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| Cousins Considered: Cases, Codes & Common
Law The
law is often practiced as a family affair, ranging from members of
close-knit family units to more distant kinfolk.
Extending past married couples, parents, children, and siblings,
a surprising amount of Most litigants and lawyers, including the
authors, have cousins of one kind or another.
Therefore, they ought to pay heed to the law’s treatment of
these interesting relationships. COUSINS CODIFIED A number of Cousins may lawfully marry in many other
states, and not just where hillbillies congregate to drink their moonshine.
When these cousins legally tie the knot, their marriage is
considered valid in Cousins also fall within the ambit of federal
statutes. Under 28 U.S.C. §458,
a person cannot be appointed to a federal judgeship if he or she is
related to any other judge of the same tribunal “by affinity or consanguinity
within the degree of first cousin.”
Naturally, an exception exists:
the prohibition does not apply to the U.S. Supreme Court, which
therefore could be packed with nine members of the same family, first
cousins included. CONTESTING COUSINS Cousins occasionally challenge one another
in other types of legal proceedings as well. These inter-cousin imbroglios run the gamut,
but generally arise in contests over inheritances. In
re Hartz’s Estate, 237 A woman who claimed to be the sole heir
to her deceased cousin challenged the handling of the decedent’s estate
in In re William’s Estate, 254 A woman who convinced her dying cousin to
make her the joint accountholder on the cousin’s bank accounts, which
held $125,000, spurred legal action by three other covetous cousins
in In re Estate of Nordorf,
364 N.W.2d 877 (Minn. App. 1985).
The appellate court lambasted the deathbed documentation, deeming
the cousin who secured the money to have breached a fiduciary duty
by failing to disclose her intentions to the incapacitated decedent.
Holding the transaction invalid, the Court of Appeals ruled
that the accounts belonged to the decedent’s estate. COUSIN CULPRITS In addition to their decidedly uncivil conduct
in civil cases, cousins occasionally become jurors, defendants or
conspirators in criminal cases. Some
of those interesting adventures have made it into the annals of In State
v Hanson, 286 Minn. 317, 176 N.W2d 607 (1970) the Court held that
a criminal defendant convicted of the second-degree murder of his
wife was not entitled to a new trial on the grounds that one of the
jurors was the local sheriff’s cousin.
Neither that relationship nor the fact that another juror was
remotely related to the sheriff by marriage justified setting aside
the conviction. The Supreme Court reasoned, “the right to eliminate these jurors through a challenge for
cause or by exercise of a peremptory challenge was not exercised. To say now that the makeup of the jury voided
the trial is not persuasive.” In another case, a man was convicted of
murd In Barnes
v. Doimire, 251 F.3d 767 (8th Cir. 2001),
a defendant challenged his drug-dealing conviction, claiming the informant
actually identified the defendant’s cousin, who had previously sold
drugs using the defendant’s name, rather than identifying the defendant. The defendant requested the disclosure of the
informant’s identity so that he could contact the informant and prove
the informant had mistaken the defendant for his cousin. The 8th Circuit upheld the conviction, however,
holding that the disclosure of the informant’s identity was immaterial
and unnecessary, and therefore, the trial court’s denial of the defendant’s
motion was not “objectively unreasonable.” In Joiner v Wyrick. 591 F.2d 65 (8th Cir. 1979), a man who
was convicted of murder contested the admissibility of statements
he and his cousin had made while they were together in police custody. The 8th Circuit found that the appellant had
failed to object to the trial court’s determination that he had adopted
his cousin’s statements as his own, and further held that the appellant
could not have been prejudiced by the admission of his cousin’s statements,
because those statements were almost identical to his own, which had
been properly admitted into evidence. Inconsistent defenses by a pair of codefendant
cousins warranted reversal of their convictions for second-degree
murder in Santiago v. State,
644 N.W.2d 425 ( In Smith
v, State, 596 N.W.2d 661 (Minn. App. 1999), a man who wrote a
letter to his cousin in which he boasted about a murder he committed
was indicted for second-degree murder and entered a guilty plea.
Over five years later, while the defendant was still incarcerated,
the trial court allowed him to withdraw his plea and ordered a trial. On an interlocutory appeal, the Court of Appeals
reversed, concluding that the defendant’s actions met the statutory
definition of second-degree murder, and that in light of numerous
circumstances, including his confession to his cousin, it was not
“manifestly unjust” to uphold his guilty plea.. Finally, in State v. Witucki, 420 N.W.2d 217 (Minn.
App. 1988), the court upheld the defendant’s conviction for third-degree
assault against his cousin. The
cousins had encountered each other at a gas station, where the defendant
accused the victim of owing him money.
The defendant then raised his fist and advised his cousin,
as relatives so often do, “If I hit you, your head would be mush.”
The cousins locked fingers, and when they separated, the defendant
twisted his hand and “popped” his cousin’s finger.
On appeal, the defendant argued that the victim’s injuries
arose from nothing more than “an altercation between two cousins;
a domestic dispute if you will.” The appellate court affirmed the assault conviction,
holding that the defendant’s “contention this is a trivial altercation
between two cousins is irrelevant.”
The court also rejected the defendant’s arguments that he lacked
the requisite intent for an assault conviction.
COUSIN CULPABILITY Those who try to take advantage of their
cousins are subject to both criminal and civil culpability. In U.S.
v. Millder, 459 F.2d 801 (8th Cir. 1972),
the court upheld the tax evasion conviction of a defendant who stole
money from his wealthy cousin’s business.
Ironically, the cousin hired the defendant to perform accounting
services. His conviction was cinched when he later stated
that he was jealous of his cousin’s prosperity and wanted to undermine
his success. The 8th Circuit
affirmed the conviction, reasoning that even though the defendant
didn’t embezzle the money for his personal use, and in fact had kept
all the stolen money intact, he could still be convicted for failing
to report it as income on his tax returns. In Remileh v. INS, 101 F.3d 66 ( 8th Cir. 1996), an immigrant used his cousin’s
birth certificate and Social Security number to obtain employment
at a Minnesota amusement park, but neither the INS nor the court were
amused. The 8th Circuit affirmed the ruling of fraud
and rejected the defendant’s argument that he adopted his cousin’s
identity only to protect himself from the Hamas
fundamentalist group. To the
contrary, the court held that the defendant’s “reason for showing
the altered birth certificate to his employer was to verify his eligibility
to work.” An employee told his boss that he missed
work to attend his cousin’s funeral in Larson
v. Koch Refining Co., 920 F. Supp. 1000 (D.Minn.
1996). Unfortunately for the
employee, but fortunately for his cousin, the cousin was alive and
well, and when the employer made that discovery, it terminated the
plaintiff’s employment for that and other reasons.
Granting the employer’s motion for summary judgment, the court
rejected the employee’s claim that his actions arose from alcoholism
and therefore were protected by the Minnesota Human Rights Act.
COUSINS CONCLUSION If it seems like the law is laden with litigation
by, between, or concerning cousins, think again. Obviously, there are many lawsuits between extended
family members that do not involve cousins. However, even when the parties to the action
aren’t blood relatives, the case may still involve cousins. In Cousin
v. Cousin, 192 F.2d 377 (8th Cir. 1951), for example, the plaintiff
was the son of the decedent and the defendant was the decedent’s second
wife. This relationship resulted in both parties (and
the decedent) sharing the name Cousin, although they weren’t. Mr. Cousin sued Mrs. Cousin, claiming she forged
the decedent Cousin’s will, which left plaintiff Cousin only $1.00. The 8th Circuit Court of Appeals reversed the
trial judge’s directed verdict and remanded the case for trial, holding
that whether the will was genuine or a forgery constituted a genuine
issue of material fact. It is not known whether these Cousins were
“relatively” happy with the court’s decision. MARSHAL
H. TANICK
is an attorney with the law firm of Mansfield, |
