The Unacknowledged Clash Between the Supreme Court’s Interpretation of the Religion Clauses and the Free Speech Clause of the First Amendment

VIKRAM DAVID AMAR, ALAN E. BROWNSTEIN

Illinois law dean Vikram David Amar and UC Davis law professor emeritus Alan Brownstein comment on a largely unacknowledged clash between religious accommodations and exemptions on the one hand, and core free speech principles which the U.S. Supreme Court has repeatedly recognized, on the other. Amar and Brownstein describe this apparent conflict and suggest that the Court begin to resolve the conflict when it decides two cases later this term presenting the question of the scope of the “ministerial exception.”

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Church Joint Venture, L.P. v. Earl Blasingame

Court: US Court of Appeals for the Sixth Circuit

Docket: 18-6142

Opinion Date: January 21, 2020

Judge: Alan Eugene Norris

Areas of Law: Business Law, Trusts & Estates

The Blasingames filed for Chapter 7 bankruptcy. CJV purchased their debts to two banks, each arising from personal guarantees made to secure loans to businesses that failed. The Blasingames claimed that they owned no real property, owned personal property worth $5,700, and had a total monthly income of $888. The bankruptcy trustee and CJV successfully argued against the discharge of their debts. The bankruptcy court noted that the debtors had repeatedly concealed assets, including through the use of closely-held, interconnected corporations and trusts. CJV sued the Blasingames, their children, and those entities and trusts. CJV prevailed on two fraudulent transfer claims for transfers of money and of real property to trusts. CJV appealed the dismissal of claims based on reverse alter ego or reverse veil piercing; the denial CJV’s motion to certify to the Tennessee Supreme Court the question of whether Tennessee would recognize such theories; and the denial of CJV’s motion for leave to amend its complaint to add to its legal theories that the trusts were “self-settled.” The Sixth Circuit affirmed, finding “no persuasive data” to conclude that Tennessee’s high court would embrace the reverse piercing claims; reverse piercing is not a novel or unsettled area of law and certification was unnecessary. The failure of CJV to realize it could have made claims under a self-settled theory is not an adequate reason for a nearly five-year delay; the prejudice to defendants was apparent and substantial.

Estate of David Bass v. Regions Bank, Inc.

Court: US Court of Appeals for the Eleventh Circuit

Dockets: 17-13048, 18-12917

Opinion Date: January 21, 2020

Judge: Tjoflat

Areas of Law: Banking, Trusts & Estates

The administrator brought separate actions against Regions and Fidelity, alleging claims arising from the decedent's transfer of his entire retirement savings account to his sister before his death. The Eleventh Circuit held that the district court properly granted Fidelity's Rule 12(b)(6) motion regarding the Count III breach of contract and Count IV breach of fiduciary duty claims; vacated the district court's Rule 12(b)(1) dismissals of the Count II Georgia UCC claims in both complaints because those rulings were incapable of meaningful review; and affirmed the district court's dismissal of the Count I common law conversion and Count II common law negligence claims because they were preempted by Georgia Code 11-3-420.

Taylor v. Hoehn

Court: Supreme Court of Alabama

Docket: 1180375

Opinion Date: January 17, 2020

Judge: Alisa Kelli Wise

Areas of Law: Civil Procedure, Trusts & Estates

Plaintiff Helene Hoehn Taylor, appealed a trial court's judgment on partial findings in favor of defendant Margaret Hoehn. John Alphonse Hoehn ("Hoehn") died on or about October 17, 2014. He was survived by his wife, Margaret, and four daughters: Helene Taylor, Barbara Roberts, Ann Self, and Roman Fitzpatrick. In 2015, Helene filed a petition requesting that a will of Hoehn's that was dated June 7, 2005, be admitted to probate and that letters testamentary be issued to her. She attached to the petition an unsigned copy of a the purported will, stated that she believed that Margaret had the original signed will in her possession, and requested that the probate court enter an order requiring Margaret to produce the signed will so it could be properly probated. Margaret ultimately moved to dismiss Helene's petition, alleging Hoehn had died intestate. Helene sought to compel Margaret to produce Hoehn's executed will. In response, Margaret asserted she had been married to Hoehn for 46 1⁄2 years and that she was not aware of any will that he had executed. She moved again for Helene's petition be dismissed. Helene attempted to probate a lost will. The circuit court dismissed the daughters' attempt to intervene. At a bench trial, Roman testified she was present when her father signed the will at issue; she also produced a signed copy of a revocable trust agreement, wherein the trust would be funded by the terms of the will. An attorney who drafted the will and trust agreement also testified; his office did not have an executed copy of Hoehn's will or the trust agreement. Further, the attorney testified that "knowing what [he] knew about the family and the potential for subsequent litigation, it would have been unusual for [him] to have Roman or anybody else sitting right there" while the Hoehns signed the documents. The attorney testified Hoehn asked the attorney to revoke the power of attorney and any other writing he had made which purported to gift anything of value to Roman or Helene. Margaret moved for judgment on partial findings at the close of Helene's case. The Alabama Supreme Court affirmed judgment in favor of Margaret, finding the circuit court could have reasonably concluded that Helene did not establish that Hoehn ever properly executed the purportedly lost will, and could have reasonably concluded that, even if Hoehn had signed the will, that will had been revoked.

Barefoot v. Jennings

Court: Supreme Court of California

Docket: S251574A

Opinion Date: January 23, 2020

Judge: Ming Chin

Areas of Law: Trusts & Estates

The Supreme Court held that the Probate Code grants standing in probate court to individuals who claim that trust amendments eliminating their beneficiary status arose from incompetence, undue influence, or fraud, thus reversing the decision of the court of appeal concluding that only a currently named beneficiary can petition the court concerning the internal affairs of a trust or to determine the existence of the trust under Cal. Prob. Code 17200, subdivision (a). Plaintiff, one of the daughters of Joan Lee Maynord, was a beneficiary under the Maynord Family Trust. Maynord subsequently executed a series of amendments to the trust. In these amendments Plaintiff's share of the trust was eliminated and Plaintiff was expressly disinherited. Plaintiff then filed a petition alleging the amendments disinheriting her were invalid on three grounds. The trial court dismissed the petition, concluding that Plaintiff lacked standing because she was neither a beneficiary nor a trustee under the trust. The court of appeals affirmed. The Supreme Court reversed, holding that claims that trust provisions or amendments are the product of incompetence, undue influence, or fraud should be decided by the probate court if the invalidity of those provisions or amendments would render the challenger a beneficiary of the trust.

Zemek v. Super. Ct.

Court: California Courts of Appeal

Docket: E072844(Fourth Appellate District)

Opinion Date: January 22, 2020

Judge: Manuel A. Ramirez

Areas of Law: Constitutional Law, Criminal Law, Trusts & Estates

Sixty-nine year old Pamelia Powell had been prescribed multiple central nervous system depressants, with additive effects. In April 2016 and again in May 2016, she had to be hospitalized for overdoses. In between the two hospital stays, petitioner Marilyn Zemek, who was already Powell’s friend, agreed to become her paid caretaker. She acknowledged at the time that Powell needed “constant companionship,” including help with “properly taking her medication.” Later in May 2016, petitioner took Powell to petitioner’s former attorney. He prepared new estate planning documents for Powell that left everything to petitioner. In June 2016, petitioner left Powell home alone for at least two days and perhaps as much as four days. During that time, Powell died of an overdose of her prescription medications. After Powell’s death, petitioner bought items using Powell’s credit card and emptied Powell’s bank accounts. Based on this evidence, a magistrate held petitioner to answer for crimes including murder, elder abuse, and grand theft. The trial court denied petitioner’s motion to set aside the information. Petitioner appealed to the Court of Appeals, arguing there was insufficient evidence: (1) of malice; (2) that she was the legal cause of Powell’s death; and (3) that the money she took did not belong to her. The Court rejected these contentions and affirmed the magistrate court’s decision.

In re Estate Of Tank

Court: South Dakota Supreme Court

Citation: 2020 S.D. 2

Opinion Date: January 22, 2020

Judge: Jensen

Areas of Law: Trusts & Estates

In this case concerning the will of Russell Tank naming his neighbor Jason Bender as his sole heir and disinheriting his four adult children (Children) the Supreme Court affirmed in part and reversed in part the decision of the circuit court dismissing Children's petition challenging the will, holding that summary judgment was improperly granted on one of the children's claims of undue influence. Children filed a petition challenging the will naming Bender as Russell's sole heir on the grounds of lack of testamentary capacity, insane delusions, and undue influence. The circuit court granted summary judgment in favor of Bender. The Supreme Court reversed in part, holding that the circuit court (1) did not err in concluding that there were no genuine issues of material fact showing Russell lacked testamentary capacity to execute the will; (2) did not err in determining that there were no genuine issues of material fact showing Russell suffered from an insane delusion affecting the terms of his will; and (3) erred in determining that that there were no material issues of fact on one of the children's claim that the will was the product of undue influence but did not err in concluding that there was no evidence to support the remaining children's claim of undue influence.