Court Limits Enforcement of Public Sleeping Ordinances

September 2018
Number 50

A federal appeals court has held that a city could not enforce local ordinances that prohibit homeless persons from sleeping outside when shelter is not available. Municipalities with similar ordinances may be affected by the Ninth Circuit Court of Appeals’ decision in Martin v. City of Boise.

Background

At a time when homelessness is an issue that cities and counties are increasingly called to address, a common trend is to prohibit sleeping and camping on the sidewalk, in parks, and in other public places. The City of Boise enacted ordinances to do just that. The ordinances prohibit the use of “any of the streets, sidewalks, parks, or public places as a camping place at any time” where “camping” is defined as “the use of public property as a temporary or permanent place of dwelling, lodging, or residence” and “[o]ccupying, lodging, or sleeping in any building, structure, or public place, whether public or private” without permission.

Several homeless residents challenged enforcement of the Boise ordinances. The factual basis for their claim was fairly straightforward: Plaintiffs are homeless; there is not enough room at the homeless shelters for all of the city’s homeless; plaintiffs and other homeless persons have no choice but to sleep outside and in public when the shelters are full; therefore, plaintiffs and other homeless persons are forced to violate the city’s ordinances. Their claim rested on the Eighth Amendment’s prohibition against cruel and unusual punishment. Specifically, the Amendment’s “substantive limits on what the government may criminalize” was at issue.

The court examined prior U.S. Supreme Court cases concerning narcotics addiction and public drunkenness, as well as the since-vacated Ninth Circuit decision in Jones v. City of Los Angeles that restrained enforcement of an ordinance that prohibited sitting, lying, and sleeping in public. The court adopted the reasoning of its prior ruling inJones, finding Boise’s ordinances effectively criminalize the status of being homeless, as opposed to undesirable conduct that can be prohibited.

The Martin court concluded that “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.” “[A]s long as there is no option of sleeping indoors,” the court ruled, “the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”

Takeaways

Despite the ruling, there is likely a future for sleeping and camping ordinances. The court declared that “[its] holding is a narrow one” and made some important qualifications regarding its ruling. Some clues are also found in the text of the decision. For example, the court’s regular reference to “public property” suggests that sleeping and camping ordinances may still be enforced when the conduct occurs on private property, regardless of shelter space.

The court further made clear, albeit in a footnote, that the ruling “does not cover individuals who do have access to adequate temporary shelter, whether because they have the means to pay for it or because it is realistically available to them for free, but who choose not to use it.” Moreover, it did not say a city can never prohibit sleeping in public when there is insufficient shelter space. Without making an express decision on this point, the court said that “an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible,” and, “an ordinance barring the obstruction of public rights of way or the erection of certain structures” may be acceptable. This may mean that permitting outdoor sleeping in designated places and times will permit widespread enforcement of such an ordinance elsewhere.

Throughout Martin, the court focused on the natural and necessary act of sleeping, stating that “the two ordinances criminalize the simple act of sleeping outside on public property.” This raises an interesting point about camping ordinances. The court was critical of the city’s enforcement of the camping ordinance against homeless persons “with some elementary bedding,” sleeping “with blankets,” or when other indicators of “camping” are absent. It appears that the problem did not lie with the camping prohibition itself, which would prevent the act of constructing a camp or other shelter, but with sleeping and taking basic precautions in order to sleep outside.

The court stated that its ruling does not require cities to provide homeless shelters. But, when there are more homeless people than available shelter beds, the ordinances will be unenforceable. Practical unavailability of shelter beds may also impact enforcement. During the litigation, Boise instituted a “no space, no enforcement” protocol where the shelters would self-report if they were full so the ordinances would not be enforced that night. However, one shelter had a policy of not turning away anyone seeking shelter and never reported that it was full. As a result, the exception was never actually triggered. There was also evidence of limits on the number of consecutive days someone could stay at one shelter before a mandatory stay-away period. Additionally, due to the time of day that beds were assigned and preferences given to returning guests, a shelter with available room might stop making assignments for the night before prospective guests learn they are unable to get a bed at the other shelter, leaving them with no place to go.

The city reportedly will appeal the panel decision to the full Ninth Circuit. Until new decisions are issued, this ruling applies and municipalities that prohibit sleeping or camping in public places should review their ordinances and consult legal counsel concerning continued enforcement.

If you would like more information about the Martin decision or have any questions regarding municipal sleeping or camping ordinances, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook orTwitter or download our Client News Brief App.

Written by:

Jennel Van Bindsbergen

Partner

Wesley L. Carlson

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

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Ninth Circuit Shoots Down Challenge to Law Prohibiting Concealed-Carry Permit Holders from Possessing Firearms on School Property

September 2018
Number 46

In Gallinger v. Becerra, the Ninth Circuit Court of Appeals rejected a challenge to a 2015 change to California’s Gun-Free School Zone Act that removed an exemption allowing concealed-carry permit holders to carry firearms on school grounds, but maintained the same exemption for retired peace officers.

The Ninth Circuit held that lawmakers had a rational basis for approving this change, effected by Senate Bill (SB) 707, and also that the partial elimination of the exemption did not violate the Equal Protection Clause of the Fourteenth Amendment.

Background

A collection of public interest groups and individuals challenged SB 707 on two bases: that SB 707’s treatment of concealed-carry permit holders is analogous to a similar ban in the Assault Weapons Control Act (AWCA) struck down in Silveira v. Lockyer, and that SB 707 violates the Equal Protection Clause because it favors a politically powerful group and disfavors a politically unpopular one. The Ninth Circuit found both arguments unpersuasive.

The plaintiffs, citing Silveira, argued that distinctions between concealed carry holders and retired peace officers do not serve a valid legislative purpose. However, the Ninth Circuit distinguished its holding in Silveira, in which the court determined that the AWCA’s retired-officer exemption was “wholly unconnected to any legitimate state interest.” The court reasoned that it did not serve a valid purpose to exempt retired officers from AWCA’s ban affecting one specific type of firearm-assault weapons-but found that SB 707’s ban on all guns on school grounds did serve a legitimate policy interest. The Ninth Circuit determined that SB 707’s retired-officer exemption serves a valid public purpose, deferring to the Legislature’s reasoning that allowing retired peace officers to carry weapons on school grounds both provided for the officer’s safety and also the public’s safety. The court additionally determined that the legislative history of SB 707, which detailed the Legislature’s concerns about gun-rights organizations advising gun owners to bring firearms onto school campuses in the wake of several school shootings, provided sufficient rationale for ending the concealed-carry exemption.

The Ninth Circuit was similarly unpersuaded by the plaintiffs’ argument that SB 707 violated the Equal Protection Clause by disfavoring a politically unpopular group, concealed-carry owners, and favoring a politically powerful group, retired peace officers. The court held that there was no evidence of explicit legislative intent to harm concealed-carry holders. Evidence demonstrating that retention of the retired-officer exemption was the product of political lobbying also did not show impermissible discrimination: Favoring retired officers did not show a parallel intent to harm concealed-carry holders.

Takeaways

The court’s application of current events to legal aspects surrounding gun control is notable. In the Gallinger decision, the Ninth Circuit cited numerous school shootings to support both the Legislature’s purpose in banning concealed-carry holders-to reduce the number of guns on campus-and also, the Legislature’s intent to provide for safety by allowing retired officers to carry firearms on school campuses or in school zones. Going forward, school administrators and personnel responsible for school safety can rely upon the Gun-Free School Zone Act to prohibit firearms on school grounds, regardless of whether someone possesses a permit to carry a concealed weapon.

More broadly, Gallinger shows a significant level of judicial deference to the Legislature’s findings of public purpose related to school safety. Such safety policies and gun control legislation often inspire tension with an individual’s rights under the Second Amendment and the public’s right to access to government facilities. Recognizing a newfound emphasis on school safety, the court in Gallinger showed deference to the rationale advanced for both ending the concealed-carry exemption and upholding the retired-officer exemption.

For more information about this decision and its impact on school districts, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Thomas R. Manniello

Partner

Tilman A. Heyer

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Ninth Circuit Upholds California’s Voters’ Choice Act

September 2018
Number 45

The Ninth Circuit Court of Appeals recently affirmed the constitutionality of California’s Voters’ Choice Act (VCA), which provides for an all-mail ballot election system. The court’s opinion validates the ability of states and local election officials to implement and operate systems that are designed to increase voter turnout.

In this litigation, Lozano Smith represented respondent County of Madera, which had opted in to the VCA system for the 2018 election cycle and beyond.

Background

Responding to low voter turnout in the 2014 election cycle, the California Legislature enacted the VCA in 2016. Prior to the VCA, California voters could opt to vote by mail on an individual basis. Under the VCA, a ballot is automatically mailed to every registered voter 29 days before the election date. A voter may cast the ballot by mailing the ballot back in, depositing the ballot at a designated locked mailbox location, or turning in the ballot at a “vote center” (which replaces traditional polling places).

However, the VCA did not require all California counties to adopt the new system. Instead, under a pilot program, 14 enumerated counties were authorized to opt in after January 1, 2018. With an exception for Los Angeles County (which has its own set of options by statute), all other counties may opt in to the VCA system on or after January 1, 2020. For the 2018 election cycle, five counties-Madera, Napa, Nevada, Sacramento, and San Mateo-opted in to the VCA system. The option of voting by mail is still open in non-VCA counties.

Jeffrey Short, et al. v. Edmund G. Brown et al.

On February 26, 2018, plaintiffs Jeffrey Short, Trina T.R. Heter, and the Sacramento Valley Lincoln Club sued the State of California and the counties of Madera, Nevada, and Sacramento, seeking to enjoin the operation of the VCA. The individual plaintiffs were citizens of counties who could not opt in to the VCA until 2020, and they alleged that the VCA’s structure violated the Fourteenth Amendment’s Equal Protection Clause by permitting voters in certain counties to receive a mail ballot automatically, while requiring voters in other counties to register to receive a mail ballot. According to the plaintiffs, this would result in the dilution of votes in non-VCA counties because voter turnout would likely be greater in VCA counties, as intended by the Legislature.

In the trial court, the plaintiffs’ motion for preliminary injunction was denied based on the hardship that enjoining the 2018 elections would create. However, the trial court also held that the plaintiffs had raised “serious questions on the merits” as to the constitutionality of the VCA related to vote dilution.

The plaintiffs appealed to the Ninth Circuit Court of Appeals. On June 22, 2018, the Ninth Circuit denied the appeal. The Ninth Circuit held that the injunction request was properly denied based on hardship, and further held that the injunction should also have been denied based on a lack of substantive merit. Consistent with established constitutional law holding that challenges to state election laws are only strictly scrutinized when there is a severe burden on the right to vote, the Ninth Circuit held that the VCA did not burden the right to vote, but simply made it easier for some voters to cast mail ballots by mail. The burden on non-VCA county voters in having to request a mail ballot was considered minimal at best, and thus not demanding of strict scrutiny. Assuming such a slight burden even would exist, the Ninth Circuit held that California had a legitimate interest in increasing voter turnout, and that there was a specific interest in the incremental phasing that the VCA provides for, to allow for reporting back on the results of the VCA for legislative guidance.

Takeaways

The Ninth Circuit’s opinion supports the proposition that unless there is a substantial burden placed on the voters, state legislatures have ample discretion as to how to deal with low voter turnout, including the implementation of pilot programs that can eventually be applied to the entire state.

If you have any questions about Short et al. v. Brown et al., or the VCA in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Sloan R. Simmons

Partner

Michael R. Linden

Senior Counsel

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Field Trip Immunity Does Not Apply to a Community College’s Hosting of an Intercollegiate Athletic Event

August 2018
Number 44

Community college districts are generally immune from liability for injuries sustained in the course of field trips and excursions under the California Code of Regulations, title 5, section 55220. However, inAnselmo v. Grossmont-Cuyamaca Community College District, an appellate court determined that such immunity does not apply to an injury sustained during an intercollegiate athletic tournament.

Background

In this case, a community college hosted an intercollegiate beach volleyball tournament at its campus. During the competition, a beach volleyball player, who attended a different community college district, was injured when she dove into the sand and hit her knee on a rock.

The student filed a complaint against the college, claiming that she was injured due to a dangerous condition that existed at the college’s facility. The college sought to dismiss the case, contending that the field trips and excursions immunity under section 55220 applied.

The court disagreed with the college and concluded that section 55220 did not apply to this situation. The court determined that the college did not conduct the student’s field trip or excursion (i.e., direct or manage the actual travel). Rather, it provided the sports facility that the student traveled to with her team. As the host of the intercollegiate athletic competition, the college had an ongoing responsibility to provide reasonably safe premises to all teams participating in the tournament, including the visiting beach volleyball players.

Takeaways

Field trips and excursions immunity has specific and limited application for community college districts. While the court did not expressly state that such limitations apply to immunity provided to K-12 school districts, it did note the similarities in the statutory immunity language for K-12 districts. Finally, this case highlights the importance of public entities maintaining their property in a safe condition.

If you have any questions regarding the Anselmo case or field trip immunity in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Edward J. Sklar

Partner

Aria G. Link

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Mayor-Sponsored Pension Reform Ballot Measure Triggered Meet and Confer Requirement, Court Rules

August 2018
Number 43

When a public official with responsibility for labor relations sponsors a ballot measure affecting workers’ terms and conditions of employment, the duty to meet and confer arises, the California Supreme Court recently ruled. (Boling v. Public Employment Relations Board)

Background

In 2010, San Diego Mayor Jerry Sanders developed a citizen’s initiative to eliminate traditional pensions for new hires. Sanders told the press that his purpose for pursuing pension reform through a citizen’s initiative rather than through a measure proposed by City Council was to avoid the meet and confer process.

The City of San Diego is a charter city with a “strong mayor” form of government. As mayor, Sanders’ responsibilities include acting as the city’s chief executive officer, serving as its designated bargaining agent, and recommending measures to the City Council. (In other cities, these duties may be assigned to a city manager.)

Sanders actively developed and promoted the initiative in his official capacity. He issued news releases bearing his official title, approved a “message from Mayor Jerry Sanders” soliciting signatures for the initiative, and recommended to the Council that pensions be replaced with 401(k)-style plans. His staff also assisted in developing the proposal and gathering signatures for the initiative.

After the initiative garnered sufficient support to qualify for the ballot, the San Diego Municipal Employees Association wrote to Sanders, demanding that the city meet and confer on the grounds that Sanders had promoted the initiative in his official capacity. When the city refused, the union filed an unfair labor practice charge with the Public Employment Relations Board (PERB) alleging violations of the Meyers-Milias-Brown Act (MMBA).

PERB ruled in the union’s favor, finding that the city had engaged in an unfair labor practice in failing to meet and confer and that Sanders had acted in his official capacity in supporting the initiative. The Court of Appeal reversed, determining that the MMBA’s meet and confer requirements only to apply to proposals considered by a governing body.

In overturning the appellate court’s decision, the California Supreme Court found that the MMBA imposes a duty to meet and confer not just on the governing board, but also on “administrative officers or other representatives.”

As the city’s chief executive officer and bargaining agent, Sanders had a duty to meet and confer with the union regarding any matter that would affect the terms and conditions of employment, even though the policy was being pursued through a citizen’s initiative. The Court reasoned that “[a]llowing public officials to purposefully evade the meet-and-confer requirements of the MMBA by officially sponsoring a citizens’ initiative would seriously undermine the policies served by the statute: fostering full communication between public employers and employees, as well as improving personnel management and employer-employee relations.”

The Supreme Court also held that the appellate court should have given deferential treatment to PERB’s decision, noting that the lower court should have “followed PERB’s interpretation unless … clearly erroneous.”

Takeaways

Local city and county officials with labor relations responsibilities should be cautious when it comes to promoting in their official capacities ballot measures that affect represented workers’ terms and conditions of employment, as this may give rise to the duty to meet and confer.

If officials choose to promote ballot measures affecting the terms and conditions of employment of their agency’s employees, they should make clear they are doing so in their individual capacities. They should not use staff time or agency resources to develop policy, promote policy, or solicit signatures. To do otherwise may give rise to a duty to meet and confer.

For more information about this decision or about meet and confer obligations in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Jenell Van Bindsbergen

Partner

Meera H. Bhatt

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Public Entities May Rely on Claimant’s False Representations of Timeliness on Claim Forms

August 2018
Number 41

In Estill v. County of Shasta, the Court of Appeal has ruled that a public entity has no duty under the Government Claims Act to advise a claimant that they may seek leave to file a late claim within 45 days, where the claim appears to be timely on its face.

Background

Renee Estill, a former employee of the Shasta County Sherriff’s Office, submitted a government claim form to Shasta County on February 23, 2012. In the claim form, she alleged that her coworkers discussed a confidential internal investigation of which she was the subject, and spread rumors about her based on the investigation. Estill repeatedly represented on the form that she first became aware of the alleged incidents on September 9, 2011. The county accepted the claim as timely, and denied the claim on the merits without warning Estill to seek leave to present a late claim.

After Estill filed suit, the county learned at her deposition that she was actually aware of the alleged incidents in 2009. The county’s motion for summary judgment was granted by the trial court based on Estill’s claim being untimely filed. Following the judgment, Estill requested and was granted a new trial. Estill asserted that the county waived its defense of untimeliness when it failed to warn Estill that she should seek leave to present a late claim pursuant to Government Code section 911.3(b). The county appealed.

The Court of Appeal ruled in favor of the county and found that a claimant may be prevented from asserting that a public entity has waived its defense of untimeliness when the reason the public entity fails to notify the claimant that a claim is untimely results from the claimant’s representations on the government claim form.

The Government Claims Act allows a claimant to sue a public entity, including local government agencies, public school districts, and community college districts, after meeting certain procedural requirements. One requirement is that a claimant must file his or her claim with the governmental entity within six months of the “accrual” (learning of the alleged wrongdoing that caused injury to the claimant) of the injury. Under Government Code section 911.3, a waiver of the six month timeliness requirement occurs when the governmental entity does not advise a claimant within 45 days of the presentation of an untimely claim that leave may be sought to file that late claim.

In this case, Estill first became “aware” of the alleged wrongdoing in 2009, but represented on her government claim form that she did not become aware until 2011. The court reasoned that because Estill withheld information that would alert the county that she might have been aware of the incident prior to 2011, she intended for the county to rely on her representations that her claim was timely filed, which the county did. The court continued that it would be unfair to allow Estill to subsequently assert that under section 911.3, subdivision (b), the county waived its timeliness defense by accepting her repeated representations at face value, especially when there was no indication the representations were untrue.

Takeaways

This new ruling allows any public entity to accept the representations of timeliness on a government claim form at face value and to deny the claim on its merits, while also preserving its defense of untimeliness if it learns at a later date that the claim was untimely. Furthermore, a public entity may rely on the representations in the claim form without conducting its own investigation into the timeliness of the claim, so long as the claimant does not provide information that the claim might be untimely.

For more information about the Estill case or about the Government Claims Act in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Jenell Van Bindsbergen

Partner

Mark Murray

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Records Requesters May Recover Attorney Fees in Reverse-CPRA Actions

August 2018
Number 35

The stakes of asking a court to halt the disclosure of documents sought under a California Public Records Act (CPRA) request just got higher for private parties. California appellate courts have handed down a pair of decisions holding that private parties who sue to prevent the government agency from disclosing their personal information may be required to pay the requester’s attorney fees if they lose.

Background

The CPRA requires public entities to disclose public records unless there is a specific legal exemption. Under the CPRA, if a public entity has refused to produce documents and the matter is litigated, the plaintiff may recover attorney fees against the public entity if the plaintiff prevails.

In 2012, a court recognized private parties’ right to go to court to protect their records by filing a “reverse-CPRA” lawsuit. (Marken v. Santa Monica-Malibu Unified School District (2012) 202 Cal.App.4th 1250.) Until recently, private parties filing a reverse-CPRA suit were not required to pay the requester’s attorney fees if the requester prevailed. That has changed. Now, private parties must proceed with caution when seeking to protect their personal records or risk being ordered to pay a records requester’s attorney fees.

Pasadena Police Officers Association v City of Pasadena

In Pasadena, a newspaper sought to obtain records regarding a police shooting, including personnel records of the officers involved. The city refused to disclose the information, and the newspaper sued. The city was joined in the litigation by the police officers and their union, who filed a reverse-CPRA action to protect the officers’ private information. The newspaper prevailed, and the trial court ordered the city to pay the newspaper’s attorney fees pursuant to the CPRA. But the court denied the newspaper’s request to award attorney fees against the union and the police officers.

The Court of Appeal reversed, granting attorney fees against the union and the individual police officers. The court held that the union and police officers were responsible for attorney fees under California Code of Civil Procedure section 1021.5, the Private Attorney General Act (PAGA). The statute allows a court to grant attorney fees when certain criteria are met.

National Conference of Black Mayors v. Chico Community Publishing

In National Conference, a newspaper requested records which included communications between Sacramento’s mayor and a law firm representing his private organization. Unlike in the Pasadena case, the city was willing to release the records requested, but the mayor, in his private capacity, filed a reverse-CPRA action to prevent their disclosure. A court ordered the release of some of the records. However, the court denied the newspaper’s request for attorney fees from the city and the mayor, which it made pursuant to the CPRA.

The Court of Appeal affirmed the trial court’s decision not to award fees, stating that while the CPRA allows for attorney fees against a governmental agency, it does not allow recovery of attorney fees against a private party who files a reverse-CPRA action. Since the city was willing to disclose the records, it was not subject to attorney fees. The court specifically noted that the newspaper failed to challenge the trial court’s decision to deny fees under PAGA, adding that attorney fees would have been granted against the mayor under PAGA, consistent with the Pasadena ruling.

Takeaways

Pasadena and National Conference encourage private parties to think carefully before suing to prevent the release of their personal information pursuant to CPRA requests. Individuals who may otherwise have fought to keep their information private may now be inclined to allow release of their records to avoid the risk of being ordered to pay the requester’s attorney fees.

If you have any questions about Pasadena, National Conference, or the CPRA or PAGA in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Manuel F. Martinez

Partner

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.