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Responding to an attorney-discipline investigation in Maryland often involves balancing the requirement to cooperate with Bar Counsel, versus the need to prepare a vigorous defense. The equation is made more nettlesome when the right against self-incrimination is invoked, primarily because of confusion concerning the Fifth Amendment's impact on attorney-discipline cases.

The Supreme Court has held that the Fifth Amendment "not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him or her not to answer official questions put to him or her in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings."As part of these protections, the Supreme Court has held that an attorney may not be disciplined for invoking the Fifth Amendment privilege against self-incrimination in an attorney disciplinary proceeding.

In Spevack v. Klein, the Supreme Court considered a disbarment proceeding against an attorney who refused to honor a subpoena, product documents, and testify because to do so would potentially incriminate him. The attorney-respondent in Spevack invoked the Fifth Amendment and the trial court ordered disbarment because it found the Fifth Amendment was not applicable to him because he was an attorney.

The Supreme Court reversed and found that under the Fifth Amendment, an attorney who invokes the Fifth Amendment can suffer "no penalty," meaning "the imposition of any sanction which makes the assertion of the Fifth Amendment privilege costly."The Court found that the Fifth Amendment is to be construed broadly and that the "privilege has consistently been accorded a liberal construction."Importantly, attorneys are "not excepted" from the protections of the Fifth Amendment because the "threat of disbarment and the loss of professional standing, professional reputation, and of livelihood are powerful forms of compulsion to make a lawyer relinquish the privilege."

The Court of Appeals in Maryland has long-recognized that attorney disciplinary matters require basic due process protections,including the Fifth Amendment.While there is not a significant body of case law analyzing the Fifth Amendment in the context of ethics cases, the Maryland Court of appeals has held that the Fifth Amendment applies in attorney discipline cases.Indeed, the Court of Appeals has cited Spevack with approval for the proposition that as for inquiries from Bar Counsel, "the attorney's duty to respond is qualified by the privilege against self-incrimination." Given the approach taken by the Court of Appeals and the Attorney-Grievance Commission, practitioners should be mindful of two things when invoking the Fifth Amendment in attorney discipline cases.

First, anticipate that Bar Counsel may allege that an assertion of the Fifth Amendment is somehow a failure to cooperate with its investigation which amounts to a violation of Maryland Rule 19-308.1. While this is unlikely, it is important to make clear that any assertion of the Fifth Amendment is consistent with one's cooperation with Bar Counsel's investigation.

Second, anticipate that bar counsel will likely try to penalize the assertion of the Fifth Amendment, likely via an evidentiary ruling by the trial court prior to trial. When faced with an argument that any such ruling would likely run afoul of Spevack and Maryland case law, Bar Counsel will likely argue that no penalty has yet occurred since no sanction has yet been entered by the Court of Appeals. But that should not matter given that Spevack holds the imposition of "any sanction which makes the assertion of the Fifth Amendment privilege 'costly,'"is improper, and that the "threat of disbarment"is sufficient to constitute such a sanction. Accordingly, it should not matter that a respondent-attorney was not immediately disbarred or otherwise disciplined; rather, what matters is that the respondent-attorney invoked the Fifth Amendment and was penalized in some fashion for doing so.

The bottom line is, the Fifth Amendment applies in attorney-discipline cases and respondent-attorneys have a right to assert it just like any other party in a case. Accordingly, the trial and appellate courts should be wary of allowing Bar Counsel to penalize attorneys for asserting their Constitutional rights, even though the scope of the protections afforded by the Fifth Amendment may potentially be impacted by the specifics of the case.

Go here to read the rest:
Cooperation Versus Self-Incrimination: Asserting the Fifth Amendment in Attorney Discipline Cases - Lexology

On April 5, in Heights Apartments v. Walz, a unanimous panel of the US Court of Appeals for the Eighth Circuit ruled that a Minnesota state eviction moratorium (enacted for the purpose of mitigating the Covid pandemic) likely qualifies as a taking of private property requiring compensation under the Takings Clause of the Fifth Amendment. They based their ruling in large part on the Supreme Court's June 2021 decision in Cedar Point Nursery v. Hassid, which held that temporary physical occupations of property qualify as "per se" takings, that automatically require compensation. Before Cedar Point, conventional wisdom assumed that most temporary physical occupations are subject to the complicated Penn Central balancing test, under which the government usually prevails.

Here is the key passage from the Eighth Circuit ruling:

Heights alleges the EOs effectuated physical takings because they forced landlords to accept the physical occupation of their property regardless of whether tenants provided compensation. The Walz Defendants contend that no physical taking has occurred because landlords were not deprived of their right to evict a tenant. Rather, they argue, the [governors executive orders] imposed only a restriction on when a landowner could evict a tenant, making it similar to Yee v. City of Escondido, 503 U.S. 519 (1992) (finding a rent control ordinance was not a physical taking). Since the parties briefed this issue, the Supreme Court decided Cedar Point Nursery, which is instructive in this case.

In Cedar Point Nursery, the Supreme Court determined a California regulationrequiring agricultural employers to permit "union organizers onto their property forup to three hours per day, 120 days per year" was a per se physical taking under theFifth and Fourteenth Amendments.. The Court explained:

"Whenever a regulation results in a physical appropriation of property, a per setaking has occurred." Id. at 2072. It is immaterial whether the physical invasion is"permanent or temporary," "intermittent as opposed to continuous," or whether thegovernment is directly invading the land or allowing a third party to do so.

Cedar Point Nursery controls here and Yee, which the Walz Defendants relyon, is distinguishable. The rent controls in Yee limited the amount of rent that couldbe charged and neither deprived landlords of their right to evict nor compelledlandlords to continue leasing the property past the leases' termination. 503 U.S. at52728. The landlords in Yee sought to exclude future or incoming tenants ratherthan existing tenants. Id. at 53031. Here, the EOs forbade the nonrenewal andtermination of ongoing leases, even after they had been materially violated, unlessthe tenants seriously endangered the safety of others or damaged propertysignificantly.

According to Heights' complaint, the EOs "turned every lease in Minnesota into an indefinite lease, terminable only at the option of the tenant." Heights has sufficiently alleged that the Walz Defendants deprived Heights of its right to exclude existing tenants without compensation. The well-pleaded allegations are sufficient to give rise to a plausible per se physical takings claim under Cedar Point Nursery.

I think the Eighth Circuit is right about this. The reasoning of Cedar Point readily applies to eviction moratoria. I reached much the same conclusion myself, in a July 2021 post analyzing a takings claim filed against the now-defunct federal eviction moratorium enacted by the Centers for the Disease Control, and later invalidated by the Supreme Court on grounds unrelated to takings. The takings case against the federal eviction moratorium continues, as affected landlords are (if they prevail) still entitled to compensation for the time during which the moratorium was in effect.

Technically, the Eighth Circuit ruling isn't a final decision on the merits. It merely reverses the trial court's decision to dismiss the case, and remands for "further proceedings." However, the appellate panel made clear they think the per se physical takings claim is likely to prevail.

The Eighth Circuit also reversed the trial court's dismissal of the plaintiffs' claims that the eviction moratorium violated the Contracts Clause of the Constitution, and that the moratorium might qualify as a taking even under the Penn Central test. By contrast, they upheld the dismissal of a claim under the Petition Clause of the First Amendment.

I will leave the Contracts Clause and First Amendment issues to experts in the relevant fields. As for the Penn Central claim, I am skeptical that it can ultimately succeed (though the test is admittedly murky). The Eighth Circuit is also more equivocal about that issue than the per se taking argument. They merely concluded that it is plausible enough to survive a motion to dismiss. But the Penn Central argument won't matter if the courts ultimately conclude that the eviction moratorium was a per se taking under Cedar Point.

The Eighth Circuit ruling does not address the argument that an eviction moratorium intended to mitigate the spread of Covid might fall under the "police power" exception to takings liability. This issue might well come up as the case continues. I am skeptical that courts either will or should push the police power exception so far. But the boundaries of that exception are admittedly murky.

The three judges on the Eighth Circuit panel (Erikson, Gruender, and Stras) are all Republican appointees. It is possible that more liberal judges would have adopted a narrower interpretation of Cedar Point, that would exclude eviction moratoria. But I think it would be difficult to that in a way that is coherent. An eviction moratorium is pretty obviously a temporary occupation of property, as it requires the owner to accept the presence of a tenant whom he or she would otherwise have the right to remove. It thereby goes against the owner's right to exclude, which was the central right at issue in Cedar Point. As Chief Justice John Roberts emphasized in his opinion for the Court, "[t]he right to exclude is 'universally held to be a fundamental element of the property right.'"

I would add, also, that Cedar Point's logic can be used to challenge conservative laws and regulations no less than left-leaning ones, like eviction moratoria. A good example of the former are state laws requiring property owners to allow guns on their land, even if they would prefer to bar them. Thus, liberal judges might have reason to doubt the desirability of adopting a very narrow interpretation of Cedar Point.

Even if property owners ultimately prevail in this case, and other takings claims against eviction moratoria, it remains to be seen how much compensation they would get. Calculating it may not be easy, and there is likely to be considerable case-by-case variation. Nonetheless, these are important cases to follow. They could well set significant precedents constraining future eviction moratoria, and other similar regulations.

NOTE: The property owners in the Cedar Pointcase were represented by the Pacific Legal Foundation. My wife Alison Somin works for PLF. But she has no involvement in this particular case.

See the original post here:
Eighth Circuit Rules Eviction Moratoria are Likely to be Takings Requiring Compensation Under the Fifth Amendment - Reason

Everybody knows April 15 is the deadline every year for individual tax returns to be filed, either electronically or postmarked in the mail.

And if everybody thinks that, everybody is wrong. This year, April 18 will be the final day, without extensions being filed, that ones 2021 returns must be filed to avoid late penalties.

Why is that?

This year, April 15 falls on a Friday. So? April 16 is a Saturday. So? April 16 happens to be a federal holiday in the District of Columbia. Huh?

April 16 is Emancipation Day, which is an observed holiday in the District of Columbia. It marks the date in 1862 during the Civil War when President Abraham Lincoln signed a Congressional act freeing all people held as slaves in the District of Columbia. Under that act, the owners of those slaves then had 3 months to file a claim for reimbursement by the U.S. government for the value of their forcibly freed slaves.

Reimbursement had to be made because slaves were recognized as property under many states laws and those of the District of Columbia. The Fifth Amendment to the U.S. Constitution prevents the government from taking property away from private parties without compensation. So, the government had to reimburse slave owners for the value of their emancipated slaves.

The D.C. Compensated Emancipation Act, as it was called, is the only time the federal government compensated slave owners of their emancipated slaves. Over 3,000 slaves were freed. This was done prior to the summer of 1862 when Lincoln drafted his Emancipation Proclamation, which was to become effective on Jan. 1 of the following year.

The Emancipation Proclamation ordered the freeing of all slaves then located in rebel-held territory. No compensation was to be paid to those slave owners because this was an act of the commander-in-chief during wartime to suppress a rebellion. Freeing slaves whose labor benefited the rebellion could thus lawfully occur without compensation, so the legal analysis went, because it was no different than seizing cannons, horses or gunpowder that was also property owned and used by enemy insurgents. You dont have to reimburse your enemies for taking their weapons of war.

Washington, D.C., was not in rebel territory. The slaves there were not then being used to aid the rebellion. Thus, those slave owners needed compensation for the emancipation to be constitutionally lawful.

In 2005, federal legislation was enacted in D.C. making April 16 an observed public holiday. By law, when April 16 falls during a weekend, that holiday will be observed on the nearest workday. The holiday thus affects the IRS and other federal offices, as they will be closed on either April 16 if it is on a workday or the workday closest to the 16th if it falls on a weekend.

If the tax-filing deadline is on a weekend, it becomes the next non-holiday anyway.

So, April 16 this year is on a Saturday, which means the holiday is on Friday the 15th, and the IRS is closed. That means tax day is Monday, April 18.

Beware the ides of April. And celebrate Emancipation Day when you emancipate yourself by finally filing those 2021 returns.

Brett Kepley is a lawyer with Land of Lincoln Legal Aid Inc. Send questions to The Law Q&A, 302 N. First St., Champaign, IL 61820.

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The Law Q&A | Why your taxes aren't due till April 18 this year - News-Gazette.com

Virginia Thomas, image taken by Gage Skidmore from Peoria, AZ, United States of America, CC BY-SA 2.0 via Wikimedia Commons

In an explosive controversy, Justice Clarence Thomas and his wife, Virginia Ginni Thomas, face the spotlight after leaked texts showed Ginni Thomas pressured the White House to overturn the election. Previously, Justice Thomas was known as the only Justice to side with former President Donald Trump in a case involving White House documents that the Jan. 6 Committee sought. However, with the revelation that Ginni Thomas was engaging with the White House and trying to overturn the 2020 election and had publicly condemned the Jan. 6 Committee questions have been raised about Thomas impartiality and his decision not to recuse himself from the case.

The controversy has inevitably raised concerns on Capitol Hill, with Speaker Nancy Pelosi condemning the thin line between Justice Thomas and his wifes career, referring to Mrs. Thomas as an admitted and proud member of a coup. She further asserted that Thomas should not have been appointed to the Court but avoided saying whether he should resign.

Other Democrats were more blunt. Rep. Alexandria Ocasio-Cortez (D-NY) called for his resignation and warned that previous controversies surrounding arch-conservative justice could justify impeachment.

It is not the only time that Justice Thomas has come under scrutiny. His impartiality was previously questioned thanks to undisclosed payments that Ginni Thomas received from far-right, anti-Muslim activist Frank Gaffney through his Center for Security Policy. The payments to Ginni make Justice Thomas an indirect recipient of those funds. Under current law, justices are not required to recuse themselves, and it is up to them to decide whether to avoid a case. However, they are encouraged to be reasonably informed about their interests and the financial interests of their spouses.

While there have always been questions about the justices and their obligation to recuse themselves from cases they have a stake in, the argument that previous issues of recusal may prove hollow as the issue at hand pertains directly to the Jan. 6 Committees ongoing investigation and the dangers of last years attack on the capitol.

Moreover, Mrs. Thomas herself has become a target by the committee as they are now considering interviewing the famed conservative activist about her involvement on Jan. 6, though it will likely be difficult to get Mrs. Thomas to testify willingly as she has previously signed a letter calling the committee an overtly partisan political persecution.

With impeachment likely off the table and the fight over the committees authority ongoing, it is unclear how Thomas role on Jan. 6 will pan out, but if the committee deems it necessary, Americans should not be surprised if they see a supreme court justices wife testifying under oath. That is, of course, if she does not invoke the Fifth Amendment first.

Read more:
Ginni Thomas' Texts Indict Clarence Thomas and The Supreme Court - The Journal

Three fox babies were humanely euthanized, after a female fox bit several people on Capitol Hill and tested positive for the rabies virus after she was euthanized.

WASHINGTON The three kits of a female fox that bit several people on Capitol Hill earlier this week were "humanely euthanized," D.C. Health officials say.

"Since the mother tested positive for the rabies virus and the kits could have been exposed during grooming or other means, they were no longer able to be safely rehabilitated," a DC Health statement said.

The three kits were captured from the den site of the female fox who was reported for nine biting incidents on Capitol Hill. Among those who were bitten was U.S. Rep. Ami Bera (D-Calif.).

He received rabies shots at Walter Reed National Military Medical Center in Bethesda. The congressman confirmed he was bitten by a fox on Monday.

"What does the fox say? Last night, I found out[,]" he tweeted. "Joking aside, animal bites are extremely serious. In the case of an encounter, please speak with a physician immediately."

The female fox was captured on Capitol Hill grounds Tuesday and euthanized on Wednesday. The fate of her kits was unclear until she tested positive for rabies.

Bera tweeted after the news broke that the fox was euthanized Wednesday saying he was back working and feeling healthy. He also tagged Capitol Fox on Twitter, a parody account poking fun at the incident.

"Despite the dustup, I hold no grudge or ill will against @thecapitolfox. Hoping the and its family are safely relocated and wishing it a happy and prosperous future," Bera tweeted.

The parody Capitol Fox responded to Bera, tweeting, "On the advice of counsel I invoke my Fifth Amendment privilege."

The World Health Organization says that rabies is a vaccine-preventable disease, but once symptomsappear the virus is deadly.

Anyone who encounters a potentially sick, injured or aggressive fox should call animal control at 202-723-3730. People who come in physical contact with a fox should call DC Health at 202-442-9143.

Read more here:
DC Health: 3 kits of euthanized fox with rabies 'no longer able to be safely rehabilitated' - WUSA9.com