Is the So-Called Mandate Without Any Tax Consequences Unconstitutional? And If So, How Should a Court Remedy That? Part Three in a Series Examining Underexplored Issues in the California v. Texas Affordable Care Act Case

VIKRAM DAVID AMAR, EVAN CAMINKER, JASON MAZZONE

In this third of a series of columns examining underexplored issues in the California v. Texas case challenging the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone consider whether the so-called individual mandate of the ACA, now without any tax consequences, is unconstitutional, as the challengers argue. The authors explain why, in their view, the challengers are incorrect, regardless of whether the word “shall” in the ACA is interpreted as obligatory or not.

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Kalb v. Wise

Court: Idaho Supreme Court - Civil

Docket: 47057

Opinion Date: October 9, 2020

Judge: Bevan

Areas of Law: Civil Procedure, Legal Ethics, Trusts & Estates

Attorney Craig Wise appealed a district court’s determination that he breached a duty of care owed to Billy Kyser, Jr., as a beneficiary of Carolyn Kyser’s will. Wise represented Billy’s mother, Carolyn, in divorce proceedings from Bill Kyser, Sr., and in preparing a will that bequeathed her entire estate in equal shares to Billy and his brother Brent Kyser. As part of the divorce proceedings, and before Carolyn’s will was completed, Carolyn and Bill Sr. executed a property settlement agreement in which Bill Sr. and Carolyn agreed to retain sequential life estates in the family home, with the remainder going to Brent and Billy as tenants in common upon the death of the last surviving parent. Wise prepared a deed memorializing the terms of the property settlement agreement. After Bill Sr. and Carolyn both passed away, Brent retained Wise to represent him as the personal representative of Carolyn’s estate. Brent also hired Wise independently to prepare a quitclaim deed transferring Billy’s interest in the home to Brent. Wise sent the deed to Billy, who then executed it. David Kalb, Billy’s court-appointed conservator, then filed a malpractice suit against Wise. After a court trial, the district court held Wise breached the duty he owed to Billy as a beneficiary of Carolyn’s will by preparing the deed because it frustrated Carolyn’s testamentary intent that her estate be divided equally between her two sons. After review, the Idaho Supreme Court reversed the district court’s legal determination that Wise owed Billy a duty of care when Wise was acting as counsel for the personal representative of Carolyn’s estate, Brent. "Although Wise owed Billy a duty of care in drafting and executing Carolyn’s will, the district court impermissibly extended that duty by requiring that Wise ensure an asset outside the probate estate complied with Carolyn’s intent in her will."

In the Matter of the Estate of Foresee

Court: Oklahoma Supreme Court

Citation: 2020 OK 88

Opinion Date: October 13, 2020

Judge: Gurich

Areas of Law: Trusts & Estates

Dayna Foresee (Dayna) and Thomas Allen Foresee (Decedent) were married for thirty-nine years. The record was unclear as to precisely when the parties separated, but Dayna moved out of the parties' marital residence in Eufaula, Oklahoma and filed a divorce proceeding in Tulsa County in July 2019. Decedent had been diagnosed with amyotrophic lateral sclerosis (Lou Gehrig's disease). On December 31, 2019, he executed his Last Will and Testament, naming two of the parties' children, appellees Jeremy Foresee and Jacie Michelle Cook, to serve as co-personal representatives. Further, the will expressly excluded Dayna from taking anything from Decedent's estate. Decedent passed away from Lou Gehrig's disease on January 11, 2020. Two days later, Appellees filed a probate petition seeking appointment as special administrators of Decedent's estate. Appellees alleged the Decedent had "orally expressed wishes for disposition of his bodily remains." Dayna filed an objection contesting the decedent's will to probate, and sought a restraining order and injunction. She argued the will was invalid because the decedent was of unsound mind at the time of the will's drafting, thereby making any assignment of the right to control his body also invalid. Appellees claimed that as representatives of the Decedent's estate, duly appointed under the terms of his will, they were to be afforded statutory priority to control the disposition of the remains. The will vested the co-personal representatives with the power to pay debts associated with Decedent's "last illness, funeral, and burial;" however, nothing in the will explicitly entrusted them with control over decedent's remains. The trial court ruled the decedent's last will and testament sufficiently vested power over his remains in the named personal representatives, citing 21 O.S. 2011 §sections 1151(B) and 1158(2). The Oklahoma Supreme Court retained this appeal as a question of first impression and affirmed the trial court's ruling in part. The Supreme Court held that the will did not expressly assign authority over the remains such that it satisfied the requirements of section 1151(B); however, the personal representatives did have priority over the body according to section 1158(2). As such, the trial court properly denied surviving spouse's request for a temporary injunction.