Double Jeopardy: Answers to Six Questions About Donald Trump’s Second Impeachment Trial

DEAN FALVY

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, addresses six key questions about Donald Trump’s second impeachment trial. Falvy provides clear and supported answers to frequently asked questions such as whether the Senate can act to remove Trump from the presidency, whether it can hold a trial after his term expires, who should preside, and whether he will lose his presidential perks.

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Avendano v. Balza

Court: US Court of Appeals for the First Circuit

Docket: 20-1251

Opinion Date: January 11, 2021

Judge: Katzmann

Areas of Law: Family Law

The First Circuit affirmed the judgment of the district court denying Mother's petition under the Hague Convention on the Civil Aspects of International Child Abduction for return of her son (Child) to Venezuela from the United States, holding that the district court properly exercised its discretion in refusing Mother's petition. Mother sought Child's return to Venezuela, alleging that Father abducted Child in contravention of The Hague Convention and a Venezuelan child custody order. The district court concluded that Father admitted to retaining Child in contravention of the Hague Convention but that Father had established that Child was a mature child such that the court should consider Child's stated desire to remain with Father in the United States. The First Circuit affirmed, holding that the district court did not clearly err in rejecting Mother's claim that Father unduly influenced Child and in determining that Child was of the age and maturity to state his viewpoint that he should remain in the United States and not return to Venezuela.

Marriage of Erndt & Terhorst

Court: California Courts of Appeal

Docket: A157876(First Appellate District)

Opinion Date: January 11, 2021

Judge: Petrou

Areas of Law: Family Law

The parties entered into a settlement agreement, in the form of a verbal stipulation, regarding the terms of their marital dissolution. The stipulation included an equal division of the community property portion of the wife's retirement plan without any mention of the plan’s survivor benefits. The parties could not agree as to whether the husband had survivor benefits under that retirement plan and asked the court to resolve their dispute. In the alternative, the wife asked the court to vacate the stipulation. The trial court ruled that the survivor benefits were an “omitted asset” (Fam. Code, 2556) subject to an equal division under section 2610(a)(2) and the wife was not entitled to an order vacating the stipulation. The court awarded the husband $800 in attorney fees and $180 in costs in the nature of section 271 sanctions. The court of appeal affirmed that the husband is to receive a survivor benefit related to his community property share of the retirement plan. The court reversed, in part; section 271 does not permit an award of fees to a self-represented party. The court denied the husband’s separate motion for sanctions for the filing of a frivolous appeal and to cause a delay.

In re Estate of Yudkin

Court: Colorado Supreme Court

Citation: 2021 CO 2

Opinion Date: January 11, 2021

Judge: Monica M. Márquez

Areas of Law: Family Law

When Viacheslav Yudkin died intestate, his ex-wife, Petitioner Svetlana Shtutman, was appointed personal representative of his estate. Respondent Tatsiana Dareuskaya sought Shtutman’s removal, asserting that she (Dareuskaya) should have had priority for that appointment as Yudkin’s common law wife. A probate court magistrate found that although Yudkin and Dareuskaya cohabitated and held themselves out to their community as married, other factors weighed against a finding of common law marriage, including that the couple did not file joint tax returns, own joint property or accounts, or share a last name. The court of appeals reversed the magistrate’s order, concluding that the magistrate abused his discretion by misapplying the test for a common law marriage set out in Colorado v. Lucero, 747 P.2d 660 (Colo. 1987). Shtutman petitioned the Colorado Supreme Court for certiorari review. The Supreme Court concluded the trial court was unclear whether the magistrate found Yudkin and Dareuskaya mutually agreed to enter into a marital relationship. Further, the magistrate’s treatment of certain evidence, such as the fact that the parties maintained separate finances and property, and that Dareuskaya never took Yudkin’s name, may have been appropriate under Lucero, but did not necessarily account for the legal and social changes to marriage acknowledged in In re Marriage of Hogsett & Neale, 2021 CO 1 __ P.3d ___. The Court of Appeals' judgment was reversed and the matter ordered remanded to the probate court to reconsider whether the parties entered into a common law marriage under Hogsett.

In re Marriage of Hogsett & Neale

Court: Colorado Supreme Court

Citation: 2021 CO 1

Opinion Date: January 11, 2021

Judge: Monica M. Márquez

Areas of Law: Family Law

The Colorado Supreme Court has previously held that a couple could establish a common law marriage “by the mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship.” The Court advised that evidence of such agreement and conduct could be found in: a couple’s cohabitation; reputation in the community as husband and wife; maintenance of joint banking and credit accounts; purchase and joint ownership of property; filing of joint tax returns; and use of the man’s surname by the woman or by children born to the parties. In this case, a dispute arose over a common law marriage claim. Notably in this case, because same-sex couples could lawfully marry, the gender-differentiated terms and heteronormative assumptions found in the case law were "ill-suited" for same-sex couples. "The lower court decisions in these cases reflect the challenges of applying Lucero to these changed circumstances." The Supreme Court refined the Lucero test to hold that a common law marriage may be established by the mutual consent or agreement of the couple to enter the legal and social institution of marriage, followed by conduct manifesting that mutual agreement. The core query is whether the parties intended to enter a marital relationship—that is, to share a life together as spouses in a committed, intimate relationship of mutual support and obligation. In assessing whether a common law marriage has been established, courts should accord weight to evidence reflecting a couple’s express agreement to marry. In the absence of such evidence, the parties’ agreement to enter a marital relationship may be inferred from their conduct. When examining the parties’ conduct, the factors identified previously in Colorado case law can still be relevant to the inquiry, but they must be assessed in context; the inferences to be drawn from the parties’ conduct may vary depending on the circumstances. Finally, the manifestation of the parties’ agreement to marry need not take a particular form. Applying these factors to the parties' case here, the Supreme Court determined no common law marriage existed here.

In re Marriage of LaFleur & Pyfer

Court: Colorado Supreme Court

Citation: 2021 CO 3

Opinion Date: January 11, 2021

Judge: Monica M. Márquez

Areas of Law: Family Law

In 2018, Respondent Timothy Pyfer filed a dissolution of marriage petition, alleging that he had entered into a common law marriage with his same-sex partner, Petitioner Dean LaFleur, when they held a ceremony before family and friends in 2003, and exchanged vows and rings. LaFleur countered that Pyfer’s claim was legally impossible because at the time of the 2003 ceremony, Colorado did not recognize same-sex marriages. In the interim, however, the U.S. Supreme Court held that same-sex couples could exercise the fundamental right to marry and struck down state laws that excluded same-sex couples from civil marriage as unconstitutional. The Colorado Supreme Court granted certiorari review to address whether, in light of Obergefell v. Hodges, 576 U.S. 644 (2015), a same-sex couple could prove a common law marriage entered in Colorado before the state recognized same-sex couples’ fundamental right to marry. The Court indeed held a court could recognize a common law same-sex marriage entered in Colorado before the state recognized same-sex couples’ fundamental right to marry, "state law restrictions held unconstitutional in Obergefell cannot serve as an impediment to the recognition of a same-sex marriage predating that decision." The Colorado Court held that to the extent Obergefell did not merely recognize an existing fundamental right to marry but announced a new rule of federal law, that decision applied retroactively to marriages (including common law marriages) predating that decision.

In the Matter of the Presumption of Death of Audray Johnson

Court: Supreme Court of Mississippi

Citation: 2020-CP-00240-SCT

Opinion Date: January 14, 2021

Judge: Griffis

Areas of Law: Family Law

Ashley Bionte Johnson filed a petition for presumption of death and requested that the chancellor presume her father, Audray Johnson, dead. She claimed that her father, Audray, had been gone from his physical body for more than seven years and should be presumed dead. Audray suffers from mental illness and has been treated for dissociative identity disorder. In 2017, Audray changed his name from Audray Johnson to Akecheta Andre Morningstar. In February 2020, a hearing was held on Ashley’s petition. Morningstar was present at the hearing and testified regarding Audray’s death. According to Morningstar, Audray’s spirit expired more than seven years ago, and Morningstar occupied Audray’s physical body. Morningstar testified that he was “an ambassador . . . a hybrid . . . part angel, part human” who originated “from the heavens.” He explained that he was “dispatched” to earth “to save the world.” Although Morningstar admitted he occupied Audray’s physical body, he asserted he “shouldn’t have the responsibility of taking care of a dead man’s family.” The chancellor denied Ashley’s petition, and Ashley timely appealed. The Mississippi Supreme Court determined Audray had not been absent from, and did not conceal himself in Mississippi for seven years, therefore the chancellor’s denial of the petition was affirmed.