Marla Stevens is asserting that she cannot be required to give a deposition in a lawsuit filed by her partner's former employer, Aviva USA, partially because Iowa law says "neither husband nor wife" can be questioned in a legal proceeding about any communication that took place between them.Legal experts argue that federal law will control in this case and no spousal privilege can be claimed. Witosky writes:
Same-sex marriages have been legal in Iowa since April when the Iowa Supreme Court ruled unanimously that a state law defining marriage as only between a man and a woman was unconstitutional.
However, the federal Defense of Marriage Act defines marriage as between a man and a woman and arguably prohibits Marla or Phyllis Stevens from claiming a spousal privilege, some legal experts said.
They also said few cases exist outlining whether all legal rights afforded to partners in heterosexual marriages are also available to same-sex couples in states where the marriages are legal.
"Legal questions regarding spousal rights in same-sex marriages are there because there is little case law," said Brian Moulton, legislative counsel for the Human Rights Campaign, a national gay rights legal group.
"The essential question is whether a same-sex married couple in a state where marriage is legal is entitled to the same rights of any married couple both state and federally."
Laurie Doré, a Drake University law professor, agreed that even in Iowa where same-sex marriage is legal, questions about spousal privilege need to be clarified.
"There is not a lot of Iowa law about it right now," she said. "This is an area that will be looked at as it goes along."
Michael Burdette, Marla Stevens' lawyer, also said in a legal brief that his client cannot be compelled to give a deposition because "potentially Marla Stevens remains at risk of being indicted on some offense arising out of the allegations that Phyllis Stevens has embezzled."
A hearing on whether Marla Stevens can be compelled to give a deposition in the Aviva lawsuit is today before U.S. Magistrate Judge Ross Walters.
Lawyers for Aviva, in a motion filed Wednesday, said neither the 5th Amendment privilege against self-incrimination nor the spousal privilege are available legally to Marla Stevens.
The company's lawyers said Aviva is only seeking information concerning the whereabout of assets that the defendants "may attempt to dissipate."
Of the spousal privilege, Mark Weinhardt, Aviva's lawyer, wrote that same- sex marriages are not recognized by federal law.Witosky's story notes there are efforts in Congress by some Democrats to repeal the Defense of Marriage Act. Laying that aside, this case could be groundbreaking in determining what the federal law means in states that have legalized gay marriages. Witosky adds new information on Marla's income sources in today's story. He says a family trust paid her $90,000 over a period of years. The story also cites Aviva's lawyers as claiming that Marla never lived with Phyllis after she moved to Iowa in 2004.
"This is a case pending in federal, not state, court and it is governed by federal rules," he wrote.
He also questions whether Marla Stevens can claim to be a resident of Iowa since she has said in court documents that she had not lived in the state from 2004 until Oct. 1, 2009.
Phyllis Stevens has pleaded not guilty to an 18-count indictment accusing her of wire fraud, money laundering, embezzlement, computer fraud and aggravated identity theft in the embezzlement of $5.9 million from Aviva.
Marla Stevens has not been charged. But Burdette said that she is under federal investigation.
In one motion, Burdette said Marla Stevens has been contacted by a relative, who was questioned by an agent for the Federal Bureau of Investigation under a threat of being subpoenaed before a federal grand jury in Iowa.
The relative is not identified, but Kevin Kohler, an FBI agent, testified Tuesday that he had interviewed a sister of Marla Stevens, who also served as trustee of a Stevens family trust that paid up to $90,000 to Marla Stevens over a period of years. Daryn Beringer of Purchase, N.Y. is Marla Stevens only full sister.