News

803, 2018

The U.S. Supreme Court Reviews the Right to Criticize Government

March 8th, 2018|

Written by:  Katie Davies

If you’ve ever attended a city council meeting, you’re likely to agree that the public comments on any given topic can range anywhere from the benign to the bizarre.  As a municipal law attorney who attends city council meetings all over the state, the public comments are my favorite part of any meeting because they can be both wildly unpredictable and effective. In fact, public participation at city council meetings is probably the purest form of democracy-in-action. Elected city officials are essentially forced to listen (without responding) to their constituents’ opinions, which can have a powerful effect on a community’s legislation, policies, and elections.

This is truer now than ever. Given the current volatile political climate in our country, people are frustrated and they are letting their lawmakers know it. Over the last year, we’ve seen countless examples play out in the news of people showing up at town-hall style meetings to chastise their elected officials for taking a particular position. Depending on your political leanings, you may have found this conduct to be heroic or downright uncivilized. So how far can, or should, the government let people go in voicing their frustrations at these types of meetings?

The U.S. Supreme Court is currently deciding this very issue. In Lozman v. City of Rivera Beach, Florida, (citation pending) the court is considering whether the existence of probable cause for disorderly conduct defeats a First Amendment retaliatory-arrest claim.

Fane Lozman lived in a floating house made of plywood in the Riviera Beach Marina in Florida. The city proposed to redevelop the private marina using eminent domain.  Lozman, disagreeing with this decision, became “an outspoken critic,” vocally criticizing the mayor and city council at council meetings. At a city council meeting Lozman offered comments about former county commissioners who had served in other communities being arrested. A councilperson had Lozman arrested for refusing to stop talking. The local prosecutor dropped the charges on the belief that they could not successfully prosecute the case.

Lozeman sued the city claiming his arrest violated his First Amendment right to oppose the redevelopment plan. The city argued Lozman was arrested for violating the city’s rule that comments during the public comment period must relate to city business. Notice that the City actually pursued a different legal theory at trial than it did when it arrested Lozeman. Initially, the City arrested Lozman for disorderly conduct, but at trial the City argued that Lozeman had violated the rule that comments must pertain to city business.

Regardless, Lozman lost the jury trial and filed a motion for a new trial arguing that the evidence didn’t support the verdict.  The Eleventh Circuit Court of Appeals held that the jury’s finding of probable cause to arrest Lozman for disturbing a lawful assembly wasn’t against the great weight of evidence, and that, because the arrest was supported by probable cause, Lozman’s First Amendment retaliatory arrest claim failed.

The U.S. Supreme Court heard oral arguments on February 27, 2018. Lozeman insisted that the council’s chairperson took issue with the content of his speech, and not his actual conduct thereby making the arrest unlawful.  Lozeman was adamant that he “did maintain order” and that “[d]isorderly conduct relative to a public meeting is if you go beyond your three minutes, if you use profanity, if you’re screaming or yelling. I was doing none of those.” Lozman also pointed out that, “”If [the council member] didn’t want to listen to that content, she shouldn’t run for public office because the First Amendment protects comments that are critical and maybe comments people don’t like to hear.”

The city, on the other hand, argued that in the context of law enforcement, an open-ended right to sue for false arrest would sow chaos into law enforcement agencies’ ability to operate and would also be expensive for municipalities to defend. According to the city, if the court rules in favor of Lozman, the lower courts will be flooded with lawsuits by arrestees who claim the government was simply biased against them.

According to court watchers, the Court “seemed to express that they agreed Lozman’s arrest may have been unjustified and over the line, but they were having trouble clearly defining the line.”  While many of the justices were disturbed by the video, some were equally worried that a ruling in Lozman’s favor could open the flood gates for lawsuits against police who make more justifiable arrests, for example, during riots.

However, Justice Ruth Bader Ginsberg expressed grave concern for denying people like Lozman a remedy to their free-speech claims: “You are giving a green light to every vengeful city council in America to go after people when they demonstrate against abortion clinics, when they demonstrate about police, when they protest zoning decisions.”

While it’s difficult to predict how the Court will rule in this case, we should expect a narrow decision that is heavily driven by a fact-based analysis. As Justice Anthony Kennedy explained, the challenge is walling off legitimate police actions to “confine it in any way.”

2302, 2018

Meeting the Challenges of Electronic Discovery

February 23rd, 2018|

Written By: Bobbie J. Manson

During litigation, state and federal courts require parties to participate in a process called discovery. This involves each party exchanging all relevant documents and data with all of the other parties to the litigation. Depending on the subject of the litigation, this can be either a short process or an extremely large search and production effort.

The use of technology in business plays a large part in the discovery process. Technology has become a necessary and useful tool in running a business. Emails have replaced letters, text messages are now commonly used for work communications, and printing documents or receiving hard copies is practically a thing of the past. Additionally, we use all of these tools in our personal lives, frequently supplemented by one or more social media accounts. This has brought on a whole new set of challenges for electronic discovery.

While there are lots of pros to using technology, there are also some negatives when it comes to legal disputes. Previously, when a legal dispute arose, clients would gather their hard copy files and send it to their attorneys. Now, clients must navigate the following issues when attempting to gather the relevant documents and data:

• identifying where data is kept. For example, laptops, tablets, smart phones, servers and remote servers, social media sites, back-up tapes, and cloud accounts;
• collecting data without altering the metadata;
• spending the time to collect the data;
• keeping costs down;
• collecting data kept in special or proprietary software; and
• organizing and sending the data for review.

These are just a sample of some of the problems that parties may encounter when complying with court rules regarding e-discovery. Law firms commonly handle these types of issues, and work closely with clients to offer as much assistance as needed to make the process as painless as possible.

At Birch Horton Bittner & Cherot, we have resources to assist clients with:

• locating all relevant data;
• safely managing the collection without altering metadata;
• addressing data kept in special software; and
• analyzing, organizing and reviewing data for relevant documents.

Identifying the location of data at the outset of a claim helps keep costs down when clients receive additional discovery requests throughout the litigation. At Birch Horton Bittner & Cherot, we work hard to reduce the burden of e-discovery for our clients so they experience as little interruption to their business and personal lives as possible.

2501, 2018

Legal and Ethical Challenges Associated with Mental Health in the Last Frontier: A Primer for Alaskan Families

January 25th, 2018|

Written by:  Aaron Sperbeck

Alaska is home to over 739,000 people from many different and unique walks of life.[1] Mental health continues to be a matter of public concern in Alaska’s ever-growing and aging population.  In 2014 alone, more than 33,000 Alaskans self-reported suffering from a Serious Mental Illness (“SMI”).[2] It is estimated that one in five Alaskans continue to silently suffer from other less severe forms of mental illness which go unreported.[3] The Alaska Department of Labor predicts that the number of Alaska residents aged 65 and older will more than double from 63,832 in 2012 to 140,340 in 2042.[4] An increase in Alaska’s elderly population will mean a dramatic expansion of the number of residents requiring medical and other health-related services, such as informal caregiving and assistance with daily living activities.[5] This increase also translates into a surge of mental illness and mental health related issues that Alaskans and their families will likely encounter.

Proper diagnosis of mental illness or dementia, including Alzheimer’s disease, in the elderly is vital in order to ensure that appropriate treatment is provided as soon as possible. Misdiagnosis of mental illness in seniors can easily occur since symptoms are so similar to dementia, such as confusion and erratic behavior. While dementia does affect mental health, it is not classified as a mental illness, but rather a disorder of the brain that causes memory loss and trouble communicating.

Most people are not comfortable making plans for a time when they will be unable to make decisions and not have control of their own lives. Discussing personal values in relation to illness and death, finances and living arrangements, for example, is difficult. It is critical to remember how important decision-making can be to maintain a person’s confidence and self-esteem. As a person loses the ability to make decisions, decision-making will involve others, such as family members, substitute decision-makers and health-care professionals. Making decisions on another person’s behalf can be difficult and highly stressful, especially when the values and wishes of the person with the mental health issue are unknown, unclear, or impossible to follow.

More often than might be expected, lawyers encounter mental health issues in their everyday practices. In some instances, lawyers work directly with clients who suffer from mental health disabilities or with the family of a loved one who suffers the misfortune of age-related mental health decline. Lawyers are often responsible for drafting important legal documents which authorize individuals to act on another’s behalf with regard to an individual’s private or business affairs. It is not only fundamental, but critical, that lawyers understand the legal and ethical challenges faced when working with mentally ill clients and their families. The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters.  The fact that a client suffers impairment does not diminish the lawyer’s obligation to treat the client with attention and respect, protecting the confidences and secrets of that client pursuant to the professional rules of conduct.

If you have questions regarding how to address mental health issues in your life, or the life of a loved one, please take time to understand the issues involved and seek the advice and counsel of medical and legal professionals for further resources.

_____________________

[1]           United States Census 2016

[2]           National Survey on Drug Use and Health – Alaska Mental Health Board (2015)

[3]           Alaska Behavioral Health System Assessment 2016

[4]           Alaska Department of Labor and Workforce Development, Research and Analysis Section. Alaska population projections: 2012 to 2042. 2014. [cited 2015 Dec 29].

[5]           RM Rosich and SR Thompson, Gerontological Knowledge and Elderly Health Care Services in Alaska: Aging in the Last Frontier. Educational Gerontology 1997; 23:443–52

501, 2018

Business Entity Formation 101

January 5th, 2018|

Written By:  Kristy Garrett

A reoccurring question that commonly arises in the area of commercial transactions is, “What type of legal entity should I form for my business?”  The answer to that question depends on, among other factors, the type, the size, the management, and the intended purpose of the business.  There are many important considerations when deciding which type of entity will suit a client’s business objectives.  It is most advantageous for these considerations to be made prior to any business action or operations being taken.  This article will discuss the questions that should be answered prior to picking an entity type for a business operation and a brief description of three (3) of the most popular entities utilized.  The information below is to provide a general framework only and a complete legal and tax consultation is recommended prior to taking any formal steps in the corporate formation process to ensure that the entity is properly formed and structured and in order to realize the intended advantages.

Considerations For Choosing An Entity Type

  • Management: Will this business be run by a single manager?  Will there be a board of directors?  Will it need to have officers?  Will it be run by its sole member or members?  Will decisions be made by a majority vote of the owners?  Will certain decisions require unanimous consent?
  • Size: Will this company be a closely held company?  Will there be just one or two owners?  Does the structure need to accommodate several owners?
  • Tax Considerations: There are important tax reasons and implications for choosing an entity structure for a particular type of business.  A consultation and analysis by an accountant is an important step in the business formation process.
  • Future Growth and Changes: Are there plans for growth and expansion or is the company’s purpose limited and distinct?
  • Capitalization: How will the company be capitalized?  Is there a need for investors now or potentially in the future?  Will the company need to obtain financing?

 Common Entity Types

  • Limited Liability Company or “LLC”:  The LLC is a business structure that generally combines the pass-through taxation of a partnership or sole proprietorship, with the limited liability of a corporation.  An LLC is not a corporation in itself; it is a legal form of a company that provides limited liability to its owners, when properly structured and capitalized, and under certain circumstances.  It is often more flexible than a corporation, and it is well-suited for companies with a single owner or a closely held organization.  LLCs have less corporate formalities than corporations.  Additionally, ownership in an LLC is represented by a “membership interest” or an “LLC interest”.   An LLC can be managed by a manager or managed by its members.  A member managed LLC is most common.  An LLC is formed in Alaska, among other requirements, by the filing of Articles of Organization with the Division of Corporations and the management of the entity is structured by its Operating Agreement.
  • C-Corporation: A C corporation, similar to an LLC, generally limits the owners’ personal liability for business debts and court judgments against the business.  A C corporation is an independent legal and tax entity, separate from the people who own, control, and manage it.  Additionally, ownership in a corporation is represented by shares of stock that can be issued to several owners, called shareholders.  Corporations in Alaska must have a President, Secretary, and Treasurer.  Corporations are better suited for operations with several owners and a structure that supports having officers, a board of directors, and regular board and shareholder meetings.  A C corporation is formed in Alaska, among other requirements, by the filing of Articles of Incorporation with the Division of Corporations and the management of the entity is structured by its Bylaws.
  • S-Corporation: An S corporation is a regular corporation that has elected “S corporation” tax status, which means that the corporation is not a separate taxable entity like a C corporation.  Basically, owners pay income taxes as if they were sole proprietors or partners. S corporations are very similar to LLCs, but there are a few key differences and certain restrictions on S corporations.  S corporations have several limitations that LLCs do not and include the following:  (a)  Each S corporation shareholder must be a U.S. citizen or resident; (b) S corporations may not have more than 100 shareholders; and (c) S corporation profits and losses may be allocated only in proportion to each shareholder’s interest in the business.  Like regular C corporations, S corporation owners have to issue stock, hold regular board of directors’ and shareholders’ meetings, and keep corporate minutes of all meetings.

 

2112, 2017

Repealing Alaska’s Civil Case Reporting Requirement

December 21st, 2017|

Written by:  Sarah A. Badten

After practicing law in Alaska for about a year, I began to question the requirements of AS 09.68.130, Alaska Civil Rule 41(a)(3) and Appellate Rule 511(e), all of which required the submission of information about the resolution of civil cases to the Alaska Judicial Counsel when a case was dismissed.  My entire practice involved civil cases, which meant that for every single case I dismissed, I had to log on and enter information about each case into the required database.  Because I filed many lawsuits that tended to resolve quickly, I was continually entering information into this database and billing clients to do so.

After filling these forms out for about seven years, I started to question why was this form required?  Who looks at the information on this form?  What are they doing with the information?  I did not like the answers I received as it turned out that NO ONE was doing anything with the information. NO ONE was even looking at the information.

I felt compelled to take action.  One of my partners at the time told me that the Anchorage Bar Association had attempted to repeal the reporting requirement, but nothing came of it.  After hearing this news I did a little research of my own and found Resolution 2007-1 by the Anchorage Bar Association, passed in 2007 that encouraged the Alaska Bar Association to work with the Alaska Judicial Council and the Alaska Legislature to secure the repeal of AS 09.68.130, Alaska Civil Rule 41(a)(3), and Appellate Rule 511(e).

After discovering the resolution in June, 2014, I emailed Susanne DiPietro at the Alaska Judicial Counsel and asked her about the history of Resolution 2007-1. Susanne related:

The legislature passed the civil case reporting requirement in 1997 to help gauge the consequences of tort reform enacted that same year. The Council then began collecting the civil case information as directed. We issued analyses of the data in 2000 and 2001. In our 2001 report we recommended that the legislature eliminate the automatic reporting requirement and substitute a requirement that information be provided only in response to a specific request from the Council. The idea was to provide a more targeted and less burdensome method of compiling information about the compromise or other resolution of civil cases. We followed up on that recommendation in 2010 with a specific request to the chairs of the House and Senate Judiciary Committees to repeal AS 9.68.130; however, the law was not changed.

I felt defeated but what could I do?  It seemed like a lost cause.  I continued to fill out the form.

Out of the blue in February of 2015, I received an email from Susanne DiPietro to tell me that House Bill 83 was in front of the legislature to repeal the reporting requirement and that the legislature was hearing public testimony that coming Friday!  If someone was going to listen, I was going to tell them about this ridiculous reporting requirement which never got reviewed and the data never utilized.

I showed up that Friday and testified in front of the legislature for the first of many times.  I informed the legislators about how the purported purpose of this requirement was to assess tort reform, but that I practiced contract law, therefore any data I entered would skew any tort reform analysis.  I testified about how no one looks at the data, and that if the information is not used, then it is a complete waste of time and our clients’ money to fulfill this requirement.  I testified that this requirement served no purpose and should be repealed.  I was doing the best I could to get the legislators to FEEL MY PAIN.  I’m not sure it worked.

During that time I learned a lot about the legislative process.  Did you know that if a bill does not get passed during the specific two-year legislative session in which it was raised, that it is automatically quashed and you have to start all over again with a new bill for the next session?  That lesson was learned the hard way.  After testifying over and over to various House and Senate committees, the bill got all the way to the final vote required for it to pass the legislature in 2016… but then it was never put on the schedule for the final vote (I’m told for political reasons involving a squabble between legislators).  The session was up.  The bill was quashed.  We would have to start over.

Luckily, at that first legislative hearing, I met Ken Jacobus, a fellow attorney in town who had similar concerns about the reporting requirement.   Ken had been working to get it repealed almost since the day it took effect.  (The Alaska Bar Rag published an article written by Ken regarding the requirement in its January-March 2017 issue.)  We became friends over our mutual dislike for this reporting requirement.  He told me not to lose heart, and that we would continue the good fight.  Luckily, we did.

Before the start of the 2017 legislative session, Ken sent a letter to several legislators regarding the reporting requirement, and this time he got the entire House Judiciary Committee to sponsor the bill.  Miraculously, the bill sped through the House and Senate committees in one year!  Ken and I testified at every single public hearing and then waited to see what would happen. The bill had met all the requirements for passing the legislature, but it still had to be signed by the Governor before it would be enacted into law.

Almost a month passed and nothing happened.  We were starting to fret.  Ken made some calls.  It turned out that it is a small tradition for the Governor to sign bills into law at the annual bar convention, which was being held this year in Juneau.  Ken spoke with the Governor’s office and hinted that it would be great if the Governor signed this bill into law at the convention.  It worked!  The bill was transferred to the Governor and on May 12, 2017, at the annual bar convention, the Governor signed HB 104 into law and just like that… the reporting requirement was repealed.

Mission accomplished.  Life is good.

 

1212, 2017

Leslie Wheelock Joins BHBC’s Washington DC Office

December 12th, 2017|

Birch Horton Bittner & Cherot is pleased to announce that Leslie Wheelock has joined the firm as Of Counsel, focusing on Tribal Business and Community Development, 8(a) matters, Government Contracting, Telecommunications/Technology and related Tribal Federal Policy in its Washington, DC office.

Most recently Leslie served at the US Department of Agriculture as a Departmental Officer, Senior Advisor to the Secretary, and Director of the Office of Tribal Relations. During her term at USDA Leslie served as the principal advisor to the Secretary and other USDA executives on USDA policy, regulations and programs affecting American Indian and Alaska Native Tribes, tribal organizations and businesses, tribal colleges and universities tribal lands and tribal citizens. At USDA, Leslie worked closely with the Forest Service, Animal and Plant Health Inspection Service (APHIS), Natural Resources Conservation Service (NRCS) and the Rural Development agencies. Additionally, Leslie worked on Tribal priorities across other departments and agencies, covering key areas prioritized by Tribes nationwide, including self-determination, economic and infrastructure development, business and broadband support, education, employment development, housing, sacred places, climate change, energy, conservation and natural resources.

Ms. Wheelock previously served as Director of Economic Policy at the National Congress of American Indians. During her tenure at NCAI, she worked on a variety of economic development initiatives involving small business, financial literacy, rural infrastructure, access to capital, expansion of broadband to Indian Country and agriculture. She also previously served at the Smithsonian National Museum of the American Indian in Washington, DC as the Rights and Permissions Manager on the National Mall transition team and as a strategic planning consultant on cultural and intellectual property. Leslie currently serves on the National Council for the Museum as well as the board of directors for the Smithsonian Indian Museum in New York.

Prior to her move into public service, Leslie accumulated more than 20 years of executive legal and management experience in US and international corporate technology and telecommunications corporations. Her most recent corporate experience was as sector counsel for NANA Corporation’s government contracting businesses. Leslie’s corporate legal career has included leadership positions at IBM, MCI Telecommunications (including Concert Communications – MCI’s international joint venture with British Telecommunications) and Euronet Worldwide.

Leslie is a member of the bar in New York, Connecticut and Washington, DC as well as the US Court of International Trade and US Court of Appeals for the Federal Circuit. Ms. Wheelock earned both her JD from the Cornell Law School and MBA from the Johnson School of Graduate Management in 1984. Leslie’s undergraduate degree is from DePauw University. Ms. Wheelock was born and raised in Indiana, and her home and family are on the Oneida Reservation in Oneida, Wisconsin. Leslie is a member of the Oneida Nation.