lawsuit in New York, Insurance Journal (Feb. 21, 2017),; Jonathan Stempel, Sirius May Settle Music Copyright Suit Brought by The Turtles for $100M, Insurance Journal (Nov. 20, 2016),

[10] See Sisario, supra note 1; Stempel, Sirius XM Wins Dismissal, supra note 9.

[11] See Sisario, supra note 1.

[12] Stempel, Siruis XM Wins Dismissal, supra note 9.

[13] Stempel, Siruis XM Wins Dismissal, supra note 9.

[14] 17 U.S.C. § 101; See Sirius, 62 F. Supp. at 335–36.

[15] 17 U.S.C. § 106; See Sirius, 62 F. Supp. at 336.

[16] 17 U.S.C. § 301(c); See Sirius, 62 F. Supp. at 336.

[17] See Sirius, 62 F. Supp.3d at 336.

[18] Id.

[19] Id.

[20] Id.

[21] See Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 28 N.Y.3d 583, 610 (2016); Stempel, Siruis XM Wins Dismissal, supra note 9.

[22] Sirius, 28 N.Y.3d at 589.

[23] Id. at 595.

[24] Id. at 594-603.

[25] Id. at 606.

[26] Id.

[27] Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 28 N.Y.3d 583, 617 (2016) (Rivera, J., dissenting).

[28] Id. at 620-21.

[29] Id.

[30] Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 13-23182-CIV, 2015 WL 3852692 at *1 (S.D. Fla. 2015).

[31] Meat Loaf, Two Out of Three Ain’t Bad (Epic Records 1977).


The Criminalization of HIV

By Barbara J. Roman, J.D. Class of 2018 Touro Law Review Associate Editor

From the start of the HIV epidemic, fear and ignorance about HIV’s modes and risks of transmission[1] have fueled a backlash against people living with HIV/AIDS.[2] This backlash is most evident in existing laws that punish those living with HIV for engaging in consensual sex or other activities that pose no risk of HIV transmission.[3] These laws penalize “alleged, perceived or potential HIV exposure; alleged nondisclosure of a known HIV-positive status before any sexual contact (including acts that do not risk HIV transmission); or non-intentional HIV transmission.”[4] In the 1980s and early 1990s, HIV/AIDS was a leading cause of death among adults in the U.S., with the mortality rate climbing every year from 1987 to 1994.[5] By the latter year, the disease had become the leading cause of death among adults 25-44 years of age.[6] In 1990, Congress passed the Ryan White Comprehensive AIDS Resources Emergency Act requiring each state to enact criminal laws to prosecute any HIV-infected individual who knowingly exposed another person to HIV.[7] The states obliged, but some forced HIV-positive people to disclose their status before every sex act and many made any possible exposure to HIV a felony.[8] By 2011, a total of sixty-seven laws explicitly focused on persons living with HIV had been enacted in thirty-three states.[9] There are, however, problems with these HIV laws.[10]

Many HIV laws are unjust and the penalties are wildly disproportionate to the offense.[11] Long jail terms are imposed for HIV convictions even when there is no real risk of transmission and no actual injury.[12] For example, in Iowa, Nick Rhoades plead guilty to a Class B felony after a one-time, consensual sexual encounter in which he wore a condom.[13] Mr. Rhodes received a sentence of twenty-five years and was required to register as a sex offender.[14] Other Class B felonies in Iowa include manslaughter, kidnapping, and robbery.[15] Engaging in sexual intercourse while having HIV or AIDS is a Class A felony in Arkansas and carries a sentence of six to thirty years.[16] In comparison, intentionally using a deadly weapon to cause serious injury to a family member is a Class B felony with a sentence of only five to twenty years.[17] A felony conviction and registration as a sex offender adds additional burdens to someone already dealing with the stresses of living with HIV.[18]

Advocates of the criminalization of HIV/AIDS argue that criminal laws deter HIV-positive individuals from risk taking behavior, as well as punish individuals who place others at risk of infection.[19] Unlike criminals of violent sexual assaults, most people who spread HIV do so through carelessness or ignorance, not malevolence.[20]   HIV laws create a culture of fear, and often discourage people from knowing their HIV status, seeking treatment, or disclosing their HIV status in appropriate circumstances, all of which are counterproductive in terms of curbing the transmission of HIV.[21] HIV experts from around the country have concluded that HIV criminalization statutes do nothing to curb the spread of the virus.[22] Instead, these laws “undermine the public health goals of promoting HIV screening and treatment” by scaring people away from learning their status. [23] Additionally, if a person thinks he or she may land in prison for sharing his or her status, he or she might be disinclined to share that information with potential partners.[24] Moreover, most HIV criminalization laws target people who spread HIV to a partner who consented to have sex in the first place.[25] While status disclosure is important, the burden should remain on the HIV-negative population to protect themselves from exposure.[26] By placing exclusive responsibility on the person living with HIV, these laws undermine the public health messages regarding shared responsibilities for safe sex.[27]

Many of these laws have not been updated since the early ’90s, and thus reflect a misunderstanding of the virus at the time.[28] Most states maintain laws based on outdated science[29] and have not assessed how their laws stand up to current evidence regarding HIV transmission risk.[30] The majority of HIV laws were passed before studies showed that antiretroviral therapy (ART) significantly reduced viral load.[31] Having a suppressed or undetectable viral load makes it very unlikely that an individual can transmit the HIV virus.[32]

Some laws criminalize spitting, biting, and “throwing of body fluids.”[33] An HIV positive homeless man in Dallas was sentenced to thirty-five years in prison for harassing a public servant with a deadly weapon: his saliva.[34] The Centers for Disease Control and Prevention categorizes the risk of transmission of HIV from spitting as negligible, and the exposure unlikely.[35]

The Civil Rights Division of the United States Department of Justice issued a best practices guide to help states reform their laws and ensure that their policies do not place unnecessary burdens on people who are living with HIV.[36] These best practices suggest that, among other things, criminal laws regarding HIV transmission and prevention be scientifically based, and that prosecutors and others in law enforcement have an accurate understanding of transmission risks.[37] In addition, Federal legislation has been introduced that would address discrimination in criminal laws against people with HIV.[38] The Repeal Existing Policies that Encourage and Allow Legal Discrimination Act (“REPEAL HIV”) was introduced in the House in March 2015.[39] The bill recommends that state attorney general’s work with public health officials to ensure that laws, regulations, and policies are all in line with the bill’s provisions regarding people living with HIV/AIDS.[40]

An important component to preventing the spread of HIV is to consider whether many of the HIV criminal laws run counter to our current understanding of best public health of scientific evidence about HIV transmission. States must also ensure that the laws do not undermine the public health goals of promoting HIV screening and treatment. While HIV-specific state criminal laws once were initially well-intentioned and necessary law enforcement tools, most are unjust or do not reflect the current state of the science of HIV. Laws that punish people for consensual behavior, or for behavior that pose no risk of HIV transmission, serve only to further stigmatize a community that is already marginalized while missing opportunities for prevention education.[41] States that choose to retain HIV-specific criminal laws should reform and modernize their laws so that they accurately reflect the current science of risk and modes of transmission and ensure they are the desired vehicle to achieve the states’ intended public health goals.

[1] See Lawrence K. Altman, AIDS Studies Hint Saliva May Transmit Infection, N.Y. Times, Oct. 9, 1984, at C1.

[2] Poll Indicates Majority Favor Quarantine for AIDS Victims, N.Y. Times, (last visited Feb. 5, 2017).

[3]See HIV Criminalization: A Challenge to Public Health and Ending AIDS, Scribd, (last visited Feb. 5, 2017).

[4] Id.

[5] Thirty Years of HIV/AIDS: Snapshots of an Epidemic, Amfar, (last visited Feb. 5, 2017).

[6] Lawrence K. Altman, AIDS Is Now the Leading Killer of Americans From 25 to 44, N.Y. Times, Jan. 31, 1995, at C2.

[7] Ryan White Comprehensive AIDS Resources Emergency Act of 1990 (Pub. L. 101-381; 104 Stat. 576).

[8] See, e.g., Cal. Health & Safety Code § 120600 (West 2014); LA. Rev. Stat. Ann. § 40:1062 (2014); Mont. Code Ann. § 50-18-112 (2013); N.Y. Pub. Health Law § 2307 (McKinney 2014); S.C. Code Ann. § 44-29-60 (2014); Tenn. Code. Ann. § 68-10-107 (2014); VT. Stat. Ann. tit. 18 § 1106 (2014); W. VA. Code § 16-4-20 (2014); see also Chart: State –by-State Criminal Laws Used to Prosecute People with HIV, The Ctr. for HIV Law and Pol’y, (2013),

[9] See J. Stan Lehman et al., Prevalence and public health implications of state laws that criminalize potential HIV exposure in the United States, AIDS Behav., Jun 2014, Vol. 18, 997.

[10] See Best Practices Guide to Reform HIV-Specific Laws to Align with Scientifically-Supported Factors, U.S. Dep’t. of Just., C.R. Div., (last visited Feb. 5, 2017).

[11] Infectious Diseases Society of America (IDSA) and HIV Medicine Association Position on the Criminalization of HIV, Sexually Transmitted Infections and Other Communicable Diseases, HIV Med. Ass’n (Mar. 2015),

[12] See, e.g., People v. Plunkett, 77 A.D.3d 1442, 1443, 907 N.Y.S.2d 919, 920 (2010), aff’d as modified, 19 N.Y.3d 400, 971 N.E.2d 363 (2012). An HIV-positive man was sentenced to 10 years in prison for aggravated assault after biting a police officer. His saliva was considered a dangerous instrument for the purposed of the “aggravated” portion of the charge; see, e.g., State v. Hinkhouse, 915 P.2d 489, 489 (1996). A man was convicted of ten counts of attempted murder and ten counts of attempted assault based on allegations that he engaged in unprotected sexual intercourse without disclosing his medical condition.

[13] Rhoades v. State, 840 N.2d 726 (Iowa Ct. App. 2013), vacated, 848 N.W.2d 22 (Iowa 2014) (plead to violating Criminal Transmission of Human Immunodeficiency Virus, Iowa Code § 709C.1(1994)).

[14] Id.

[15] Iowa Code Ann. § 709.3 (West 2013).

[16] Ark. Code Ann. §§ 5-14-123, 5-4-401, 5-4-201 (West 2010).

[17] Id.

[18] See US Dep’t. of Just., supra note 10; see, e.g., Saundra Young, Imprisoned Over HIV: One Man’s Story, CNN (Nov. 9, 2012, 8:42 PM),; Twenty states (Arizona, California, Florida, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New Hampshire, New Jersey, New York, North Dakota, Pennsylvania, South Carolina, Texas, Virginia, Washington, and Wisconsin) and the District of Columbia have enacted laws regarding the post-incarceration involuntary civil commitment of individuals convicted of certain sex offenses under certain circumstances, including HIV crimes. In addition, the Adam Walsh Child Protection Safety Act of 2006, 42 USC § 1691, et seq., authorizes the federal government to institute involuntary civil commitment proceedings for federal sex offenders under certain circumstances.

[19] See Winifred H. Holland, HIV/AIDS and The Criminal Law, 36 Crim. L.Q. 279 (1993-1994).

[20] Robert Klitzman & Ronald Bayer, Mortal Secrets: Truth and Lies in the Age of AIDS 197 (Johns Hopkins University Press 2003).

[21] Brad Barber & Browen Lichtenstein, Support for HIV Testing and HIV Criminalization Among Offenders Under Community Supervision, Res. in the Soc. of Health Care, 33 (2015),

[22] National HIV/AIDS Strategy for the United States, The White House (July 2010),

[23] Id.

[24] LGBT Policy Spotlight: HIV Criminalization Laws (2016), Movement Advancement Project,

[25] Lower your Sexual Risk for HIV,, (last visited Feb 5, 2017).

[26] Id.

[27] The White House, supra note 22, at 37.

[28] See US Dep’t. of Just., supra note 10.

[29]HIV-Specific Criminal Laws Ctrs. for Disease Control and Prevention, (last visited Feb. 5, 2017).

[30] See US Dep’t. of Just., supra note 10.

[31] HIV Transmission Risk: Estimated Per-Act Probability of Acquiring HIV from an Infected Source, by Exposure Act, Ctrs. for Disease Control and Prevention, (last visited Feb. 5, 2017).

[32] Id.

[33] See The White House supra note 22, at 36; Eleven states still have statutes that criminalize spitting, biting and throwing while HIV positive (Georgia, Indiana, Louisiana, Missouri, Mississippi, Nebraska, Ohio, Pennsylvania, South Carolina, South Dakota, Utah).

[34] Campbell v. State, No. 05-08-00736-CR, 2009 WL 2025344, at 1 (Tex. App. Jul. 14, 2009).

[35] HIV Transmission Risk: Estimated Per-Act Probability of Acquiring HIV from an Infected Source, by Exposure Act, Ctrs. for Disease Control and Prevention, (last visited Feb. 5, 2017).

[36] U.S. Dep’t. of Just., supra note 10.

[37] U.S. Dep’t. of Just., supra note 10.

[38] H.R. 1586, 114th Cong. REPEAL HIV Discrimination Act of 2015 (2015-2016).

[39] Id.

[40] Id.

[41] U.S. Dep’t. of Just., supra note 10.

Has a Recent Supreme Court, Appellate Division Decision Changed the Way New York Courts Will Treat Conservation Easements?

By Brian Troy, J.D. Class of 2018 Touro Law Review Junior Staff Member

On July 20, 2016, the Second Department of the Supreme Court, Appellate Division handed down a decision in favor of a landowner defending against a land trust that claimed the owner was in violation of a conservation easement that burdened his land.[1] This case, Orange Cnty. Land Tr., Inc. v. Tamara Amelia Farm, LLC, was brought to the Appellate Division by the plaintiff/appellant Orange County Land Trust, Inc. (“OCLT”).[2] The defendants/appellants were the previous owner, Tamira Amelia Farm, LLC, and the current owners, Vincenzo Oppedisano and Clemente Farm, LLC. (“Clemente”).[3]

A conservation easement is a restriction on the use of one’s property to maintain open space and to preserve the land’s natural properties and conditions.[4] The easement requires a voluntary agreement between a private landowner and not-for-profit conservative organization or public body.[5] Conservation easements will usually contain “permanent, perpetual restrictions on the use and development of the landowner’s property.”[6] These restrictions run with the land and are enforceable in perpetuity against any future landowners.[7] For these reasons, conservation easements usually reduce the value of the land to which they are attached.[8] There is a strong public policy favoring the creation and enforcement of conservation easements, as they are one of many tools New York uses to preserve the natural resources and scenic beauty of the state.[9]

The plaintiff alleged multiple violations of the conservation easement.[10] These violations included the building of a barn in a prohibited area, the construction of an access road to the barn, and failure to obtain approval for building the barn.[11] The barn and access road were built in what the easement referred to as the “farm area” of the property.[12] OCLT claimed that improvements such as the barn and road were not permitted in this area.[13] Construction projects and improvements were restricted to the 29-acre “farmstead complex,” while the 50-acre farm area was to be used for agricultural purposes.[14]

When interpreting the easement, the court looked to its language to try and determine the intent of the parties.[15] The stated purpose of the conservation easement was “to conserve productive agricultural and forestry lands and natural resources associated with the Property for the benefit of the public and for future generations, and also to conserve the scenic character of the Property for the benefit of the public and for future generations.”[16] The court stated that this purpose applied both to the farm area and the farmstead complex.[17] The court reasoned that because the easement had an agricultural element in its stated purpose, the building of a barn in the farm area was consistent with its purpose.[18]

It is standard for a land trust to include terms in a conservation easement requiring the landowner to receive permission before any construction or improvements take place on the burdened property.[19] Although Clemente clearly violated the easement by neglecting to ask OCTL for permission to construct the barn and access road, the court decided that OCTL waived any redress for this violation when it agreed to consider applications retroactively.[20] The court dismissed OCLT’s retroactive withholding of permission as unreasonable “under the terms of the easement and the circumstances.”[21] The New York Court of Appeals denied review of Orange Cnty. Land Tr.[22]

This case presented several issues that New York courts have yet to address regarding conservation easements.[23] A further examination of the issue of whether OCLT unreasonably withheld consent would have been both beneficial to this case, and future cases that encounter standard of consent issues.[24] The defendants had expressed confusion and difficulties regarding the process for applying to OCLT for the permissions in the first place, and it is unclear what the standards for withholding consent are in these situations.[25] The court did not discuss this, and doing so would have provided clarity on an issue that has not been discussed in New York.[26]

The court also had an opportunity to examine how restrictive covenants will be treated in New York when they are part of a conservation easement.[27] Public policy against restrictions on the free use of land requires a strict construction of restrictive covenants, and all ambiguities should be construed against the party creating the restrictions.[28] The presence of these covenants in conservation easements, however, introduces the competing public policy of enforcing conservation easements, which would promote construction of the terms in favor of the restriction.[29] The easement in Orange Cnty. Land Tr., contained a provision stating that all terms should be construed in favor of the holder, which raises questions as to the validity of such provisions depending on which public policy the courts find more compelling.[30] The court did not discuss this provision in their decision.[31]

This decision has attracted the attention of land use attorneys in New York, forcing them to wonder how strictly conservation easements will be enforced in the future.[32] The decision may undermine the enforcement of a widely used tool for conserving New York’s natural and agricultural resources.[33]

[1] Orange Cnty. Land Tr., Inc. v. Tamara Amelia Farm, LLC, 34 N.Y.S.3d 618 (N.Y. App. Div. 2016), appeal denied, No. 2016-1178 (N.Y. Feb. 14, 2017).

[2] Id.

[3] Id.

[4] “Conservation easement” means an easement, covenant, restriction or other interest in real property, created under and subject to the provisions of this title which limits or restricts development, management or use of such real property for the purpose of preserving or maintaining the scenic, open, historic, archaeological, architectural, or natural condition, character, significance or amenities of the real property. . . .

N.Y. Envtl. Conserv. Law § 49-0303 (McKinney 2016).

[5] Id.

[6] Jessica E. Jay, Land Trust Risk Management of Legal Defense and Enforcement of Conservation Easements: Potential Solutions, 6 Envtl.L. 441, 451 (2000).

[7] Id. at 452.

[8] Id. at 453. “Giving away rights, such as the right to develop, reduces the value of a landowner’s property.” Id.

[9] “The policy of the state shall be to conserve and protect its natural resources and scenic beauty and encourage the development and improvement of its agricultural lands for the production of food and other agricultural products.” N.Y. Const. art. XIV, § 4.

[10] Orange Cnty. Land Tr., Inc., 34 N.Y.S.3d at 618.

[11] Id. at 620.

[12] Id.

[13] Id.

[14] Jessica Owley, Interpreting Conservation Easements in New York, Land Use Prof Blog (Aug. 15, 2016),

[15] Orange Cnty. Land Tr., Inc., 34 N.Y.S.3d at 620.

[16] Id.

[17] Id.

[18] Id. “Contrary to the plaintiff’s contention, construction of the barn did not violate the easement, because such construction was consistent with the easement’s agricultural purpose and its particular requirements. . . .” Id.

[19] See Sample Conservation Easement 1, Schoharie Land Trust, (last visited Mar. 11, 2016).

[20] Orange Cnty. Land Tr., 34 N.Y.S.3d at 618.

[21] Id.

[22] Orange Cnty. Land Tr., Inc. v. Tamara Amelia Farm, LLC, No. 2016-1178, 2017 WL 581856 (N.Y. Feb. 14, 2017).

[23] See Owley, supra note 14.

[24] Id.

[25] Owley, supra note 14.

[26] Id.

[27] See Orange Cnty. Land Tr., 34 N.Y.S.3d at 618.

[28] See Wetlands Am. Tr., Inc. v. White Cloud Nine Ventures, L.P., 782 S.E.2d 131, 165-66 (Va. 2016). The decision, in this case, includes an interesting discussion on this topic. The majority held in favor of applying strict construction to an ambiguity in a conservation easement, while a dissenting opinion argued for abolishing strict construction when conservation easements are involved. Id.

[29] Id. (Roush, J., dissenting).

[30] See Owley, supra note 14.

[31] See Orange Cnty. Land Tr., 34 N.Y.S.3d at 618.

[32] See Owley, supra note 14.

[33] See Land Trust Alliance: New York Program, Land Trust Alliance, (last visited Feb. 21, 2017).

Is Relief Coming for the Rapid Increase in Drug Prices?

By Brian Passarelle, J.D. Class of 2018 Touro Law Review Junior Staff Member

Opioid use has exploded throughout America. This increase has also increased the use of the lifesaving drugs that work to counter the effects of opioid use. Sadly, as simple economics suggest, when demand goes up, prices go up with it, even when the product is a lifesaving treatment.[1] Pharmaceutical companies will continue to reap unwarranted benefits from this epidemic due to the relaxed drug pricing laws.[2] For instance, Kaleo, a pharmaceutical company in Virginia, that produces a medicine called Evzio, has increased the cost from $690.00 for a twin-pack to an astonishing price tag of $4,500.[3] Evzio is used to deliver naloxone, a life-saving antidote for overdoses related to opioids. [4]

Naloxone, which has been on the market since 1971, is the latest drug to have a big new price tag.[5] Senator Bernie Sanders, an adamant oppositionist to big pharma stated that, “the greed of the pharmaceutical industry is killing America.”[6] Also, President Trump has made it clear that he thinks drug prices are too high and that the pharmaceutical industry, as he put it at a news conference this month, is “getting away with murder.” [7] Indeed, experts say Evzio’s price surge is way out of step with production costs, and a needless drain on health-care resources.[8]

American drug-pricing is set up in a way that makes it relatively easy for companies to charge what they want.[9] America has continually taken a free market approach to pharmaceuticals.[10] Drug companies dicker separately over drug prices with a variety of private insurers across the country.[11] Meanwhile, Medicare, the government health program for those over sixty-five, which is also the nation’s largest buyer of drugs, is barred from negotiating drug prices.[12]

This approach is drastically different in many other countries. In England, for example, the government has an agency that negotiates directly with drug makers.[13] The government sets a maximum price that it will pay for a drug, and if companies don’t agree, “they simply lose out on the entire market.”[14] This puts drug makers at a disadvantage, driving down the price of drugs.[15] This enigma has been addressed by President Trump, as he wants to force drug makers to bid for the right to sell their products to Medicare beneficiaries.[16] However, this has repeatedly failed to attract enough support in Congress, especially among his fellow Republicans.[17]

Many states have taken it upon themselves to deter these radical price increases. In New York, lawmakers are trying to combat these staggering prices through drug price transparency legislation.[18] Senate Bill S5338A, currently in committee, enacts the pharmaceutical cost transparency act requiring prescription drug manufacturers to file a report disclosing certain financial information pertaining to prescription drugs which have a wholesale acquisition cost of $10,000 or more annually or per course of treatment.[19] Pharmaceuticals will be required to report the cost of clinical trials, research, and development, marketing, acquisitions or licensing, manufacturing, advertising to consumers and physicians, and patient assistance programs.[20] The impetus behind such efforts is the idea that the price of a drug should reflect not only an assessment of its clinical benefit — represented by its cost-effectiveness or economic value — but also the effort and resources expended in its creation.[21]

Proponents of the bill argue that customers have a right to know how a drug’s current price relates to these factors and that this information will assist policymakers in determining when a price is reasonable.[22] Additionally, it is suggested that these laws will encourage manufacturers to invest more heavily in research, whereas reviews have found that only about fifteen percent of pharmaceutical company revenues are currently invested in research and development, which is substantially less than is spent on marketing. [23]

Though these transparency laws have the potential to provide some additional information for state policymakers in a relatively secret industry, there is speculation that it will have no real impact on cost.[24] Some suggest that the drug companies will avoid explaining price spikes by raising prices below the thresholds stipulated ($10,000 in New York).[25] This is a step in the right direction but pharmaceutical company resistance and political realities may deter the ability to use drug pricing law’s to lower drug prices.[26] It shall be interesting to see if President Trump is able to muster up a movement in Congress to combat the prices.

[1] As Price Goes Up, So Does Demand, The Economist (July 18, 2007),

[2] See Julia Belluz, A Drug Company Hiked the Price of a Lifesaving Opioid Overdose Antidote by 500 Percent, Vox, (last visited Feb. 3, 2017).

[3] Id.

[4] Id.

[5] Sarah Karlin-Smith, Price Spikes of Life-Saving Drug, Politico (May 16, 2016),

[6] Id.

[7] Katie Thomas, The Fight Trump Faces Over Drug Prices, New York Times (Jan. 23, 2017),

[8] Shefali Luthra, Massive Price Hike for Life-Saving Opioid Overdose Antidote, Scientific American (Feb. 2, 2017),

[9] Belluz, supra note 2.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Belluz, supra note 2.

[15] Id.

[16] Thomas, supra note 7.

[17] Id.

[18] See Ameet Sarpatwari et. al., State Initiatives to Control Medication Costs — Can Transparency Legislation Help?, The New England Journal of Medicine (June 16, 2016) ,

[19] S. 5338A, 2015-2016 Reg. Sess. (2015).

[20] Id.

[21] Sarpatwari et. al., supra note 18.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Sarpatwari et. al., supra note 18.

Does Constitutional Protection Stretch Over the Border?

By Kellie Mahoney, J.D. Class of 2018 Touro Law Review Junior Staff Member

On June 7, 2010, Sergio Adrian Hernandez Guereca, a fifteen-year-old Mexican boy, was playing with a group of his friends on the Mexican side of a cement culvert near the Paso del Norte Bridge, which separates Mexico from El Paso, Texas.[1] The boys were playing a common game that was known to both Mexican children and Border Patrol Agents alike, in which the boys would run up to the incline of the culvert, touch the barbed-wire fence separating the two countries, and then run back down the incline.[2] United States Border Patrol Agent Mesa approached the group and detained one of Hernandez’s friends.[3] While the agent was still standing in the United States, he fired at least two shots at Hernandez who had retreated from the scene but remained in Mexico.[4] One of those shots struck Hernandez in the face and killed him.[5] Six months after the boy’s death, his parents filed suit in the United States District Court for the Western District of Texas, alleging that Agent Mesa violated the Fourth and Fifth Amendments of the United States Constitution through the use of deadly force and the failure to use reasonable force when making arrests.[6] Mesa moved to dismiss, claiming that Hernandez lacked constitutional protection because of his alien status and the fact that he was physically in Mexico when he was killed.[7] The district court granted Mesa’s motion and Hernandez’s parents filed an appeal.[8]

The United States Court of Appeals for the Fifth Circuit held that Agent Mesa’s arguments against Hernandez’s Fourth Amendment claims were no longer supported by the Supreme Court.[9] In Boumediene v. Bush,[10] the Supreme Court addressed the standards used in applying Fourth Amendment constitutional principles abroad.[11] In this case, the Court precluded the use of a categorical test such as the one Agent Mesa proffered.[12] Thus, the Fifth Circuit held that

Boumediene and the cases cited therein indicate that [its] inquiry involves the selection application of constitutional limitations abroad, requiring [the court] to balance the potential of such application against countervailing government interests. In other words, [the court’s] inquiry is not whether a constitutional principle can be applied abroad; it is whether it should.[13]

Using this malleable standard, the Fifth Circuit ultimately decided that three “objective factors and practical concerns” were relevant: “(1) the citizenship and status of the claimant, (2) the nature of the location where the constitutional violation occurred, and (3) the practical obstacles inherent in enforcing the claimed right.”[14] Using these factors and concerns, the Fifth Circuit found that Hernandez “lacked sufficient voluntary connections with the United States to invoke the Fourth Amendment.”[15] The Court then discussed Hernandez’s Fifth Amendment claim.

Hernandez’s Fifth Amendment claim stated that Agent Mesa showed a callous disregard for Hernandez’s rights by using excessive deadly force when he was unarmed and presented no threat.[16] After discussing the more flexible standards of the Fifth Amendment’s application extraterritorially, the Fifth Circuit held that “a noncitizen injured outside the United States as a result of arbitrary official conduct by a law enforcement officer located in the United States may invoke the protections provided by the Fifth Amendment.”[17]

Hernandez filed a petition for writ to the Supreme Court on July 23, 2015.[18] The issues presented to the Court are (1) whether a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States; (2) whether qualified immunity may be granted or denied based on facts unknown to the officer at the time of the incident; and (3) whether the claim, in this case, may be asserted under Bivens v. Six Unknown Federal Narcotics Agents.[19] Oral argument is set to start on February 21, 2017.[20] A final holding by the Supreme Court could give a definitive answer as to whether those who are injured or killed in Mexico by United States Border Patrol agents have standing to sue in the United States.[21] Since 2010, there have been six cases similar to the Hernandez case.[22] Proponents of the families of the victims argue that international law, national law, and basic human rights simply cannot allow for an agent to shoot and kill someone without recourse.[23] Groups on the other side, such as the National Border Patrol Council, are concerned that such recourse would cause agents fear when acting against an aggressor in Mexico.[24] As such, if the Supreme Court definitively grants non-citizens the right to sue U.S. Border Patrol agents, the interactions between those agents and the people of Mexico, and citizens of other countries, will be drastically changed.

[1] Hernandez v. U.S., 757 F.3d 249, 255 (5th Cir. 2014).

[2] Id.

[3] Brittany Davidson, Shoot First, Ask Later: Constitutional Rights at the Border after Boumediene, 64 Am. U. L. Rev. 1547, 1548 (2014-2015).

[4] Hernandez, 757 F.3d at 255.

[5] Id.

[6] Id. The Fourth Amendment states

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. The Fifth Amendment states

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger, nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken without just compensation.

U.S. Const. amend. V.

[7] Id.

[8] Hernandez, 757 F.3d at 255-56.

[9] Id. at 260.

[10] Boumediene v. Bush, 553 U.S. 723 (2008).

[11] Id. at 766-67.

[12] Id. at 764.

[13] Hernandez, 757 F.3d at 262.

[14] Id.

[15] Id. at 266.

[16] Id. at 267.

[17] Hernandez, 757 F.3d at 272. The Fifth Circuit differentiates the Fourth Amendment analysis from the Fifth Amendment analysis, concluding that Hernandez’s claim “is not constrained by prior precedent on extraterritoriality, unlike [his] claim under the Fourth Amendment.” Id. at 268. It goes on to discuss the Fifth Amendments application to “any person,” rather than “the people” protected by the Fourth Amendment. Id. The Court also recognizes that the practical concerns that counseled against Fourth Amendment protection, do not carry the same weight as to the Fifth Amendment context (such as the need for surveillance, varying degrees of reasonableness, etc.). Id. at 270.

[18] Hernandez v. Mesa, 785 F.3d 117 (5th Cir. 2015), cert. granted, 137 S.Ct. 291 (U.S. Oct. 11, 2016) (No. 15-118).

[19] Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). “Under Bivens a person may sue a federal agent for money damages when the federal agent has allegedly violated that person’s constitutional rights.” Hernandez, 757 F.3d at 272. This is not, however, an automatic entitlement. Id. The Court must first ask “whether any alternative, existing process for protecting the constitutionally recognized interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.” Id. (quoting Minneci v. Pollard, __ U.S. __, 132 S.Ct. 617, 621, 181 L.Ed.2d 606 (2012)). If, as in the Hernandez family’s case, there is no other alternative, the Court will move to the second step which requires the Court to “exercise [its] judgment in determining whether ‘any special factors counsel hesitation.’” Id. at 274-75. Here, the Fifth Circuit found no such factors. Id. at 277.

[20] Hernandez v. Mesa, 785 F.3d 117 (5th Cir. 2015), cert. granted, 137 S.Ct. 291 (U.S. Oct. 11, 2016) (No. 15-118).

[21] Rob, O’Dell, Supreme Court to hear Border Patrol Cross-Border Killing Case, The Arizona Republic, Oct. 11, 2016,

[22] Id.

[23] Id.

[24] Id.

Brown v. Buhman: Bigamy Law Uncertainty

By Katie Coggins, J.D. Class of 2018 Touro Law Review  Junior Staff Member

The Browns are a polygamist family living in Las Vegas, Nevada who star in the TLC television series, “Sister Wives.”[1] Polygamy is a tenet of the Browns’ Apostolic United Brethren Church faith.[2] Kody Brown is legally married to his wife, Meri Brown, and “spiritually married” to his three other wives, Janelle Brown, Christine Brown, and Robyn Sullivan.[3] When the Browns’ TLC series began in 2010 the family resided in Lehi, Utah.[4] After the airing of the first episode, the Lehi police opened an investigation against the family because of their openly polygamist relationship.[5] Subsequently, the Utah County Attorney’s Office opened a case file on the Browns.[6] Out of fear of criminal prosecution, the Browns moved their family to Nevada.[7]

In Utah, polygamy may constitute a felony under the state’s bigamy statute.[8] The Utah bigamy statute reads: “A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.” [9] Although polygamy and bigamy are similar, their definitions differ slightly. Bigamy is “the act of entering into a marriage with one person while still legally married to another.”[10] Polygamy is “marriage in which a spouse of either sex may have more than one mate at the same time.”[11] Hence, it is possible to simply be a polygamist and still violate the bigamy statute because the statute only requires a married person to cohabit with another non-spouse. The statute does not require a person to actually be legally married to multiple people to violate the statute.

Although bigamy is also illegal in Nevada (in addition to all fifty states), the Nevada bigamy statute does not have the same cohabitation prong.[12] Therefore, one reason the Browns moved to Nevada is probably because they would most likely not be prosecuted for religious cohabitation by Nevada.[13] However, the Browns’ move to Nevada did not affect Utah’s ability to prosecute the Browns as the statute of limitations for felonies in Utah is four years.[14]

The Browns brought suit against the Governor of the State of Utah, the Attorney General of the State of Utah and the Utah County Attorney, claiming that the Utah bigamy statute violated their First and Fourteenth Amendment rights.[15] The district court dismissed the case against the Governor and the Attorney General, concluding that the Browns did not have standing to bring an action against them.[16] The court held that the Browns lacked standing against the Governor and Attorney General because neither the Governor nor the Attorney General did anything to threaten the Browns with prosecution.[17] The court noted that the State of Utah actually had a policy to not prosecute for bigamy unless other crimes were also committed.[18] Furthermore, the Attorney General assured the Browns that they would not be prosecuted for participating in the Sister Wives series.[19]

However, the court held that the Browns did have standing against the Utah County Attorney’s Office.[20] The court concluded that the actions of the Lehi City Police Department and Utah County prosecutors directly targeted the Browns’ bigamous conduct.[21] Furthermore, the court noted that the Utah County Attorney’s Office did not have a policy, like the Attorney General’s policy, to not prosecute bigamy absent other crimes.[22] Therefore, the court held that the Browns faced a credible threat of prosecution by the Utah County Attorney’s Office.[23]

Soon after the district court’s ruling, the Utah County Attorney’s Office adopted a policy “under which the Utah County Attorney will bring bigamy prosecutions only against those who (1) induce a partner to marry through misrepresentation or (2) are suspected of committing a collateral crime such as fraud or abuse.”[24] In addition, the Attorney General stated that it was always the policy of the Attorney General’s Office to only initiate prosecutions under the bigamy statute against persons suspected of another crime, such as abuse, domestic violence, or welfare fraud.[25] Furthermore, the Attorney General stated that it was not the intent of the Attorney General’s Office to prosecute the Browns unless they were suspected of another crime.[26]

The district court reasoned that this was the Attorney General’s attempt to avoid review of the statute.[27] The court held that the cohabitation prong of the statute was unconstitutional because it had a “targeted effect on specifically religious cohabitation” and failed strict scrutiny under the Free Exercise Clause. [28] Furthermore, the district court held that the state had “no rational basis under the Due Process Clause on which to prohibit the type of religious cohabitation at issue.”[29]

On appeal, the Tenth Circuit held that the Utah County Attorney policy rendered the Browns’ case moot because the Browns were neither induced to marry through misrepresentation nor suspected of committing a collateral crime.[30] The Tenth Circuit held that district court should never have proceeded on the merits of the case.[31] On January 23, 2017, the Browns’ petition for writ of certiorari was denied.[32] Now, it seems as if polygamists’ religious rights are up in the air.

Polygamist religious freedom has been an issue in the United States, especially Utah, since the mid-nineteenth century.[33] In fact, a condition on Utah entering the union was that polygamist marriages were to be banned forever.[34] This is largely due to the idea that polygamy was associated with African, Middle Eastern, and Asian cultures, which many Americans perceived to be inferior to European culture.[35] Furthermore, many believed that bigamy would degrade the Christian morals of the country, and introduce “barbarism” into white American society.[36]

Today, sexual abuse and incest are the primary concerns with polygamy.[37] On February 1, 2017, members of Utah’s House Judiciary Committee met to debate a bill that will amend Utah’s bigamy statute.[38] The bill amends Utah’s bigamy statute to read: “A person is guilty of bigamy when, knowing the person has a husband or wife or knowing the other person has a husband or wife, the person purports to marry and cohabitates with the other person.”[39] The proposed law seems to eliminate the issue of polygamists being prosecuted for religious cohabitation alone because a person must purport to marry and cohabitate with another person to violate the law, not simply cohabitate with another person.[40]

However, not all polygamists are happy with the proposed law. Members of different polygamist sects in Utah testified at the House Judiciary Committee meeting to express their views on the new bill.[41] Many proponents of the bill are in favor of the proposed law’s crackdown on sexual abuse.[42] The proposed law has harsher penalties for those who are convicted of bigamy in conjunction with sexual abuse.[43] Those who are in favor of the bill say that polygamist relationships hurt women and children.[44] Some who have left polygamist communities have said that polygamist communities “can be rife with welfare fraud and child abuse, sexual abuse and forced labor.”[45] One proponent of the new bill testified that as a polygamist, she was forced to marry her first cousin, who was also her nephew when she was only fifteen years old.[46] Others opposed to the bill testified that they were always members of polygamist families and had never experienced abuse.[47] Opponents argue that the new bill is still discriminatory, and not all polygamists should be lumped in with certain abusive sects.[48]

It will be interesting to see how this new law works out if it is passed. Although the “Sister Wives” have brought polygamy into the main stream, many still fear the existence of abuse within the polygamist community. Hopefully, Utah can find a way to crack down on abuse without attacking the sincerely held religious beliefs of the polygamist community.

[1] Brown v. Buhman, 822 F.3d 1151, 1155 (10th Cir. 2016).

[2] Id. at 1156.

[3] Id.

[4] Id. at 1156.

[5] Id.

[6] Buhman822 F.3d at 1156.

[7] Id.

[8] Utah Code Ann. § 76-7-101 (West, Westlaw through 2016 Fourth Special Session).

[9] Id.

[10] Definition of Bigamy, Meriam-Webster, (last visited Feb. 3, 2016).

[11] Definition of Polygamy, Meriam-Webster, (last visited Feb. 3, 2016).

[12] Kaitlin R. McGinnis, Sister Wives: A New Beginning for United States Polygamist Families on the Ever of Polygamy Prosecution?, 19 Vill. Sports & Ent. L.J. 249, 258 (2012); Nev. Rev. Stat. Ann. § 201.160 (West, Westlaw through 2015 Regular Session and 2016 Special Session).

[13] McGinnis, supra, note 12.

[14] McGinnis, supra, note 12; Utah Code Ann. § 76-1-302 (West, Westlaw through 2016 Fourth Special Session).

[15]  Buhman, 822 F.3d at 1155.

[16] Brown v. Herbert, 850 F. Supp. 2d 1240, 1244 (D. Utah 2012).

[17] Id. at 1249.

[18] Id. at 1249.

[19] Id. at 1249.

[20] Id.

[21] Herbert, 850 F. Supp. 2d at 1250.

[22] Id. at 1251.

[23] Id. at 1252.

[24] Buhman, 822 F.3d at 1155.

[25] Id. at 1157.

[26] Id. at 1157.

[27] 822 F.3d at 1159.

[28] Brown v. Buhman, 947 F. Supp. 2d 1170, 1190 (D. Utah 2013), vacated, 822 F.3d 1151 (10th Cir. 2016).

[29] Id.

[30]  Buhman, 822 F.3d at 1155.

[31] Id.

[32]  Buhman, 822 F.3d 1151, cert. denied, 2017 WL 276182 (U.S. Jan. 23, 2017) (No. 16-333).

[33] Buhman, 947 F. Supp. 2d at 1183 (D. Utah 2013), vacated, 822 F.3d 1151 (10th Cir. 2016).

[34] Id. at 1183.

[35] Id. at 1183.

[36] Id. at 1187-88.

[37] McGinnis, supra, note 12.

[38] Nate Carlisle, Hearing on Utah Polygamy Bill Focuses on Sex Crimes, Other Offenses, Salt Lake Trib. (Feb. 1, 2017 8:42 PM),

[39] H.B. 281, 61st Leg., Gen. Sess., (Utah 2016).

[40] Associated Press, Polygamous Families Protest Bigamy Law at Utah Capitol, Times Trib. (Feb. 11 2017)

[41] Carlisle, supra, note 38.

[42] Carlisle, supra, note 38.

[43] Associated Press, supra, note 40.

[44] Associated Press, supra, note 40.

[45] Associated Press, supra, note 40.

[46] Carlisle, supra, note 38.

[47] Carlisle, supra, note 38.

[48] Carlisle, supra, note 38.

Guardian ad Litem Appointed to Determine the Date of Death of Kathleen McCormack Durst, an Absentee

By Shira Bloom, J.D. Class of 2018 Touro Law Review  Junior Staff Member

The Surrogates Court Procedure Act provides that a Guardian ad Litem may be appointed by the Court to represent an infant, person with a disability, or an absentee.[1] A petition may be filed with a court of competent jurisdiction to appoint a named Guardian ad Litem or the Court may choose to appoint a Guardian to assist in protecting the legal rights of the ward from the Part 36 list.[2] The Guardian ad Litem must be an attorney admitted to practice law in the State of New York.[3] She must file a consent to act and a statement relaying that she has no interest or conflict adverse to her ward.[4] She must file an appearance and diligently take all steps deemed necessary to protect the interest of her ward, file a report of her activities, and make a recommendation to the court.[5] She must always review that file, ascertain that service of process on her ward was proper, and that the court has jurisdiction. The Guardian ad Litem must report to the court what she believes to be in the ward’s best interests, regardless of whether it coincides with the wishes of the ward.[6]

Kathie McCormack Durst married real estate heir, Robert Durst in what appeared to be a happily-ever-after tale.[7] Kathie was close to completing medical school at the Yeshiva University Albert Einstein College of Medicine when she mysteriously vanished on January 31, 1982, and has not been seen or heard from since that date.[8] Kathie’s body was never recovered and no official crime scene exists.[9] Now, thirty-five years later, Kathie’s family members have petitioned the Surrogate’s Court of New York County to declare Kathie dead as of January 31, 1982, as they believe Robert Durst may have had some involvement in her disappearance.[10] Kathie’s is currently declared an absentee, under a previous order of the New York Surrogate’s Court, but family and friends believe that Robert and Kathie engaged in a heated argument on the night of January 31, 1982, which led to Robert killing Kathie.[11]

As Kathie is an absentee, the court will await recommendation from the Guardian ad Litem, Charles Captenakis, who was appointed by the court in September 2016.[12] Once the Guardian Ad Litem’s recommendation is offered, the court will make a determination as to when Kathie should be declared dead and the appropriate date of death pursuant to Estate, Powers and Trusts Law (hereinafter “EPTL”) § 2-1.7.[13]

Robert is currently seventy-three years old and worth $100 million.[14] He was recently extradited to California, from New Orleans, where he was charged with weapons possession, where he is being charged with the murder of long-time friend, and alleged confidante, Susan Berman.[15] He allegedly killed Berman to prevent her from revealing information to the authorities relating to Robert’s role in Kathie’s disappearance.[16]

This is not Robert’s first interaction with the law; he was acquitted of murder in Galveston, Texas, despite admitting to killing and dismembering his neighbor, Morris Black.[17] Durst argued that it was done in self-defense.[18] The Jinx, a series produced by HBO, was released where Robert Durst admits to “killing them all,” in reference to Kathie and his other two victims.[19]

Where a petition has been made to the court to make a declaration of death, the EPTL § 2-1.7 governs the action. An absentee may be declared dead if for a period of three years or longer, she “has not been seen or heard from and her absence is not satisfactorily explained.” Should this be the case, the absentee will be declared “to have died three years after the date she went missing, or on an earlier date if such a date can be established through clear and convincing evidence as the most probable date of death”.[20] The EPTL also provides that if it can be proven that the absentee was exposed to a specific peril of death at the time of the disappearance, it may be a sufficient basis to establish that she died “less than three years after her absence commenced.”[21]

We now await the Guardian ad Litem’s recommendation to the court, and the courts determination of whether January 31, 1982, will be the day Kathie is declared dead. The decision by the court will determine whether a future action may be brought by Kathie’s family on her behalf, such as other civil litigation and the administration of Kathie’s estate. The recognition of January 31, 1982, as the date of death will help to bring justice and closure to Kathie’s family who has been without legal closure for thirty-five years.

[1] N.Y. Surr. Ct. Proc. Act § 403 (McKinney 1995).

[2] N.Y. Surr. Ct. Proc. Act § 403 (McKinney 1995).

[3] N.Y. Surr. Ct. Proc. Act § 404(1) (McKinney 1968).

[4] N.Y. Surr. Ct. Proc. Act § 404(2) (McKinney 1968).

[5] N.Y. Surr. Ct. Proc. Act § 404(3) (McKinney 1968).

[6] Matter of Aho, 39 N.Y.2d 241 (1976).

[7] Memorandum for Petitioner, In Re the Application of Ann C. McCormack, by her Special Guardian and Attorney-in-Fact Carol Bamonte, concerning the Estate of Kathleen Durst (2015) No. 1982-5053/D.

[8] Complaint at 2-4, McCormack v. Durst, No. 1982-5053/D.

[9] Id.

[10] Id.

[11] Id.

[12] Order Appointing the Guardian Ad Litem, No. 1982-5053/D.

[13] N.Y. Est. Powers & Trusts Law § 2-1.7 (McKinney 2000).

[14] Complaint at 2-4, McCormack v. Durst, No. 1982-5053/D.

[15] Charles V. Bagli, Family Of Robert Durst’s First Wife Ask Court To Declare Her Dead, The New York Times (July 14, 2016),

[16] Complaint, supra, note 14.

[17] Complaint, supra, note 14.

[18] Complaint, supra, note 14.

[19] Complaint, supra, note 14.

[20] N.Y. Est. Powers & Trust Law § 2-1.7(a) (McKinney 1996).

[21] N.Y. Est. Powers & Trust Law § 2-1.7(b) (McKinney 1996).

Regulating Transient Rentals

By Stephen Weinstein, J.D. Class of 2018 Touro Law Review  Junior Staff Member

Airbnb; HomeAway; VRBO; Flipkey. The explosion of the sharing economy has led to the creation and massive boom of the short-term residential rental market, also known as transient rentals. Hotels, once regarded as the main lodging for transient guests, are currently losing revenue and market share to transient rental hosting companies.[1] Even though some municipalities have laws in place regulating transient rentals prior to the transient rental market’s recent growth, enforcement of these existing laws have been a major issue.[2] The municipalities that did not have laws in place beforehand are trying to catch up to the rapid expansion of transient rentals in order to ensure enforceable regulations are in place.

A transient rental is defined differently based on the governing jurisdiction.[3] However, generally, transient rentals are defined as a third-party rental of a residential dwelling for a duration of fewer than 30 days.[4] These dwellings may be owner or non-owner occupied.

Local governments may take a variety of approaches to regulate transient rentals. Ideally, local governments base their governing legislation on the needs of their local community members when deciding to regulate the duration, manner, location, and participants of transient rentals in addition to considering the impact it will have on the community as a whole.[5] Some local governments place additional limitations on transient hosts, such as how many times the host may rent his property in a given period,[6] number of units offered in a particular building type,[7] and maximum occupancy,[8] among other limitations.[9] A survey of the current law in several major United States cities portray three main approaches to transient rental regulations with distinct differences among the various jurisdictions.[10] The first approach encompasses local governments that have no laws governing transient rentals, so it is inferred that transient rentals are allowed to operate.[11] Alternatively, if governments have transient rental laws in place, but there are not adequately enforced, transient rentals are able to operate.[12] The second approach encompasses legislation prohibiting non-owner occupied residential transient rentals altogether.[13] The final approach encompasses local governments that explicitly allow transient rentals, typically under 30 days, subject to certain requirements and taxation.[14]

Residential transient rentals are developing into an important economic and hospitality market in the United States, as well as globally. As with any change, fear of the unknown may take over and prevent people from accepting positive forward moving growth. New and amended laws surrounding transient rentals are coming into effect rapidly in an attempt to keep up with the growing marketplace.[15] When a local government is considering enacting a transient rental law, the local government, among other factors, should consider the big picture of how the law will affect its residents, the character of the community, and the revenue opportunity for small businesses and hosts.[16] These local governments should strongly consider enacting a set of laws allowing transient rentals, subject to specified conditions that advance the goals of each unique munici

[1] Biz Carson, Once Someone Tries Airbnb, They’re Less Likely to Prefer a Hotel, says report, Bus. Insider (Feb. 16, 2016),

[2] Research Dep’t and Internet Bureau, Office of the Attorney Gen. of the State of N.Y., Airbnb in the City 2, 8-9 (2014), [hereinafter Airbnb Report].

[3] See, e.g., Miami Beach, Fl., Mun. Code § 142-1111(a) (2016), (defining transient rentals as less than 6 months and 1 day); N.Y. Mult. Dwell. Law § 4.8(a) (McKinney 2016) (defining transient rentals as less than 30 days).

[4] N.Y. Mult. Dwell. Law § 4.8(a) (McKinney 2016).

[5] See generally Morgan A. Stewart, Short-Term Rentals: Navigating the New Economic Marketplace, Multifamily Executive (Apr. 26, 2016),

[6] Cleveland, Ohio, Mun. Code § 337.251 (2016),$fn=default.htm$3.0$vid=amlegal:cleveland_oh.

[7] Chi., Ill., Ordinances § 4-14-060(e) (2016),

[8] Portland, Or., Mun. Code § 33.207.020(a) (2015),

[9] Nashville, Tenn., Mun. Code § 6.28.030(Q) (2015),

[10] This Blog surveyed San Diego, North Las Vegas, New York City, Santa Monica, Miami Beach, Portland, Chicago, Cleveland, and Nashville.

[11]See, Las Vegas, Nev., Mun. Code §17 (2011),; San Diego, Cal., Mun Code § 113.04 (2000),

[12] See generally Airbnb Report, supra note 2.

[13] See, Miami Beach, Fl., Mun. Code § 142-1111(a) (2016),; N.Y. Mult. Dwell. Law § 4.8(a); Santa Monica, Cal., Mun. Code §6.20.030 (2015),

[14] See, Chi., Ill., Ordinances § 4-13-310 (2016),; Cleveland, Ohio, Ordinance 30-16 (Feb. 8, 2016),; Nashville, Tenn., Mun. Code § 6.28.030(A) (2015),; Portland, Or., Mun. Code § 33.207.020(a) (2015),

[15]See Avery Hartmans, Governor Cuomo just signed a bill that could deal a huge blow to Airbnb in New York, Bus. Insider (Oct. 21, 2016),

[16] See Airbnb, Airbnb: Generating $4.5 Billion for Restaurants (2016),; Airbnb Citizen, Airbnb, Airbnb Home Sharing Activity Report: Los Angeles (May 9, 2016), (13% of hosts reported that their income prevented these hosts from losing their home to foreclosure while 10% of hosts reported that their transient rental income saved these hosts from eviction); Things to do, Airbnb, Inc., (last visited Jan. 30, 2017).

Lynch v. Morales-Santana: Equal Protection, Gender Discrimination, and Derivative Citizenship

By Brett Potash, J.D. Class of 2018 Touro Law Review  Junior Staff Member

In November 2016, the Supreme Court heard arguments on a case involving an Equal Protection claim.[1] Luis Ramon Morales-Santana’s father was born in Puerto Rico on March 19, 1900, and obtained United States citizenship in 1917.[2] Twenty days before he turned nineteen years old, he left Puerto Rico to take a job working for the South Porto Rico Sugar Company in the Dominican Republic.[3] In 1962, Luis Ramon Morales-Santana was born in the Dominican Republic to his then unmarried American father and Dominican mother.[4] Morales-Santana was statutorily “legitimated” as a citizen by his father when his parents were married in 1970.[5] He was later permitted to enter the United States as a lawful permanent resident in 1975.[6]

After being convicted of “various felonies” in 2000, Morales-Santana was placed in removal proceedings.[7] He claimed that he obtained derivative citizenship through his father and applied for withholding of the removal on that basis, but an immigration judge denied his application.[8] In 2010, he filed a motion to re-open his case.[9] This time, his motion was based on a violation of the Equal Protection Clause and newly obtained evidence relating to his father.[10] Unfortunately, the Board of Immigration Appeals denied Morales-Santana’s claims for derivative citizenship and therefore denied his motion to re-open.[11] Morales-Santana appealed to the United States Court of Appeals for the Second Circuit.[12]

“The law in effect at the time of birth governs whether a child obtained derivative citizenship as of his or her birth.”[13] The statute in effect at the time of Morales-Santana’s birth was the Immigration and Nationality Act of 1952.[14] Under this Act, a child born abroad to an unwed citizen mother and non-citizen father has citizenship at birth if the mother was present in the United States (or one of its “outlying possessions”) for at least one year at any point prior to the birth of the child.[15] Morales-Santana, however, represents a child born abroad to an unwed citizen father and non-citizen mother.[16] For instances such as this, the statute provides that the child have citizenship at birth only if the father was present in the United States (or one of its “outlying possessions”) for periods totaling at least ten years, and at least five of those years being after the father reached the age of fourteen.[17] Morales-Santana’s father did not meet these requirements.[18] Based on this gender discrepancy, Morales-Santana’s principal argument on appeal was that his Fifth Amendment guaranteed rights to Equal Protection had been violated and that unwed fathers should receive the same benefits that unwed mothers receive under the statute.[19]

Attorney General Loretta Lynch argued in the Second Circuit that there are two interests to justify the distinction between mothers and fathers written into the 1952 Act: “ensuring a sufficient connection between citizen children and the United States” and “avoiding statelessness”.[20]

Fortunately for Mr. Morales-Santana, the Second Circuit overruled the Board of Immigration Appeals decision in concluding that “[c]onforming the immigration laws Congress enacted with the Constitution’s guarantee of equal protection . . . Morales-Santana is a citizen as of his birth.”[21] The court stated that “the statute’s gender-based distinction is not substantially related to the goal of ensuring a sufficient connection to the United States.”[22] Attorney General Loretta Lynch responded to this ruling by filing a petition for writ of certiorari, which was subsequently granted on June 28, 2016.[23]

This case brings two issues before the Supreme Court: 1) Whether the Immigration and Nationality Act of 1952’s language to impose a different requirement on unwed citizen mothers of foreign-born children than on other citizen parents of foreign-born children violates the Fifth Amendment’s guarantee of Equal Protection, and 2) Whether the Second Circuit Court of Appeals erred in conferring United States citizenship on Morales-Santana in the absence of any express statutory authority to do so.[24] Formal arguments took place before the Supreme Court on November 9, 2016, and an official ruling is still pending.[25]

The ruling of this case will have a major impact on foreign-born U.S. citizens both presently, and in the future. While the outcome will obviously affect the citizenship status of Mr. Morales-Santana, it will also affect others seeking derivative citizenship as well. If the Court decides that differences in the mandatory times of physical presence in the United States between genders is unconstitutional, then it may overturn the present-day statute. The present-day statute mandates that for derivative citizenship, a child born out of wedlock’s citizen father must have at least five years of citizenship (two after turning fourteen years old), and if the mother is the citizen, then she still only needs to have just one year of continuous citizenship at any point.[26] The Court may choose to decide that ANY time frame is unconstitutional, not just an equal time frame.

As currently constructed, the Act relevant in Lynch v. Morales-Santana and the present-day statute both suggest that unwed mothers are more responsible parents than unwed fathers. They also suggest that the presence of a marriage at the time of birth exposes a difference in societal expectations regarding parental responsibilities for unwed fathers, but not for unwed mothers.

The Supreme Courts highly anticipated decision should be rendered in early 2017. Its decision will make a powerful statement about how the United States protects the rights of its citizens born abroad, and also how we choose to combat gender discrimination issues.

[1] SCOTUSblog, (last visited Jan. 25, 2017).

[2] Morales-Santana v. Lynch, 804 F.3d 520, 524 (2d Cir. 2015).

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Morales-Santana, 804 F.3d at 524.

[8] Id.

[9] Id. at 524-25.

[10] Id.

[11] Id. at 525.

[12] See 804 F.3d 520 (2d Cir. 2015).

[13] See Ashton v. Gonzalez, 431 F.3d 95, 97 (2d Cir. 2005).

[14] Morales-Santana, 804 F.3d at 523.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Morales-Santana, 804 F.3d at 523-24.

[20] Id. at 527-28.

[21] The court determined that an intermediate level standard of scrutiny was proper. Morales-Santana, 804 F.3d at 538.

[22] Id. at 535.

[23] SCOTUSblog, (last visited Jan. 25, 2017).

[24] Id.

[25] Id.

[26] 8 U.S.C. § 1409 (2012).