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2016-50/4330/en_head.json.gz/10054 | Justice to go mobile in Karnataka
Updated: Nov 20, 2008 11:26 IST IANS
Karnataka is all set to take justice and legal literacy to the doorsteps of its people across the state, particularly to the poor as they cannot pay for the expensive and time-consuming court battles.
A specially designed bus will serve as a court room to conduct the lok adalat (people's court). Lok adalat is a mechanism for speedy settlement of disputes through conciliation, compromise or arbitration. It is not a substitute to the courts but supplements their function. For the financially weak, it is a relief as they need not pay any court or lawyer's fees for the lok adalats to take up their case.
Chief Justice of India KG Balakrishnan will launch the 'justice on wheels' service in Bangalore on Saturday.
"Delivering social justice to one and all is our duty, and poor people from rural areas have either no access to legal aid or are not aware about its existence. Thus, the mobile justice van will be a tool for the poor people of Karnataka to get access to justice," Karnataka High Court judge and Executive Chairman of the Karnataka State Legal Services Authority (KSLSA) V. Gopala Gowda told IANS.
Christened Mobile Lok Adalat and Legal Literacy Chariot, the bus has been designed like a mini court room, Gowda said. The mobile lok adalat will have a judicial official and a conciliator. The 'court room' has enough space to seat the litigants and their advocates, Gowda said. "Along with solving small and petty cases, the mobile court will help in spreading legal awareness among the masses," he said.
The launch of the service coincides with the opening of a two-day regional conference of southern states on "Initiative on Supporting the National Rural Employment Guarantee Scheme Through State Legal Services Authorities" by Balakrishnan.
Karnataka will be the second state in the country, after Haryana, to come up with the idea of spreading legal awareness and providing legal aid to the poor villagers through mobile courts.
Each of Karnataka's 29 district legal services authorities will be entrusted with the responsibility of ensuring that the mobile court visits all villages under its jurisdiction. "We're hoping the initiative will help the poor and needy to get justice at their doorsteps. Poor people generally cannot afford to come to taluk (sub-division) and district courts. Our endeavour will ensure settlement of disputes of the rural people at their own home," said KL Manjunath, another judge of the Karnataka High Court and chairman of its legal services committee.
As a part of its endeavour to ensure speedy justice, KSLSA has also set up a 24-hour legal aid clinic at the Bangalore Mediation Centre.
"We've been trying all possible measures to provide legal aid and services to one and all at quickest possible time. We have succeeded in resolving and reaching settlement in several cases till date," said Gowda.
"The mobile lok adalat will start functioning from Bidar (a district in north Karnataka) very soon," he added.
lok adalat
KG Balakrishnan
Chief Justice of India | 法律 |
2016-50/4330/en_head.json.gz/10073 | Washington City Paper Files Response To Dan Snyder Lawsuit
As longtime readers may know, last February, Washington Redskins owner Dan Snyder, following the advice of his P.R. guru, Tony Wyllie, decided that he was going to threaten the Washington City Paper over a months-old cover story penned by staff sportswriter Dave McKenna, titled, "The Cranky Redskins Fan's Guide to Dan Snyder." Snyder had originally named the hedge fund that owns the City Paper's publisher, Atalya Capital Management, in the suit, but when the trigger was finally pulled on the filing, he opted instead to file suit against the paper directly in DC court.
Well, today was the deadline for the City Paper to respond to the suit with a filing of their own, and this afternoon, that's precisely what they did. In a move that should surprise nobody, the paper has chosen to pursue an anti-SLAPP suit defense. What's more, the City Paper's massive filing contains an astounding amount of material that serves to back up what was originally reported in McKenna's article.
Now, let's have some dime-store legal talk. "SLAPP" refers to "strategic lawsuit against public participation," and it refers to "a lawsuit that is intended to censor, intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition." SLAPP suits can upend the scales of justice when a deep-pocketed plaintiff like Snyder takes on a less-well-to-do of a defendant like the Washington City Paper. By dragging out the process and driving up the little guy's legal expenses, SLAPP plaintiffs can bully their way to victory without even winning in court -- or without even having a suit that has merit.
Here's the key portion of the City Paper's filing:
Not only has [Snyder] publicly acknowledged the improper purposes that in fact undergird this litigation, but his ever-shifting explication of why the Commentary is allegedly actionable in defamation further reveals his lawsuit for what it is—a pretext for punishing and silencing his critics. As demonstrated in the materials accompanying this motion, Mr. Snyder has moved from complaining publicly about statements that, on inspection, appear nowhere in the Commentary; to suing over artwork that any first-year law student knows is not the proper basis for a defamation action; to his current Complaint, which wrenches out of context substantially accurate accounts of his prior conduct, themselves drawn from the voluminous archives of public records and previously published press accounts that document his public life, and ascribes to them allegedly defamatory meanings that no reasonable reader would credit. Simply put, Mr. Snyder cannot demonstrate that it is even arguable he can succeed on the merits of his current claims, much less that he is, as the Anti-SLAPP Act requires, likely to do so.
Snyder's made some stupendously idiotic decisions on the road to this legal action. By relocating this suit to DC's courts, he's going to be playing ball on hostile turf. DC has become an unfriendly venue for SLAPP suits, and Snyder's suit will be the first test of a recently-passed anti-SLAPP statute. Under that statute, Snyder will have to demonstrate in advance that his complaint will be "likely to succeed" on the merits, or it will be dismissed.
And Snyder is going to have real trouble avoiding running afoul of that statute, because his legal team and his aide-de-camp Wyllie have made it clear that this is a strategic lawsuit against public participation because they keep saying so rather brazenly in their public statements. When Snyder first slapped a lawsuit on Atalya, the message his legal team sent was pretty clear. Here it is, in their own words: "We presume defending such litigation would not be a rational strategy for an investment firm such as yours. Indeed, the cost of litigation would presumably quickly outstrip the value of the Washington City Paper."
And then Wyllie, who's clearly not the sharpest tool in a shed that's clearly full to brim with them, went in front of an "Ethics in Sports Media" panel -- an "Ethics in Sports Media" panel! -- and said, "Some people ask, are you firing a warning shot at other members of the media, and I'd say yes."
So, when the City Paper says that Snyder has "publicly acknowledged the improper purposes that in fact undergird this litigation," they are not referring to anything that has shades of grey. (And the whole matter is just so thunderously grotesque that Rep. Steve Cohen (D-Tenn.) is drafting legislation for federal anti-SLAPP protection for the entire nation, because he was inspired to do so by Dan Snyder.)
Now, Snyder has claimed throughout this process that the Washington City Paper, in allowing McKenna's article to be published, has treated him unfairly and irresponsibly in several instances. In his full complaint, he...uhm, complained:
The City Paper falsely and maliciously asserts that Mr. Snyder has engaged in "heinous deeds" and acts of treachery, disloyalty, and deceit. The most egregious falsehoods in the Article (or items referenced in the Article) ("the Misrepresentations") include, without limitations, the following:
a. that "Dan Snyder...got caught forging names as a telemarketer with Snyder Communications;"
b. that Mr. Snyder caused Agent Orange to be used to destroy trees "protected by the National Park Service" on "federally protected lands," a matter about which previously published reports had been publicly corrected;
c. that Mr. Snyder bragged that his wealth came from diabetes and cancer victims; and
d. That Snyder was "tossed off" the Six Flags board of directors.
Here's a lesson for anyone who wants to take on an organization that employs reporters: Those reporters are often pretty good at reporting! And in the City Paper's large offering of supporting material (available in Scribd format here), they include many "facts" that undergird their original reporting. (Full disclosure: Some of the articles I have written on this matter have been included in the City Paper's filing.)
Here are some highlights:
On the matter of Snyder getting caught forging names:
It's an extensive section, the commences with this:
Attached hereto as Exhibit 38 is a true and correct copy of excerpts from the sworn testimony of Ruben Rios, a District Manager for Snyder Communications, taken during the course of the Florida Attorney General’s investigation of Snyder Communications and GTE. Mr. Rios testified, in relevant part, to the following:
a. The Sarasota and West Palm Beach offices of Snyder Communications were closed down in 1998 due to the large number of slamming complaints, and “there were problems in all of the [company’s] offices” in South Florida...;
b. Some marketers employed by Snyder Communications used the social security numbers for deceased individuals, which they had obtained through their former employment at cemeteries or funeral homes, to achieve their sales quotas...;
c. Mr. Rios terminated approximately three to four sales associates from each office per week for forging signatures...; and d. Mr. Rios responded to questions concerning whether Mr. Snyder was aware of the slamming by his company at issue in the proceeding as follows: “I’m sure he knew. He had to have known.”
On the matter of the Agent Orange:
Well, as I've previously explained, I expect the court to make short work of that because McKenna's original phrase, referring to some trees that Snyder sought to have cut down on government land, read, "going all Agent Orange on federally protected lands." Surely no court will criminalize metaphor! As to the cutting down of the trees themselves, McKenna had a lot of documentation and reporting backing up that part of his piece, beginning with this:
Attached hereto as Exhibit 60 is a true and correct copy of a report issued by the Office of the Inspector General of the U.S. Department of the Interior titled “Investigative Report on Allegations that the National Park Service Improperly Allowed Daniel Snyder to Cut Trees on Government Land.” It is available online at http://wapo.st/l9c5Sf.
On the matter of Snyder "bragging that his wealth came from diabetes and cancer victims":
Snyder eventually dropped this from his complaint, and it's a good thing he did, considering the fact that he did brag that his wealth came from diabetes and cancer victims, and he did so on television, and there are DVDs that exist that document his bragging that his wealth came from diabetes and cancer victims.
On the matter of being tossed off the Six Flags Board of Directors:
Well...he was tossed off the Six Flags Board of Directors, as it happens!
Attached hereto as Exhibit 76 is a true and correct copy of a motion by one of the holders of Six Flags’ Preferred Income Equity Redeemable shares, Resilient Capital Management, to appoint a trustee to oversee Six Flags during reorganization, filed with the U.S. Bankruptcy Court for the District of Delaware on February 11, 2010. The motion argues, in relevant part, that members of the then-current management of Six Flags, including Mr. Snyder, were “wholly inappropriate parties to supervise the [company] through this reorganization,”...that the management team should not be kept in place “especially when it was the same management team’s incompetence and double dealing that led the company into bankruptcy in the first place,”...and that “the business community has little or no confidence that the [company’s] management, which drove [Six Flags] into bankruptcy based on their poor decision-making, should be permitted to continue to run the [company’s] affairs...
In the rest of the City Paper's response, they include pages and pages of exhibits on matters from McKenna's original article that Snyder has opted to not sue over. It seems to me like a shrewd thing to have done, because it helps to enforce the quality of McKenna's reporting, and it aids the anti-SLAPP suite claim by making it painfully clear that media organization after media organization had time and again highlighted Snyder's failings and incompetencies, but it wasn't until the City Paper came along and put it all in one place that Snyder got angry. You know, three months after the fact, at the behest of his flack, who obviously thought that threatening a dinky alt-weekly would -- I don't know -- "send a warning shot to the media," maybe?
Let me tell you: if you liked McKenna's original "Cranky Guide," you will love the City Paper's supporting affidavit, because it's like a super-enhanced version of the original -- with deleted scenes and extensions. Thanks to Snyder, that's on the web for public perusal now, too!
This whole lawsuit strategy was just genius, wasn't it?
Eat The Press Dan Snyder Redskins Dan Snyder Washington Post Dan Snyder Steve Cohen | 法律 |
2016-50/4330/en_head.json.gz/10116 | Too Much Wiggle Room In Wigglesworth? Advisor Penalties Under Income Tax Act Not Criminal Offences In Nature And Don’t Engage Protections Under s. 11 Of The Charter, Says Federal Court Of Appeal In Guindon more+
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*This is the first guest post written for the blog. We are honoured to have one of Canada’s leading criminal defence counsel, Brian Heller of Heller Rubel, as the author (with the valued assistance of Graham Jenner).
On June 12, 2013, the Federal Court of Appeal released its decision in Canada v. Guindon (2013 FCA 153).
The court was tasked with examining the nature of advisor penalties, which are sanctions imposed under s. 163.2 of the Income Tax Act on tax planners engaged in “culpable conduct”. At first instance, the Tax Court of Canada (2012 TCC 287) had set aside one such penalty assessed against Ms. Guindon, holding that s. 163.2 created an “offence” within the meaning of s. 11 of the Charter. Consequently, according to the Tax Court, persons assessed under the provision were entitled to s. 11 protections, which apply to persons “charged with an offence”, and include fundamental principles applicable to criminal prosecutions such as the right to be presumed innocent, and the right to be tried within a reasonable time.
The key portion of s. 163.2 reads as follows, and it is easy to see how the Tax Court drew its particular interpretation:
(4) Every person who makes or furnishes, participates in the making of or causes another person to make or furnish a statement that the person knows, or would reasonably be expected to know but for circumstances amounting to culpable conduct, is a false statement that could be used by another person (in subsections (6) and (15) referred to as the “other person”) for a purpose of this Act is liable to a penalty in respect of the false statement.
The Federal Court of Appeal reversed the Tax Court’s ruling, first on the basis that Ms. Guindon had not followed the proper process in challenging s. 163.2, by failing to provide notice of a constitutional question, and so the Tax Court lacked the jurisdiction to make the order it did. However, the Federal Court of Appeal considered the merits of the issue in any event, and held that advisor penalty proceedings are not criminal in nature and do not impose “true penal consequences.”
The Federal Court of Appeal applied the test set down by the Supreme Court of Canada in R. v. Wigglesworth ([1987] 2 S.C.R. 541), which dictates that a provision will engage s. 11 Charter protections if (1) the matter is “by its very nature, intended to promote public order and welfare within a public sphere of activity” rather than being “of an administrative nature instituted for the protection of the public in accordance with the policy of a statute”; or (2) the provision exposes persons to the possibility of a “true penal consequence” such as imprisonment or a fine meant to redress wrong done to society.
The Federal Court of Appeal viewed advisor penalties for the provision of false information as an aspect of the self-compliance that is fundamental to the administration of the tax system. The penalties were not to condemn morally blameworthy conduct, but to ensure that the tax system works properly by maintaining discipline and compliance. Section 163.2 is also, the court observed, distinguishable from the clear offence provisions in the Income Tax Act because it contains only fixed sanctions rather than a range of penalties that allow for the exercise of judicial discretion in sentencing an offender.
The court also rejected Ms. Guindon’s argument that the sheer size of the penalty – in her case a fine of $564,747 – demonstrates the criminal nature of the sanctions, pointing to an array of cases in which very severe penalties were held to be administrative in nature. “Sometimes”, the court commented, “administrative penalties must be large in order to deter conduct detrimental to the administrative scheme and the policies furthered by it.”
If you have difficulty comprehending the distinctions that the Wigglesworth test draws between administrative and criminal provisions, you are not alone. The Federal Court of Appeal acknowledged that the line drawn by the test is “sometimes a fuzzy one”.
That is an understatement. At a time when substantial penalties can be leveled under provisions that appear to be aimed at protecting a public interest (such as the fair and proper administration of the tax system) by deterring culpable conduct, the Wigglesworth test is becoming increasingly difficult to apply. The difficulty is not limited to the sphere of tax law. Just one year ago, in Rowan v. Ontario Securities Commission (2012 ONCA 208), the Court of Appeal for Ontario had to apply the test to administrative monetary penalties (“AMPs”) under the Ontario Securities Act, which carry a maximum fine of $1,000,000. The court held that the specific fines at issue in that case were administrative rather than penal, but held also that s. 11(d) of the Charter limited the authority of the Securities Commission to impose AMPs that did not transgress the barrier from administrative to criminal. In other words, presumably, an overly severe AMP could, in the context of another case, indicate that the Commission had overstepped its regulatory mandate by imposing a truly penal consequence.
Rowan, then, demonstrates the difficulty and unpredictability of determining, under Wigglesworth, whether a specific sanction is penal or administrative. Guindon presents a related, but distinct practical problem: there exist provisions, such as s. 163.2 of the Income Tax Act, which can be described fairly as both intending to promote public order and welfare within a public sphere of activity (a criminal purpose) and intending to protect the public in respect of a policy of a statute (an administrative purpose). While advisor penalties clearly contemplate the promotion of tax policy objectives, they are equally concerned with persons who, through intentional conduct or willful blindness furnish false statements that are contrary to an important public interest. There is real concern raised by this case that a court can easily, using the language of Wigglesworth, justify opposite results. At the cost of certainty and predictability – important principles when constitutional protections are at stake – there is just too much ‘wiggle room’.
The narrow implication of Guindon is that unless the Supreme Court of Canada is called upon and reverses the result, the CRA will not have to govern itself by traditional criminal law standards in assigning culpability and sanctions for advisors. This could well have a chilling effect on the tax planning community. Speaking more broadly however, because advisor penalties straddle the “fuzzy” line between criminal and administrative law, Guindon is an ideal case for the Supreme Court of Canada to confront the practical unworkabilities of the Wigglesworth test.
- See more at: http://www.canadiantaxlitigation.com/too-much-wiggle-room-in-wigglesworth-advisor-penalties-under-income-tax-act-not-criminal-offences-in-nature-and-dont-engage-protections-under-s-11-of-the-charter-says-federal-court-of-appe#sthash.IZdlZ6oc.dpuf
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2016-50/4330/en_head.json.gz/10127 | Appeal Rejected to Free Ex-nazi U.S.
Appeal Rejected to Free Ex-nazi
Download PDF for this date March 6, 1979 ROME (Mar. 5)
The military court of La Spezia has rejected on appeal for freedom by Walter Reder, a former Austrian SS commander serving a life sentence for the mass murder of the population of the town of Marzabotto in northern Italy during World War II. Reder, 70, is the last war criminal still incarcerated in an Italian prison. His former fellow inmate at the Gaeta military prison, Herbert Kappler, died in Germany last year after his engineered escape from a military prison hospital in Rome.
Reder is held responsible for the deaths of 1834 people, mostly women and children. His appeal was supported by the prison judge who cited his advanced age. His lawyers say Reder is seriously ill” and announced that he would appeal to the military supreme court.
But three conditions are necessary for his release and Reder fulfills only one — he has served at least 24 years of his sentence. He has refused to comply with the second condition which is to confess remorse for his crimes. He insists he was only carrying out orders. The third condition, forgiveness by the families of the victims has already been refused.
A curious parallel was noted between the cases of Reder and Kappler, also of the SS, who was responsible for the Ardeatine caves massacre in which 365 Italians, a third of them Jewish, were shot in reprisal for a partisan attack on German soldiers in Rome. Many appeals were made for Kappler’s release, on grounds of age and illness. The refusal by the relatives of the Jewish victims to grant pardon sparked a heated debate over the pros and cons of forgiveness. Reder’s victims were mostly Catholics. When their relatives refused decisively to “forgive and forget” no debate ensued.
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2016-50/4330/en_head.json.gz/10181 | Court orders the production of transcripts from prior unrelated cases because they are relevant to issues in the current action
Eli Lilly Canada Inc. v. Teva Canada Limited, 2015 FC 801
Teva has appealed a Prothonotary's order to provide documents refused to be produced at examination for discovery of the Teva representative. The motion was originally allowed in respect of the production of certain documents consisting of confidential transcripts of trial testimony in two prior actions and the Confidential Reasons for Judgment in one of those prior actions. The Court agreed the order on the motion was overbroad, but otherwise dismissed Teva's appeal.
The area of contention in this matter concerns information about Teva's “trade-spend” in two other actions. Trade spend was previously described as being the rebates paid by pharmaceutical companies under different descriptions to pharmaceutical purchasers to encourage them to buy their product and to reward them when they do. Teva has indicated that no written trade-spend policies existed in 2006 and 2007, and Lilly sought the transcripts because they argued that the testimony speaks to the prevailing rate of trade-spend during a period generally the same as the present matter.
On appeal the Court held that the prior confidentiality order contained a clause providing a waiver for use or disclosure of a party's own confidential information. Therefore, the Court interpreted Rules 151 and 152 in a fashion that recognized the Prothonotary's authority to order a party to exercise its discretion to waive the confidentiality order to produce relevant documents in the interests of procedural fairness.
However, the Court modified the order to only require Teva to produce relevant portions of the materials, rather than the entire transcript. The Court ordered the parties to work out some form of process whereby the materials in question are disclosed on a “counsel's eyes only basis” to Lilly's counsel with the view to reaching some consensus on the relevant portions of the Confidential Documents that should be disclosed. | 法律 |
2016-50/4330/en_head.json.gz/10182 | Use of Another’s Registered Trademarks in Metatags Not Infringing … This Time
Bereskin & Parr LLP
In Red Label Vacations Inc v 411 Travel Buys Limited, 2015 FCA 290, the Federal Court of Appeal has ruled that the trial judge did not err in finding that the Plaintiff’s trademark rights were not infringed when its marks were used in metatags on the Defendant’s website. (Our discussion of the trial judge’s decision is available here.) However, the Appeal Court commented that, in the right circumstances, such employment of another’s trademarks could constitute infringement.
Red Label Vacations operates an online travel business. It sued a competitor, 411 Travel Buys, over the latter’s use of metatags comprising Red Label’s trademarks, including "Red Tag Vacations" and "shop, compare, & pay less." The metatags were not visible to users of the Defendant’s website. Red Label alleged copyright and trademark infringement, depreciation of goodwill, and passing off.
The trial judge dismissed all the claims. He held that the employment of a competitor’s mark in metatags (that are not ordinarily visible to the consumer) was not trademark “use” and was not infringement. He found that the contents of metatags do not by themselves constitute a basis for a likelihood of confusion because consumers are still free to choose and purchase goods or services from the website for which they initially searched. He also commented that the concept of “initial interest confusion” had not “gained a foothold” in Canada. The copyright claims were dismissed on the basis that the copied metatags were essentially generic terms used in the travel industry and were not subject to copyright protection -- the evidence had not shown sufficient skill and judgment in creating the metatags, or originality in making a compilation, as required by the tests in CCH and Tele-Direct.
The Court of Appeal reviewed on the deferential standard of “palpable and overriding error.” It found that the trial judge cited the correct test for trademark infringement (i.e. the Defendant must have sold or advertised services in association with a confusing trademark), and found no error in the implicit finding that 411 Travel Buys did not use any of Red Label's trademarks “for the purpose of distinguishing or identifying 411 Travel Buys' services in connection with Red Label's services” (language from the 1996 Michelin v. CAW decision), or in a way that would give rise to source confusion. Also, there was no error in the trial judge's finding that the metatags did not meet the threshold for copyright protection in Canada.
However, the Court of Appeal stated that “in some situations, inserting a registered trade-mark [or a confusing mark] in a metatag may constitute advertising of services that would give rise to a claim for infringement.” In a concurring opinion, Justice Dawson echoed these remarks holding that “the extent to which a trademark may be used in metatags without infringing the trademark is, of necessity, fact specific.” Justice Dawson commented that although the appeal was dismissed, this did not mean that the appeal court endorsed every alternate basis on which the trial judge dismissed the action, and that the reasons ought not to be read as endorsing the trial judge’s remarks relating to initial interest confusion.
The Court of Appeal’s decision thus leaves the door open to future trademark infringement claims based on metatags.
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Mark L. Robbins and Tamara Céline Winegust Filed under
Meta element
No Good, Just the Bad and the Ugly - Punitive Damages for Patent Infringement in Canada
* Is Use of a Mark for Services Also Use on Goods Sold?
* Leave to Appeal to SCC: Google Inc v Equustek Solutions Inc (BCCA)
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* Good, Better, Best: The Importance of Carefully Describing Goods and Services | 法律 |
2016-50/4330/en_head.json.gz/10333 | North Platte Bulletin - Dramatic reform of juvenile justice takes shape in Legislature Full Site View
News - State/Regional News
Dramatic reform of juvenile justice takes shape in Legislature by Joseph Moore, Nebraska News Service - 5/21/2013
Juvenile criminals would be rehabilitated at home, with help from probation officers, under a bill advancing in the state Legislature. Lawmakers advanced LB 651, aiming to overhaul Nebraska’s juvenile justice system. The bill would transfer responsibility for the state’s roughly 3,000 juvenile offenders from the Department of Health and Human Services to the Office of Probation Administration. The change is intended to keep juvenile offenders in the home and out of county or state run detention centers, with the exception of serious cases.State-run Youth Rehabilitation and Treatment Centers in Kearney, Geneva and Hastings would be reserved only for those more serious offenders.The bill was introduced by Sen. Brad Ashford of Omaha.Ashford said families could help to rehabilitate a child if given the proper support.The bill aims to provide that support through funding for community-based juvenile services programs.Ashford said these “intensive therapy” programs would be available to families up to four months after a youth returns from a rehabilitation center.The bill would appropriate $10 million a year in state funds for grants to counties that develop programs for juveniles according to criteria laid out in the bill.The amount of funds distributed to each county would depend on a formula that considers several factors, including the number of juvenile offenders in that area.The bill would also shift about $40 million from the Department of Health and Human Services to the Office of Probation Administration for 100 additional probation officers to be dispersed throughout the state.Sen. Burke Harr of Omaha, who supports the bill, expressed concern that the shift would essentially turn probation officers into social workers responsible for overseeing the rehabilitation of juvenile offenders.“A probation officer’s role is not the same as a social worker’s,” he said.He said that because probation officers work for the court, they have less authority to challenge the decisions of juvenile court judges.Ashford responded by saying that probation officers come from diverse backgrounds -- criminal justice, social work, psychology -- and that additional training would be provided to prepare them for the transition.Sen. Kathy Campbell of Lincoln asked about the expected caseload level the probation officers would have.She warned that if the caseloads were too great, the officers would have difficulty providing the needed level of support to parents who would retain custody of their children under the bill.Ashford responded that he did not know exactly how large the caseloads would be but that efforts would be made to keep them as light as possible.“We’re not going to save every kid, but we’re going to save a lot more kids,” Ashford said in his closing remarks on the bill. | 法律 |
2016-50/4330/en_head.json.gz/10348 | June 26, 2013: New York State Bar Association President Schraver Praises Supreme Court Ruling on DOMA
New York State Bar Association President David M. Schraver today hailed the U.S. Supreme Court ruling striking down a key provision of the Defense of Marriage Act, which defined marriage for federal purposes as a legal union between a man and a woman.“The ruling means same-sex couples legally married in New York and elsewhere will enjoy federal rights and benefits available to other married couples, and will have the same responsibilities of other spouses. We agree with the Supreme Court that the federal government cannot justify laws that discriminate against a class of people whose rights are legally protected in their home states, nor can it interfere with the dignity and status conferred by the states in the exercise of their sovereign powers,” said Schraver, of Rochester (Nixon Peabody).“The repeal of DOMA has been a legislative priority of the State Bar Association, and we urge Congress to repeal the remaining section of the law that permits states to deny recognition of legal marriages performed in other states.”BACKGROUNDOn March 27, the Supreme Court heard oral arguments in United States v. Windsor. The case involves Edith “Edie” Windsor, a New York woman who married Thea Spyer in Canada in 2007. After Spyer died, Windsor was required to pay federal estate taxes on her inheritance, because the federal government did not recognize same-sex marriages. The case challenged Section 3 of the 1996 Defense of Marriage Act (DOMA) on the grounds that it violated the Constitution’s Equal Protection Clause by defining “marriage” exclusively as the legal union between a man and a woman.Earlier that month, the State Bar Association joined an amicus curiae, or “friend of the court,” brief urging the Supreme Court to strike down restrictions on same-sex marriage, stating that a nation that promises equal justice to all cannot sanction discrimination against any group of people.“Gay people have experienced a long and painful history of deliberate discrimination, and this discrimination is based on a factor unrelated to their ability to perform in or contribute to society,” the amicus curiae brief stated.The brief argued that in reviewing the equal protection claims, the court should adopt a standard of heightened scrutiny.In addition to the New York State Bar Association, the brief was joined by the Leadership Conference on Civil and Human Rights, various other bar associations, other human rights groups and legal service organizations. The brief was prepared by Fulbright & Jaworski of Houston, Texas, and Washington, D.C.The amicus curiae brief regarding DOMA is available here.The 76,000-member New York State Bar Association is the largest voluntary state bar association in the country. It was founded in 1876.-30-Contact: Mark MahoneyAssociate Director, Media Services & Public [email protected] | 法律 |
2016-50/4330/en_head.json.gz/10349 | Business Day|W.T.O. Finds China Copyright Law Lacking
Business Day W.T.O. Finds China Copyright Law Lacking
By REUTERSJAN. 27, 2009
WASHINGTON (Reuters) — The United States claimed victory on Monday in a groundbreaking World Trade Organization case in which China was found to have failed to protect and enforce copyrights and trademarks on a wide range of goods.“Today, a W.T.O. panel found that a number of deficiencies” in China’s intellectual property rights system “are incompatible with its W.T.O. obligations,” the United States trade representative, Peter F. Allgeier, said in a statement.“We will engage vigorously with China on appropriate corrective actions to ensure that U.S. rights holders obtain the benefits of this decision,” Mr. Allgeier said.Washington started the dispute in 2007 out of frustration at unauthorized copies of films, branded goods and other trademarked property openly available in Chinese cities.The International Intellectual Property Alliance, a coalition of United States music, movie, book and software industry groups, conservatively estimates that piracy in China costs them more than $3.7 billion in lost sales.
The United States persuaded the dispute settlement panel that China had violated W.T.O. rules by barring copyright protection for movies, music and books not approved by state censors for legitimate sale, Mr. Allgeier said.The panel also said it was “impermissible” for China to allow public auction of counterfeit goods seized by Chinese customs authorities, with only the requirement that the fake brand or trademark be removed, he said.The United States failed to persuade the W.T.O. panel on one main point of its case, however: that Chinese copyright pirates and counterfeiters have no fear of criminal prosecution because the government’s threshold for bringing a case is too high.That was “disappointing,” Mr. Allgeier said, but he added that the panel established a market-based analytical approach that should help W.T.O. members avoid or resolve future disputes over obstacles to criminal enforcement of counterfeiting and piracy.Both the United States and China can appeal the panel ruling, the results of which emerged when a confidential preliminary report was released in October.
A version of this article appears in print on , on page B11 of the New York edition with the headline: W.T.O. Finds China Copyright Law Lacking. Order Reprints| Today's Paper|Subscribe | 法律 |
2016-50/4330/en_head.json.gz/10367 | Learn More About Helicopter Crash Law in Roebuck, South Carolina Homehelicopter crash lawsouth carolinaroebuck
Roebuck is a census-designated place (CDP) in Spartanburg County, South Carolina, United States. The population was 1,725 at the 2000 census. Helicopter Crash Law Lawyers In Roebuck South Carolina
What is helicopter crash law?
Cases involving individuals who have been injured in crashes and collisions involving helicopters. A Helicopter Accident is an occurrence associated with the operation of an aircraft which takes place between the time any person boards the helicopter with the intention of flight and all such persons have disembarked, in which a person is fatally or seriously injured, the aircraft sustains damage or structural failure and/or the aircraft is missing or is completely inaccessible.
Answers to helicopter crash law issues in South Carolina
Federal court opinions concerning helicopter crash law in South Carolina
394 F2d 944 Jaeger v. United States
463 F2d 675 Kaczmarek v. Mesta Machine Company
545 F2d 422 Higginbotham v. Mobil Oil Corporation Long C
621 F2d 67 Sochanski v. Sears Roebuck and Co
639 F2d 1171 Dunn v. Sears Roebuck & Co
652 F2d 1260 Prejean v. Sonatrach Inc
701 F2d 1365 Pitney Bowes Inc v. Mestre
709 F2d 914 Smith v. Kerrville Bus Company Inc
712 F2d 686 Paisley v. Central Intelligence Agency
716 F2d 152 Hamme v. Dreis & Krump Manufacturing Company
Homehelicopter crash lawsouth carolinaroebuck | 法律 |
2016-50/4330/en_head.json.gz/10422 | Judicial Watch Demands Records from Phoenix Mayor Phil Gordon's Security Detail
Tuesday, January 5, 2010 at 5:24 p.m.
By Sarah Fenske
The city may have to turn over security logs for Phoenix Mayor Phil Gordon -- or face a lawsuit. A
A conservative think-tank is demanding that the city of Phoenix release two years' worth of "activity logs" for Mayor Phil Gordon's security detail -- a set of records the city has previously refused to turn over.Judicial Watch, based in Washington, D.C., quietly sent a letter to the city on December 11, demanding that the records be produced within 10 days. Chris Farrell, the agency's director of research, says that the organization has yet to get a response. It's now revving up for a lawsuit."We'll litigate it," he told New Times when reached by phone earlier today. "We're very persistent. We're like a bad rash. We don't go away."That persistence stands in stark contrast to the Arizona Republic. As editorial page writer Monica Alonzo-Dunsmoor first disclosed in an analysis published on Sunday, she actually asked for the logs last July while exploring the relationship between Gordon and his fundraiser/girlfriend Elissa Mullany. Upcoming Events
The logs long have been rumored among those in the know at City Hall to contain some damning information about Gordon, although it's unclear what precisely is supposed to be in there-- since, of course, the city has yet to release them.Indeed, when the Republic's Alonzo-Dunsmoor put in a public records request for the logs, she reported that she quickly received a phone call from Gordon himself, who demanded to know what she was looking for, according to her account published Sunday. He also told Alonzo-Dunsmoor that her request would be denied for "security reasons," she wrote.Even though taxpayers foot the bill for Gordon's security detail, and even though the mayor's home address is easy to come by, Alonzo-Dunsmoor got nowhere. "My request was denied, just as Gordon said it would be," Alonzo-Dunsmoor reported.The paper apparently didn't pursue the matter further. Alonzo-Dunsmoor's story didn't get into why that was the case.But Judicial Watch should be harder for the city to dismiss so quickly. The organization, which received a significant amount of its startup funding from billionaire Richard Mellon Scaife, thrives on litigation. It famously dogged the Clinton White House with lawsuits, including one forcing open the records on Hillary Clinton's disastrous attempts to reform healthcare. Equal-opportunity muckrakers, Judicial Watch is also credited with forcing up the Bush White House records detailing Jack Abramoff's visits.Judicial Watch is asking for records from December 30, 2007, to the present. Through his public-relations team, the mayor has insisted that he did not begin dating Mullany until spring 2008. (Both Gordon and Mullany are married, but separated from their spouses. Gordon is in the process of divorcing.)Judicial Watch's Farrell, like the Republic's Alonzo-Dunsmoor, linked the records to Gordon's relationship to Mullany."We're looking into Phil Gordon and his various 'special friends'," he said. "I'm using that term very loosely."The security detail is staffed by members of the Phoenix Police Department. The union respresenting those members, PLEA, has been publicly critical of Gordon.Farrell said his team expects to be getting involved in a number of issues in the Valley. "We like getting stuff and making it available to the public so they can make up their own minds and make their own decisions," he told New Times. "We do FOIA and state public records work all the time. This is bread and butter for us."The city's public information office didn't get back to us with a comment late yesterday afternoon. We'll let you know when/if we hear more.And if anyone wants to tell us what's supposedly in those logs? We have to admit, our curiosity only grows as the records remain under wraps. | 法律 |
2016-50/4330/en_head.json.gz/10478 | RAND > Press Room > News Releases > 2014 >
Making It More Difficult to Sue Physicians for Malpractice May Not Reduce 'Defensive Medicine'
WednesdayOctober 15, 2014
Changing laws to make it more difficult to sue physicians for medical malpractice may not reduce the amount of “defensive medicine” practiced by physicians, according to a new RAND Corporation study.
Studying the behavior of emergency physicians in three states that raised the standard for malpractice in the emergency room to gross negligence, researchers found that strong new legal protections did not translate into less-expensive care.
The results are published in the Oct. 16 edition of the New England Journal of Medicine.
“Our findings suggest that malpractice reform may have less effect on costs than has been projected by conventional wisdom,” said Dr. Daniel A. Waxman, the study's lead author and a researcher at RAND, a nonprofit research organization. “Physicians say they order unnecessary tests strictly out of fear of being sued, but our results suggest the story is more complicated.”
It is widely said that defensive medicine accounts for a substantial part of the hundreds of billions of dollars of unnecessary health care spending that is estimated to occur annually in the United States. Malpractice reform has been advocated by many experts as a key to reining in health care costs.
RAND researchers looked at three states — Georgia, Texas and South Carolina — that about a decade ago changed the legal malpractice standard for emergency care to gross negligence. Other states use the more common ordinary negligence standard, or a failure to exercise reasonable care.
The higher standard means that for physicians accused of malpractice in the three states examined, plaintiffs must prove that doctors consciously disregarded the need to use reasonable care, knowing full well that their actions were likely to cause serious injury.
“These malpractice reforms have been said to provide virtual immunity against lawsuits,” said Waxman, who also is an emergency medicine physician at the David Geffen School of Medicine at UCLA.
Researchers examined 3.8 million Medicare patient records from 1,166 hospital emergency departments from 1997 to 2011. They compared care in the three reform states, before and after the statutes took effect, to care in neighboring states that did not pass malpractice reform.
The study examined whether physicians ordered an advanced imaging study (CT or MRI scan), whether the patient was hospitalized after the emergency visit and total charges for the visit. Advanced imaging and hospitalization are among the most costly consequences of an emergency room visit, and physicians themselves have identified them as common defensive medicine practices.
The malpractice reform laws had no effect on the use of imaging or on the rate of hospitalization following emergency visits. For two of the states, Texas and South Carolina, the law did not appear to cause any reduction in charges. Relative to neighboring states, Georgia saw a small drop of 3.6 percent in average emergency room charges following its 2005 reform.
“This study suggests that even when the risk of being sued for malpractice decreases, the path of least resistance still may favor resource-intensive care, at least in hospital emergency departments,” Waxman said.
Support for the study was provided by the Veterans Affairs Office of Academic Affiliations through the VA Health Services Research and Development Advanced Fellowship Program, and the core funding programs of the RAND Health and the RAND Institute for Civil Justice.
Other authors of the study are Michael Greenberg, M. Susan Ridgely and Paul Heaton of RAND, and Dr. Arthur L. Kellermann of the Uniformed Services University
of the Health Sciences.
RAND Health is the nation's largest independent health policy research program, with a broad research portfolio that focuses on health care costs, quality and public health preparedness, among other topics.
The RAND Institute for Civil Justice is dedicated to improving the civil justice system by supplying policymakers and the public with rigorous and independent research.
About the RAND Corporation
The RAND Corporation is a research organization that develops solutions to public policy challenges to help make communities throughout the world safer and more secure, healthier and more prosperous.
RAND Office of Media Relations
[email protected]
Daniel A. Waxman
Affiliated Adjunct Researcher
Daniel Waxman is an affiliated adjunct researcher at the RAND Corporation and a professor at Pardee RAND Graduate School. Waxman also holds a joint appointment at RAND and UCLA Emergency Medicine. His research focuses on the nexus between clinical medicine and health policy. Waxman has…
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Related Resources Journal Article The Effect of Malpractice Reform on Emergency Department Care
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News Release Eliminating Subsidies for People to Buy Health Coverage Would Increase Premiums and Number of Uninsured
Announcement RAND Joins Coalition to Tackle Youth Unemployment
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2016-50/4330/en_head.json.gz/10540 | Place an Ad News | Vermont News Taser law gets signature and support
By Neal P. GoswamiVERMONT PRESS BUREAU | June 11,2014
MONTPELIER — New regulations on the use of electronic stun guns by law enforcement were signed into law Tuesday by Gov. Peter Shumlin while the family of a man who died after being shocked with one of the devices looked on.The law makes Vermont the first state to regulate the use of electronic stun guns, commonly referred to by the brand name Taser, and require training for all officers who use them. Debate over the use of Tasers has gone on for years but intensified after the death of 39-year-old MacAdam Mason in 2012.“I’m proud that Vermont is the first state in the country that has a uniform policy for the use of Tasers,” Shumlin said before signing the bill at the State House. “We have to remember that law enforcement officers, every day, have extraordinarily difficult situations. We want to give them the tools to try to bring about a peaceful resolution in difficult situations. So, Tasers have a role, an important role.” The law requires the Law Enforcement Advisory Board to develop a statewide policy on how the weapons are used and when they can be used. It requires all law enforcement agencies in the state to adopt the policy, which must include situations when police are allowed to use them.Additionally, the legislation requires law enforcement personnel carrying stun guns to obtain training that goes beyond what the manufacturer provides and instructs officers on how to deal with people suffering from mental illness.“This is a common-sense bill that basically cements Vermont’s Taser policy with the hope that uniform training and a statewide policy for the use of Tasers, in a sense, a uniform plan … will make it more likely we avoid tragedies like what happened to MacAdam,” Shumlin said.Public Safety Commissioner Keith Flynn said police were behind the legislation “since its onset.” Police agencies across the state supported the law “because we recognized the need,” he said.“We’ve come a long way,” Flynn said.Rep. Jim Masland, D-Thetford Center, said he introduced the legislation after Mason, one of his constituents, died after police used a Taser on him while checking on his well-being.“I had what I thought was clear duty and responsibility, as well as the honor, to be able to be the lead sponsor on this bill,” Masland said. “If comprehensive training … was in place, then MacAdam would be with us today. I think that’s very clear. It’s a tragedy that it took his death to bring this into clear focus.”Flynn said in addition to training, the statute now recognizes levels of resistance. Police will not be allowed to use a stun gun on people who are passively resisting police.“What the statute does is it really clearly defines between active and passive resistance, and it looks at those two standards as sort of the benchmarks to when there’s active resistance and when there’s passive resistance,” Flynn said.The standard for active resistance requires police to believe they are in imminent danger of bodily harm, Flynn said.Mason’s mother, Rhonda Taylor, attended Tuesday’s bill signing, as did Mason’s brother. Taylor said she is pleased the state is adopting a statewide policy but hopes lawmakers will strengthen it in the future.“I like the bill. I wish it had been a little bit stronger with when to use the Taser,” she said. “We do have in the wording ‘active resistance,’ but that’s a little bit subjective as to what is active resistance.”Taylor said she also hopes the state will require testing and calibrating of stun guns and the use of body cameras by police in the future.The new law “makes Vermont a wonderful state,” Taylor said, and other states are likely to follow Vermont’s lead.Taylor, who said she has “a very large void” in her life, agreed with Masland that the law could have prevented the death of her son, who was not armed when police used a Taser on him.“I think this bill would have slowed things down. I think that the situation would have been de-escalated. There were other officers on the scene, not just that one officer. There were several officers on the scene. Perhaps they would have used hand-hold techniques that they’re taught at law enforcement training,” she said. “Yes, I think it would have made a difference because it might not have ever gotten to the point where he died.”Officials said the law is likely to be updated in the future.“This is a step in the right direction to do everything we can to protect ourselves from tragedies,” Shumlin said. “We all know that when officers have to use a gun it often has a lethal consequence. So Tasers make sense.” | 法律 |
2016-50/4330/en_head.json.gz/10612 | News Claims Direct sued by former boss
Paul Armstrong
COLIN Poole, who made £10m from the float of Claims Direct and then presided over its plunge from grace, is suing the failed compensation specialist for more than £200,000 in unpaid legal bills.His law firm Poole & Company is taking Claims Direct to the High Court over the bill in a move sure to provoke further anger among thousands of the company's shareholders and clients. Poole, who was Claims Direct's chief executive, made £10m by selling one of his businesses to Claims Direct around the time of the float in 2000. It made its debut at 180p a share but the stock soon plunged, prompting him and founding chairman Tony Sullman to make a takeover bid at just 10p a share. Hard-hit shareholders viewed the offer as cynical but the pair eventually emerged with about 55% of the stock. However, efforts to alter the group's business model failed and the company went into receivership last week, triggering fears that up to 60,000 clients could lose personal injury payments worth millions of pounds. The shares were trading at just 3 1/4p when they were suspended, valuing the company at £6.4m. Poole refused to comment on the legal action. But it claims in a court statement that many of the fees stem from its role in advising barristers and expert witnesses. More about: | 法律 |
2016-50/4330/en_head.json.gz/10662 | Do Webmasters need to add lawyer and legal counsel to their job description?
Alan Norton presents the New York online sales tax law as an example of why it's becoming increasingly important for Webmasters to have more than just a cursory understanding of legal issues.
Alan Norton
in Software Engineer,
September 8, 2008, 7:51 AM PST
Webmaster, marketing director, author, artist, and designer are all roles that are familiar to Web site owners and operators. You can add lawyer to that list because basic legal knowledge is becoming more and more important for Webmasters.
In this article, I'll explain why you should be aware of the consequences of a tax bill that was signed into New York state law April 15, 2008 and became effective June 1, 2008. This information will be of primary interest to Webmasters whose corporate Web sites have advertising and banners.
Note: This article is also published as a TechRepublic download.
New York tax law fiasco
New York legislation Chapter 57 of the Laws of 2008 is a complex and vague set of tax rules that require vendors with a nexus relationship in New York to collect taxes on business done in the state of New York.
New York has effectively sidestepped the precedent set in the Supreme Court's 1992 decision Quill Corp. v. North Dakota, 504 U.S. 298, which states that a vendor has to have a physical presence in the state before they must collect sales tax for orders in that state. The New York legislation essentially ties all employees, salespersons, independent contractors, agents, or other representatives and affiliates to the vendor. The nexus of any of these entities in the state of New York forces the vendor to collect taxes on all transactions from New York residents even if that vendor has no direct physical presence there.
For online sellers and resellers, this poses a real problem because the law extends to affiliates — and there are a lot of affiliates out there. Most affiliate programs have at least one affiliate in each U.S. state.
New York has released Technical Service Bulletins TSB-M-08(3)S and TSB-M-08(3.1)S to try to clarify the law. The Technical Service Bulletins also give an "out" to vendors. If vendors can prove that they and none of their associates and affiliates have a nexus in New York, they can avoid the collection of the tax.
Vendors who can avoid passing the sales tax on to their customers have a real price advantage over their competitors. An Overstock.com press release states that up to 8.75% sales tax must be added to New York orders under the new law. For large orders, this can be a large chunk of change and likely the deciding factor in which online store the customer chooses.
Fallout from the tax law
Amazon and Overstock.com have challenged the tax law in court. Amazon has agreed to collect the tax, while Overstock.com threw its approximately 3,400 New York affiliates overboard and dropped them from its affiliate program. This action by Overstock.com meets, in whole or in part, the "out" requirements of the New York tax law, and the clarifications presented in the Technical Service Bulletins. Overstock.com can, in theory, avoid the requirement to collect New York state sales tax on all New York state transactions. (I say in theory because a vendor that only drops its New York affiliates may not be addressing the requirement that non-New York affiliates have no New York nexus. I do not have information that Overstock.com is or is not addressing this issue — I am raising it as a possible generic issue to all vendors.)
For me, the fallout occurred August 14, 2008 when Newegg, a company with which I'm affiliated, sent me an e-mail requiring me to approve a new Special Terms and Conditions (STAC) agreement. I declined the original version of the STAC, but I accepted a second version. (For more detailed information, you can read My Response to the Newegg Affiliate Program Changes.)
Newegg's response
Newegg delineates its affiliates into two groups: those with a New York nexus and those with no New York nexus.
Newegg allows its New York nexus affiliates to remain part of its affiliate program, but they must accept and comply with the STAC agreement. These terms state that they will not solicit New York residents, and they will remain in compliance with the new terms. Organizations are required to post a statement on their Web site notifying their members of the "prohibition of solicitation to New York residents" requirement. Also, under penalty of perjury, they must sign a "Certification" once a year that states that they did not solicit New York residents during the past year.
Per language in the New York tax law, Newegg requires its non-New York residing affiliates to declare that they have no New York nexus. They agree that they will not engage in any activity that will create a New York nexus. They must also sign a statement once a year that they remained in compliance during the past calendar year and do not have ties to any entity doing business in New York that would trigger a requirement to collect sales tax.
This action should meet the "out" clause of the New York Technical Service Bulletins allowing Newegg to avoid collecting sales tax for New York state transactions. In practice, this would create possible liability issues for an affiliate if they find themselves in violation of the STAC for whatever reason. And therein lies the problem of just how legal savvy Webmasters are who will be accepting the Newegg terms without legal advice.
For the New York nexus affiliates, acceptance and compliance with Newegg's STAC will be difficult if not impossible. It's mostly a mystery to me how Newegg's New York affiliates are supposed to avoid solicitation to New York residents. I say mostly because I can see a way to present a page for each new visitor to your Web site that asks, "Are you a resident of New York?" If done properly, any possible legal liabilities might be passed on to the Web site visitor.
Newegg says it is committed to working with all its affiliates, including its New York affiliates.
(Note: Newegg declined my offer to respond to this article.)
New York tax law's impact on Webmasters
Just how does the New York tax law change affect you as a domain owner and Web site operator? If you or your company are part of an affiliate program or are thinking about applying to be an affiliate, here is how the law may impact you:
Possible removal for New York nexus affiliates
Additional legal terms to review and accept or decline
Risk of additional liability
Possible attorney fees
Additional costs to become compliant and remain in compliance
Many companies make it mandatory to have any legally binding documents reviewed by its legal team. Your company should authorize you to enter into any legally binding contract on the company's behalf before you accept such an agreement.
If you don't have in-house legal counsel, you will have to decide if you want to pay for legal counsel or essentially become a part-time lawyer. The implications of such a decision can be important to the future of your Web site.
An expensive precedent
As of August 27, 2008, 60 companies have dropped their New York affiliates. Online vendors who haven't already done so will soon have to fully explore their options in regards to the New York tax law change.
If New York's legislation, Chapter 57 of the Laws of 2008, is not overturned, it will set a costly precedent for Webmasters, online vendors, and consumers. Webmasters will have to spend time reviewing any new laws and affiliate program's terms in order to comply with them. For example, if other U.S. states follow suit, will Newegg issue a STAC for each new state? Will affiliates continue to be thrown out of affiliate programs?
This precedent could also lead to even more onerous legislation that might attempt to regulate the Internet, state by state. It would be a nightmare for Webmasters since cyberspace knows no state or country boundaries, but that wouldn't stop some state legislators from trying.
Learning some basic legal knowledge
So Webmasters, just how good a lawyer are you? How good a lawyer do you want to be? Perhaps the better question is how good a lawyer do you need to be?
I am not a lawyer, and I don't want to be one. I am, however, finding more and more need to make decisions that require more than just a cursory understanding of the law.
How are you coping with the New York tax law change? Will you learn some basic legal skills or pay to have someone else advise you? If you have read this far, patient reader, and have a good understanding of the legal implications that the New York tax law has on your Web site and role as Webmaster, maybe you can add part-time lawyer to your job description.
Disclaimer: This article does not constitute legal advice. Please consult a qualified professional if you have a specific legal situation.
About Alan Norton
Alan Norton began using PCs in 1981, when they were called microcomputers. He has worked at companies like Hughes Aircraft and CSC, where he developed client/server-based applications. Alan is currently semi-retired and starting a new career as a wri...
See all of Alan's content
Alan Norton began using PCs in 1981, when they were called microcomputers. He has worked at companies like Hughes Aircraft and CSC, where he developed client/server-based applications. Alan is currently semi-retired and starting a new career as a writer for TechRepublic. | 法律 |
2016-50/4330/en_head.json.gz/10669 | Nick Kotsopoulos TELEGRAM & GAZETTE STAFF
Published Monday November 26, 2012 at 6:00 am
Updated Monday November 26, 2012 at 10:38 pm
PHOTO/ T&G Staff/STEVE LANAVA
The city is moving to bring its rules governing the licensing and regulation of dogs into conformance with comprehensive statewide animal control regulations that took effect Oct. 31.City Manager Michael V. O'Brien is recommending that the Pit Bull Ordinance, enacted by the City Council in 2011, be repealed, and that the dangerous nuisance dog provisions previously enacted be deleted. He proposes an amendment that makes the changes.The council passed the pit bull ordinance after many dog attacks.But City Solicitor David M. Moore said the new state law repealed the local option statute, adopted by the council in 1986, that gave the city power to enact a local ordinance regulating dogs.He said the new state law also bans the regulation of dogs based on breed, and contains specific provisions concerning dangerous and nuisance dogs.“Given the repeal of local statutory authority to regulate dogs and the comprehensive nature of the new state law, it is necessary to delete the bulk of the existing city dog ordinance and to implement operational policies and procedures directly under the new state law,” Mr. Moore wrote in a report that goes before the council tomorrow night.“The proposed ordinance amendment would retain certain ordinance provisions either required by the new state law or, if not required, then necessary for the implementation of the law,” he added.The new state law also has revised the process in which the police would investigate dog complaints and the chief could order dogs to be restrained, removed from the city or destroyed.In its place, Mr. O'Brien said, the new law institutes a complaint and hearing procedure whereby dog complaints will result in a hearing held before a hearing officer, who may issue orders “requiring the dogs to be confined to the owner's premises, restrained by leash or muzzle when off premises, insured, reproductively altered or destroyed.”To carry out that provision of the law, the manager has designated Elvira Guardiola, the city's parking administrator and municipal hearing officer, to act as the hearing authority for animal control complaints.“I do not foresee any change in the enforcement efforts of the chief of police and Animal Control Unit,” Mr. O'Brien said.Mr. Moore said the new state law requires the city to set the fees for a dog license by ordinance approved by the council.The licensing fees would be $20 for all dogs, except spayed or neutered dogs, for which the fee is $17.The new law also requires that the fee be waived for service animals as defined by the Americans with Disabilities Act, and it allows municipalities to waive the license fee for dogs owned by people 70 years old and older.Mr. Moore said the new ordinance being recommended retains the “duties of dog owners” provisions.The most notable of those provisions prohibit owners from allowing their dogs to run free off their premises, or to be in any city park, playground or public cemetery, or to be in public in the downtown — bounded by Irving, Linden and Harvard streets to the west; Madison Street to the south; Interstate 290 to the east; and Concord Street to the north — unless the dog is licensed at an address within that area.A simple majority (six votes) of the council is necessary to adopt the ordinance amendment.If passed, it will be retroactive to Nov. 1. | 法律 |
2016-50/4330/en_head.json.gz/10674 | Worcester disputes Pat's complaint over tow contract loss
By Scott J. Croteau, TELEGRAM & GAZETTE STAFF
WORCESTER — The city has fired back at a federal complaint filed last month by Pat's Service Center over the termination of its city towing contract, saying a judge should not issue a preliminary injunction in the case.Pat's Service Center has said the city's termination of its towing contract last month was unlawful and politically motivated. The company, which filed the complaint in U.S. District Court under the name Metro Motor Sales, 5 Shrewsbury St., accuses the city of breach of contract and violating the constitutional rights of owner Patsy Santa Maria Sr.If a preliminary injunction is issued, the city would be forced to allow Pat's Service Center to honor the five-year contact as the civil complaint continued in court."An injunction would maintain the prior status quo, a status quo no one would wish for," City Solicitor David M. Moore wrote in the opposition, filed Friday. "It would make every member of the public an unwilling participant in a dangerous lottery which culminates in violent and despicable beatings and crimes against public justice."Mr. Moore argued Pat's complaint lacks merit. He argued that a preliminary injunction should not be issued because Pat's violated the contract by committing or allowing acts of violence and criminal acts by employees at the business.Mr. Moore's filing lists accusations against the towing company and the employees. Last month the owner's son, Patsy Santa Maria Jr., and his former New England Patriots cheerleader girlfriend were charged in Central District Court with trying to bribe a witness in Mr. Santa Maria Jr.'s assault trial.Mr. Santa Maria Sr. faces identical charges in the case. His son was placed on probation with a suspended jail sentence in the assault case. Prosecutors said the assault was on Dec. 13, 2011, on the towing company's property.Pat's violated several terms of the contract, according to Mr. Moore. One section says the tow company employees must be polite and courteous to people whose vehicles were towed."If these acts are not sufficient grounds for termination under this provision then the words 'polite and courteous' have no meaning," Mr. Moore wrote.The Police Department has also expressed concerns about having Pat's towing vehicles that are involved in police investigations, considering the owner and employees are facing criminal charges.The elder Mr. Santa Maria's lawyer, Robert S. Sinsheimer, claimed in the lawsuit that Police Chief Gary J. Gemme is being untruthful about the nature of many police responses to the towing company. Many of the calls are made by Pat's employees seeking police assistance, he contended.Pat's said the contract was terminated without due process and in "a totally arbitrary and capricious manner."The contract was terminated Sept. 12. A five-year contract was signed in December 2010 in which Pat's pays the city $170,000 annually to tow in five city zones.The suit names the city, Chief Gemme and Thomas F. Zidelis, the city's chief financial officer, as defendants. Pat's asks for monetary damages."The city is acting solely for political reasons, in response to negative media attention paid to individuals affiliated with the plaintiff corporation," Pat's said in its complaint.Contact Scott J. Croteau at [email protected]. Follow him on Twitter @ScottCroteauTG | 法律 |
2016-50/4330/en_head.json.gz/10748 | Electronic Arts Shareholder Alert: Former SEC Attorney Willie Briscoe and Powers Taylor Investigate Possible Breaches of Fiduciary Duty by Officers and Directors
DALLAS --(Business Wire)-- Former United States Securities and Exchange Commission attorney Willie Briscoe, founder of The Briscoe Law Firm, PLLC, and the securities litigation firm of Powers Taylor LLP announce that a federal class action lawsuit has been filed against Electronic Arts, Inc. ("EA" or "Company") (NasdaqGS: EA) and several officers and directors for acts taken during the period of July 24, 2013 to December 4, 2013 (the "Class Period").
Based upon the allegations in the class action, the firms are investigating additional legal claims against the officers and Board of
Directors of EA. If you are an affected EA shareholder and want to learn more about the lawsuit or join the action, contact Willie Briscoe at The Briscoe Law Firm, PLLC, (214) 239-4568, or via email at [email protected], or Zach Groover at Powers Taylor LLP, toll free (877) 728-9607, or via e-mail at [email protected]. There is no cost or fee to you.
In the complaint, the defendants are alleged to have violated certain provisions of the Securities Exchange Act of 1934. Specifically, the complaint alleges that defendants misrepresented and/or failed to disclose that (i) Battlefield 4 contained multiple bugs and other problems, including, among other things, downloadable content that allowed players access to more levels of the game, connectivity issues, server limitations, lost data, repeated sudden crashes and the game incorrectly registering on-target shots; (ii) due to the above issues, EA would not achieve a successful holiday season 2013 rollout of Battlefield 4; (iii) the performance of the EA unit publishing Battlefield 4 was so deficient that all other projects that unit was involved in had to be put on hold to permit it to focus its efforts towards fixing Battlefield 4; and (iv) as a result, EA was not on track to achieve the financial results it had told the market it was on track to achieve during the Class Period. According to the complaint, when the truth was revealed to the market, EA stock plummeted over 28% from its Class Period high.
The Briscoe Law Firm, PLLC is a full service business litigation, commercial transaction, and public advocacy firm with more than 20 years of experience in complex litigation and transactional matters.
Powers Taylor LLP is a boutique litigation law firm that handles a variety of complex business litigation matters, including claims of investor and stockholder fraud, shareholder oppression, shareholder derivative suits, and security class actions. | 法律 |
2016-50/4330/en_head.json.gz/10829 | What Are the Different Types of Music Sharing Programs?
Some people have been brought to court for uploading or downloading music illegally.
Peer to peer download sites may be used for sharing music.
Shared music might be downloaded onto an MP3 player for enjoyment later.
Some music sharing programs are available for free.
Angela Farrer
The different types of music sharing programs are peer-to-peer file sharing programs, monthly subscription music sharing programs, and file sharing software that is free to obtain and install but comes with a small price per downloaded song. Some music sharing programs offer free songs to be downloaded legally because these songs are not subject to copyright laws. Some music fans use more than one type of these programs to download their favorite songs while others stick with only one of them. Paid programs for downloading music are generally designed to offer affordable options to a wide range of buyers, and these legal file sharing options are often considered innovations designed to counter illegal downloads of copyrighted material.
Peer-to-peer music sharing programs typically operate without a centralized source of the swapped files, and users are the sole source of media to be uploaded and downloaded. While these software programs are usually free of charge, their quality can vary widely. Some file sharing software can even come with undesirable hidden downloads such as ad ware, spyware, or viruses. Users who install a free peer-to-peer program sometimes run the risk of their computer security being compromised. Signs of these downloaded components include machine lag time or a large increase in spam email or pop-up advertisements. Along with security problems, peer-to-peer file sharing programs can frequently be sources of music that has been illegally copied and distributed. Ad
Subscription programs are popular types of legal music sharing programs. The music files available from these programs usually have digital coding that restricts their specific use, so each song can normally be transferred to certain music players a limited number of times. Some of these music subscription services allow an unlimited number of downloads while others have maximum numbers per month. Pay-per-song file sharing software is another favorite option among many Internet music fans. The software program itself is free to download just as with peer-to-peer programs, but the majority of the music files come with their own prices. A small number of songs may sometimes be available for free as a promotional measure to entice members to digitally buy a particular album. The uses of each music file often carry similar copying and transferring restrictions as is the case with monthly subscription music sharing programs. Ad
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Logicfest
@Vincenzo -- That is not always true. For example, there are plenty of legitimate uses for peer-to-peer, torrent files. Some companies distribute free software through them. Most Linux distros are available for free through torrent sites. A good number of bands wanting to get discovered make their music available for free, too.
Do a lot of people use peer-to-peer networks and programs to steal copyrighted material? Absolutely. However, that is not the only use for that very good technology. We do not need to encourage illegal behavior, but we shouldn't avoid a technology just because a lot of people use it in illegal ways. Vincenzo
Peer-to-peer programs are sometimes used for illegal music? Heck, the main appeal of these things is that they are used to distribute all manner of copyrighted things. Music, books, movies, programs and other things that people ought to pay for are routinely downloaded through peer-to-peer programs.
Hey, everyone wants cool, free stuff but if you are not paying for copyrighted material, you are breaking the law. Post your comments | 法律 |
2016-50/4330/en_head.json.gz/10956 | The word of the day was harmonization.
Public ServiceExcise Tax ActJames BuchananGovernment PoliciesPeacekeepingSpecial Olympics World Winter GamesSaint-Côme Ice Sculpture FestivalSpecial Olympics World Winter GamesNational Forum On HealthVoyageur FestivalComputing Devices CanadaLiberal Party Of CanadaTribute To Georges GroulxNational Citizenship WeekNational Forum On HealthNational Infrastructure ProgramSmugglingYoung ReformersNational UnityEmploymentFrench LanguageThe EconomyQuebec CultureImmigrationTaxationJob CreationSomalia InquiryAsbestos IndustryCultural PolicyChild PovertyInterest RatesPresence In GalleryOrder In Council AppointmentsGovernment Response To PetitionsCommittees Of The HouseCriminal CodeIncome Tax ActCommittees Of The HousePetitionsQuestions On The Order PaperExcise Tax Act
Excise Tax ActPrivate Members' Business
Roy Cullen
Etobicoke North, ON
Exactly. His Reform friends are influencing that deliberation.
I am pleased the member for Calgary Centre acknowledged that he got some material from someone who has to be respected. Unfortunately we often hear a lot of rhetoric from the other opposition party. We wonder if it would be attributed to the Fraser Institute or to Newt Gingrich or if they would make the same kind of attribution that the hon. member so rightly did.
I want to discuss tax included pricing. The opposition parties are creating a lot of confusion and debate around this point about which I will provide some clarification. At the time the GST was first promulgated under the Conservative government, I thought if they were going to bring it in they should have it out front and centre so that people could see it. That was a reasonably honourable thing to do.
However, if people opposite were frank with themselves they would acknowledge what we are now hearing from Canadians, myself included on this point. When Canadians go to the cash register they are continually surprised when tax is added on to their items. A $100 item becomes $115 dollars. Canadians are fed up with that.
Contrary to what the member opposite says, the HST will not be hidden. It will be on the receipt. If you travel to Europe or other places you will see the taxes are included on the bill and also on the sticker price. We are moving to what many other countries have moved to, and the tax will be there and visible for all eyes to see.
In Atlantic Canada we are reducing the GST component of the HST so why would we want to hide it? Why would we want to hide a tax we are reducing? It makes no sense. It argues the point quite well that we are not really trying to hide a tax; we are trying to respond to what Canadians are asking for from sea to sea.
I would like to comment briefly on the origins of the HST. When the GST was brought in, the manufacturers' sales tax was eliminated. Many Canadians, myself included, did not factor that in very heavily at the time. Independent surveys showed that the manufacturers' sales tax on white goods and big appliances in most cases was passed on to the consumer. We have lost the benefits of the manufacturers' sales tax.
When we campaigned in 1993 we said that we would do everything we could to replace the GST because it was not a popular tax. We looked at a whole range of options. The red book said that we would harmonize the GST and make it simpler and more equitable. The HST will do that.
An aspect which is sometimes forgotten is the notion of the embedded PST. That is a term which deserves an explanation. When Atlantic Canada moves to the HST, the whole tax collection and remittance system will become a value added type tax.
Those Canadians who have small businesses, medium sized businesses or who work in the accounting offices of big companies know how the GST works. They take all the GST they have paid on the goods they have purchased, deduct that from the GST they have charged to customers and remit the net. Essentially it is a value added tax.
When the tax is harmonized in Atlantic Canada, the provincial sales tax which is currently in the cost of goods that businesses buy will be relieved. Therefore, the cost of the goods which are produced by those companies will be reduced. The result will be that the companies in those provinces will be more competitive.
Some of the Atlantic premiers, such as Frank McKenna of New Brunswick, are very aggressive when it comes to developing and attracting business. They know that the harmonized sales tax will position their provinces very well. In fact, Quebec has moved along a similar avenue.
In Ontario the Harris government is doing nothing because it likes to play politics. We have run into that on a whole range of issues, such as CPP reform, but that is an issue for another day.
If we faced reality in Ontario, the taxes could be harmonized. Instead of a 15 per cent tax there would be a 14 per cent tax. Perhaps in the future it could be reduced even more. In doing so, businesses would be more competitive. Things would be simpler for businesses. Right now they fill in the GST forms and then they fill in the PST forms. It is very complicated. People spend their time filling in forms when they should be focusing on expanding markets or developing new opportunities. When the tax is harmonized there will be one form to complete and one cheque to remit. With the new tax commission things will be simplified even further.
Some Canadians might say: "What does that do for me?" If businesses in Ontario and the other provinces are more competitive, it is good for all of us. Their businesses will grow and they will be able to hire more people. They will be able to expand their markets. Some of those benefits will flow to consumers. We have independent research which shows that happened after the GST was implemented a number of years ago.
If we had the perfect solution we would eliminate all taxes. This debate has gone on and on and we are left with looking at what are the practical alternatives. The HST is a practical alternative. In addition, it will create some real benefits for people in Atlantic Canada. If other provinces would follow suit they would realize the same benefits.
We all know that if the tax is harmonized in Ontario there will be some difficulty because consumers will now have to pay this harmonized tax on services at a higher rate than they paid before. That is the reality.
What do we do? Do we go dig a hole and lose ourselves in some of those facts? Or do we say that it will to be better for industry. Businesses will be more competitive. They will be able to compete better with Atlantic Canada and Quebec in world markets.
Exports are what it is all about. Growth in the economy has come through exports. If businesses are not competitive, even within our own provinces, then we are going to have some difficulties. I think Ontario should take the lead of Atlantic Canada and Quebec and harmonize the tax.
The member for Calgary Centre talked about the fact that people who do not comply with this law would be sent to jail, debtor's prison and all this sort of rhetoric. I do not think the hon. member was around for the debate subsequent to that announcement. There was some legitimate confusion among Canadians about people being thrown in jail and the way in which people would be charged under summary convictions or under various areas of the Criminal Code. The fact is that people will not be thrown in jail.
I find it ironic that Reform Party members, who stand up and talk about law and order and crime and punishment and who go on and on about the underground economy, the minute the government stands up and says: "Look, if you are start fiddling around with your HST, we are not going to throw you in jail but, yes, we are going to take it very seriously. We are going to treat that as a pretty serious-
As it is almost 2 p.m., we will proceed to statements by members.
James BuchananStatements By Members
John Cannis
Scarborough Centre, ON
Mr. Speaker, I would like to inform the House of a program called "Encounters with Canada". The program was developed by the Council for Canadian Unity, a non-profit organization, to give young Canadians the opportunity to meet and get to know one another, enhance their knowledge of Canada and to gain a greater awareness of our country.
Each year Encounters with Canada welcomes over 3,000 Canadian high school students to Ottawa where a one-week program of studies built around a central theme of Canadian institutions and a sub-theme of their choice.
This week I have the pleasure of welcoming one of my young constituents to Ottawa to participate in the program. James Buchanan, or Jimmy as his friends like to call him, attends Sir Winston Churchill Collegiate in my riding of Scarborough Centre. Jimmy was picked by his school for his outstanding achievement in both academics and extra-curricular activities.
I want to congratulate Mr. Buchanan on his accomplishments and encourage him to take full advantage of the program being offered to him this week. Congratulations, Jimmy.
Government PoliciesStatements By Members
Skeena, BC
Mr. Speaker, like most other MPs, I spent Christmas break travelling around my riding of Skeena listening to the concerns of my constituents.
The majority of those concerns, as members may guess, deal with their unjust treatment at the hands of this Liberal government.
News of the day issues like silencing of the Somalia inquiry, the mishandling of the Airbus affair, the blood scandal, the broken GST promise and the bungling of the Pearson airport deal are all at the top of their minds.
There are also a litany of concerns specific to my constituents. Coast guard cutbacks, de-staffed light stations and DFO mismanaged fisheries top the list in Prince Rupert. People living in Terrace, Kitimat, Stewart and the Bulkley Valley seem incensed with the government's cramming gun control, native land claims and increasingly punitive taxes down their throats.
However, the most frequently asked question in Skeena is: "When is the Prime Minister going to call an election?" They and Canadians right across the country want to start counting the days until they can hold this government accountable for its broken promises.
PeacekeepingStatements By Members
Len Hopkins
Mr. Speaker, I rise in the House today to congratulate the members of the Canadian forces currently serving in Haiti who just this past weekend received a UN medal recognizing their contribution to the United Nations support mission in that country.
The UN recognizes and honours personnel of member states who participate in UN missions in support of its wider goal of maintaining international peace and security. Canada has been a stalwart support of the UN participating in nearly every UN peacekeeping mission.
Canada has played a significant role in the international community's efforts to build peace in Haiti. The Canadian forces have done much to restore hope for those people.
Canada currently has 750 Canadian forces personnel deployed in Haiti, including members from Canadian Forces Base Val Cartier and personnel drawn from 427 Tactical Helicopter Squadron from my own home community of Petawawa.
We congratulate them and we are proud of them. As Canadians we wish them well.
Special Olympics World Winter GamesStatements By Members
Murray Calder
Wellington—Grey—Dufferin—Simcoe, ON
Mr. Speaker, this past week Collingwood in my riding of Wellington-Grey-Dufferin-Simcoe co-hosted the sixth Special Olympics World Winter Games.
I was pleased to present medals to athletes and to witness Collingwood events, including alpine skiing at Blue Mountain and cross-country skiing and snowshoeing at Duntroon.
The mission of the special Olympics is to provide year round sports training and athletic competition in a variety of Olympic type sports for children and adults with mental disabilities. Special Olympics gives these athletes continuing opportunities to develop physical fitness, to experience courage and joy and to participate in sharing gifts, skills and friendship with other athletes from around the world.
Everyone involved with the 1997 Special Olympics World Winter Games should be proud of their success and inspired by the courage and talent of the athletes. A great deal can be learned from the special Olympics oath: "Let me win. But if I cannot win, let me be brave in the attempt".
Roger Simmons
Burin—St. George's, NL
Mr. Speaker, they are all winners, the more than 2,000 athletes from 76 countries who took part in the Special Olympics World Winter Games last week.
Three cheers for Team Canada and especially for those athletes who represented the province of Newfoundland and Labrador. All three Newfoundlanders went home with medals from this major multi-sport event.
For nordic skier Janet Hanham of Fortune, a gold and a bronze medal; for snowshoer Louise Wall of Codroy Valley, a silver medal; for Gordon Reddy of St. John's, two bronze medals in nordic skiing. This is another fantastic accomplishment for our athletes, for our province and for the country.
Congratulations to all, the Olympians, their coaches, their families and all the volunteers who made dreams come true last week.
Saint-Côme Ice Sculpture FestivalStatements By Members
February 10th, 1997 / 2 p.m.
Michel Bellehumeur
Berthier—Montcalm, QC
Mr. Speaker, on the weekend, the fifth ice sculpture festival in Saint-Côme drew to a close.
This year again, the village of Saint-Côme was literally turned into an ice sculpture museum, to the delight of tens of thousands of visitors who came from all over Quebec and beyond to admire the works of local artists.
This year again, the festival was a success, thanks to the solidarity, co-operation and team work of the organizers, the chamber of commerce, many volunteers and the sculptors themselves.
After two weeks of outdoor events and games, I want to congratulate all those who contributed to the immense success of this young but promising festival.
As honourary president of the fifth festival, I would like to thank the people of Saint-Côme for their warm reception, a tradition in this region.
Yes, Gilles Vigneault was right: "Mon pays, ce n'est pas un pays, c'est l'hiver". In Saint-Côme, we are proud of that, and we celebrate that pride.
Mr. Speaker, this past Saturday marked the end of an extremely successful and enjoyable week for the athletes taking part in the Special Olympics as well as those who attended the various events.
Special Olypians from around the world came to Collingwood and Toronto to compete for medals in sports such as alpine skiing, speed skating, figure skating and floor hockey.
As with any event of this size, the Special Olympics required an enormous organizational effort and an army of volunteers. The residents of both cities should be commended for their efforts on behalf of the athletes, their coaches and their families.
Participants from around the globe return home this week with a renewed sense of accomplishment both in view of their personal successes and because of the efforts of the hundreds of volunteers and organizers who made the event possible.
National Forum On HealthStatements By Members
Pauline Picard
Drummond, QC
Mr. Speaker, the National Forum on Health cost taxpayers $12 million and made unacceptable recommendations that would open the door to even more federal interference in an area of provincial jurisdiction by reducing the provinces to the rank of mere trustees.
However, the provincial governments did not wait for the federal government before taking action. In Quebec, as was pointed out by a member of the forum, Dr. Marc Renaud, we already have a head start in areas like home health care, family policies and drug plans.
The government poses as a champion of the existing health care system while at the same time taking billions of dollars out of health care budgets. Once again, this government is not practising what it preaches. The Bloc will be glad to remind Quebecers of this in the next election.
Voyageur FestivalStatements By Members
Ronald J. Duhamel
St. Boniface, MB
Mr. Speaker, I would like to invite all my colleagues to the attend the Voyageur Festival this week in St. Boniface.
This festival, which takes pride in being known as the largest winterfest in western Canada, celebrates the history, traditions and culture of the French and Metis people.
This is a time when Manitobans, other Canadians and people from all over the world come and visit Voyageur Park, Fort Gibraltar and the winter promenades to honour the contribution of the founding nations of Manitoba.
For two weeks, St. Boniface will host Franco-Manitoban, Quebec, Acadian and Cajun performers who will act, sing and dance, all in French.
Mr. Speaker, my colleagues, once again, I invite you to join us in celebrating the tenacity of the Metis and French speaking communities of western Canada. Have a great time.
Computing Devices CanadaStatements By Members
Beryl Gaffney
Mr. Speaker, Nepean has once again distinguished itself as a home to leading edge technology. On Friday, Computing Devices Canada was awarded a high profile defence contract to develop integrated protective clothing and equipment for soldiers.
A trailblazer in the Nepean high tech community, CDC has nearly 50 years of experience as a defence supplier to over 20 nations. CDC will lead an industrial team of companies from across Canada. Their task is the design, development, integration and manufacture of enough prototypes for an infantry platoon to extensively test the clothing and equipment in the field.
The project will draw from emerging technologies and systems integration such as a satellite navigation system and a wearable computer with a helmet mounted display.
I applaud CDC and other members of the industrial team. This contract enhances CDC's already strong international reputation. It is because of companies like CDC that Nepean and Canada are so well respected in the high tech sector.
Liberal Party Of CanadaStatements By Members
Robert Bertrand
Pontiac—Gatineau—Labelle, QC
Mr. Speaker, yesterday, Denis Coderre was officially nominated as the Liberal candidate for the riding of Bourassa in the next federal election.
With the vast majority of the social and cultural associations in his riding behind him, the new Liberal candidate for Bourassa can also count on the formal support of the three provincial Liberal members from his riding.
Joining him on the stage, Yvon Charbonneau, Jean-Claude Gobé and Marcel Parent made a strong plea for unity within Liberal ranks.
Mr. Charbonneau said that the provincial Liberals were fighting the same battle as the federal Liberals to get rid of the Bloc Quebecois.
Our pre-election campaign is under way in Quebec, and we will wage a relentless battle against those who have nothing better to propose than the separation of Quebec and the breakup of Canada.
Tribute To Georges GroulxStatements By Members
Christiane Gagnon
Mr. Speaker, today, the Quebec theatre industry mourns the loss of Georges Groulx, who died at the age of 74.
Georges Groulx can be described as a great creator, an extraordinary actor and stage director, as well as an outstanding educator. During his career, this theatre personality deeply touched those who worked with him: Gilles Pelletier, for one, spoke about the humility and joviality of the man he considers the pillar of the Nouvelle Compagnie théâtrale; as for Françoise Faucher, she remembers him as an exceptional artist who was able to make fun of his own fears.
Georges Groulx worked with a number of seasoned actors in the Compagnons de Saint-Laurent company and helped train several Quebec actors at the Théâtre du Nouveau-Monde and the Conservatoire d'art dramatique. He was also a stage director at the Rideau Vert and a Radio-Canada producer.
The Bloc Quebecois joins the artistic community in mourning this great theatre personality, whose generosity was only matched by his talent.
National Citizenship WeekStatements By Members
Val Meredith
Surrey—White Rock—South Langley, BC
Mr. Speaker, today is the beginning of National Citizenship Week and it is a very special anniversary.
Prior to 1947 anyone who was born in Canada was not a Canadian citizen but rather a British subject resident in Canada. It is ironic that Canada has existed as a nation for almost 130 years, yet Canadians as a people have existed for only 50 of those 130 years.
While Canadian citizenship is something to be proud of, it is often difficult to celebrate. Just last year while filling out my census form I had the option of marking my ethnic background as Chinese, Japanese, Korean or Filipino. I could not say I was Canadian unless I marked "other".
Canadian citizenship should be something we can be proud of regardless of race, creed, colour, ethnicity or when our ancestors came to this land. Maybe we will even be able to indicate this pride during the census. | 法律 |
2016-50/4330/en_head.json.gz/10957 | The word of the day was offenders.
Government Response To PetitionsCommittees Of The HouseConscientious Objection ActPetitionsQuestions On The Order PaperCriminal CodeBankruptcy And Insolvency ActCriminal CodeBudget Implementation Act, 1997Criminal CodeAn Act To Amend Certain Laws Relating To Financial InstitutionsHouse Of CommonsMember For Calgary CentreNational Volunteer WeekVimy RidgeLand MinesÎle Aux BasquesGwaii Haanas National ParkTourist IndustryMember For Capilano-Howe SoundToonies For CanadaBeijing Concord CollegeBallard Power SystemsMaple SectorReform Party BreakfastMember For SherbrookeLachine CanalVacancyThe ConstitutionTaxationKrever InquiryTaxationHuman RightsJusticeHelms-Burton LawGreat LakesWar CriminalsTariffs On Agricultural ProductsKrever InquiryOrganization For Economic Development And Co-OperationPresence In GalleryPoints Of OrderAn Act To Amend Certain Laws Relating To Financial InstitutionsCriminal CodeCrown CorporationsCanada Marine ActCanada Labour Code
Vimy RidgeStatements By Members
Glen McKinnon
Brandon—Souris, MB
Mr. Speaker, April 9 marked the 80th anniversary of the battle of Vimy Ridge. Following extensive planning and training the Canadian corps achieved victory where other armies before it had failed, but did so at a cost of 10,000 casualties and 3,600 dead.
The battle was a defining moment for the Canadian army but more particularly for Canada as a nation.
This past weekend CFB Shilo opened a special Vimy exhibit at its Royal Canadian Artillery Museum. At this time I salute all veterns of World War I but in particular three western Manitobans present at the ceremony: Bill Henton, Rosewell Mellick and Fred Burguess.
Land MinesStatements By Members
April 15th, 1997 / 1:55 p.m.
Carolyn Parrish
Mississauga West, ON
Mr. Speaker, Canadians have been asked to present a paper to the North Atlantic Assembly this spring raising awareness of the worldwide problem of land mines. It will highlight the growing technological gap between land mines and the methods currently available for clearing them.
With 119 million anti-personnel land mines in 71 countries all over the world, 20 are being put in place for every 1 removed. Land mines prevent the reconstruction of basic infrastructure, keeping these countries dependent on foreign aid.
Canada has one of the most advanced technologies in mine detection and removal in the world and a foreign affairs minister who has been recognized with a Nobel Peace Prize nomination for his leadership in this area.
I thank David Saint, Major Harry Burke and Lieutenant-Colonel Normand Levert at the Department of National Defence and John Evans at DRE Suffield for their enthusiastic assistance in the preparation of the report. I also thank Susan Howell and Eric Walsh in the Department of Foreign Affairs.
Canada must continue to lead the way in this subject.
Île Aux BasquesStatements By Members
Paul Crête
Kamouraska—Rivière-Du-Loup, QC
Mr. Speaker, as is true for the most beautiful sites in Quebec, l'Île aux Basques has always been a source of inspiration, both for those who aspire to be poets and for those who have already attained that stature.
The Société Provencher d'histoire naturelle du Canada, which owns this enchanting island, has shared the island's beauty and charm with visitors. The large numbers of people who have been to l'Île aux Basques consider it a place of magic. This island's capacity to captivate and attract is truly magical. It takes visitors back to basic values such as simplicity, sharing and friendship.
The Société Provencher wanted to mark the 75th anniversary of its founding in a special way by publishing a book about the island it has protected so carefully since 1929.
On the occasion of the 300th anniversary of Trois-Pistoles, I urge the public to pay a visit to this historic and stimulating site.
Gwaii Haanas National ParkStatements By Members
Svend Robinson
Burnaby—Kingsway, BC
Mr. Speaker, in 1988 the governments of Canada and British Columbia signed a memorandum of agreement for the protection of what has since become Gwaii Haanas National Park Reserve or Haida heritage site and for the proposed establishment of an adjacent marine protected area in the Pacific Ocean.
This is a magnificent part of the world. The islands and waters of Gwaii Haanas have been home to the Haida people for more than 10,000 years and continue to sustain their contemporary culture today.
Last month a very important step was taken toward the creation of this national marine conservation area. It would be the first national marine conservation area on Canada's west coast. Four oil companies made a donation of mineral permits, the largest donation of mineral permits in Canada's history, to advance this important project.
Today I urge the Government of Canada to move quickly to join in the partnership among the Government of British Columbia, the Haida people and others to make this magnificent national marine conservation area a reality.
As Paul Pearson of the Haida nation said, the Haida people have always sought to protect the Haida Gwaii for all generations. I hope the Government of Canada will move it forward.
Tourist IndustryStatements By Members
René Canuel
Matapédia—Matane, QC
Mr. Speaker, the riding of Matapédia-Matane is a popular tourist destination.
Today, I wish to congratulate several people whose contribution to the tourism industry was recognized at the gala evening for the Grand Prix du tourisme. Pierrette Molaison, owner of Éditions du Flâneur, a company in Matane, won two awards at the gala evening on the weekend.
Bertrand and François Rioux, also from Matane, are active promoters of the tourism industry in the region. They founded the Riôtel hotel chain which now includes a number of local tourism establishments. Their contribution was also recognized at this gala evening.
Finally, during the same evening, the Camp théâtre de l'Anse de la ville de Maria was honoured for its excellent work. The Comité du centenaire de Causapscal won the grand prize for the event of the year.
Congratulations to all.
Member For Capilano-Howe SoundStatements By Members
Herb Grubel
Capilano—Howe Sound, BC
Mr. Speaker, as this is my last member's statement let me give thanks to my constituents for their trust; thanks to my effective riding association directors, especially President Brice Macdougall, Keith Bower and Bob Drummond; thanks to Lynda MacKay and Anita Brent who ran my offices with great efficiency and to Greg Haymes, my able researcher; thanks to all my caucus colleagues who put up with me and taught me a lot; thanks to the chair and members of the finance committee who made hearings an almost enjoyable job; thanks to all elected members who have remained civil during the political battles; and thanks to my wife Helene for her support and love through all the trials of the last three years.
I say thanks to them all. It has been a great privilege and learning experience.
Toonies For CanadaStatements By Members
Mr. Speaker, yesterday Mr. Tom Dykes and students from Notre Dame Secondary School in Burlington met with the Prime Minister to promote the Toonies for Canada campaign which focuses on the sale of a poster containing the lyrics of the bilingual song "Unity".
Copies of the poster have been distributed to 3,500 high schools across Canada encouraging councils to order and sell the posters. I am most pleased to support this national unity campaign initiative which in P.E.I. would raise funds for a Joe Ghiz memorial scholarship fund.
Given the commitment and dedication of our former premier to the unity of Canada, I can think of no greater tribute to his memory than the contributions of funds from this campaign to a scholarship fund in his name.
I congratulate and thank Mr. Tom Dykes and all the students in P.E.I. and across Canada for their contribution to national unity.
Beijing Concord CollegeStatements By Members
Albina Guarnieri
Mississauga East, ON
Mr. Speaker, this coming September will mark the opening of the Beijing Concord College. This unique institution on the outskirts of China's capital city will open its doors to Chinese and Canadian students who will earn diplomas recognized by both Canada and the People's Republic of China.
The New Brunswick department of education and the founders of this college have collaborated to create a visionary institution that will become an educational bridge between our two countries fostering understanding and opportunity.
The language and business skills learned at the college will give future graduates the foundation to develop joint ventures and trade opportunities between Chinese and Canadian businesses and will build on the $8 billion of bilateral trade already benefiting both countries.
I congratulate the province of New Brunswick and the founders of the Beijing Concord College, especially Mr. Francis Pang, for their global vision and foresight in developing this landmark educational partnership between Canada and China.
Ballard Power SystemsStatements By Members
Mr. Speaker, the government has spoken about investing in future industries. Last November the Prime Minister visited one of those industries, Ballard Power Systems. The government has invested $30 million in that company which is looking into new types of energy resources.
The government is going in the right direction because yesterday German transportation giant, Daimler-Benz, the maker of Mercedes Benz, and Ballard Power jointly announced three deals worth a total of $508 million to develop Ballard's fuel cell
technology which can power energy efficient vehicles without combustion.
It is clear that B.C. is leading Canada in the development of clean energy resources. We welcome Ballard Power's growing influence in the research and development of new forms of transportation.
We recognize that it will be a good investment in future jobs that will be created in the next century.
Maple SectorStatements By Members
Suzanne Tremblay
Rimouski—Témiscouata, QC
Mr. Speaker, I had the pleasure of attending the official opening of l'Éveil du printemps inc., a maple bush owned by Vallier Robert.
Located in Auclair, east of Lake Témiscouata, this new business is developing new, high quality products. It manufactures four alcoholic beverages using maple sap. Mr. Robert said we had to look for ways to breathe new life into the maple sector and should realize there are no limits to the ways in which we can tap the resources of our forests.
In fact, this young maple tree farmer initiated a research and development project focusing on maple tree farming and regional development, in partnership with the National Research Council of Canada, the purpose being to diversify the use of maple sap and add to the value of our regional products.
Mr. Robert is one of those young people who are blessed with the kind of initiative and ambition of which their family, their region and often even their country can be proud.
Congratulations, Mr. Robert, and the best of luck.
Reform Party BreakfastStatements By Members
Mr. Speaker, members of the Reform Party wish to announce that a continental breakfast will be served by Reform Members of Parliament to all non-partisan staff and the pages of the House of Commons who wish to visit any time between 7.30 and 9 tomorrow morning, April 16, in room 200 in the West Block.
This gesture has never before been extended to Hill staff, to our knowledge. It will be our pleasure to serve them breakfast, a cup of coffee and offer a sincere thanks from MPs to the employees of the House of Commons, people who work so faithfully all year round to support all members of the House, regardless of their political persuasion, in the service of the country.
I speak for all members of the House when I say that House of Commons employees are unfailingly courteous and efficient and quick to perform their duties thoroughly, with a smile thrown in for good measure. Without these qualities the House would not function and the people's business would be left undone.
A heartfelt thanks to all of them. We will see them tomorrow morning.
Member For SherbrookeStatements By Members
Denis Paradis
Brome—Missisquoi, QC
Mr. Speaker, rather than take pleasure in the Government of Canada's investment of $950,000 in the renovation of the Sherbrooke airport, the Conservative leader, blinded by political partisanship, made the following statement in the daily, The Tribune : ``The federal government is doing this for political reasons. For election purposes, it is going to lose the $100,000 the Government of Quebec promised the City of Sherbrooke''.
He is off the mark. The member for Sherbrooke's logic takes some real mental gymnastics to grasp.
I suggest he be happy at the investment in the Sherbrooke airport, and I thank the mayor of Sherbrooke and the airport authorities for the words of praise they had for the federal government and the member for Brome-Mississquoi for having made this a success.
What we need in the Eastern Townships are Liberal members.
Lachine CanalStatements By Members
Bernard Patry
Mr. Speaker, the Minister of Canadian Heritage, her colleague the Secretary of State for the Federal Office of Regional Development and the mayors of the cities of Montreal and Lachine yesterday announced a major project to repair the Lachine canal.
This project, estimated at over $82 million will be carried out over five years and mean the creation of over 4,000 jobs during the construction stage. The Lachine canal, which was at the heart of Canada's economic development, will come to life again with this project. An estimated 1.2 million visitors will use the canal facilities once the work is completed.
Our government is proud to be a partner in the reopening and revitalization of the Lachine canal. This is further proof of this government's commitment to support Montreal's economic development.
VacancyStatements By Members
It is my duty to inform the House that a vacancy has occurred in the representation, namely Mr. Jack Iyerak Anawak, member for the electoral district of Nunatsiaq, by resignation effective April 15, 1997.
Pursuant to subsection 25(1)(b) of the Parliament of Canada Act, I have addressed a warrant to the Chief Electoral Officer for the issue of a writ for the election of a member to fill this vacancy.
The ConstitutionOral Question Period
Laurier—Sainte-Marie
QuébecBloc
Gilles Duceppe
Mr. Speaker, yesterday, in Toronto, Brian Mulroney was asking Canada to make new offers to Quebec to make up for the constitutional insult it suffered in 1982. According to the President of Treasury Board, however, Ottawa has kept its promises, there is no problem, everything is fine, Constitution-wise.
Because it is totally incapable of any solution whatsoever, the Liberal government is quite simply denying persistently that a flagrant injustice was done to Quebec in 1982.
Does the Prime Minister agree with his Quebec lieutenant that everything is settled, that there is nothing serious about the fact that no Quebec government whatsoever, whether federalist or sovereignist, has agreed to sign the Canadian Constitution in the past 15 years? | 法律 |
2016-50/4330/en_head.json.gz/10958 | The word of the day was sentence.
Business of the HouseOpen Government ActInternational Transfer of Offenders ActBusiness of the HouseInternational Transfer of Offenders ActLakefield MarinaElectionsForeign AffairsWomen EntrepreneursCambridge Classic MileElectionsSmall Craft Harbours ProgramOlder Worker Adjustment ProgramVaisaikiSponsorship ProgramCurlingTaxationNew Minas, Nova ScotiaKelowna Citizens AwardsYemen Water ProjectThe EnvironmentUniversity of OttawaNational Unity FundHealthNational Unity FundEmployment InsuranceForeign AffairsNational DefenceThe EnvironmentJusticeThe EnvironmentGovernment ContractsGovernment AssistanceOil IndustryCorrectional Service CanadaAgricultureHeritage CanadaInfrastructureAgricultureHealthIndustry CanadaEthics CommissionerPublic ServiceFisheries and OceansPoints of OrderGovernment Response to PetitionsCriminal CodeCommittees of the HouseCanada Business Corporations ActCommittees of the HousePetitionsQuestions on the Order PaperQuestion No. 66Question No. 67Questions Passed as Orders for ReturnsQuestion No. 9International Transfer of Offenders ActFirst Nations Fiscal and Statistical Management Act
International Transfer of Offenders ActGovernment Orders
Canadian Alliance
Prince Albert, SK
Mr. Speaker, the more I think about this bill, the more questions I seem to come up with. There are things that happen in Canada that we do not consider crimes, while in other countries they are considered crimes. There are nations in the world where adultery is a serious offence or consumption of alcohol is a very serious offence. As well, participating in an abortion would be a very serious offence and one would be looking at serious jail time.
How does the bill deal with these sorts of offences for which somebody is serving a jail sentence for something that we would never consider a criminal offence in Canada? If the offender is transferred back to a Canadian prison, to our system, is the hon. member telling me the bill would still impose that sentence on a person? Let us use the example of somebody who is serving five years for committing adultery somewhere and is transferred back to Canada? Would we honour that sentence from that jurisdiction, that full five years or whatever it was?
Mr. Speaker, one of the features that I identified in reviewing some of the debate on the bill, and even within the bill itself, is the element of flexibility. As I said in my speech, to compare the laws of the criminal justice system in another jurisdiction to those of Canada and the Criminal Code would be an enormous task. It would be an enormous task to somehow find that simple formula that is going to translate things.
I take some heart from the member's question. I would simply refer back to the representations of the Solicitor General when he spoke to Bill C-33, the predecessor bill of this one. He closed by saying:
...there is a clear need for legislative flexibility in Canada to further the humanitarian objective of transfers. There is a clear need for international cooperation in matters of criminal justice and there is a clear need for public protection with the safe and gradual reintegration of offenders into society.
In the minister's remarks, he goes on to enunciate that the process involved here with treaties, et cetera, has to do not so much with swapping identicals but rather with looking at and investigating and negotiating transfers that make sense from the standpoint of a humanitarian objective.
Clifford Lincoln
Lac-Saint-Louis, QC
Mr. Speaker, I would like to indicate my support of Bill C-15, the International Transfer of Offenders Act. The amendments it contains will modernize the legislation in order to reflect the numerous changes that have taken place since it was enacted back in 1978.
The provisions of Bill C-15 will allow Canada to negotiate the transfer of offenders in a manner consistent with current international standards, and will provide a mechanism for cooperation in criminal justice cases.
In short, the International Transfer of Offenders Act will enable Canada to enter into treaties with other countries for the transfer of offenders. Under the terms of such treaties, Canadian citizens convicted and sentenced in another country may serve the rest of their sentence in Canada, while foreign nationals convicted and sentenced for crimes in Canada could return to their country of origin to finish serving their sentence.
I must point out that the provisions of the International Transfer of Offenders Act would apply only to those persons actually convicted of a criminal offence, and not to those in preventive detention awaiting trial or appeal.
As well, I should point out that transfers under this act would require the full consent of the offender, as well as that of the receiving state and the sending state. Without the full consent of those three parties, an international transfer cannot proceed.
Some people may wonder why we ought to be concerned about Canadian citizens who are incarcerated in a foreign jurisdiction. Why not leave them there to serve their sentence? Why not let them learn a lesson from their experience, and serve as a warning to others tempted to commit crimes while abroad?
To answer that, I would draw attention to two interdependent objectives of the International Transfer of Offenders Act: the humane treatment of offenders and public safety. The purpose of these objectives is to ensure the human rights of the incarcerated offender, as well as to confirm the concepts behind Canada's criminal justice policy.
These objectives recognize that the vast majority of offenders will eventually be released back into the community and that the best way of ensuring public safety, in the long term, is to prepare them for their eventual return to society as law-abiding citizens. I am well aware that there are some who would challenge the notion that Canada's approach to criminal justice, generally, and corrections, specifically, is effective in protecting Canadians from crime.
In this regard, I would point to public records showing a steady decline in crime rates across most of Canada. In addition, the success rates of offenders released from our penitentiaries while under supervision are available and speak very positively for themselves.
The International Transfer of Offenders Act would ensure that Canadians who are sentenced abroad and who elect to return to Canada while under sentence would be managed in accordance with the policies and programs proven to reduce the long term risk to the Canadian public.
During the debate on Bill C-15, we have become aware of the issues facing Canadians sentenced abroad, often under difficult conditions. I am referring specifically to factors relating to human rights, sanitation, health care and nutrition.
I am also referring to the added burden associated with the differences in culture and language and to the hardship of being far removed from friends and family. The International Transfer of Offenders Act would take into account these humanitarian considerations, while also protecting public safety by addressing the offenders' criminogenic factors before sentence expiry.
Nevertheless, we must be very clear. The International Transfer of Offenders Act is not based solely on humanitarian intentions. The treaties enabled by this act do not allow offenders to somehow evade justice. These treaties stipulate that the receiving state shall neither interfere with the finding of guilt nor lessen the sentence handed down by the sentencing state.
I noted earlier that the Transfer of Offenders Act dates from 1978, which is some time ago. Principles of good governance require that legislation be reviewed from time to time in order to evaluate its continuing relevancy and effectiveness.
Consequently, the Transfer of Offenders Act was the subject of broad consultation, which included over 90 private and public sector agencies. This consultation revealed strong support for the Transfer of Offenders Act. However, the consultations also revealed that the act could benefit from some amendments, which are included in Bill C-15.
The amendments introduced in Bill C-15 can be placed in one of three categories. The first type are amendments that reflect the traditional treaty principles that have developed over time. The second, are those that address the gaps in the Transfer of Offenders Act. Finally, the last category of amendments contains the proposals that would contribute efficiencies to the current process.
I would now like to cover the main points covered by these reforms in Bill C-15.
First, the purpose and guiding principles of the act are identified. This is an important feature of modern legislation, and it helps promote consistency within Canada's body of criminal law, namely the Criminal Code and the Corrections and Conditional Release Act. Specifically, the purpose of the new international transfer of offenders act is to, and I quote,“contribute to the administration of justice and the rehabilitation of offenders and their reintegration into the community by enabling offenders to serve their sentences in the country of which they are citizens or nationals”.
Second, the international treaty obligations and principles considered legally essential are included. These principles include those that ensure offenders have access to processes consistent with natural justice and due process. Enshrinement in the act of legally sound principles is necessary to ensure that the courts do not strike down the transfer process that could result in the unsupervised release of an offender into the community.
Third, eligibility criteria have been broadened to permit an increased range of Canadians to be transferred. Presently, young persons under probation, children, and mentally disordered persons are ineligible for transfer under the Transfer of Offenders Act. Amendments introduced in Bill C-15 would make these individuals eligible for transfer. This proposed amendment is in line with the humanitarian objectives of the new international transfer of offenders act.
Fourth, clarification on the decision-making provisions have been included where provincial consent is required for the transfer of offenders on probation, provincial parole, provincial temporary absence and for offenders under a conditional or an intermittent sentence.
Fifth, updated provisions are included that would result in the consistent and equitable sentence calculation for transferred offenders and would ensure the equitable treatment of transferred offenders when a pardon is granted or when a conviction or sentence is set aside or modified.
Sixth, reforms have been introduced to allow the negotiation of transfers on a case by case ad hoc basis between Canada and states with which Canada has no treaty or jurisdictions, or territories that are not yet recognized as a state, or other entities such as Hong Kong or Macao. In light of today's rapidly changing political landscape, this is a particularly relevant feature.
There is one last point related to the reforms introduced by Bill C-15. Most states are convinced in today's global climate of the need to work multilaterally and bilaterally to address criminal conduct in a way that is in harmony with longstanding principles of territoriality.In the absence of an instrument to enforce foreign laws, crime could be encouraged rather than prevented.
By working together through the transfer agreements enabled by the new International Transfer of Offenders Act, Canada would have the flexibility to work with a broad range of countries and other entities in matters of criminal justice in a way that would lead to public protection through the safe and gradual reintegration of offenders into society.
In conclusion, and for all the reasons I mentioned here, I ask my colleagues from all parties in this House to fully support this legislation.
Paul MacKlin
Northumberland, ON
Mr. Speaker, in listening to the hon. member, it sounds like we are taking a very progressive step but we seem to not necessarily include all the countries of the world in this process.
Does the hon. member have any suggestions as to what we might be able to do to further advance the cause as it relates to other countries in the world that may not be specifically included through an international treaty?
Mr. Speaker, as I mentioned, the bill provides for flexibility in regard to territories and places that have not signed definite treaties with Canada so that there could be negotiations for their inclusion within the framework of the legislation as it evolves.
I gave the examples of territories such as Hong Kong and Macao that are now being included within the Chinese sphere versus their previous status as a British colony on the one hand and a Portuguese colony on the other. We have provided for the gradual inclusion of countries and territories that are not specifically bound with Canada by treaty.
After question period, the hon. member for Lac-Saint-Louis will have approximately eight minutes left in the period of questions and comments.
The Chair will now proceed to statements by members.
Lakefield MarinaStatements By Members
Mr. Speaker, last summer was a difficult tourism season in Ontario because of SARS. On top of that problem, the people of Lakefield had their main dock closed while the township and the Department of Fisheries and Oceans negotiated over the cost of repairing it. I have received petitions from many residents about this.
I urge the Minister of Fisheries and Oceans to continue to negotiate with the township of Smith-Ennismore-Lakefield. The dock must be refurbished and reconstructed so that it will last for many decades to come.
In the meantime, I urge the minister to have the dock tested immediately and, if it is safe, have it opened as is for this important tourism season. Let us do all we can to help the people and businesses of Lakefield now.
ElectionsStatements By Members
Deepak Obhrai
Calgary East, AB
Mr. Speaker, on the eve of our own federal election, the Conservative Party and Canadians would like to congratulate the people, election organizers and the elected governments of Malaysia, South Africa, Sri Lanka, Spain, South Korea, Taiwan, Indonesia, Austria and Russia for having successful elections.
We would also like to congratulate those countries either undergoing elections or about to have them in the near future, such as India, the Philippines, Panama, the Dominican Republic and Malawi. These countries are fast closing the democratic deficit in their respective countries. The Liberals need to take notice of this trend.
Canada sends our best wishes.
Charles Caccia
Davenport, ON
Mr. Speaker, the Prime Minister of Spain, Jose Luis Zapatero, has made a decision of great political importance by deciding to withdraw Spanish troops from Iraq.
He has at the same time put into question the assertion by the U.S. and U.K. governments that the basic mission of the coalition troops is to bring democracy to Iraq. The question is, can western democracy be imposed with armed forces?
Mr. Zapatero's decision is based upon impeccable logic. Governments of countries, such as Denmark, Italy and Poland, may well wish to reflect on and adopt Spain's sensible decision. Parliamentarians in Denmark, Italy and Poland may well decide to press their governments because it is becoming more and more evident that the presence of foreign troops in Iraq is not helping the cause of democracy.
Women EntrepreneursStatements By Members
Sarmite Bulte
Mr. Speaker, the government recognizes how vital women-owned businesses are to the Canadian economy. The fact is there are 821,000 women-owned businesses in Canada which contribute in excess of $18 billion every year to our economy, quite a significant sector of our economy.
The government has a proven track record in supporting the growth of small businesses. Our five year tax plan helps them retain more of their earnings and enhances opportunities and incentives for investors.
The report of the 2003 Liberal task force on women entrepreneurs contained recommendations that were in fact included in budget 2004: accelerated initiatives to provide more quality child care; working to update labour market programming to better reflect the realities of work in the 21st century; and announcing venture capital investment programs through the Business Development Bank of Canada and Farm Credit Canada, totalling $270 million.
The government is proud to help women business owners across Canada scale new heights.
Cambridge Classic MileStatements By Members
Janko Peric
Mr. Speaker, Run for Life Inc., a non-profit organization promoting grassroots running and fitness programs, is hosting the first annual Cambridge Classic Mile Run for Life on June 18 at Galt Collegiate Institute.
Hundreds of children and adults of all ages will participate in a day-long series of one mile races, with elite runners competing in a special invitational race to climax the event. The event marks the 50th anniversary of the historic breaking of the four minute barrier at Oxford University.
Special guests will include two-time Olympian Grant McLaren, and Dave Bailey, Canada's first sub-four minute miler. A GCI teacher, Bryce Macey, and his grade 11 leadership class will resurface the track with the same material used 50 years ago.
I am pleased to join the House in wishing Run for Life chair, John Carson, and all participants and volunteers every success as they compete and raise greater awareness about lifelong fitness.
Kootenay—Columbia, BC
Mr. Speaker, over the weekend I had the privilege of meeting hundreds of my constituents at the Cranbrook Trade Fair. It was very gratifying to get their positive response to me and to our new party but members should have heard what they had to say about the federal Liberals.
They cannot believe the way the Liberals squander taxpayers' hard-earned income. Incompetence, arrogance, waste and downright criminality are only what I can repeat in the House. However the number one issue on their hit parade, and I mean hit parade, was the breathtaking conceit of the Prime Minister as he toys with setting an election date. This is in stark contrast to the leader of the Conservative Party who is committed to establishing fixed election dates, thereby putting Canadians and Canadian interests first and foremost.
Canadians are truly in tune with what we are saying: demand better, vote Conservative.
Small Craft Harbours ProgramStatements By Members
Georges Farrah
Bonaventure—Gaspé—Îles-De-La-Madeleine—Pabok, QC
Mr. Speaker, I was delighted last week to be able to announce, on behalf of the Minister of Fisheries and Oceans, an investment of $275,000, which must have also delighted the fishers of the Gaspé Peninsula.
This investment, within the Small Craft Harbours Program, will be used for dredging at the fishing harbours of Gascons, L'Anse-à-Beaufils, Cloridorme, Saint-Godefroi and Sainte-Thérèse-de-Gaspé.
As I have pointed out before, this investment is vital to the fishing communities of the Gaspé Peninsula. Local fishers require a well-maintained, operational harbour in order to successfully undertake their fishing season.
The dredging to be undertaken with the funding from our government will ensure that vessels have adequate water depth for safe navigation.
Dredging will begin in May, and harbour authorities should shortly be receiving work schedules so that they may inform the fishers of the expected dredging dates.
Older Worker Adjustment ProgramStatements By Members
Michel Guimond
Beauport—Montmorency—Côte-De- Beaupré—Île-D'Orléans, QC
Mr. Speaker, the recently announced closures at Whirlpool in Montmagny and Abitibi Consolidated at Port-Alfred are sad examples of the importance and urgency of restoring POWA, the program for older worker adjustment. This program helps such workers live decently when they lose their jobs in circumstances beyond their control.
Often such workers have paid into EI for years, and never benefited from it. Quebec has seen its share of plant closings in recent years, with major lay-offs, and each one of these has been proof that a permanent support program like POWA is essential. These closures have affected thousands of older workers who have suddenly found themselves looking for work.
In the past, POWA has proven highly successful and the Liberal government ought to understand that additional employment insurance benefits are needed if older workers are to be able to make ends meet until they start receiving retirement benefits or find another job. Action must be taken now, as time is running out.
VaisaikiStatements By Members
Sarkis Assadourian
Brampton Centre, ON
Mr. Speaker, I rise in the House to join with Sikhs in Canada and throughout the world in marking the celebration of Vaisaiki .
From its origin in the Indus Valley, the Sikh faith has spread throughout the world, including Canada where the first Sikh pioneers settled over 100 years ago.
Over the past two weekends I joined with many of my Sikh constituents in a wonderful celebration of faith and pride in their culture. Congratulations to the Canadian Sikh community on the celebration of Vaisaiki .
[Editor's Note: Member spoke in Punjabi] | 法律 |
2016-50/4330/en_head.json.gz/10959 | Home Debates 2009 May 4th
Debates of May 4th, 2009
The word of the day was senate.
Question PeriodVacancyStanding Orders of the House of CommonsHuman Pathogens and Toxins ActArctic Waters Pollution PreventionArts and CultureKatyn, PolandAimé DespatisEmployment InsuranceLeukemia & Lymphoma Society of CanadaHelen GravesBattle of the AtlanticTrait d'Union Community CentreHealthWorld Press Freedom DayFirearms RegistryPensionsLiberal Party of CanadaQuebec NordiquesHalifax Forest FireThe EconomyEmployment InsuranceForeign AffairsEmployment InsuranceAutomotive IndustryThe EnvironmentForeign AffairsBroadcasting and TelecommunicationsGovernment ExpendituresThe EnvironmentAbitibiBowaterBusiness Development Bank of CanadaFisheries and OceansForeign AffairsCanadian Flag PinsLeader of the Liberal PartyEmployment InsuranceHealthAfghanistanThe EconomyVeterans AffairsPoints of OrderGovernment Response to PetitionsFarm Improvement and Marketing Cooperatives Loans ActCommittees of the HousePetitionsPoints of OrderQuestions on the Order PaperArctic Waters Pollution Prevention ActCustoms Act
Arctic Waters Pollution PreventionGovernment Orders
Mr. Speaker, I thank my colleague for his excellent question. Since the Conservatives were elected, militarization has run rampant. Purchases of aircraft alone total $16 billion, not to mention procurement for land and naval forces. The government promised to purchase a huge icebreaker, which is not a military item. It is required for travel in areas where there is thick ice so that Canada can maintain a presence in Arctic waters. It seems that this has been shelved and they are considering purchasing military vessels. That is a dead end. I said, as did my colleague, that we are all worried about the military presence in the far north. That is not the solution because we are facing much larger players than ourselves. We would not succeed even if we were to use Canada's total budget. The United States spends almost three times as much as Canada: $450 billion per year compared to our budget of about $200 billion. Thus, that will not work. That is not the answer.
My colleague is right. Diplomacy and science, the continental shelf, and the presence of the Inuit people are our best bargaining tools.
Dennis Bevington
Western Arctic, NT
Mr. Speaker, I rise to speak to Bill C-3. We in the NDP came out in support of the bill at second reading. After a fairly rigorous examination of the simple bill in committee, we felt we could continue to support it. It really does not have any negative aspects other than the fact that it is unable to provide the level of protection through the actions of the government, which a bill like this would tend to make people think would come.
Bill C-3 extends coverage of our environmental laws to 200 miles offshore, but in evidence given in committee, it was quite clear that this new limit really only applied in one part of the Arctic, and that is the area adjacent to the Beaufort Sea, now covered with ice. As the witnesses demonstrated in committee, there was no traffic at all into the region the bill was designed to expand our control over. It is covered with ice and no ships are entering other than perhaps research vessels or the Canadian icebreaker.
The area is not under dispute between different countries. This is a rather innocuous change but it is an important subject. That is why all of us are standing up one after the other to talk about it. That is why we took time in committee to look at all aspects of Arctic development and had witnesses appear from a variety of government departments and a variety of other concerns. The Arctic is important and what happens there is extremely important. What happens to the Arctic in terms of climate change will change the ice coverage in the area we are extending our jurisdiction over.
There will be more traffic. There will be other uses coming forward, whether it is shipping, tourism or other things. It is important that we join the rest of the world in understanding how we can deal with the Arctic. One of the key aspects we have to approach is our relationship according to how the other countries of the world, which have a stake in Arctic waters, approach the issue.
I had the opportunity to attend, on behalf of my party, the Ilulissat, Greenland meeting. As well, last summer I had an opportunity to visit with the Arctic parliamentarians when they met in Fairbanks, Alaska. I had a chance to learn about the attitudes of people across the world toward Arctic waters and to hear questions about the change in the nature of the Arctic ice cover to the importance of Arctic resources.
Quite clearly, the government needs to continue to expand its international presence on Arctic issues. When the government took office three and a half years ago, it had the attitude that it would use the Arctic sovereignty issue as a political football to enhance its image as standing up for Canadians. In some ways, that is exactly the wrong approach to take. It is not a question of Canada's status in the Arctic. We have great status in there. Our status has come through our work, along with other countries, to ensure the Arctic is developed and used in a responsible fashion.
I am pleased to say, at the meeting in Tromso, which unfortunately I was unable to attend but which I have followed very closely, the 2009 Arctic marine shipping assessment report was delivered. That report has been in the making for a number of years. It speaks to many of the issues in the Arctic and it speaks to them on the basis of all the Arctic countries, which I think is a very useful approach.
When it comes to sea ice, what does the marine shipping assessment say? There is a possibility of an ice-free Arctic Ocean for a short period of summer, perhaps as early as 2015. This would mean the disappearance of multi-year ice, as no sea ice would survive the summer melt season. To people who live and work in the north, this is a truly frightening occurrence. We are completely changing the nature of the Arctic.
What does the retreat of Arctic sea ice over these recent decades mean? It has improved marine access to some degree, although when we talk about particular shipping lanes, we talk about the fact that when we take off, we will see a lot more movement of ice through the areas as well, as the ice cover comes off. There will be more pack ice moving through. There will be more intermittent access than perhaps steady, free access to that area.
We will see changes in coastal ecology and biological production. We see that in the types of fish that are coming around the coast of Alaska from the Pacific Ocean and that are starting to show up in the nets of fishermen on the Arctic coast.
On the other side, we see that the change in the melt ice has created a situation. This was talked about today on the radio, the decreased level of salt in the waters off the coast of Labrador and those areas. Those things are happening right now.
There are adverse effects on many ice-dependent marine mammals. We have the issue of the status of the polar bear, which came up strongly last year. We also have increased coastal wave action. That plays out very much in my riding on the Beaufort Sea, where the lack of sea ice cover has increased the type and severity of the weather there. Once again, we see these problems. From the marine shipping assessment report, what is one of the main items that are considered? The most significant threat from ships to the Arctic marine environment is the release of oil through accidental or illegal discharge. In committee this was raised by the parties, through their witnesses, and the answers were much less than satisfactory. The answers that Environment Canada had for its enforcement or its ability to get out there and find out what was going on were very limited. The technology development in which we were all interested, in terms of how to ensure that these—
Mr. Speaker, perhaps I could encourage somebody else to speak to this issue after my—
Andrew Scheer
Order, please. The hon. member makes a good point. It is becoming increasingly difficult to hear him. He is on the other side of the chamber. Perhaps we could have a bit of order, as we should always have, to allow the Chair to hear his remarks.
The hon. member for Western Arctic.
Mr. Speaker, I bow to the goodwill of the other members of the House to continue my address.
When we looked at the problems that we had in terms of the major and most significant threats from ships in the Arctic, we did not have answers, at lease no answers that we could identify which suggested that we were on top of this issue.
How much is the Arctic being used right now? The marine shipping assessment report says that there are approximately 6,000 individual vessels making multiple voyages in the Arctic regions and that approximately half of them are on the great circle route in the north Pacific that crosses the Aleutian Islands. Approximately 1,600 of these vessels are fishing vessels.
Nearly all the movement in the Arctic is destinational, conducted for community resupply, marine tourism and moving natural resources out of the Arctic. There is no trans-shipping yet that occurs in the Arctic regions. That is something that probably would more likely occur once the future ice cover has moved back and we have a clear understanding of the intermittency of the pack ice in the area.
Significant increases in cruise ships, the majority of them not built for Arctic waters, have been observed in summer season around Greenland within the past decade, and certainly those ships have been identified as an area of potential concern.
What is the governance? When we are talking about the need to protect the Arctic, we are talking about the need to protect from marine vessels. We are not talking about much else when we talk about how we will deal with marine protection in the future. How do we deal with the governance of Arctic shipping?
The law of the sea is reflected in the United Nations Convention on the Law of the Sea. It provides the fundamental framework for the governance of Arctic marine navigation. The International Marine Organization is a competent UN agency with responsibilities related to the global maritime industry. It has been very active in developing guidelines for ships operating in Arctic ice-covered waters. I think that is one of the issues that we must come to grips with here. Guidelines are not good enough.
What we need for Arctic shipping to protect the Arctic is international regulation that says that ships operating in the Arctic must meet minimum conditions for Arctic waters. The International Association of Classification Societies has developed non-mandatory unified requirements for its members that addresses the issues around ship construction, which are defined again in the guidelines.
We need to move forward from that point, which is where Canada can work very effectively at the international level and potentially within our own waters to ensure that we have that quality of ships working in the Arctic.
There are no uniform international standards for ice navigators. Quite clearly, when entering into Arctic waters, one needs to have proper navigation, a pilotage system that can deliver those ships safely through very difficult waters. Even within the Northwest Passage, the charting that has been done there is very minimal. We have a new marine terrain opening up and that marine terrain has to be well protected.
Order, please. The hon. member for Western Arctic will have approximately six and a half minutes the next time this bill is before the House after question period. Permalink
Arts and CultureStatements By Members
Mr. Speaker, I rise today to recognize one of the world's leading centres of performing arts and digital media education, the Sheridan College Institute in Oakville Ontario.
On Friday evening, Sheridan's School of Animation Arts & Design celebrated its awards evening for Sheridan's famous musical theatre school, one of the world's best, where some of Canada's most brilliant young performers develop and polish their art. Sheridan graduates amaze audiences from the Stratford and Shaw Festivals to Broadway, Disney World and Hollywood. Graduates from Sheridan's computer animation department have led the world in artistic digital storytelling, helping create films in Canada and internationally; blockbusters like Star Trek, Star Wars and the Terminator series.
Every performer in Canada helps create jobs and opportunities for others, like stagehands, set designers and carpenters. Our artists also serve us by helping define who we are as Canadians. That is why federal funding for the arts and culture in Canada has never been higher than right now.
We salute the dedicated, talented young people at Sheridan and across Canada, and their teachers who put their futures on the line to tell Canadian stories and touch our hearts.
Katyn, PolandStatements By Members
Gerard Kennedy
Mr. Speaker, I rise today to bring to the attention of the House and Canadians the horrific historical event that was the Katyn massacre of 1940.
It is commemorated each April by the Polish Canadian community to bring recognition to the systematic slaughter of 23,000 Polish military and civilian leaders in the Katyn forest and other locations and their burial into mass graves by the Russian army on the orders of Stalin.
Long denied, today the horrors that were suffered are only partially recognized. I invite members of Parliament to join with our Polish Canadian community in pressing internationally for full recognition of the Katyn massacre for the genocide it was and to help bring final peace for the victims and their families.
Aimé DespatisStatements By Members
Diane Bourgeois
Terrebonne—Blainville, QC
Mr. Speaker, the people of Les Moulins are in mourning, for Aimé Despatis has passed away. We have lost a great scholar, a true community builder.
Aimé Despatis was passionate about information. He was remarkably open and honest, easy to talk to, connected to people, generous and cultured. He brought significant cultural, social and political change to his community.
Among other things, he played an important part in the Quebec ministry of culture's acquisition of Île-des-Moulins, which is now Quebec's second-largest historical site. He also founded Terrebonne's independent La Revue, a newspaper that told the story of our growing city and region for 50 years. Thanks to Mr. Despatis, the people of Terrebonne have discovered whole chapters of their local and regional history. He was the heart and soul of “his” paper until the very end.
The Bloc Québécois members and I would like to offer our most sincere condolences to Mr. Despatis' family and friends, as well as to the staff of La Revue.
Employment InsuranceStatements By Members
Mr. Speaker, this past weekend, I attended a rally held in front of the Beta Brands plant, in London, Ontario. This plant closed more than two years ago and workers are still waiting for money owed to them. They did not receive any severance and their pensions are gone. Workers at this plant have lost their jobs, their homes and their life savings. Some had to wait six weeks or more for EI and others six months or more to even find out if they could access retraining.
Plant closures and layoffs in London have been far too frequent and are devastating to the people involved and to our community. Lives are thrown into turmoil with every closure.
More needs to be done to address these job losses. The government needs to fix the employment insurance system, create more opportunities for retraining and implement all of the NDP's workers first bill to protect those pensions.
Leukemia & Lymphoma Society of CanadaStatements By Members
Dean Del Mastro
Mr. Speaker, for the past seven years, Ted Dawes has teamed up with the UFCW locals 175 and 633, and has raised closed to $75,000 in support of the Leukemia & Lymphoma Society of Canada.
This year, Ted and his team are taking their efforts on the road and he is walking 440 kilometres from Parliament Hill to Nathan Phillips Square. Event coordinator, Sue Amsbury, and her team have worked tirelessly to organize this event and with great success.
Many companies have stepped up to support, including Imprinted Apparel, Jack McGee Chevrolet, Gold's Gym, the law offices of McGillen, Ayotte and Dupuis, Coca-Cola, Reebok, Del Mastro RV, as well as many individual donors.
Ted's official department from Ottawa will be tomorrow at 11 a.m. and he expects to arrive in Toronto on May 22 where the Toronto Argo cheerleaders will cheer him across the finish line.
I encourage all of my colleagues to come out to the reception this evening and support the “Ted on the Road” team and meet some of Peterborough's finest citizens.
With each step, he is putting the boots to leukemia and lymphoma.
Helen GravesStatements By Members
Derek Lee
Scarborough—Rouge River, ON
Mr. Speaker, on behalf of all colleagues in the House, I want to acknowledge with sadness the passing of Helen Graves on Tuesday, April 14.
She was best known here for the political internship program designed by her for our House of Commons in 1984 and which she directed for over 20 years. It was the first of its kind then, an experimental education program, and to date, over 500 U.S. students interned in Ottawa under Dr. Graves. It has provided valuable resources to MPs, given opportunities to students and added value to cross-border relations, benefiting both countries over many years.
Students learned parliamentary functions, did research for MPs and drafted written work. Many of these students went on to become active in politics and they all hold a special place in their heart for Canada and Canadians.
Helen believed deeply in the power of education and she was a professor for several U.S. universities where she implemented the internship program and earned numerous academic and civic awards.
We in the House join in celebrating her life, her love of learning and her manifest contribution to U.S. and Canadian democratic institutions.
Battle of the AtlanticStatements By Members
Greg Rickford
Mr. Speaker, of all the important campaigns Canada was part of during the second world war, the Battle of the Atlantic was unlike any other.
For six years, day after day, courageous Canadians met the challenge of making the relentless crossings of the treacherous north Atlantic, sailing from Canada's east coast to a beleaguered British nation and bringing with them vital troops and much needed war supplies. These were ordinary Canadians who did extraordinary things.
Sixty-six years ago, in May 1943, the tide finally turned in favour of the allies but a terrible price would be paid for this victory as more than 4,600 courageous men and women lost their lives at sea. They are our heroes and today we honour those who endured Canada's longest battle of World War II. We remember their supreme sacrifice to defend our values of freedom, democracy and the rule of law, those whose final resting places cannot be marked by graves.
Canada's military men and women are fighting to protect those same values today. Canada remembers the Battle of the Atlantic.
Trait d'Union Community CentreStatements By Members
May 4th, 2009 / 2:05 p.m.
Jean Dorion
Longueuil—Pierre-Boucher, QC
Mr. Speaker, the Trait d'Union community centre is celebrating its 25th anniversary today. That organization serves the people of my riding, especially those in the Sacré-Coeur neighbourhood of Longueuil. It provides a place for people to come together and share resources and ideas, and it serves as an anchor for the entire community.
Community involvement and the tenacity of many local stakeholders have produced positive results. Today, the Trait d'Union offers social and cultural recreation programs, summer day camps for children, sports and other physical activities, as well as community programs for all age groups. I would like to congratulate and sincerely thank the staff and many volunteers who dedicate their time and energy to the well-being of their community day after day. I would also like to posthumously recognize the enormous contribution made by Raymond Guay, one of the founders of the community centre, who served as its director for 20 years. | 法律 |
2016-50/4330/en_head.json.gz/10982 | Architects: Safeguard Your Intellectual Property
By Andrew Heaton
Tuesday, October 4th, 2016 0
save article Given the extent to which the value of what architects produce lies in the creativity behind the designs and drawings they provide, intellectual property is a key concept for those in the profession.
Accordingly, it is important for them to be aware about how copyright works and about some of strategies which they can put in place in order to protect their work.
Governed in Australia by the Copyright Act, copyright essentially grants architects exclusive rights to use the designs they create and prevents other from copying their work. When working with a client, there are two broad avenues by which the architect can enable the client in question to use and benefit from their work.
First, and most common, there is licensing. Under this type of arrangement, an architect retains ownership of the copyright to the work but provides the client with a right to use the work in question according to conditions to which the parties agree by virtue of the contract. Because the architect retains ownership of the copyright in question, they are generally free to apply those designs on other projects for other clients. The exception to this is where the architect agrees to provide the license to the client on an exclusive basis – for instance, when the client opts for a special form of bespoke design.
The alternative to licensing is for the architect to instead assign ownership of the copyright over to the client. Under this scenario, ownership of the copyright with respect of the work is transferred to the client, who is subsequently free to reuse the drawings in whatever way he or she wishes. Because they no longer own the work in question, the architect would have to obtain their client’s permission if they wished to reuse any of the drawings in any of their other projects. For this reason, assignment is generally not an attractive option for architects.
It should be noted that irrespective of whether or not the architect has licensed or assigned their work, individual architects still retain certain rights. These are referred to as moral rights, and they came into existence as a result of amendments to the Copyright Act by in 2000.
Moral rights include a right be attributed or accredited as authors of their designs, not to have their drawings or designs falsely attributed to anyone else and not to have their work treated in a derogatory way. They belong not to the firm itself but rather to individual people who contribute to the work, such as directors, employees and individual contractors or subcontractors. These rights cannot be transferred or assigned, and thus remain with the individual architect even in cases where the architect has transferred or assigned rights to the copyright of the work in question.
It should also be noted that unlike patent and trademark protection, copyright protection is granted automatically under the Act and architects do not have to undergo a formal registration process in order to protect their work. According to guidance notes from the Federal Attorney General’s department however, it is good practice for architects and others to include a copyright notice within a prominent position with regard to their work.
So what should architects do to protect their work? According to Peter Hallett, a director of intellectual property law firm Watermark, there are a number of important things to keep in mind.
First, Hallett says, it is important to maintain clear terms of engagement with clients. When licensing clients to use the work, Hallett says there are a number of issues which are in fact subject to negotiation. Along with who owns the copyright (whether it is assigned to the client or merely licensed to them) these include what the client can do with the plans, whether or not plans can be modified, when the client’s rights to use the plans can be terminated and whether or not the client can use the plans on multiple buildings or is restricted to using them on just one building. Without this being specified up front, Hallett says it is possible to end up with different expectations between what the client thought they were getting in terms of copyright usage and what the architect in fact understood that he was ceding. This, Hallett says, creates the groundwork for disputes.
“All of these issues are negotiable,” he noted.
“Where a lot of disputes have come from is where there hasn’t been clarity at the outset. So the client has gone in with one expectation and the architect has gone in with another and both have come away with different ideas about what the arrangement is.
“The best way to avoid disputes is to have clarity around these things.”
On a related note, Hallett says it is important for architects to ensure that the client understands the limitations associated with any copyright arrangement up front. Not doing so, he said, lays the groundwork for future disappointment on the part of the client if and when they find out down the track that their expectations were incorrect.
Third, Hallett says, it is critical to maintain detailed records about how plans are developed and the process which has been followed. This will not only help the architect in question prove their ownership of the copyright in question but will also assist them in terms of defending themselves against copyright claims from others when in fact their designs turn out to have similarities with those of other architects. Copyright does not protect against situations where one party merely comes up with designs which happen to be similar to those of another party but rather protects against one party engaging in purposeful efforts to copy the work of another. Thus an ability to demonstrate the design process which has been followed will help the architect in question to prove that they in fact did not merely copy the work of other designers.
Another area of concern revolves around clients simply taking initial sketches which architects have provided as part of their pitch to win work and simply passing these on to another designer or to a builder for use on their project without the architect’s permission. To help prevent this, Hallett says, it is good practice to mark these documents as being confidential and to make it clear that they cannot be disclosed to other parties.
Next, Hallett says it is important for architects to ensure that any contracts they have with any subcontractors, employees or work experience students clearly spells out that copyright ownership with regard to the work in question will be transferred to the firm. This avoids any situation where any of the above parties could have a claim that they (rather than the firm) owns the copyright.
Finally, Hallett says it is important to develop a reputation for enforcing your rights in this area. Reputation is critical, he says. Any known history of robust action in this area serves as a deterrent for others who may be thinking of taking their ideas; vice versa for others who may be less active in enforcing their rights.
As initiators of creative ideas, architects face a critical issue with regard to the protection or otherwise of their intellectual property.
With a few sensible strategies, they can go a long way toward protecting this crucial asset.
Tuesday, October 4th, 2016 Embed
Ryan October 4, 2016 Can't believe this article doesn't include the strongest warning about the "abandon" with which architects have agreed to the numerous "file sharing" systems out there, generally run by (or even owned by) major contractors believing that details won't be pirated for other projects. | 法律 |
2016-50/4330/en_head.json.gz/11193 | Commonwealth v. James Willie Hawkins Jr.; Judge Imposes 36-Year Sentence for Non-Fatal ShootingTuesday, July 02, 2013Harvey L. Bryant, Commonwealth’s Attorney for the City of Virginia Beach, announced today that James Willie Hawkins, 46 years old, of Virginia Beach, Virginia, was formally sentenced today by Circuit Court Judge H. Thomas Padrick on charges of Malicious Wounding, Abduction, two (2) counts of Conspiracy, and Use of a Firearm. Hawkins was found guilty by a jury of these charges on January 9, 2013, and the jury recommended he serve 43 years in prison. Today Judge Padrick imposed that sentence; however, he ordered Hawkins to serve the two Conspiracy sentences concurrently, resulting in a total sentence of 36 years to serve. The Commonwealth’s evidence proved that in June of 2012, James Willie Hawkins Jr. and his wife had been separated and living apart for at least nine months. Hawkins’ friend, Jimmy Lee Bufkin Jr., told him that a man was visiting his estranged wife’s home, located in the Wadsworth Shores military housing complex. Hawkins armed himself with a handgun and borrowed a truck from another friend. Around 4 p.m. on June 12, 2012, Hawkins and Bufkin drove to Hawkins’ wife’s home and confronted the victim. At gunpoint, Hawkins ordered the victim into the truck, and shot the victim multiple times when he refused to do so. Hawkins jumped back into the truck, and Bufkin drove them away. Officers from the Virginia Beach Police Department began investigating and found two black masks on the ground within blocks of the crime scene. A witness recognized Hawkins as a neighbor who had been in the apartment complex previously. Investigators discovered that Hawkins borrowed the truck from a friend, who did not know it would be used in a crime. Investigators found binoculars in the truck which were not there before Hawkins borrowed it. While in jail awaiting trial, Hawkins wrote a letter to authorities in the U.S. Navy and U.S. Attorney’s Office in which he admitted to shooting the victim. The victim, a decorated member of the U.S. Navy, survived with injuries to his left arm, left leg, and torso. He will likely be medically discharged as a result of the injuries he sustained from the shooting. On May 22, 2013, Bufkin pled guilty to charges of Malicious Wounding, Abduction, Wearing a Mask, Conspiracy, and Use of a Firearm. He is scheduled to be sentenced on July 24, 2013.
Hawkins has prior convictions for Armed Robbery, Attempted Robbery, and Possession of a Controlled Substance. The case was prosecuted by Senior Assistant Commonwealth’s Attorney Joseph A. DiNonno and Associate Commonwealth’s Attorney Scott C. Alleman. Please contact Macie Pridgen if additional information is desired. | 法律 |
2016-50/4330/en_head.json.gz/11253 | Promotions Home Free Stuff Newsletters & Texts Flyerboard Celebrated Architect Tom Kundig Rouses Ire Over Ridgeline Cabin
By Nina Shapiro
Wed., Jun 26 2013 at 05:47PM
Tom Kundig is one of the most celebrated architects in Seattle. The recipient of numerous national awards, the subject of books that lavishly depict his modernist and inventive houses, he is known for the way his structures “fit serenely into the landscape,” as The New York Times put it last year. See for instance a Kundig-designed house, depicted in another Times piece, that is nestled in a cropping of rocks in the San Juan Islands.
Yet, a small vacation cabin he is building in the Methow Valley for his family and two others is causing a local uproar precisely because of its interaction with the landscape. The boxy, metal-roofed structure sits atop a ridge on Flagg Mountain, which rises above Mazama. The cabin, or “hut” as it is often referred to, is positioned so far forward on the ridge that, with the help of a beam, it juts over the cliff.
“It’s hard to think of it as doing anything else but lording it over the landscape,” says Bill Pope, an owner of the Mazama Country Inn. He has helped organize a campaign, called Move The Hut, that has circulated a petition asking Kundig and co-owners of the cabin to “reconsider the location of the structure.” Roughly 500 people have signed it so far, according to Pope.
Meanwhile, property owners on Flagg Mountain, including a woman who sold the lot upon which Kundig is now building, are suing the architect and the others involved with the project, who include high-end Seattle builder Jim Dow. The plaintiffs claim that Kundig and his partners are violating property covenants that call for any building to be erected with “special sensitivity” that minimizes its “visual impact” to those within its sight-line.
Pope maintains that the cabin can definitely be seen from the valley below. He says he looked up one day in October, and there it was. Apart from any covenants it violates, Pope says the structure runs contrary to an “ethical” code in the valley that says “you don’t build on a ridgeline.” Despite a flurry of building by wealthy Seatttlies who have picked the stunning spot in the eastern Cascades for a vacation home, that code has up until now not been transgressed, he says.
Kundig has built before in the Methow Valley, designing among other projects a group of rental “rolling huts” that are advertised as a “modern alternative to camping.” None of those projects have sparked controversy.
Reached by phone, Kundig says he’s done nothing wrong with his newest project. He declines to talk in detail given the ongoing legal proceedings other than to say that the cabin will live “light on the land.” He elaborates: “It’s an 800-square-foot hut that’s off the grid. It harvests the sun. It harvests water.”
Dow concedes that the cabin can be seen from the valley. But he contends that the photos publicized by Move the Hut, like the one above, use a telephoto lens that make the structure seem bigger than it is. “We’ve had people call us and say: ‘We can’t find it. Where is it?’”
In placing the hut, Dow says, “we had a number of constraints. One of the most crucial was that there are three pieces of property on the ridge, and the other two property owners up there were very concerned they not see our cabin.” That could only happen if the cabin was built where it is, according to Dow.
“So we tried to do some things to minimize [the impact],” he continues, adding that making the cabin small was one of them.
He also contends that other people have built on ridgelines above the valley as well, although towards touristy Winthrop rather than in sleepy Mazama.
Attorneys for Dow, Kundig and fellow defendant Ben Rand moved to have the lawsuit dismissed on the grounds that the plaintiffs don’t have standing. While striking two of the plaintiffs, an Okanogan County Superior Court judge ruled late last month that the suit can proceed. | 法律 |
2016-50/4330/en_head.json.gz/11376 | Devas claims Rs 9,000 cr in damages from ISRO
Discussion in 'Economy & Infrastructure' started by AVERAGE INDIAN, Jun 17, 2013.
AVERAGE INDIAN
Devas Multimedia, the Bangalore-based company whose business contract to launch satellite-based data services for mobile devices was cancelled by the government in 2011, has demanded at least $ 1.6 billion (about Rs 9,000 crore) from the Department of Space in damages.
Devas has already initiated arbitration proceedings against Antrix Corporation, the marketing arm of India's space agency ISRO, for settling the dispute arising out of the termination of contract in February 2011. Antrix has so far not participated in the arbitration. Last month, its plea to hold the arbitration under a rule different from the one invoked by Devas was thrown out by the Supreme Court.
Devas has told Antrix it will no longer insist on the reinstatement of the agreement and will accordingly modify its petition at the arbitration. Its only prayer before the arbitration would be to claim damages for the losses it suffered due to the cancellation of the agreement. "Antrix continues to be in repudiatory breach of the agreement even today and has clearly evinced its intention not to perform the agreement. Devas has elected to, and does hereby, accept Antrix's repudiatory breach of agreement, bringing the agreement to an end as a result of Antrix's wrongful actions. Devas will be amending its claim in the arbitration to reflect the withdrawal of its claim for specific performance (of the agreement) whilst maintaining its claim for damages as a result of Antrix's breaches of contract," Devas has said in a recent communication to Antrix.
Devas has also accused Antrix of trying to obstruct the "expeditious determination" of the arbitration proceedings. No one from Antrix was available for comment.
Devas had entered into a contract with Antrix in January 2005 for lease of 90 per cent of transponder space on two satellites that were to be launched by ISRO. Devas intended to use S-band radio frequency signals to launch multimedia services for mobile devices. Antrix was to earn $ 300 million (Rs 1,350 crore at that time) over a period of 12 years from Devas.
Following a change of guard at ISRO at the end of 2009, and a series of murky developments, a review of the agreement was ordered. In July 2010, the Space Commission, the highest policy-making body on Space matters, decided to annul the contract on the ground that the S-band, in which frequencies were being allotted to Devas, was extremely scarce and barely enough to meet India's strategic requirements.
The arbitration initiated by Devas is not the only trouble Antrix and ISRO are facing. Last month, the major investors in Devas initiated separate arbitration proceedings against Antrix at the Permanent Court of Arbitration at The Hague. Three companies, which had invested in Devas through their Mauritius-based operations, are claiming damages citing a breach of a bilateral investment agreement between India and Mauritius. Devas claims Rs 9,000 cr in damages from ISRO - Indian Express
AVERAGE INDIAN, | 法律 |
2016-50/4330/en_head.json.gz/11437 | Supreme Court Rejects Statute of Voting Rights Act Today the Supreme Court ruled that a statute requiring preclearance for changing voting guidelines is unconstitutional. In a five to four decision with the opinion written [PDF] by Chief Justice John Roberts, the Supreme Court ruled that Section 4 of the Voting Rights Act (VRA), which determines which districts have to submit changes in their voting practice and regulation regardless of size to the Department of Justice (DOJ) in accordance with Section 5 of the VRA, is unconstitutional. In doing so, the Court essentially nullified Section 5 requiring preclearance in voting regulation changes. Section 5 has been used to stop over 700 discriminatory laws from going into effect between 1982 and 2006.
Roberts and the majority opinion argued that the formula determining which state and local governments must submit their changes is outdated [PDF] and therefore can no longer be used to require preclearance. While this decision subsequently voids the preclearance process, the majority did not rule preclearance requirement in Section 5 unconstitutional. Instead, the Court gave Congress the responsibility to create a new formula to determine who must comply with preclearance requirements. In a concurring opinion, Associate Justice Clarence Thomas wrote that he would have urged the Court to also overturn Section 5.
In a dissenting opinion [PDF], Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer joined Ruth Bader Ginsburg in arguing that since Congress determined the formula in Section 4 was still accurate there was a demonstrated need to retain it. Ginsburg lays out the history of the Voting Rights Act and the various challenges and reauthorizations it has faced. Ginsburg, et al., also argue that Congress is aware that the formula may need to be revised in the future based on the time frame Congress determined for reauthorization.
In her dissent, Ginsburg writes [PDF] "The sad irony of today's decision lies in its utter failure to grasp why the VRA has proven effective... In truth, the evolution of voting discrimination into more subtle second-generation barriers is powerful evidence that a remedy as effective as preclearance remains vital to protect minority voting rights and prevent backsliding." She continues, "For a half century, a concerted effort has been made to end racial discrimination in voting. Thanks to the Voting Rights Act, progress once the subject of a dream has been achieved and continues to be made."
In conclusion, Ginsburg writes "After exhaustive evidence-gathering and deliberative process, Congress reauthorized the VRA, including the coverage provision, with overwhelming bipartisan support... In my judgment, the Court errs egregiously by overriding Congress' decision."
Civil rights advocates around the country have denounced the decision. President Obama said in a statement, "Today's decision invalidating one of its core provisions upsets decades of well-established practices that help make sure voting is fair, especially in places where voting discrimination has been historically prevalent." NAACP President and CEO Benjamin Todd Jealous decried, "This decision is outrageous. The Court's majority put politics over decades of precedent and the rights of voters." Eleanor Smeal, President of the Feminist Majority, said "The fundamental responsibility of the Supreme Court is to protect minority rights, especially the most basic right in a democracy, the right to vote. The Court has failed in this responsibility."
Media Resources: NAACP 6/25/2013; Office of the Press Secretary 6/25/2013; Reuters 6/25/2013; Shelby County v. Holder 6/25/2013; Feminist Majority 6/25/2013 | 法律 |
2016-50/4330/en_head.json.gz/11461 | Barons of King John of England
The Magna Carta Lyrics
JOHN, by the grace of God King of England, Lord of Ireland, Duke of Normandy and Aquitaine, and Count of Anjou, to his archbishops, bishops, abbots, earls, barons, justices, foresters, sheriffs, stewards, servants, and to all his officials and loyal subjects, Greeting
KNOW THAT BEFORE GOD, for the health of our soul and those of our ancestors and heirs, to the honour of God, the exaltation of the holy Church, and the better ordering of our kingdom, at the advice of our reverend fathers Stephen, archbishop of Canterbury, primate of all England, and cardinal of the holy Roman Church, Henry archbishop of Dublin, William bishop of London, Peter bishop of Winchester, Jocelin bishop of Bath and Glastonbury, Hugh bishop of Lincoln, Walter Bishop of Worcester, William bishop of Coventry, Benedict bishop of Rochester, Master Pandulf subdeacon and member of the papal household, Brother Aymeric master of the knighthood of the Temple in England, William Marshal earl of Pembroke, William earl of Salisbury, William earl of Warren, William earl of Arundel, Alan de Galloway constable of Scotland, Warin Fitz Gerald, Peter Fitz Herbert, Hubert de Burgh seneschal of Poitou, Hugh de Neville, Matthew Fitz Herbert, Thomas Basset, Alan Basset, Philip Daubeny, Robert de Roppeley, John Marshal, John Fitz Hugh, and other loyal subjects:
+ (1) FIRST, THAT WE HAVE GRANTED TO GOD, and by this present charter have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired. That we wish this so to be observed, appears from the fact that of our own free will, before the outbreak of the present dispute between us and our barons, we granted and confirmed by charter the freedom of the Church's elections - a right reckoned to be of the greatest necessity and importance to it - and caused this to be confirmed by Pope Innocent III. This freedom we shall observe ourselves, and desire to be observed in good faith by our heirs in perpetuity
TO ALL FREE MEN OF OUR KINGDOM we have also granted, for us and our heirs for ever, all the liberties written out below, to have and to keep for them and their heirs, of us and our heirs:
(2) If any earl, baron, or other person that holds lands directly of the Crown, for military service, shall die, and at his death his heir shall be of full age and owe a 'relief', the heir shall have his inheritance on payment of the ancient scale of 'relief'. That is to say, the heir or heirs of an earl shall pay £100 for the entire earl's barony, the heir or heirs of a knight l00s. at most for the entire knight's 'fee', and any man that owes less shall pay less, in accordance with the ancient usage of 'fees'
(3) But if the heir of such a person is under age and a ward, when he comes of age he shall have his inheritance without 'relief' or fine
(4) The guardian of the land of an heir who is under age shall take from it only reasonable revenues, customary dues, and feudal services. He shall do this without destruction or damage to men or property. If we have given the guardianship of the land to a sheriff, or to any person answerable to us for the revenues, and he commits destruction or damage, we will exact compensation from him, and the land shall be entrusted to two worthy and prudent men of the same 'fee', who shall be answerable to us for the revenues, or to the person to whom we have assigned them. If we have given or sold to anyone the guardianship of such land, and he causes destruction or damage, he shall lose the guardianship of it, and it shall be handed over to two worthy and prudent men of the same 'fee', who shall be similarly answerable to us
(5) For so long as a guardian has guardianship of such land, he shall maintain the houses, parks, fish preserves, ponds, mills, and everything else pertaining to it, from the revenues of the land itself. When the heir comes of age, he shall restore the whole land to him, stocked with plough teams and such implements of husbandry as the season demands and the revenues from the land can reasonably bear
(6) Heirs may be given in marriage, but not to someone of lower social standing. Before a marriage takes place, it shall be' made known to the heir's next-of-kin
(7) At her husband's death, a widow may have her marriage portion and inheritance at once and without trouble. She shall pay nothing for her dower, marriage portion, or any inheritance that she and her husband held jointly on the day of his death. She may remain in her husband's house for forty days after his death, and within this period her dower shall be assigned to her
(8) No widow shall be compelled to marry, so long as she wishes to remain without a husband. But she must give security that she will not marry without royal consent, if she holds her lands of the Crown, or without the consent of whatever other lord she may hold them of
(9) Neither we nor our officials will seize any land or rent in payment of a debt, so long as the debtor has movable goods sufficient to discharge the debt. A debtor's sureties shall not be distrained upon so long as the debtor himself can discharge his debt. If, for lack of means, the debtor is unable to discharge his debt, his sureties shall be answerable for it. If they so desire, they may have the debtor's lands and rents until they have received satisfaction for the debt that they paid for him, unless the debtor can show that he has settled his obligations to them
* (10) If anyone who has borrowed a sum of money from Jews dies before the debt has been repaid, his heir shall pay no interest on the debt for so long as he remains under age, irrespective of whom he holds his lands. If such a debt falls into the hands of the Crown, it will take nothing except the principal sum specified in the bond
* (11) If a man dies owing money to Jews, his wife may have her dower and pay nothing towards the debt from it. If he leaves children that are under age, their needs may also be provided for on a scale appropriate to the size of his holding of lands. The debt is to be paid out of the residue, reserving the service due to his feudal lords. Debts owed to persons other than Jews are to be dealt with similarly
* (12) No 'scutage' or 'aid' may be levied in our kingdom without its general consent, unless it is for the ransom of our person, to make our eldest son a knight, and (once) to marry our eldest daughter. For these purposes ouly a reasonable 'aid' may be levied. 'Aids' from the city of London are to be treated similarly
+ (13) The city of London shall enjoy all its ancient liberties and free customs, both by land and by water. We also will and grant that all other cities, boroughs, towns, and ports shall enjoy all their liberties and free customs
* (14) To obtain the general consent of the realm for the assessment of an 'aid' - except in the three cases specified above - or a 'scutage', we will cause the archbishops, bishops, abbots, earls, and greater barons to be summoned individually by letter. To those who hold lands directly of us we will cause a general summons to be issued, through the sheriffs and other officials, to come together on a fixed day (of which at least forty days notice shall be given) and at a fixed place. In all letters of summons, the cause of the summons will be stated. When a summons has been issued, the business appointed for the day shall go forward in accordance with the resolution of those present, even if not all those who were summoned have appeared
* (15) In future we will allow no one to levy an 'aid' from his free men, except to ransom his person, to make his eldest son a knight, and (once) to marry his eldest daughter. For these purposes only a reasonable 'aid' may be levied
(16) No man shall be forced to perform more service for a knight's 'fee', or other free holding of land, than is due from it
(17) Ordinary lawsuits shall not follow the royal court around, but shall be held in a fixed place
(18) Inquests of novel disseisin, mort d'ancestor, and darrein presentment shall be taken only in their proper county court. We ourselves, or in our absence abroad our chief justice, will send two justices to each county four times a year, and these justices, with four knights of the county elected by the county itself, shall hold the assizes in the county court, on the day and in the place where the court meets
(19) If any assizes cannot be taken on the day of the county court, as many knights and freeholders shall afterwards remain behind, of those who have attended the court, as will suffice for the administration of justice, having regard to the volume of business to be done
(20) For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a husbandman the implements of his husbandry, if they fall upon the mercy of a royal court. None of these fines shall be imposed except by the assessment on oath of reputable men of the neighbourhood
(21) Earls and barons shall be fined only by their equals, and in proportion to the gravity of their offence
(22) A fine imposed upon the lay property of a clerk in holy orders shall be assessed upon the same principles, without reference to the value of his ecclesiastical benefice
(23) No town or person shall be forced to build bridges over rivers except those with an ancient obligation to do so
(24) No sheriff, constable, coroners, or other royal officials are to hold lawsuits that should be held by the royal justices
* (25) Every county, hundred, wapentake, and tithing shall remain at its ancient rent, without increase, except the royal demesne manors
(26) If at the death of a man who holds a lay 'fee' of the Crown, a sheriff or royal official produces royal letters patent of summons for a debt due to the Crown, it shall be lawful for them to seize and list movable goods found in the lay 'fee' of the dead man to the value of the debt, as assessed by worthy men. Nothing shall be removed until the whole debt is paid, when the residue shall be given over to the executors to carry out the dead man s will. If no debt is due to the Crown, all the movable goods shall be regarded as the property of the dead man, except the reasonable shares of his wife and children
* (27) If a free man dies intestate, his movable goods are to be distributed by his next-of-kin and friends, under the supervision of the Church. The rights of his debtors are to be preserved
(28) No constable or other royal official shall take corn or other movable goods from any man without immediate payment, unless the seller voluntarily offers postponement of this
(29) No constable may compel a knight to pay money for castle-guard if the knight is willing to undertake the guard in person, or with reasonable excuse to supply some other fit man to do it. A knight taken or sent on military service shall be excused from castle-guard for the period of this servlce
(30) No sheriff, royal official, or other person shall take horses or carts for transport from any free man, without his consent
(31) Neither we nor any royal official will take wood for our castle, or for any other purpose, without the consent of the owner
(32) We will not keep the lands of people convicted of felony in our hand for longer than a year and a day, after which they shall be returned to the lords of the 'fees' concerned
(33) All fish-weirs shall be removed from the Thames, the Medway, and throughout the whole of England, except on the sea coast
(34) The writ called precipe shall not in future be issued to anyone in respect of any holding of land, if a free man could thereby be deprived of the right of trial in his own lord's court
(35) There shall be standard measures of wine, ale, and corn (the London quarter), throughout the kingdom. There shall also be a standard width of dyed cloth, russett, and haberject, namely two ells within the selvedges. Weights are to be standardised similarly
(36) In future nothing shall be paid or accepted for the issue of a writ of inquisition of life or limbs. It shall be given gratis, and not refused
(37) If a man holds land of the Crown by 'fee-farm', 'socage', or 'burgage', and also holds land of someone else for knight's service, we will not have guardianship of his heir, nor of the land that belongs to the other person's 'fee', by virtue of the 'fee-farm', 'socage', or 'burgage', unless the 'fee-farm' owes knight's service. We will not have the guardianship of a man's heir, or of land that he holds of someone else, by reason of any small property that he may hold of the Crown for a service of knives, arrows, or the like
(38) In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it
+ (39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land
+ (40) To no one will we sell, to no one deny or delay right or justice
(41) All merchants may enter or leave England unharmed and without fear, and may stay or travel within it, by land or water, for purposes of trade, free from all illegal exactions, in accordance with ancient and lawful customs. This, however, does not apply in time of war to merchants from a country that is at war with us. Any such merchants found in our country at the outbreak of war shall be detained without injury to their persons or property, until we or our chief justice have discovered how our own merchants are being treated in the country at war with us. If our own merchants are safe they shall be safe too
* (42) In future it shall be lawful for any man to leave and return to our kingdom unharmed and without fear, by land or water, preserving his allegiance to us, except in time of war, for some short period, for the common benefit of the realm. People that have been imprisoned or outlawed in accordance with the law of the land, people from a country that is at war with us, and merchants - who shall be dealt with as stated above - are excepted from this provision
(43) If a man holds lands of any 'escheat' such as the 'honour' of Wallingford, Nottingham, Boulogne, Lancaster, or of other 'escheats' in our hand that are baronies, at his death his heir shall give us only the 'relief' and service that he would have made to the baron, had the barony been in the baron's hand. We will hold the 'escheat' in the same manner as the baron held it
(44) People who live outside the forest need not in future appear before the royal justices of the forest in answer to general summonses, unless they are actually involved in proceedings or are sureties for someone who has been seized for a forest offence
* (45) We will appoint as justices, constables, sheriffs, or other officials, only men that know the law of the realm and are minded to keep it well
(46) All barons who have founded abbeys, and have charters of English kings or ancient tenure as evidence of this, may have guardianship of them when there is no abbot, as is their due
(47) All forests that have been created in our reign shall at once be disafforested. River-banks that have been enclosed in our reign shall be treated similarly
* (48) All evil customs relating to forests and warrens, foresters, warreners, sheriffs and their servants, or river-banks and their wardens, are at once to be investigated in every county by twelve sworn knights of the county, and within forty days of their enquiry the evil customs are to be abolished completely and irrevocably. But we, or our chief justice if we are not in England, are first to be informed
* (49) We will at once return all hostages and charters delivered up to us by Englishmen as security for peace or for loyal service
* (50) We will remove completely from their offices the kinsmen of Gerard de Athée, and in future they shall hold no offices in England. The people in question are Engelard de Cigogné', Peter, Guy, and Andrew de Chanceaux, Guy de Cigogné, Geoffrey de Martigny and his brothers, Philip Marc and his brothers, with Geoffrey his nephew, and all their followers
* (51) As soon as peace is restored, we will remove from the kingdom all the foreign knights, bowmen, their attendants, and the mercenaries that have come to it, to its harm, with horses and arms
* (52) To any man whom we have deprived or dispossessed of lands, castles, liberties, or rights, without the lawful judgement of his equals, we will at once restore these. In cases of dispute the matter shall be resolved by the judgement of the twenty-five barons referred to below in the clause for securing the peace (§ 61). In cases, however, where a man was deprived or dispossessed of something without the lawful judgement of his equals by our father King Henry or our brother King Richard, and it remains in our hands or is held by others under our warranty, we shall have respite for the period commonly allowed to Crusaders, unless a lawsuit had been begun, or an enquiry had been made at our order, before we took the Cross as a Crusader. On our return from the Crusade, or if we abandon it, we will at once render justice in full
* (53) We shall have similar respite in rendering justice in connexion with forests that are to be disafforested, or to remain forests, when these were first a-orested by our father Henry or our brother Richard; with the guardianship of lands in another person's 'fee', when we have hitherto had this by virtue of a 'fee' held of us for knight's service by a third party; and with abbeys founded in another person's 'fee', in which the lord of the 'fee' claims to own a right. On our return from the Crusade, or if we abandon it, we will at once do full justice to complaints about these matters
(54) No one shall be arrested or imprisoned on the appeal of a woman for the death of any person except her husband
* (55) All fines that have been given to us unjustiy and against the law of the land, and all fines that we have exacted unjustly, shall be entirely remitted or the matter decided by a majority judgement of the twenty-five barons referred to below in the clause for securing the peace (§ 61) together with Stephen, archbishop of Canterbury, if he can be present, and such others as he wishes to bring with him. If the archbishop cannot be present, proceedings shall continue without him, provided that if any of the twenty-five barons has been involved in a similar suit himself, his judgement shall be set aside, and someone else chosen and sworn in his place, as a substitute for the single occasion, by the rest of the twenty-five
(56) If we have deprived or dispossessed any Welshmen of lands, liberties, or anything else in England or in Wales, without the lawful judgement of their equals, these are at once to be returned to them. A dispute on this point shall be determined in the Marches by the judgement of equals. English law shall apply to holdings of land in England, Welsh law to those in Wales, and the law of the Marches to those in the Marches. The Welsh shall treat us and ours in the same way
* (57) In cases where a Welshman was deprived or dispossessed of anything, without the lawful judgement of his equals, by our father King Henry or our brother King Richard, and it remains in our hands or is held by others under our warranty, we shall have respite for the period commonly allowed to Crusaders, unless a lawsuit had been begun, or an enquiry had been made at our order, before we took the Cross as a Crusader. But on our return from the Crusade, or if we abandon it, we will at once do full justice according to the laws of Wales and the said regions
* (58) We will at once return the son of Llywelyn, all Welsh hostages, and the charters delivered to us as security for the peace
* (59) With regard to the return of the sisters and hostages of Alexander, king of Scotland, his liberties and his rights, we will treat him in the same way as our other barons of England, unless it appears from the charters that we hold from his father William, formerly king of Scotland, that he should be treated otherwise. This matter shall be resolved by the judgement of his equals in our court
(60) All these customs and liberties that we have granted shall be observed in our kingdom in so far as concerns our own relations with our subjects. Let all men of our kingdom, whether clergy or laymen, observe them similarly in their relations with their own men
* (61) SINCE WE HAVE GRANTED ALL THESE THINGS for God, for the better ordering of our kingdom, and to allay the discord that has arisen between us and our barons, and since we desire that they shall be enjoyed in their entirety, with lasting strength, for ever, we give and grant to the barons the following security:
The barons shall elect twenty-five of their number to keep, and cause to be observed with all their might, the peace and liberties granted and confirmed to them by this charter
If we, our chief justice, our officials, or any of our servants offend in any respect against any man, or transgress any of the articles of the peace or of this security, and the offence is made known to four of the said twenty-five barons, they shall come to us - or in our absence from the kingdom to the chief justice - to declare it and claim immediate redress. If we, or in our absence abroad the chiefjustice, make no redress within forty days, reckoning from the day on which the offence was declared to us or to him, the four barons shall refer the matter to the rest of the twenty-five barons, who may distrain upon and assail us in every way possible, with the support of the whole community of the land, by seizing our castles, lands, possessions, or anything else saving only our own person and those of the queen and our children, until they have secured such redress as they have determined upon. Having secured the redress, they may then resume their normal obedience to us
Any man who so desires may take an oath to obey the commands of the twenty-five barons for the achievement of these ends, and to join with them in assailing us to the utmost of his power. We give public and free permission to take this oath to any man who so desires, and at no time will we prohibit any man from taking it. Indeed, we will compel any of our subjects who are unwilling to take it to swear it at our command
If-one of the twenty-five barons dies or leaves the country, or is prevented in any other way from discharging his duties, the rest of them shall choose another baron in his place, at their discretion, who shall be duly sworn in as they were
In the event of disagreement among the twenty-five barons on any matter referred to them for decision, the verdict of the majority present shall have the same validity as a unanimous verdict of the whole twenty-five, whether these were all present or some of those summoned were unwilling or unable to appear
The twenty-five barons shall swear to obey all the above articles faithfully, and shall cause them to be obeyed by others to the best of their power
We will not seek to procure from anyone, either by our own efforts or those of a third party, anything by which any part of these concessions or liberties might be revoked or diminished. Should such a thing be procured, it shall be null and void and we will at no time make use of it, either ourselves or through a third party
* (62) We have remitted and pardoned fully to all men any ill-will, hurt, or grudges that have arisen between us and our subjects, whether clergy or laymen, since the beginning of the dispute. We have in addition remitted fully, and for our own part have also pardoned, to all clergy and laymen any offences committed as a result of the said dispute between Easter in the sixteenth year of our reign (i.e. 1215) and the restoration of peace
In addition we have caused letters patent to be made for the barons, bearing witness to this security and to the concessions set out above, over the seals of Stephen archbishop of Canterbury, Henry archbishop of Dublin, the other bishops named above, and Master Pandulf
* (63) IT IS ACCORDINGLY OUR WISH AND COMMAND that the English Church shall be free, and that men in our kingdom shall have and keep all these liberties, rights, and concessions, well and peaceably in their fulness and entirety for them and their heirs, of us and our heirs, in all things and all places for ever
Both we and the barons have sworn that all this shall be observed in good faith and without deceit. Witness the abovementioned people and many others
Given by our hand in the meadow that is called Runnymede, between Windsor and Staines, on the fifteenth day of June in the seventeenth year of our reign
About “The Magna Carta”
Widely considered one of the most important historical documents of all time, the Magna Carta, originally penned in Latin, ushered in a new era of democracy worldwide. The ‘Great Charter’, as its English translation, brought about much change to English life. While the sixty-three clauses have, for the most part, been repealed over the years, and even neglected by the King who signed them, King John, the fact that a document could be successfully passed by subjects of the King, and not just the King himself, to limit the power of the Monarchy, made a groundbreaking advancement for democracy. The forerunner to the Magna Carta, the Charter of Liberties, was the first to limit the Monarch’s power, where Henry I bound the King to laws in regards to the treatment of church officials and nobles, but the Magna Carta holds such significance because the people were given the power. Without this document, the great democracies of the world, and the documents that formed them, would not be here today.
BELOW: One of the four remaining initial copies of the Magna Carta, from 1215, when it was written.
"The Magna Carta" Track Info | 法律 |
2016-50/4330/en_head.json.gz/11507 | CFI: innovation may render pricing rules in parallel trading acceptable
Yesterday, the European Court of First Instance (CFI) delivered its long-awaited judgement in the case GSK vs EU Commission relating to a Spanish parallel import case. GSK’s dual pricing scheme introduced in Spain did not find explicit blessing by the CFI but the European Commission’s decision was quashed in some key respects. The Commission will have to do a better job when re-analysing GSK’s 1998 “General Sales Conditions” introducing one price for drugs resold subject to price controls in Spain and a (higher) price for drugs sold abroad.The CFI held that there is no presumption that agreements between pharmaceutical companies and wholesalers intending to limit parallel trade have as their object the restriction of competition. The CFI recognises that the market for medicines is not one of free play of supply and demand. Lower prices may not necessarily be passed on to consumers: they may benefit only those “vectors of artificial competition”. The CFI went on to hold after examining the context that parallel trade permits a limited but real reduction in the prices of medicines so that the conditions were anti-competitive in effect. Exemption may be available, however, on the basis that the conditions contributed to innovation, an issue which the Commission had not satisfactorily examined.The CFI’s ruling can be seen as part of the “new approach” taken by Luxembourg to pharmaceutical cases which the European Commission will have to adopt. Advocate-General Jacobs in his Opinion in Syfait, in part echoing the Court of First Instance in Bayer (Adalat), widened the scope for a differentiated approach to be taken to restrictions on parallel imports in the pharmaceutical industry. Where it can be shown that the endconsumer of medicines is not deprived of concrete benefits of parallel trade in the form of cheaper pharmaceuticals, restrictions on parallel trade may be in line with EC competition law; and arguments for exemption should be examined in detail, and may succeed.(source: Oliver Heinisch, Tony Woodgate, Rowan Freeland, Simmons & Simmons (London, UK)Never was the word "innovation" mentioned by the CFI so many times in one decision, 29 times. The CFI specially deals with the relationship between innovation, parallel trade and competition in the pharmaceutical sector (see par. 265-297) | 法律 |
2016-50/4330/en_head.json.gz/11649 | 253 F. 2d 688 - Ivy Smith Company v. Moretrench Corporation HomeFederal Reporter, Second Series 253 F.2d.
253 F2d 688 Ivy Smith Company v. Moretrench Corporation 253 F.2d 688
IVY H. SMITH COMPANY, Appellant,v.MORETRENCH CORPORATION, Appellee.
United States Court of Appeals Fifth Circuit.
April 9, 1958, Rehearing Denied May 16, 1958.
Charles R. Scott, John S. Cox, W. E. Grissett, Jr., Jacksonville, Fla., for appellant, Scott & Cox, Jacksonville, Fla., of counsel.
John M. Allison, T. Paine Kelly, Jr., Macfarlane, Ferguson, Allison & Kelly, Tampa, Fla., for appellee.
Before HUTCHESON, Chief Judge, and BORAH and TUTTLE, Circuit Judges.
Appealing from a summary judgment for defendant, based upon the conclusion of the district judge that there was no genuine issue as to any material fact alleged in defendant's twelfth defense,1 and that in law it constituted a complete defense to plaintiff's suit, plaintiff is here insisting that the district judge erred and his judgment must be reversed.
Of the contrary opinion, for the reasons hereafter stated, we cannot agree with this view.
This is the genesis and progress of the controversy in and out of court. In 1953, the U.S. Army Corps of Engineers called for bids for the construction of Pumping Station No. 9 of the South and Central Florida Flood Control District. When it made the plans and specifications available to prospective bidders, Smith obtained them preparatory to entering a bid.
Moretrench is the world's largest wellpoint company, wellpoints being a method of removing water from construction excavations. Prior to the time Smith bid, Moretrench sent written proposals for dewatering the construction site of Pumping Station No. 9 to all prospective bidders, including Smith. This written proposal recited that Moretrench was familiar with the specifications and existing conditions and had made borings at the site. Moretrench further proposed to furnish sufficient Moretrench wellpoint equipment to dewater the site for specified amounts and further set forth the quantity of wellpoint equipment necessary to accomplish the dewatering.
Using Moretrench's written proposal as the basis for its dewatering costs, Smith submitted a bid and was awarded the contract. He then wrote Moretrench and accepted its proposal, and the written contract dated February 25, 1954, attached as Exhibit A to plaintiff's complaint, was executed by the parties. Among other things it provided:
'* * * This agreement (together with the supplemental conditions as printed on the back of this sheet) contains all of the agreement between lessor and lessee and is to be binding upon the heirs, executors, administrators, successors, and assigns of both parties hereto, when approved by lessor at its main office at Rockaway, New Jersey.'
It also contained the limitation of liability clause made the basis of the twelfth defense.
As a result of controversies over and during the progress of the work arising between the parties to the contract, Smith, alleging that plaintiff, as lessee, and defendant, as lessor, had on February 25, 1954, entered into an agreement in writing attached as Exhibit 'A', wherein defendant had agreed to furnish to the plaintiff, as lessee, 'sufficient Moretrench equipment to sufficiently dewater construction areas' but had breached its contract by failing so to do, plaintiff brought this suit for breach of contract and to recover damages in the sum of $500,000.
Defendant filed an answer to the complaint, setting up twelve defenses. The twelfth defense set up the limitation of liability clause contained in the agreement reciting:
'The liability of Lessor (Moretrench) to Lessee (Smith) is expressly limited to the free replacement (f.o.b. point of shipment) of any defective part or parts of the equipment furnished under or subsequent to this agreement on receipt by Lessor of said defective part or parts f.o.b. Rockaway, New Jersey, provided such defect is not caused by misuse or neglect on the part of Lessee.'
Voluminous depositions were taken, and Smith filed a motion to strike certain of the twelve defenses, including the Twelfth Defense. In April, 1957, the deposition of Moore, President of Moretrench, was taken by Smith. In May, the district court entered its order denying Smith's motion to strike the twelfth defense. In June, Moretrench filed its motion for summary judgment based on the twelfth defense and supported it by an affidavit of Callender, its Vice-President. There followed a motion for the court to consider all depositions on Moretrench's motion for summary judgment and an affidavit of Smith, plaintiff's vice-president, in opposition to Moretrench's motion. On August 14, the court entered its order denying Smith's motion for leave to file a tendered reply to the twelfth defense and his motion for leave to file a tendered amended complaint. On the same day it entered final judgment in favor of Moretrench on the motion for summary judgment, holding that the twelfth defense constituted a complete defense to the action, and this appeal followed.
Here appellant assails the judgment on two grounds. One of these is; that it was error to regard the February 25th written agreement as an agreement merely for a lease of equipment with an option to buy; that plaintiff should have been permitted to plead and prove that it was not; and that there was an additional agreement, in effect a guarantee that the use of the equipment would satisfactorily dewater the construction areas. The other is that, accepting the agreement as a completely integrated agreement, it shows on its face that two things were agreed to. One was that Moretrench would lease equipment to Smith with an option to it to buy it. The other was that Moretrench had agreed and in effect guaranteed that the equipment furnished by it would do the job and that in construing the limitation of liability clause broadly to include both features of the agreement, the court erred.
Urging this view upon us and putting forward general propositions dealing with the construction of agreements in general and of agreements for limitation of liability in particular, appellant, citing cases, insists that in holding as it did, the court misconstrued the scope and effect of the limiting agreement and, by preventing plaintiff from pleading and proving agreements not integrated into the written contract, prevented plaintiff from properly presenting and establishing its case. Appellee does not at all disagree with appellant's general propositions as applied to the facts of the cases cited by it. It urges upon us, though, that as applied to the facts of this case, they are not contrary to the judgment, indeed they support it.
In its turn, declaring that, comprehensively worded as it is, the clause limiting appellee's liability must and will be as comprehensively construed and applied, appellee insists that what and all that appellant is seeking to do here is to construe away the plainly worded meaning of the clause or, by varying the terms of a completely integrated contract, to import into it claimed contractual agreements not included in but excluded from it. Citing cases, many of them from this court, in support, appellant insists that the authorities overwhelmingly establish (1) that there is no public policy in favor of denying persons the right to limit their liability,2 and that such a provision in a contract will be enforced as written, and (2) that where parties have integrated their contract in a writing, they will not be permitted under the guise of proving independent agreements, to import into such contracts provisions supporting their claims.3
We think it may not be doubted that this is so. This court has written so much and so often on these matters that, without laboring them further, it is sufficient to say that we think the cases cited in notes 2 and 3 supra, are controlling here, and that under their authority the judgment must be affirmed.
'Twelfth Defense
'For its twelfth defense to the Complaint, this defendant alleges that the agreement between the parties, represented by Exhibit 'A' attached to the Complaint, contains all of the agreement between the parties and said agreement provides that the liability of defendant to plaintiff is expressly limited to the free replacement of any defective part or parts of the equipment furnished under or subsequent to such agreement, on receipt by defendant of said defective part or parts at Rockaway, New Jersey, and that any and all such defective parts were replaced promptly by this defendant, and thereby defendant discharged its obligation to the plaintiff under the provisions of the contract.'
Sharples Separator Co. v. Domestic Electric Refrigerator Corp., 3 Cir., 61 F.2d 499; James v. International Harvester Co., 294 Ky. 722, 172 S.W.2d 670; Southwestern Packing Co. v. Cincinnati Butchers' Supply Co., 5 Cir., 139 F.2d 201; Permutit Co. v. Massasoit Mfg. Co., 3 Cir., 61 F.2d 529; The Nuska, D.C., 300 F. 231, affirmed R. R. Ricou & Sons Co. v. Fairbanks Morse & Co., 5 Cir., 11 F.2d 103; Charles Lomo & Son v. Globe Laboratories, 35 Cal.App.2d 248, 95 P.2d 173
Upper Mississippi Towing Corp. v. Calmes, 5 Cir., 162 F.2d 177 and cases cited in Note 3; Ramey v. Koons, 5 Cir., 230 F.2d 802; and South Florida Lumber Mills v. Breuchaud, 5 Cir., 51 F.2d 490 | 法律 |
2016-50/4330/en_head.json.gz/11751 | Full Scope of Patent Claims Must Be Enabled at the Time of Filing By Charles Bieneman on July 24, 2013 in Enablement, Section 112 The headline of this post, a truism of patent law to be sure, is nicely illustrated by the Federal Circuit’s opinion in Convolve, Inc. v. Compaq Computer Corp., No. 2012-1074 (July 1, 2013). After an inventor admitted in testimony that he had been unable to implement claimed subject matter in certain contexts until nine years after the application for the patent was filed, the District Court held the relevant claims invalid under 35 U.S.C. § 112. The Federal Circuit affirmed this holding.
The claims at issue were directed to improving “seeks” in computer hard drives. A “seek” is the process of locating data on a hard drive. The claims of United states Patent No. 4,916,635 were directed to a method for “generating an input to a system to minimize unwanted dynamics in the system response.” The claims covered both “long seeks,” where data was stored in tracks on the hard drive that were far apart, as well as “short seeks,” where data was stored in tracks that were close together.
The application for the ’635 patent was filed in 1988. The District Court invalidated the ’635 patent claims based on an inventor’s testimony “that he was unable to implement the asserted claims for ‘long seeks’ in disk drives in 1992.” The District Court reasoned that “given the breadth of the asserted claims of the ’635 patent, and because long seeks are a fundamental requirement for proper hard drive functionality, the patent failed to enable long seeks.”
The plaintiff-appellant argued that because “the claims of the ’635 patent have been implemented in other physical systems, and for short seeks on some disk drives, it is enabling for all disk drives.” The Federal Circuit disagreed. The District Court had found, and the court here agreed, that “the claims purport to cover inputs into any and all physical systems, including disk drives.” The inventor’s testimony was fatal: he “conceded that four years after the filing of the patent application he was unable to fully implement the ’635 patent’s method on disk drives.” Only nine years after filing did he solve this problem. Further, there was no reason to question the District Court’s finding that “that long seeks were, and are, necessary for hard drive functionality.”
The lesson here, of course is that in seeking “broad claim language,” a patent applicant puts itself “at the peril of losing any claim that cannot be enabled across its full scope of coverage.” In fact, the court noted that part of the purpose of the enablement requirement is to discourage over-broad claiming, and to encourage follow-on applications when improvements are made.
This opinion also touched deeply on trade secrets and indirect infringement questions not covered in this post. The Federal Circuit affirmed the District Court’s finding that the defendants had not misappropriated trade secrets, but reversed and vacated a finding of non-infringement regarding a second patent, discussing the requirements for indirect infringement at some length.
View all posts by Charles Bieneman → Enforcement of a Click-wrap License Agreement
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2016-50/4330/en_head.json.gz/11813 | ACLU files 3rd lawsuit against Board of Ed. over secrecy regarding NECAP
DEMANDING HONESTY: ACLU Executive Director Steven Brown, ACLU volunteer attorney Mark Gursky, former RIDE director of the Office of Middle and High School Reform Ken Fish, former RIDE employee in the Office of Testing Rick Richards, and plaintiff and concerned parent Thomas Sgouros came together yesterday morning to announce their third legal action against the Rhode Island Board of Education, claiming that the vote in executive session regarding their previous petition violates open meeting laws. Jennifer Rodrigues Posted
Jennifer Rodrigues
Yesterday, the American Civil Liberties Union of Rhode Island (ACLU) announced their third attempt at legal action against the Rhode Island Board of Education, claiming the board violated open meetings laws by voting on the ACLU’s petition for a public hearing on high-stakes testing in executive session.
The amended claim, which was sent to the board on Sunday, claims that the “secret discussion” during the Sept. 9 board meeting regarding the petition for a public hearing on high-stakes testing violates the Open Meetings Act. The claim asks that the vote to deny the petition be null and void, a $5,000 fine be imposed on the board and the board be required to reconsider the petition in an open discussion. Mark Gursky, the attorney for ACLU, told the press that the claim was sent over to the board’s attorney on Sunday and he expects them to respond within the next few days. “If they don’t agree [to have that entered], then we will file a motion, that motion will probably be allowed and [the board] will have an additional 20 days [to respond],” said Gursky. “But the concern is that this cannot go on indefinitely. The board has had the opportunity to consider the petition … Every day they fail to give the public an opportunity to hear the debate, there is another day that there is a violation.”
Steven Brown, executive director of the ACLU of Rhode Island, was one of the speakers at a press conference.
“Parents, students, teachers, community advocates, the General Assembly, and just about everybody else with an interest in the education of our children have been engaged in a vigorous public discussion and debate on the issue of high stakes testing for the past six months. The only group we know of that has not publicly debated the issue, and refused to do so repeatedly despite numerous public requests, is the state’s own Board of Education,” said Brown, pointing out that this is the third legal action taken by the ACLU and its fellow plaintiffs requesting a public hearing on the issue in the past two months. “Even worse, [the board] have been willing to repeatedly violate the law in order to avoid that discussion.”
The ACLU’s legal action began in June when they and 16 other organizations filed their original petition requesting an open public hearing on the high-stakes testing mandate through the Administrative Procedures Act. Brown explained that under that act, the board had 30 days to respond to the petition by rejecting it or beginning the public rule-making process. Instead of responding, Brown said Board Chair Eva-Marie Mancuso denied the petition under “temporal circumstances” and said the board would receive a briefing on the topic of high-stakes testing at a private retreat in late August. The ACLU took its second legal action against the board by suing on July 24, claiming the board failed to address the petition in a timely manner despite having a meeting on July 15. This is the claim that was amended yesterday.
The ACLU also filed an open meetings lawsuit over the private retreat; they won that case and the board was barred from having the retreat in private. The board finally addressed the original petition on Sept. 9, 45 days after their 30-day deadline, but the discussion and vote was held in executive session. The petition was denied by a vote of 6-5. Brown and his fellow plaintiffs believe that if the public is given the chance to speak their case regarding high-stakes testing directly to the board, something may get changed, especially since almost half of the board voted in favor of the hearing process. “The old education board approved this policy, but since that time the effects of the policy have changed the debate,” said Thomas Sgouros, a plaintiff in the case and parent of a high school student. “These include not only the number of students at risk of not graduating, but also the many educational opportunities denied our students due to the increased focus on testing. Circumstances have changed. The new board should know about it, but they don’t care to listen.”
During yesterday’s press conference, each of the speakers had a chance to give their comments regarding the claim and their belief that the board has violated the open government policy championed by Governor Lincoln Chafee. Ken Fish, a former director at the Office of Middle and High School Reform at the Rhode Island Department of Education (RIDE), brought up that Chafee ran for governor under the campaign slogan “Trust Chafee,” yet the board appointed by Chafee is being anything but trustworthy. “In this world of accountability, Governor Chafee must be held accountable for the arrogance of his appointed board chair in leading his appointed board into repeated violations of open meetings laws and attempting to stifle an open and informed discussion among its own members,” said Fish. Fish was asked what he hopes the governor will do in regards to this claim. He said he hopes Chafee will listen to the educators, parents and students and intervene with the actions of the board. “I’d ask the governor to act on those ideals we voted for. Show us we really can once again ‘Trust Chafee,’” said Fish. He also pointed out that since Chafee is not seeking re-election in 2014, he should “do the right thing,” without political motivations. Rick A. Richards, a former employee in RIDE’s Office of Testing, pointed out that the “tone and process of policy making” by this new board is very different from those of the past. “No previous chair ever called opposition protesters ‘a sideshow’ or students ‘a bunch of kids with signs,’” said Richards. “Governor Chafee set a high bar for public transparency, yet he watches silently as his chair repeatedly ducks under this bar.”
Brown and his fellow speakers were clear that this latest claim is not addressing the use of the New England Common Assessments Program (NECAP) and high-stakes testing but to address the inappropriate manner in which they believe the board has responded to requests for public discussion. “An open process is a goal in and of itself,” said Brown. “Regardless of what the outcome is, and we all agree on what the outcome should be, but regardless, following the rules as to ensuring there is an openness to the process, an openness to the discussion and to the debate and an opportunity for the public to participate in a meaningful way is critical in and of itself, regardless of what the outcome is and that is really what we’re talking about today.”
The speakers also said that while they acknowledge that the board still has a right to deny their petition, they believe an open discussion needs to be held, and public comment should be allowed during that discussion.
When reached for comment, Elliot Krieger of RIDE said Chairman Mancuso is reviewing the ACLU matter with counsel and has no comment at this time. | 法律 |
2016-50/4330/en_head.json.gz/11839 | More Redskins Lose Trademark for 'Disparaging' Name
(NEWSER) – Under federal law, trademarks can't "disparage" individuals—and on those grounds, the US Patent and Trademark Office has withdrawn the Washington Redskins' trademark registration, the Washington Post reports. The office says the six trademarks that included the name "were disparaging to Native Americans at the respective times they were registered." Plaintiff Amanda Blackhorse called the decision "a great victory for Native Americans and for all Americans," ThinkProgress reports.
The Washington Redskins are reacting to today's cancellation of their trademarks by the U.S. Patent Office. Team trademark attorney Bob Raskopf say, "We've seen this story before. And just like last time, today's ruling will have no effect at all on the team's ownership of and right to use the Redskins name and logo." | 法律 |
2016-50/4330/en_head.json.gz/12004 | Article published February 21, 2013
Enforce existing laws
Paul Cashdollar Clay Township
Much ongoing debate about stricter gun laws has been going on all across our country since the Newtown school shooting in Connecticut. One area where the gun laws are the strictest in the country is Chicago.Chicago was home to Hadiya Pendleton, a 15-year-old honor student. Pendleton, who performed as a drum majorette at President Barack Obama’s inauguration last month, was shot to death by two reputed gang members who mistook the group of teens she was with for rivals.Michael Ward, 18, and Kenneth Williams, 20, are charged with first-degree murder, attempted murder and aggravated battery with a firearm in the attack that also left two other teens wounded.Ward told police the shooting was in retaliation for Williams getting wounded last July on Chicago’s South Side. Williams refused to sign a complaint against those suspected in the attack.Williams and Ward targeted Hadiya and other teens Jan. 29 because they believed, mistakenly, that they were members of the gang responsible for the July shooting. Ward pleaded guilty early last year in a 2011 case that involved aggravated unlawful use of a weapon. He was given two years’ probation, according to court records.After his arrest last summer on a charge of criminal trespass to a vehicle, he was held without bond for a few weeks, but was released after a Sept. 9 hearing.Williams was arrested on a misdemeanor retail theft charge in October 2011, but the charge was dismissed.Stricter gun laws will not affect those who pay no attention to the law, as can be seen in the Pendleton case. Mandatory jail time for those who use weapons illegally is what we need.There are enough laws on the books. The ones we have should be enforced.In 2012, Chicago had 535 homicides and 2,698 shootings. Through Feb. 4 of this year, there have been 50 homicides and 213 shootings. | 法律 |
2016-50/4330/en_head.json.gz/12102 | Ottawa, 13 September 1990
Rivière-au-Renard, Quebec- 900304700
Following a Public Hearing in the National Capital Region beginning on 11 June 1990, the Commission approves the application for a licence for a French-language FM radio broadcasting transmitting undertaking at Rivière-au-Renard on the frequency 92.5 MHz, channel 223, with an effective radiated power of 40.9 watts to rebroadcast the programs of CBGA-10-FM Gaspé.
The Commission will issue a licence expiring 31 August 1994, subject to the conditions specified in this decision and in the licence to be issued. This term will enable the Commission to consider the renewal of this licence at the same time as that of other CBC stations in the area.
The Department of Communications (DOC) has advised that the undertaking will use the frequency 92.5 MHz rather than the 91.5 MHz indicated in CRTC Notice of Public Hearing 1990-7 dated 12 April 1990.
The CBC has indicated that it intends to cease the operation of CBGA-3 Rivière-au-Renard, which currently rebroadcasts the programs of CBGA Matane, within twelve months of the date on which the new transmitter becomes operational. The Commission expects the CBC to cease the operation of CBGA-3 within this time frame and to inform listeners of the changes herein approved.
It is a condition of licence that construction of this undertaking be completed and that it be in operation within twelve months of the date of this decision or, where the applicant applies to the Commission within this period and satisfies the Commission that it cannot complete implementation before the expiry of this period and that an extension is in the public interest, within such further period of time as is approved in writing by the Commission.
DOC has advised the Commission that this proposal is technically acceptable, but that issuance of a Broadcasting Certificate is conditional on the resolution of any problems involving interference with aeronautical NAV/COM services.
In accordance with paragraph 13(1)(b) of the Broadcasting Act, the Commission will only issue the licence and the authority granted herein may only be implemented, at such time as the applicant, the DOC and Transport Canada have satisfactorily resolved the NAV/COM problem, and at such time as the DOC has confirmed in writing that it will issue a Broadcasting Certificate.
Alain-F. Desfossés | 法律 |
2016-50/4330/en_head.json.gz/12110 | House Passes Privacy Disclosure Exemption
December 12, 2012 • Reprints H.R. 5817, the bill that would provide an exemption to Gramm-Leach-Bliley annual privacy notification requirements, passed the House as expected by voice vote on Wednesday.
Should the bill become law, credit unions would only be required to provide privacy disclosures to members when they first open their account, and again only when the policy changes.
Currently, financial institutions are required to send the disclosure annual via mail, regardless of whether it has changed.
“This legislation eliminates an unnecessary, redundant and costly annual privacy policy notice requirement. It will save credit unions valuable staff resources, lower the cost of financial services, and reverse the negative environmental impact caused by such a requirement, while not harming consumers,” said NAFCU Executive Vice President of Government Affairs Dan Berger.
The bill now awaits consideration by the Senate. Credit union lobbyists have said that while the bill is not controversial, it does lack familiarity in the Senate, so the upper chamber would have to be educated on the issue.
“Since there has been no companion bill introduced in the Senate, it hasn’t made a lot of sense to talk about the legislation, especially given the other things we have been working on in Senate,” said CUNA Senior Vice President of Legislative Affairs Ryan Donovan. “We will reach out and see what appetite the Senate has for one more piece of regulatory legislation.”
CUNA President/CEO Bill Cheney agreed. He said the bill “would eliminate a costly and unnecessary compliance burden by eliminating repetitive notices that are often ignored by consumers. Further, it enhances consumer protection by ensuring that when a consumer receives a privacy notification, it has significance and is not redundant.” « Prev | 法律 |
2016-50/4330/en_head.json.gz/12122 | Obama's DOJ Tries to Sneak Around Supreme Court GPS Tracking Ruling, ACLU Upset
Jason Mick (Blog) - January 17, 2013 2:08 PM
You want the truth? You can't handle the truth! (says the DOJ)
The American Civil Liberties Union (ACLU) hit a brick wall when its Freedom of Information Action (FOIA) of 1966 (5 U.S.C. § 552) lawsuit requesting detailed documents on GPS tracking procedures was rejected by the U.S. Department of Justice.
I. GPS Tracking is Back
The issue of GPS tracking has been a contentious one. In some high profile incidents federal agents, state police, or local police have attached GPS trackers to citizens’ cars and used the continuous tracking as incriminating evidence. While law enforcement agencies contend that GPS surveillance is a powerful tool for fighting crime, the Supreme Court of the United States (SCOTUS) clearly thought otherwise, deciding unanimously (U.S. v. Jones, 10-1259; PDF) that planting GPS trackers on citizens' vehicles generally is a violation of Fourth Amendment rights.
Following the January ruling, the FBI General Counsel Andrew Weissmann provoked ACLU scrutiny when he spoke at a February law enforcement convention in San Francisco, suggesting that other forms of location tracking were arguably legal.
While not specifically mentioned, one such form of tracking would be to seize citizens' cell phones or request records from mobile carriers in order to gain a record of locations based on tower pings. Such tracking has only been used in a handful of cases nationwide, but is growing in use.
GC Weissmann also suggested that boats and other types of vehicles may be fair game for tracking as his interpretation was that the SCOTUS prohibition was narrow, only covering GPS tracking on cars.
The FBI argues that it may still be legal to use GPS tracking on boats.
[Image Source: Ron Niebrugge]
He also makes reference to a pair of memos, detailing how tracking was to be carried out.
II. ACLU Gets Non-Answer From DOJ
In the wake of those comments the ACLU filed suit to obtain those memos, arguing that their release would make clear whether the FBI and other DOJ agencies are actively pursuing such forms of location tracking, and what the rules are (e.g. whether a warrant is required).
The DOJ gave the ACLU the memos this week, but they were almost entirely redacted, leaving little useable information. The sweeping redactions were justified in a note from the DOJ that cites the stipulation that FOIA requests can be redacted to prevent the release of information that would aid criminals.
In a blog post Catherine Crump, an attorney for the ACLU, blasts the DOJ memos, writing:
The Justice Department’s unfortunate decision leaves Americans with no clear understanding of when we will be subjected to tracking — possibly for months at a time — or whether the government will first get a warrant.
Privacy law needs to keep up with technology, but how can that happen if the government won’t even tell us what its policies are?
The DOJ release the FBI memos, but it redacted most of the details in the documents.
[Image Source: Iceni]
Given the DOJ's relative non-response it appears that the DOJ and ACLU will continue to square of in federal court or possibly in another Supreme Court case. The ACLU's position is clear -- warrantless tracking is a danger to Americans' freedoms. The DOJ's position appears to be that while it will respect the SCOTUS rulings narrowly, it will freely engaged in any form of investigation not explicitly prohibited. The Obama administration has gone to bat for the DOJ in court, arguing that when it comes to law enforcement, sometimes safety trumps the need for transparency and protection of civil liberties.
Source: ACLU "Can anyone tell me what MobileMe is supposed to do?... So why the f*** doesn't it do that?" -- Steve Jobs
Supreme Court: Sorry Obama, Police Cannot Invade Property, Track Without Warrant
Obama Administration Fights to Allow Warrantless GPS Tracking
Police Secretly Planting GPS Trackers on Cars Without Warrants | 法律 |
2016-50/4330/en_head.json.gz/12140 | Home > Social Media > Winklevoss twins lose in court yet again Winklevoss twins lose in court yet again By
Earlier today, U.S. District judge Douglas Woodlock in Boston dismissed a motion filed last month by the Winklevoss twins and Divya Narendra that claimed Facebook suppressed evidence during the first lawsuit brought by the brothers. The original lawsuit was dropped after the three men settled out of court for $65 million. As Facebook is estimated at being worth $100 billion today, the Winklevoss twins claim that they are owed more money based on the current valuation.
This latest blow to the Winklevoss twins may finally put an end to litigation against Facebook. Made popular by David Fincher’s The Social Network, the original dispute stemmed from a claim the Zuckerberg stole the concept of Facebook from ConnectU. If the decision has been made in the favor of the Winklevoss twins, it’s estimated that the settlement would be increased to nearly $500 million. In June, the Ninth Circuit court in San Francisco dismissed a claim from the Winklevoss twins that Facebook intentionally misled them regarding valuation of the company. The twins decided against appealing that decision to the U.S. Supreme Court.
The twins were under fire this week when former Harvard president Larry Summers insulted the two brothers in an interview at the Brainstorm Tech conference. Summers is quoted as saying “One is that they’re looking for a job and have an interview. The other is that they are an a**hole. This was the latter case.” The Winklevoss twins and Narendra responded to this comment with a letter to the current president of Harvard Drew Gilpin Faust, specifically calling for a public admonishment of Summers.
An attorney for the group stated that the court’s decision was expected. Narendra and the Winklevoss twins haven’t commented on the most recent court loss publicly. Both the Winklevoss twins have Twitter accounts, but recent posts have only complained about Larry Summers as well as interest in an upcoming cameo on The Simpsons. | 法律 |
2016-50/4330/en_head.json.gz/12159 | Siyasa Shar’iyya Definition:
Muslim law as expressed in regulatory decisions or policy of government.
The administrative, governmental implementation of the core religious text or "scripture", the Koran, and Sharia Law (aka just "shari'a" or Muslim Law or Islamic Law) as extracted therefrom.
Siyasa shar’iyya can be described as governance in accordance with the Shari'a or the machinery of an Islamic government, the executive branch of Muslim theocracies (although there is such extensive overlap in theocracies, by definition, that one cannot properly distinguish between an executive branch, a legislative branch and a judicial branch as one can in modern democracies.)
To some practitioners of Islamic Law, Siyasa Shar’iyya refers strictly to the extant regulatory instruments of a Sharia law-based government.
The legal authority for Siyasa Shar’iyya is implied by Muslim theocracies as a necessary extension to their responsibilities to supplement the broad criminal law principles of the Koran and other Muslim legal texts of sacred origin, on points of detail; to make regulations or policy decisions.
Siyasa means politics or in this context, especially policy and is distinguished from the literal content of the Koran, Muslim law, fiqh.
Pearl defines siyasa shar’iyya (sharia) as:
“The right of the executive branch of the (Muslim) government to complete the Sharia by regulations of an administrative kind.”
In their article in the American University International Law Review, the authors offer a description as follows:
"Al-siyasa al-shar'iyya (is) a treatise on the general principles of divine government and appointment to the lieutenancy of the prophet and states that it was indispensable for the ruler and his subjects and for those in charge of affairs....
"Thinkers ... thus proposed that the proper role of shari'a (as interpreted by the jurists) might be best conceptualized as creating an outer boundary on the legislative power of the state.
"Classical legal theory, including the theory of siyasa shar'iyya, had an enormous impact on the political philosophy of the Ottoman state. Justifying its behavior in terms of this theory, the Ottomans imposed as law both unwritten fiqh and, increasingly, statutes, and in part as a result, the empire enjoyed considerable popular legitimacy. The ideal of siyasa shar'iyya came to influence Muslim thought throughout the areas under Ottoman control, including Egypt."
Lombardi, Clark B. and Brown, Nathan, Do Constitutions Requiring Adherence to Shari'a Threaten Human Rights - How Egypt's Constitutional Court Reconciles Islamic Law with the Liberal Rule of Law, J.21 AUILR 379 (2005-2006)
Pearl, D., A Textbook on Muslim Law (London: Croom Helm Ltd., 1979), page 20
Duhaime's Muslim Law Dictionary | 法律 |
2016-50/4330/en_head.json.gz/12261 | Supreme Court seems divided in climate case
Associated Press Monday, February 24, 2014
FILE - This Oct. 15, 2013, file photo shows the Supreme Court in Washington the day the court's justices said they would be reviewing whether or not the Environmental Protection Agency overstepped its authority in developing rules aimed at cutting emissions of six heat-trapping gases from factories and power plants. Monday, Feb. 24, 2014, the Court will hear arguments on the unanimous federal appeals court ruling that upheld the government's unprecedented regulations aimed at reducing the gases blamed for global warming. (AP Photo/Susan Walsh, File)
WASHINGTON — The Supreme Court appeared divided on Monday over the sole Obama administration program already in place to limit power plant and factory emissions of gases blamed for global warming.
The justices took on a small, complicated piece of the politically charged issue of cutting greenhouse gas emissions in an extended argument that included references to Dunkin' Donuts stores, football games and light bulbs. The examples were meant to illustrate the vast potential reach of the program, in its critics' view, or its limited nature, as the administration argued.
The presence of Senate Republican Leader Mitch McConnell of Kentucky in the courtroom underscored the political stakes in President Barack Obama's high-profile effort to deal with global warming — a policy Obama is pursuing after failing to persuade Congress to enact climate change legislation. McConnell is facing a tough re-election fight in which he refers often to the administration's assault on the coal industry in Kentucky and elsewhere.
The court's liberal justices seemed comfortable with the scope of an Environmental Protection Agency permitting program that applies to companies that want to expand facilities or build new ones that would increase overall pollution. Under the program, the companies must evaluate ways to reduce the carbon they release. Carbon dioxide is the chief greenhouse gas.
However, conservative members of the bench indicated they're skeptical of the EPA's authority, with Justice Anthony Kennedy as the probable decisive vote. Kennedy seemed most interested in making clear that EPA would retain the ability to combat climate change under earlier high court rulings, regardless of the outcome of this case.
Both sides acknowledged on Monday that the result would not impede EPA's proposal of first-time national standards for new power plants or its regulations for existing plants expected to be proposed this summer. It will then move on to other large stationary sources such as factories.
The permitting program, though, is the first piece of EPA's attempt to reduce carbon output from large sources. Justice Samuel Alito suggested that EPA simply rewrote a provision of the Clean Air Act to justify its permitting program and avoid sweeping in tens of thousands of businesses.
"In the entire history of federal regulation what is the best example you can give us of an agency's doing something like that?" Alito asked Solicitor General Donald Verrilli Jr., defending the program for the administration.
Verrilli sought to explain the EPA's actions as a way to deal with major sources of pollution, "not to gradually expand the permitting requirement until they've got all the Dunkin' Donuts in America under it. That's not what's going on." About 140 permits have been issued so far, Verrilli said.
But Peter Keisler, representing the American Chemistry Council among two dozen manufacturing and industry groups that want the court to throw out the rule, said that the administration's description omits an astonishing level of detail discussed by EPA and local permitting authorities, including "whether more efficient light bulbs should be used in a plant's cafeteria." EPA decided it wasn't worth it, Keisler said.
One potentially narrow outcome would preserve the bulk of the program for facilities that already emit other pollutants that EPA regulates.
Verrilli urged the court to leave the permitting program in place. "This is an urgent problem. Every year that passes, the problem gets worse and the problem for future generations gets worse," he said.
In 2012, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit concluded that the EPA was "unambiguously correct" in using existing federal law to address global warming.
Kennedy joined the court's four liberal justices in the 2007 ruling in Massachusetts v. EPA that said the agency has the authority under the Clean Air Act to limit emissions of greenhouse gases from vehicles.
Two years later, with Obama in office, the EPA concluded that the release of carbon dioxide and other heat-trapping gases endangered human health and welfare. The administration used that finding to extend its regulatory reach beyond automobiles and develop national standards for large stationary sources. Of those, electric power plants are the largest source of emissions.
The utility industry, the U.S. Chamber of Commerce and 13 states led by Texas are asking the court to rule that the EPA overstepped its authority by trying to regulate greenhouse gas emissions through the permitting program.
"Greenhouse gases are not included within the (permitting) program at all," Keisler said.
In addition to environmental groups, New York, California, Illinois and a dozen other states are supporting the administration, along with the American Thoracic Society, which filed a brief detailing the health costs of climate change.
Chief Justice John Roberts wondered if high school football games could fall under the EPA's regulation and Justice Stephen Breyer asked if the same would be true at a family gathering of his 500 relatives.
Verrilli's answer: "Human beings are actually net neutral on carbon emissions, and you will need a chemist to explain that to you. But it doesn't matter how many family members you have, you won't get to the limit," he said. | 法律 |
2016-50/4330/en_head.json.gz/12321 | Businesses preparing for non-smoking ban to take effect
List attached at bottom defining state smoking ban
Matt Williams and Erin Frost
A statewide smoking ban will go into effect Jan. 1, 2008.
That means no lighting up in any public places, including bars – which causes big problems for local bar owners.
“My customers smoke and I have got to have a place for them,” Glass House Tavern owner Irv Gesner told The Courier in May.
Some local bars are already making plans to accommodate their smoking customers.
Mr. Lucky’s Gold Mine on Chicago Street is building an elaborate heated beer garden. Legends Billiards Bar on North Kickapoo has done the same, with 2,500 square feet devoted to the cause. But these are huge undertakings, requiring serious financial investment. Other business owners aren’t sure what, if anything, they plan to change when the ban goes into effect.
“I’m going to just sit back and see what happens,” said Norma Edwards, owner of the OK Tavern on North McLean Street.
“I haven’t had a copy of the law and I won’t do anything until I get a copy of the law.”
Edwards said she wasn’t sure what sort of local department would enforce the state-required ban – the police, sheriff’s department or fire department.
And without people reporting smoking incidents, the ban might be difficult to enforce. Some local non-smokers also have spoken out – to say that smoking is all right with them.
Charlotte Bohn, who breathes with the help of an oxygen tank, told a reporter in May she understands the risk of frequenting smoking establishments.
“If I didn’t want to come in here (to the Glass House Tavern) and be around the smoke, I would stay home,” she said. “I used to smoke, so I am not against everybody else smoking. I think it’s my choice to be in here."
Although not a smoker herself, Edwards said the ban will cause problems at the OK Tavern for her smoking employees – and she pointed out that it’s making life difficult for some of those it claims to protect.
“I’m really going to feel sorry for my bartenders,” she said. “They say (the smoking ban) is for the workers, because they don’t want anybody to have second-hand smoke. Well, that’s ridiculous. If they didn’t want second-hand smoke then they didn’t have to come in here.”
Matt Williams and Erin Frost can be reached at the Lincoln Courier Journal
The Smoke Free Illinois Act • The act prohibits smoking in “public places, places of employment, and government vehicles.” This includes 15 feet outside the doors of buildings. Business owners also must post “No Smoking” signs and remove ashtrays. • Fines for individuals are between $100 and $250. For business owners, they’re at least $250 for the first violation, at least $500 for the second violation, and at least $2,500 for each additional violation within a year. Repeated violations could land a business owner in court. • Exemptions from the act include tobacco stores, private rooms in nursing homes, and 25 percent of the rooms in a hotel.
• Illinois is the 19th state to impose a statewide smoking ban. Forty-four Illinois communities had already placed restrictions on smoking in public places when the governor signed the law July 23, according to the American Cancer Society. | 法律 |
2016-50/4330/en_head.json.gz/12353 | Ministry of Natural Resources of the
Europe and North Asia FLEG Bulletin
Text Format
Russian version
Published by the International Institute for Sustainable Development (IISD)
Vol. 110 No. 5
Sunday, 27 November 2005 SUMMARY OF THE EUROPE AND NORTH ASIA FOREST LAW ENFORCEMENT AND GOVERNANCE MINISTERIAL CONFERENCE: 22-25 NOVEMBER 2005
Over 250 ministers, representatives of government, intergovernmental and non-governmental organizations and research agencies from 48 countries convened in St. Petersburg, Russian Federation from 22-25 November 2005 for the Europe and North Asia Forest Law Enforcement and Governance (ENA-FLEG) Ministerial Conference. The Ministerial Conference was co-sponsored by the World Bank and the Government of the Russian Federation, and was intended to finalize the terms of a Ministerial Declaration and Indicative List of Actions aimed at improving law enforcement and governance and curtailing illegal logging in the European and North Asian forest sectors. The meeting was also an opportunity to share information and experiences on two important thematic issues relating to illegal logging: improving the investment climate and private sector incentives, and ensuring resource access to local populations and equity in resource utilization. Ministers endorsed the St. Petersburg Ministerial Declaration and an Indicative List of Actions, which affirm the political commitment and set a framework for action to combat illegal logging. A BRIEF HISTORY OF THE FOREST LAW ENFORCEMENT AND GOVERNANCE PROCESS
In May 1998, the Group of Eight (G8) launched an Action Programme on Forests. The programme gives a high priority to eliminating illegal logging and illegal timber trade, seeks to complement actions undertaken at the regional and global levels, and affirms the G8’s commitment to identifying actions in both producer and consumer countries. The G8 Action Programme on Forests motivated a partnership on forest law enforcement for East Asia between the World Bank, the UK and the US, which led to the first regional Ministerial FLEG in the East Asia-Pacific in September 2001. An African FLEG Ministerial Conference was held in Yaoundé, Cameroon, in 2003.
The Russian Federation requested World Bank support to convene an ENA-FLEG meeting during calendar year 2005. In support of the ENA-FLEG process, an International Steering Committee (ISC) was established to provide guidance and an agenda for the ENA-FLEG Preparatory and Ministerial Conferences. The ISC met twice before the June 2005 Preparatory Conference. The ENA-FLEG Preparatory Conference provided critical input and drew attention to political initiatives at the national level, including the G8 Summit in July 2005. The current President of the G8, the UK, has made illegal logging a key focus of its political agenda. The Russian Federation will hold the G8 Presidency in 2006. EAST ASIA-PACIFIC FLEG: The East Asia-Pacific (EAP) FLEG Ministerial Conference took place in Bali, Indonesia, from 11-13 September 2001. The event was co-hosted by the World Bank and the Government of Indonesia and facilitated by the World Bank Institute, with financial support from the Governments of the UK and US. The meeting comprised a technical segment, during which participants met in nine thematic sessions to hear panel presentations and discuss forest law enforcement in relation to governance, forest policy, forest management and operational aspects. On the final day of the Conference, ministers and ministerial-level officials from Cambodia, China, Indonesia, Laos, the Philippines, Thailand and Vietnam, as well as from the Republic of Congo and Ghana, participated in the ministerial segment. The Ministerial Conference set out to exchange views, disseminate technical knowledge and foster strong political support and commitment at the national, regional and international levels. The Conference’s primary aims were to: share and explore the best current thinking on forest law enforcement; conduct further deliberations on the previously identified priority issues of forest law enforcement, including illegal logging in the East Asia region, among senior officials from forest and related ministries, non-governmental organizations (NGOs) and industry representatives; and concur on a statement expressing political commitment for action at the national and regional levels. The meeting resulted in the adoption of a Ministerial Declaration, which commits participating countries to, inter alia, intensify national efforts and strengthen bilateral, regional and multilateral collaboration to address violations of forest law and forest crime, and create a regional FLEG task force to advance the Declaration’s objectives. The task force held a follow-up meeting on the Declaration’s implementation in Bali, Indonesia, in May 2002, and a second ministerial meeting will be held in 2006 to review progress on actions taken to implement the Declaration.
AFRICA FLEG: The Africa Forest Law Enforcement and Governance (AFLEG) Ministerial Conference took place in Yaoundé, Cameroon, from 13-16 October 2003. The meeting was co-hosted by the Government of Cameroon and the World Bank. The objectives of the conference were to: share and explore ideas on forest governance; consider priority issues, including illegal forest exploitation and associated trade in Africa; identify ways in which various stakeholders can address these issues, including partnerships between producers and consumers, donors, civil society and the private sector; and negotiate and endorse a Ministerial Declaration and Action Plan for AFLEG. In the Ministerial Declaration, ministers stated their awareness of their responsibility to both present and future generations, and acknowledged the rights of local communities and civil society to participate in addressing forest issues. The need for capacity building, partnerships, transparency, monitoring, and international cooperation was also stressed. The ministers stated that problems associated with “conflict timber” must be addressed, and problems of illegal exploitation of forest resources and associated trade are the shared responsibility of producer and consumer states. The Declaration underlined the need for institutional and policy reforms relating to FLEG, declaring the ministers’ intention to, inter alia: explore ways to demonstrate the legality and sustainability of forest products; establish and strengthen laws for hunting and bushmeat trade, including support for independent monitors; integrate FLEG into national forest programmes; and review the implementation of actions associated with the Declaration by the end of 2006. It concluded with an indicative list of actions, focusing on national-level implementation, legislation and policy reform, capacity building, information, law enforcement and monitoring, wildlife resources, forest management practices, financing, and markets and trade.
ENA-FLEG INTERNATIONAL STEERING COMMITTEE MEETINGS: The ISC held its first preparatory meeting in Moscow, Russia, from 21-22 February 2005. Eleven governments, an intergovernmental body and representatives from the World Bank attended. Representatives of NGOs and industry made formal presentations and participated in discussions during the meetings, and member governments held subsequent deliberations on the scope, objectives and design of the ENA-FLEG process. A second ISC meeting, which focused on the Preparatory Conference agenda, was held during the fifth session of the United Nations Forum on Forests (UNFF-5) meeting at UN Headquarters in New York, in May 2005.
ENA-FLEG PREPARATORY CONFERENCE: The Europe and North Asia (ENA) Forest Law Enforcement and Governance Preparatory Conference convened in Moscow, Russia, from 6-8 June 2005. Co-hosted by the World Bank and the Government of the Russian Federation, with financial support from eight international donors, the conference discussed, inter alia: regional and national experiences and emerging ENA-FLEG issues; attracted views from a range of stakeholders on ENA-FLEG; and began drafting a Ministerial Declaration and an indicative list of actions for the Ministerial Conference in late 2005. There were no formal outputs from the Preparatory Conference, but participants did identify key issues that would be used as “building blocks” for a Ministerial Declaration and an Indicative List of Actions to serve as the basis for negotiations and consultations prior to the Ministerial stage of the ENA-FLEG.
REPORT OF THE CONFERENCE
OPENING SESSION
Valery Roshchupkin, Head, Federal Forestry Agency, Russian Federation, and Gerhard Dieterle, World Bank, co-chaired the International Steering Committee and the Conference.
OPENING STATEMENTS: On Tuesday, 22 November, Co-Chair Roshchupkin opened the conference in the morning by welcoming the participants and noting the broad representation from governments, the UN system, and civil society. He stressed the Russian Federation’s interest in the ENA-FLEG process, and described current national activities in the forest sector, including innovative use of aerospace and electro-magnetic monitoring of forests.
Kristalina Georgieva, Country Director for Russia, World Bank, referred to the current stage of negotiations as progress from identification of problems to implementing recommendations. She noted the ongoing dialogue between governments, the private sector and NGOs, and emphasized the World Bank’s interest in resolving the issue of illegal logging.
John Hudson, Senior Forestry Adviser, Department for International Development, UK, delivered a keynote address on the importance of the FLEG process and its links to the Millennium Development Goals (MDGs) and the G8 Action Programme on Forests. He highlighted the need for coherent policies to address illegal logging, and outlined some common trends, including: access to resources; lack of clarity in rights and regulations; lack of transparency, representation and accountability; capture of state resources by elites; and regressive taxes. Hudson then underscored the role of the ENA-FLEG process in addressing illegal logging through: building partnerships; developing appropriate fiscal and regulatory regimes; influencing demand through voluntary and mandatory measures; and learning. He noted the significance of Russia’s G8 presidency in 2006, and the opportunity to link the FLEG agenda with broader sustainable development commitments, including the MDGs.
Tapani Oksanen, Task Team Leader, World Bank, gave a presentation on the state of knowledge on illegal logging, related governance issues and potential responses in the ENA region, highlighting the lack of reliable data on the extent of illegal logging and trade. He outlined the economic, social and environmental impacts of commercial and poverty-driven illegal logging. He summarized key forest governance issues, including: regulatory frameworks and quality; forest policy and legislation; availability and reliability of data; and law enforcement.
Oksanen also identified potential responses, including: defining illegal logging at the country level; improving access to information and stakeholder participation; training forest managers with a long-term interest in sustainability; linking forest issues with broader governance reforms; balancing demand and supply; and undertaking practical measures such as independent certification.
ORGANIZATIONAL MATTERS: Jürgen Blaser, Switzerland, ENA-FLEG Co-Facilitator, gave an overview of the ENA-FLEG process, highlighting: the work of the ISC; the drafting of elements for the Ministerial Declaration (MD) and Indicative List of Actions (ILA); the Ministerial Conference; and the implementation phase.
Jag Maini, Canada, ENA-FLEG Co-Facilitator, then summarized the draft MD and ILA, noting that both stress national sovereignty and implementation, and are the result of extensive input from governments, civil society and industry.
Co-Chair Dieterle presented the conference agenda, explaining the parallel processes of intergovernmental negotiations and the Civil Society and Industry Dialogue (CSID). Co-Facilitator Blaser described the mechanics of negotiating the two draft documents, and underlined the need to achieve consensus within a few days, possibly with the help of small break-out groups. He said that the CSID participants would be updated on the progress of negotiations twice daily, thus “building bridges” between the two processes. He also said that a follow-up to the conference is expected in the framework of the G8 and the United Nations Forum on Forests (UNFF). Delegates adopted the conference agenda.
Valentin Stepankov, Russian Federation, and Shigeo Katsu, World Bank, co-chaired the ministerial segment. Gary Dunning, The Forests Dialogue, and Dmitry Chuyko, Ilim Pulp, co-chaired the CSID. INVITED STATEMENTS: CSID Co-Chair Dunning described the activities of The Forests Dialogue, and stressed that civil society should be regarded as a partner in the FLEG process, and that governments are expected to take a lead role in addressing illegal logging.
Ragnar Friberg, Stora Enso, presented industry’s perspective on illegal logging, noting that law enforcement is a government function, and that efforts to combat illegal forest activity should not burden legal operators, and emphasized collaboration in developing cost-effective tools. He also said that the MD should uphold sovereignty and private property rights and not result in ambiguous or conflicting regulations, and that the ILA should promote direct action against illegal activities and avoid licensing and procurement policies as the principal measures.
Alexey Yaroshenko, Greenpeace, said that illegal logging is a social phenomenon linked to poor governance, and said that the new Russian Forest Code will result in both increased job loss and illegal logging. He also said that the pervasive attitude among Russian civil servants is that forest laws are “negotiable.” Yaroshenko concluded, noting that five principles should guide efforts to combat illegal forest activity: precaution in developing reforms; maximum openness; resources for monitoring; priority for local communities; and unified standards across the ENA region.
Stefan Schenker, Conference of European Private Forest Owners, called for full participation of private forest owners in FLEG negotiations, and underscored that clearly defined property rights are key for combating illegal logging.
THEMATIC AND LEARNING SESSIONS
Two thematic and learning sessions were convened. Each consisted of panel presentations followed by interventions and questions.
KEY GOVERNANCE ISSUES IN IMPROVING THE INVESTMENT CLIMATE AND PRIVATE SECTOR INCENTIVES: This thematic and learning session was held on Wednesday, 23 November.
Piotr Borkowski, Ministerial Conference on the Protection of Forests in Europe (MCPFE), reported on activities of the MCPFE, including a recent workshop on illegal harvesting in Madrid, Spain. He highlighted opportunities for synergy between the ENA-FLEG and the MCPFE processes.
CSID Co-Chair Chuyko introduced his company’s suggestions related to the theme, including recognition of ownership rights, stable legal and fiscal regimes and customs policy, stimulation of business, investment in infrastructure, and prioritizing enterprises that employ international standards.
Anatoly Petrov, All-Russia Training Institute for Forestry Specialists, emphasized the need to invest in the forest sector, thus creating jobs. He suggested that the state must control financial flows in order to achieve equitable distribution of forest income so as to channel a portion into infrastructure.
Ragnar Friberg, Stora Enso, called for giving due consideration to market risks, the working environment and the problem of corruption, and stressed the importance of ensuring long-term wood supply.
Sofie Beckham, IKEA Group, described IKEA’s long-term goal of sourcing wood from well-managed forests, and emphasized the need to ensure legality and transparency, stressing the importance of forest certification.
Mikko Venermo, European Bank for Reconstruction and Development, said that illegal logging is the single biggest issue negatively affecting the investment climate in Central and Eastern European countries. He described various existing risks that result from lack of transparency and corruption, including market and reputation risk, and stressed that governments play a decisive role in marginalizing risk.
Stanley Root, PricewaterhouseCoopers, suggested tools for improving the transparency of the forest sector, such as corporate sustainability reporting, best practices in environmental management, forest certification, and full chain of custody certification.
Jade Saunders, Royal Institute of International Affairs, described work done on, in particular, environmental risk assessment policies, incentives, financial regulators in large capital markets, and increased operational reporting.
Takashi Fujiwara, Japan Federation of Wood Industry Associations, referred to the negative impact of illegal forest activities on the environment, and highlighted Japan’s policy on ensuring transparency in exporting countries.
ENSURING RESOURCE ACCESS TO LOCAL POPULATIONS AND EQUITY IN RESOURCE UTILIZATION: This thematic and learning session was held on Thursday, 24 November.
Mikhail Giryayev, Federal Forestry Agency, Russian Federation, discussed illegal logging in Russia, noting that it consists of tree felling without a permit, and is often carried out by local actors. He also said that addressing the problem requires updating current legislation, and ensuring that consumers develop adequate procurement policies.
Gulusa Vildanova, Ministry of Agriculture and Water Resources, Uzbekistan, said that, while logging on forested land is a problem, indigenous populations should not be barred from using forests for livelihood purposes. She offered solutions to the problem, including secure access for local forest users, alternative energy supplies to local communities, and educating local populations on how to lessen their environmental impact.
Rodion Sulyandziga, Russian Association of Indigenous Peoples of the North, Siberia and the Far East, said industrial-scale use of Siberian forests affects, mostly negatively, indigenous peoples’ way of life. He also noted that: Russian forest legislation benefits large-scale forest operators; local populations lack access to the political system; and logging that threatens indigenous peoples’ way of life must be deemed illegal. He proposed that local interests be accounted for in forest management, called for environmentally sustainable logging that guarantees stable local incomes, and said that illegal logging can be curtailed by limiting road construction.
Friberg said his firm relies on small wood lot owners for supply, and assists them in forest management, permitting, scarification and restoration.
Duncan Pollard, World Wide Fund for Nature (WWF) International, said the high cost of energy has increased fuelwood harvesting, the costs of legal compliance for small producers may exceed the benefits, and rural poverty is one of the main causes of illegal logging.
Eva Müller, Food and Agriculture Organization (FAO), said that, while 84 percent of world forests are publicly owned, there is a global trend towards increased community and local ownership. She also noted that for many poor people and communities, resource access is not limited by lack of tenure, but by inadequate legislation concerning forest use. Müller also noted that FAO is studying the legal obstacles to sustainable forest management by communities and small holders, plans to identify legal provisions necessary for communities and small holders to enjoy better access to legal forest management, and will support ENA countries in the implementation of the ILA, including the development of mechanisms to provide resource access to the rural poor and local communities.
Following the panel presentations, an NGO participant said that performance indicators are needed in order to monitor forest use and improve public confidence in the FLEG process.
INTERGOVERNMENTAL NEGOTIATIONS SESSION
All negotiations were conducted in plenary, except for a small drafting group, which was established to refine the language of the MD preamble. Delegates negotiated from Wednesday afternoon until Friday morning with the final round going well into the night on Thursday. Negotiators did several readings of the draft MD paragraph by paragraph in English, cross-referencing with the Russian version.
Delegates welcomed the draft MD and ILA as a starting point for negotiation, and generally commended its substance and structure. Specific comments focused on: reducing the length of the document; explaining its geographic scope; defining illegality, at least in a national context; defining producer/consumer countries; addressing implementation timeframes on a national basis; stressing respect for national sovereignty; making use of existing instruments and institutions; and arranging for follow-up, through senior officials’ and ministerial-level meetings.
Delegates also debated: harmonization of reporting and monitoring requirements; focusing on region-specific problems; role of the private sector and other stakeholders in implementation; and the links between forest degradation in the region and climate change and unsustainable practices in agriculture, mining and construction.
References were suggested: to forests’ contribution to the achievement of internationally agreed development goals, in line with the 2005 UN World Summit; to sustainable forest management (SFM), governance and transparency; and to corruption, large-scale illegal logging, and associated trade. Participants agreed to append a list of countries covered by the ENA region. The Co-Chairs suggested a list of 20 ENA countries, and 34 other participating countries composed of EC members, other European countries and countries from other continents.
Language was debated referring to indigenous peoples, local and forest-dependent communities, citing limitations of national legislation and international obligations. On strategies for addressing the underlying causes of illegal logging, delegates discussed the need to protect forest areas, biodiversity and wildlife habitats, with some participants stressing the difference between large-scale commercial illegal logging and subsistence-driven unauthorized exploitation of forest resources.
Delegates added several new references to stakeholder engagement, in particular to civil society, including the private sector. They debated language on partnerships with the private sector, with some suggesting broadening the list of partners to include forest owners and logging companies.
In paragraphs addressing corruption and illegality, several countries offered textual additions to strengthen the notion of combating crime in the forest sector, in particular illegal logging. The need to apply internationally recognized principles to combat organized crime was also highlighted. Promotion of tracking systems was initially met with objections.
Delegates debated whether the regional section of the MD should be included in the international section, and whether the section relates to ENA countries only, or refers to others as well. There were several proposals to add relevant organizations to the list of regional and international partners. Text was added on increasing transparency of trade activities, and on promoting “legal” trade in timber products and timber. One delegate suggested replacing the recommendation to disseminate information “on the legality of products” with information “on the voluntary certification of forests”, but others, although they supported keeping a reference to certification, objected to the notion of “voluntary”.
There was some discussion on whether ministers should “affirm” or “endorse” the MD, with some delegates expressing preference for an ILA, rather than the original Indicative Action Plan.
There were diverging opinions on follow-up. Proposals were made to hold a senior officials’ meeting in two or three years, to assess progress made on implementing the ILA and identify further actions. Different timeframes were suggested for a second ministerial conference, from two to five years after the current one. Other delegates thought it premature to decide on the political level of future conferences, and suggested referring to “appropriate level”. One delegation wished to specify that the review meeting be held “together with civil society.”
CIVIL SOCIETY AND INDUSTRY DIALOGUE
The CSID convened in parallel with the negotiation sessions, from Tuesday until Thursday, and was established so that civil society and industry could formulate input for consideration by the negotiators. The CSID met regularly throughout the conference with a small group of negotiators and the negotiations’ co-chairs in joint sessions to convey its input. On Tuesday, CSID Co-Chair Dunning said the focus of the CSID was to develop a joint industry-civil society consensus statement on the MD and ILA. Bernard de Galembert, International Council of Forest and Paper Associations, said efforts to combat illegal logging should not burden legal producers. One participant emphasized the need to focus on identifying elements of the MD and ILA acceptable to both industry and civil society, identifying respect for national sovereignty, gradual implementation, improved data collection and information exchange, and product labelling. Ragnar Friberg, Stora Enso, said clear recommendations are needed for national action plans (NAPs). Jonathan Buckrell, Global Witness, emphasized the need to focus discussion on the MD, and said that implementation timelines should appear in the MD, not in the ILA. Another participant noted the importance of business in combating illegal logging.
Following these opening comments on Tuesday, CSID Co-Chair Dunning suggested the CSID use his organization’s recommendations to the MD and ILA as a basis for discussion.
The CSID then divided into a civil society contact group and an industry contact group to discuss points of agreement or recommendations on the elements of the MD. Following these discussions, the CSID reconvened later on Tuesday to hear reports of the two groups.
An industry representative reported that his group proposed, inter alia: defining the concept of governance; ensuring consistency between existing forest regulations and other laws and policies; promoting free trade; using forest resources sustainably; and promoting a positive business and investment climate for social and economic development. A civil society representative reported that her group proposed: provision by governments of information to be used for independent monitoring; government commitment to time-bound NAPs; a time-bound follow-up process for ENA-FLEG at the international level; shared responsibility by all countries in combating illegal logging; and education and research in forestry aimed at solving problems related to FLEG. Several CSID participants thought it would be valuable for each contact group to set two clear priorities for the negotiators to consider. Others thought each group should formulate language on several elements of the MD. Following this discussion, the contact groups continued working on elements of the MD and ILA and prioritizing their respective input to the intergovernmental negotiations. On Wednesday afternoon, the CSID reconvened to report their respective priorities. The industry group said its priorities include time-bound NAPs, enforcement of existing legal frameworks and adoption of reforms where necessary, and promoting trade in legally, equitably and sustainably produced forest products. The civil society group prioritized time-bound NAPs, a time-bound follow-up process, and the enforcement of legal frameworks that promote equitable and sustainable forest management and include public participation.
CSID participants then formulated these priorities into appropriate language for possible inclusion into the MD.
At a Joint session on Thursday morning, Co-Facilitator Blaser reported on progress made in the previous evening’s negotiation, noting that the MD’s preamble was nearly complete and that CSID participants might wish to modify its language for consideration by negotiators. Co-Facilitator Blaser also said that the term “equitable” had been removed from the MD due to its various connotations. Jonathan Buckrell, Global Witness, asked whether CSID participants would be given an opportunity to explain what was meant by the term. Co-Facilitator Blaser suggested this be taken up with delegates informally.
On Thursday, CSID participants again broke into a civil society contact group and an industry contact group to prepare their respective statements to the ministers, and formulate modifications to the MD preamble.
CSID participants reconvened in the afternoon to discuss and harmonize their respective modifications to the MD preamble. Points of contention included whether to make reference to “loss of carbon stocks” in a paragraph on criminal actions, and whether to include “just laws” in a paragraph referring to law enforcement and good governance. Concerning the urgent need for national strategies, participants debated whether “other participating countries” should formulate such strategies and make them mutually supportive.
At the joint session on Thursday night, Co-Facilitator Blaser reported on the status of the intergovernmental negotiations. Buckrell registered his concern that ENA countries must make commitments, while others do not. Stuart Wilson, Forest Monitor, noted there are many domestic demand-side policies that importing countries could adopt to address the issue of illegal logging, but that the MD does not make such policies an explicit responsibility for these countries. Karin Wessman, WWF, noted that the line dividing ENA countries from others is the EU boundary. Co-Facilitator Blaser said such observations are too negative, and noted many positive elements in the MD, such as NAPs. Buckrell said if other participating countries do not make strong commitments, then Global Witness would withdraw support from the process. Wilson asked what mechanisms there are to incent countries to make progress on NAPs before the next follow-up meeting. Co-Facilitator Blaser suggested that NGOs have a role to play in driving governments to produce NAPs and seek financing through multilateral finance institutions like the World Bank.
MINISTERIAL BRIEFING
Valentin Stepankov, Deputy Minister of Natural Resources, Russian Federation, and Shigeo Katsu, Vice-President, World Bank, co-chaired the ministerial segment of the conference. On Thursday morning, in his opening remarks, Co-Chair Stepankov stressed the need to eradicate all threats to nature, and noted the importance of FLEG in this regard. He also said that combating illegal logging requires partnerships between developed and developing countries and other agencies and organizations, noting that consideration of future measures must be based on FLEG requirements.
Ilya Klebanov, Plenipotentiary Representative of the President, Russian Federation, in the Northwestern Federal Region, acknowledged that the problem of illegal logging in the area is due to its high-quality timber and proximity to international borders. Noting that illegal logging undermines the image of Russian forestry, he said efforts to combat it should not burden legal producers and could include upgrading existing legislation, utilizing technology, increasing demand for legal forest products, and improving compensation for legal producers.
Gareth Thomas, Parliamentary Under Secretary of State, United Kingdom, noted various aspects of the EU Forest Law Enforcement, Governance and Trade Plan of Action, including voluntary licensing requirements for legal forest product imports, implementation of such requirements through bilateral partnerships, and capacity building. He also said that indiscriminate trade bans will not solve the problem of illegal logging, but multilateralism and NGO participation, in part, will.
Hannu Valtanen, Finnish Forest Industries Federation, delivered the industry statement to the ministers, noting that the private sector is already implementing practical measures on combating illegal logging, such as codes of conduct and wood tracking systems. He highlighted three key ENA-FLEG aspects from the industry perspective: consistent and time-bound NAPs; legal frameworks that promote good governance and sustainable forest management; and promoting trade in legally, equitably and sustainably produced forest products. He stressed that laws and regulations in the forest sector should be consistent with World Trade Organization rules, and that law enforcement is a government function.
Speaking on behalf of NGOs, Mikhail Karpachevsky, Taiga Rescue Network, noted that stakeholder involvement is a key to the success of the ENA-FLEG process, and that all countries present at the conference share responsibility for resolving the issue of illegal logging. He reported four NGO priorities for ENA-FLEG: time-bound NAPs for all participating countries; a clear follow-up process; addressing corruption and promoting transparency; and the ruling out of destructive legislation and practices. He concluded that governments play a leading role in implementing the MD, and stressed civil society’s involvement in the follow-up process. Following these opening statements, Co-Facilitators Maini and Blaser briefed participating ministers on the ENA-FLEG process and on the progress made in the intergovernmental negotiations. Co-Facilitator Maini highlighted the global importance and diversity of the region’s forests, noting that combating illegal logging is not only an issue of law and order, but also one of economic and human well-being. He underscored Russia’s upcoming G8 presidency as an opportunity to carry forward the political momentum from the FLEG process. Co-Facilitator Maini then outlined the structure and content of the draft MD and the ILA, noting civil society input throughout the process. He stressed that the objective of the MD is to empower forest ministers across the ENA region to secure and mobilize political support at the highest level, both domestically and internationally, to address illegal logging. He concluded by highlighting the role of the ILA and NAPs in realizing the MD objectives.
CLOSING SESSION
Ministerial Conference Co-Chair Valentin Stepankov opened the final session on Friday morning, noting that intense negotiations had been conducted overnight. He then invited delegates to endorse the MD and ILA, but first gave the floor to the co-facilitators to brief participants.
Co-Facilitator Maini summarized the MD, noting that it endorses the associated ILA. He also said that it further underscores cooperation with international organizations, and mandates the ISC to continue its work to assist countries with the MD implementation. Co-Faciliator Blaser summarized the ILA, noting that this four-page document sets a general framework for action by governments and civil society to help implement the MD. He said the ILA follows the structure of the MD in dividing actions into national and international. He noted that national actions are grouped in six subsections, namely: policy framework; legislation system; institutions and capacity building; sustainable forest management; rural development, livelihoods and poverty alleviation; and trade and customs. He further outlined areas for international action identified in the ILA, including policy collaboration, trade and customs, research and collaborative implementation.
Co-Facilitator Blaser stressed that monitoring progress is a major instrument envisaged in the ILA, and consequently, follow-up meetings will be scheduled: a senior officials meeting in two to three years, and a high-level one in five year’s time. He noted the World Bank’s coordinating role in the FLEG follow-up, and ISC’s role in supporting countries in fulfilling their MD commitments. Ministerial Conference Co-Chair Shigeo Katsu then congratulated delegates on completing negotiations on the MD and ILA, noting that while civil society representatives may find the documents insufficiently concrete, this is the nature of government-level declarations. The MD was accepted by acclamation.
CLOSING STATEMENTS: Speaking on behalf of civil society, Ke Du, Global Environment Institute, China, noted that civil society stands ready to implement the MD and ILA. She outlined key areas where civil society is keen to see action. At the national level, she said that all participating countries need to elaborate, in a participatory manner, time-bound NAPs with clearly defined targets and indicators of success. She also noted the need for all participating governments to review and update laws to ensure their consistency and engage stakeholders in this process. She further highlighted the need to map out inter-agency and inter-stakeholder relations in each country. She stressed that education, training and capacity building are necessary for the long-term success of FLEG. Concerning international actions, she called for the ISC and the World Bank to establish a well-resourced multistakeholder follow-up arrangement to facilitate NAP implementation, and set up an international information-sharing mechanism within one year. She stressed the need to increase the transparency of timber trade for all countries and to make these data publicly accessible. She urged the Russian Federation to keep illegal logging, related trade and associated corruption as a priority on the G8 agenda, and concluded by noting that legal does not always mean sustainable, and sustainable does not always mean legal.
Ragnar Friberg, Stora Enso, highlighted the importance of exchange and feedback between governments and civil society, including the private sector, which has much to contribute to combating illegal logging, and intends to actively engage in the follow-up to the Conference.
Pekka Patosaari, Coordinator and Head of the UNFF Secretariat, focused on implementation as a prerequisite for change, and said privatization is expected to boost the use of forest products for social development. He also described the role of UNFF in SFM.
Dinah Bear, General Council on Environmental Quality, Office of the President, US, confirmed her government’s support of the ENA-FLEG process and its implementation, which should lead to concrete and measurable results. She said US domestic law will be strengthened to prevent illegal timber reaching that country.
Jonas Bjelfvenstam, State Secretary, Ministry of Industry, Employment and Communications, Sweden, described EU activities in combating illegal logging, and highlighted cooperation with civil society. Viktor Chervony, Chairman, State Forestry Committee, Ukraine, said the FLEG process will help advance national law development, and that the MD is a good basis for cooperation.
Osman Kahveci, Director-General of Forestry, Turkey, stressed the importance of follow-up. He invited participants to attend a workshop on ENA-FLEG implementation, which his government plans to hold in early 2006 in Antalya.
Zhongtian Zhang, State Forestry Administration, China, said illegal logging and associated trade is a threat to the global management of forests. He emphasized the link between forestry and poverty reduction, and termed the MD as a platform for cooperation.
Ikuo Kuroki, Deputy Director General, Japan Forestry Agency, noted that SFM is a priority for Japan and that illegal logging is a problem that Japan intends to address. He then announced the recent adoption of a government procurement policy aimed at increasing imports of legally harvested wood products from sustainably managed sources. Shigeo Katsu, Vice-President, World Bank, said the conference was a success, noting that the high political momentum generated in St. Petersburg needs to be sustained and that the MD and ILA require implementation. He said that the World Bank would respond to requests for NAP financing and for implementing all aspects of the MD and ILA at the country level. He also noted the importance of collaboration with other international stakeholders such as the Asian Development Bank.
Lyubov Sovershayeva, First Deputy Plenipotentiary Representative of the President of the Russian Federation in the Northwestern Federal Region, said that illegal logging is a serious issue for Russia and that it damages Russia’s reputation as a forest producer. Co-Chair Stepankov gavelled the meeting to a close at 12:02 pm.
MINISTERIAL DECLARATION: The MD states that representatives of Governments from Europe and North Asia and from other participating countries:
underline that all countries have the sovereign right to manage and utilize their forest resources;
recognize that FLEG has local, national, transboundary, regional and global implications;
are convinced of a shared responsibility to eliminate illegal harvesting of forest resources and associated trade;
emphasize that FLEG is a cross-sectoral and complex as well as sensitive issue;
recognize that forests of the ENA-FLEG region, comprising over a third of global forest cover, are of global importance;
are aware that forests of the ENA-FLEG region are critical to the livelihoods of hundreds of millions of people, provide economic, social, cultural and environmental benefits, and meet energy needs of local populations;
emphasize the fundamental role of governments in providing effective governance, including laws and capacity to enforce them, to eliminate illegal logging, associated trade and corruption in the forest sector, and;
are concerned that forests-related crime is a significant problem in many countries in the region, and that criminal actions have a significant negative impact on the forest sector, leading to the weakening of the rule of law, loss of revenue, degradation of forest ecosystems, and on their contribution to internationally agreed development goals.
The MD affirms that the participating countries will, nationally:
mobilize high-level political commitment and establish FLEG as an area of concern;
review and update forest legislation and regulations, ensuring harmonization with obligations under international agreements;
strengthen inter-agency cooperation, particularly among law enforcement and judicial authorities;
formulate, within a reasonable timeframe, concrete actions under clearly defined targets, including monitoring of progress in implementation, e.g., by taking into account recommendations of the MD and the ILA;
recognize the rights of forest-dependent communities, engage stakeholders, including indigenous people, local communities and private owners in formulation of forest-related laws and their implementation through an open process;
develop anti-corruption tools, and apply internationally recognized principles to combat organized crime; and
disseminate transparent information, disclose data on timber flows, and inform stakeholders on illegal logging, associated trade and corruption.
Internationally, the Conference participants will:
promote and develop cooperation, including transboundary cooperation, build institutional and human capacity and promote partnerships among the private sector and civil society;
enhance awareness of information about the legality of products through means such as voluntary chains of custody and certification systems;
cooperate with civil society to inform consumers of the problems caused by illegal logging, associated trade and corruption; and
work with other regions and multilateral instruments and processes on FLEG-related issues.
Finally, the participants affirm, that they:
endorse the ILA associated with the Declaration;
urge relevant international and regional organizations, institutions and processes to support the implementation of the ILA;
invite the ISC to extend its role in facilitating the ENA-FLEG process;
request the World Bank to facilitate the implementation of the MD and ILA;
agree to meet at the appropriate level, together with civil society, within two or three years to exchange experiences and identify areas for further action; and
agree to convene the next Ministerial conference within five years.
The Declaration ends with a list of 43 countries and the European Commission, which have accepted it by acclamation.
INDICATIVE LIST OF ACTIONS: The ILA sets a general framework for possible actions to be undertaken by governments as well as civil society to implement the MD, and mobilize support from donors and multilateral organizations. Following the MD’s structure, the ILA is divided into national and international sections. The national section comprises six subsections on main areas for action, namely: policy framework; legislation system; institutions and capacity building; SFM; rural development, livelihoods and poverty alleviation; and trade and customs.
A key element of the subsection on policy is the development of NAPs either as stand-alone documents, or integrated into other documents at the national level such as forest programmes. On legislative aspects, the ILA proposes to: develop a common understanding of FLEG-related concepts, definitions and terms; review and update forest law and related legislation to combat illegal logging and corruption; and promote well-defined property and resource rights, in particular private rights.
On institutions and capacity building, the ILA seeks, inter alia,
to: ensure the appropriate application of customs codes;
support the collection and dissemination of transparent information, including a database on trade in wood and forest products; and
strengthen mechanisms and capacity for monitoring and implementation of anti-corruption tools.
The section on SFM prioritizes controlling illegal logging and wildlife poaching, and calls for enabling conditions for the use of SFM tools, including environmental management, certification, and traceability systems, and codes of conduct.
On rural development, livelihoods and poverty alleviation, the ILA stresses the need for alternate economic opportunities for forest-dependent communities and increased income generation from sustainably managed forests by local communities.
Concerning trade and customs, the ILA seeks to identify the most vulnerable transboundary areas in relation to illegal timber trade and reduce their vulnerability.
At the international level, the ILA focuses on forest-related policies, trade and customs, research, and collaborative implementation actions. It proposes, inter alia, to: integrate MD elements into other international forest policy initiatives; facilitate gathering and sharing of export/import data on wood and forest products as well as illegal trade; and cooperate on and monitor MD implementation. The ILA contains an Annex, which lists selected international and regional organizations, institutions and processes of relevance for FLEG implementation.
CONFERENCE ON FRONTIERS IN FOREST INFORMATION: This conference is scheduled to take place from 5-7 December 2005, in Oxford, UK. Participants will examine issues in four thematic areas: global needs for forest-related information; information access for development; new publishing paradigms; and the impacts of changing technologies. For more information, contact: Roger Mills, Conference Secretary; tel: +44-1865-275080; fax: +44-1865-275095; e-mail:
[email protected]; Internet:
http://www.bodley.ox.ac.uk/users/millsr/isbes/forestry.htm
UN CONFERENCE FOR THE NEGOTIATION OF A SUCCESSOR AGREEMENT TO ITTA, 1994, FOURTH PART: The Fourth Part of the UN Conference on the Renegotiation of the International Tropical Timber Agreement, 1994 will convene from 16-27 January 2006, in Geneva, Switzerland. Delegates will meet to discuss outstanding issues of scope and finance for the new Agreement. For more information, contact: UNCTAD Secretariat, Intergovernmental Affairs and Outreach Service; tel: +41-22-917-5809; fax: +41-22-917-0056; e-mail:
[email protected]; Internet:
http://www.unctad.org/Templates/Meeting.asp?intItemID=3323&lang=1
SIXTH UN FORUM ON FORESTS (UNFF-6): UNFF-6 will be held from 13-24 February 2006, at UN headquarters in New York. This meeting will seek to reach conclusion on issues that were unresolved at UNFF-5. For more information, contact: Elisabeth Barsk-Rundquist, UNFF Secretariat; tel: +1-212-963-3262; fax: +1-917-367-3186; e-mail:
[email protected]; Internet:
http://www.un.org/esa/forests
15TH SESSION OF THE AFRICAN FORESTRY AND WILDLIFE COMMISSION (AFWC): The 15th Session of the AFWC will convene in Maputo, Mozambique, from 29 March-1 April 2006. Participants will attend a special session on the implementation of sustainable forest management in Africa. For more information, contact: Pape Djiby Koné; e-mail:
[email protected]; Internet:
http://www.fao.org/forestry/site/31088/en
21ST SESSION OF THE ASIA-PACIFIC FORESTRY COMMISSION: The 21st session of the Asia-Pacific Forestry Commission will convene in Dehradun, India, from 17-21 April 2006. Participants will attend a special session entitled “Towards sustainable forest management in the Asia-Pacific.” For more information contact: Patrick Durst; e-mail:
[email protected]; Internet:
INTERNATIONAL TROPICAL FOREST INVESTMENT FORUM: This Forum will be held from 25-27 April 2006, in a location to be determined. The Forum will be interactive, with the ITTO, Forest Trends, the Katoomba Group, Grupo Ecologico Sierra Gorda, and four branches of the Mexican Environment Ministry bringing together a wide range of stakeholders that can facilitate, access and operate mechanisms for increased investment in natural forest-based enterprises, including community enterprises. For more information, contact: Paul Vantomme, ITTO Assistant Director for Forest Industry; tel:+81-45-223-1110; fax: +81-45-223-1111; e-mail:
[email protected]; Internet:
http://www.itto.or.jp
33RD SESSION OF THE EUROPEAN FORESTRY COMMISSION (EFC): The 33rd session of the EFC will convene in Bratislava, Slovakia, from 23–26 May 2006. For more information contact: Kit Prins; e-mail:
[email protected]; Internet:
ITTC-40: The 40th session of the ITTC and associated sessions of the Committees will convene from 29 May-2 June 2006, in Mérida, Mexico. For more information, contact: Manoel Sobral Filho, ITTO Executive Director; tel:+81-45-223-1110; fax: +81-45-223-1111; e-mail:
[email protected]; Internet:
17TH SESSION OF THE NEAR EAST FORESTRY COMMISSION (NEFC): The 17th Session of the NEFC will take place in Larnaca, Cyprus, from 5–9 June 2006. Participants will attend a special session on implementing sustainable forest management in the Near East. For more information, contact: Hassan Osman Abdel Nour; e-mail:
[email protected]; internet:
24TH SESSION OF THE LATIN AMERICAN AND CARIBBEAN FORESTRY COMMISSION (LACFC): The 24th Session of the LACFC will be held in Santo Domingo, Dominican Republic, from 26–30 June 2006. Participants will attend a special session on implementing SFM in Latin America and the Caribbean. For more information, contact: Carlos Marx R. Carneiro; e-mail:
[email protected]; Internet:
23RD SESSION OF THE NORTH AMERICAN FOREST COMMISSION (NAFC): The 23rd session of the NAFC will be held in British Columbia, Canada, in October 2006. For more information, contact: Douglas Kneeland; e-mail:
[email protected]; Internet:
The Europe and North Asia FLEG Bulletin is a publication of the International Institute for Sustainable Development (IISD) <[email protected]>, publishers of the Earth Negotiations Bulletin � <[email protected]>. This issue was written and edited by Andrew Baldwin, Xenya Cherny, and Andrey Vavilov, Ph.D. The Digital Editor is Leila Mead. The editor is Hugh Wilkins <[email protected]>. The Director of IISD Reporting Services is Langston James �Kimo� Goree VI <[email protected]>. Funding for coverage of this meeting has been provided by the ENA FLEG Secretariat. IISD can be contacted at 161 Portage Avenue East, 6th Floor, Winnipeg, Manitoba R3B 0Y4, Canada; tel: +1-204-958-7700; fax: +1-204-958-7710. The opinions expressed in the Bulletin are those of the authors and do not necessarily reflect the views of IISD. The translation of the English version of the Bulletin
into Russian has been done by the ENA-FLEG secretariat. Excerpts from the Bulletin may be used in other publications with appropriate academic citation. Electronic versions of the Bulletin
are sent to e-mail distribution lists (ASCII and PDF format) and can be found on the Linkages WWW-server at <http://www.iisd.ca/>. For information on the Bulletin, including requests to provide reporting services, contact the Director of IISD Reporting Services at <[email protected]>, +1-646-536-7556 or 212 East 47th St. #21F, New York, NY 10017, USA. | 法律 |
2016-50/4330/en_head.json.gz/12369 | IRS director refuses to testify
Lois Lerner pleads the Fifth during a congressional hearing concerning the scrutiny scandal
By Ashley PostMay 23, 2013
The drama surrounding the Internal Revenue Service (IRS) scrutiny scandal continues.
First, a refresher: Two weeks ago, the IRS admitted to and apologized for flagging about 300 groups with the words “tea party” or “patriot” in their names for extra scrutiny when they applied for tax-exempt status. The Federal Bureau of Investigation has launched a criminal probe into the matter. Conservatives are livid, calling for the resignation of the IRS’ acting commissioner, Steven Miller, and the head of the agency’s tax-exempt organization office, Lois Lerner.
And now for the most recent updates. Yesterday, Lerner invoked the Fifth Amendment during a congressional hearing. But before she did so, she asserted that she was an innocent party in the scandal.
“I have not done anything wrong,” she said. “I have not broken any laws, I have not violated any IRS rules or regulations, and I have not provided false information to this or any other congressional committee.”
Her speech infuriated Republican lawmakers. “You don’t get to tell your side of the story and then not be subjected to cross-examination,” Rep. Trey Gowdy, R-S.C., said.
Now, experts are questioning whether Lerner forfeited her Fifth Amendment protection by giving her spiel. University of Illinois College of Law Professor Andrew Leipold told the Wall Street Journal Law Blog that the law doesn’t clearly articulate what constitutes a waiver of privileges in this situation. But Lerner’s lawyer says a brief statement of innocence doesn’t constitute a waiver.
In other news related to the scandal, Republican lawmakers have seized IRS emails and other documents that suggest the agency’s lower-level employees developed and carried out the extra scrutiny of conservative groups applying for tax-exempt status.
Read more InsideCounsel stories about the IRS and non-profits:
Tea Party group sues IRS
FBI launches IRS investigation
IRS apologizes for scrutinizing conservative groups
The division of the IRS responsible for tax exemptions has failed to do its job
A proposal to overhaul tax-exempt law
The last political loophole is found in non-profits « Prev
Regulatory 3023 Federal Bureau of Investigation 148 Internal Revenue Service 123 South Carolina 51 IRS 49 non-profits 21 University of Illinois 12 Fifth Amendment 5 Join the Conversation | 法律 |
2016-50/4330/en_head.json.gz/12471 | Letters to the Editor: Saturday, January 19, 2013
Let law-abiding keep current self-defense … Checks are still in the mail… President Obama’s orders and plans make sense
Let law-abiding keep current self-defense To the editor,As the immediate emotion of Sandy Hook ebbs and a rational search for answers begins many have called for assault weapons bans, magazine capacity limitations or outright banning of private firearms. Unfortunately we do not have to look far for evidence such an emotional response does not and will not protect our precious children and grandchildren:March 23, 2010, started a violent trend in the Peoples Republic of China as eight children were slashed to death in a Chinese kindergarten. Hours after the state executed the March slasher (Chinese “justice” exhausts appeals quickly), another knife attack on an elementary school injures 16 students and 1 teacher. The next day another attacker slashes 28 students, two teachers and a security guard. Two days later yet another attacker uses a hammer to injure elementary students at school. May 12, 2010: A deranged person swinging a meat cleaver kills seven children and two adults and injures 11 other persons at another Chinese kindergarten. Many other multivictim attacks are reported in China until the same day as Sandy Hook, Dec. 14, 2012, when another 22 children are slashed in a knife attack at yet another Chinese school. Private firearms are prohibited in China. Perhaps they need to eliminate knives and cleavers and develop an even-safer sporkette?In 1991, violent crime peaked in the U.S. Since then, 24 states have adopted “shall issue” pistol carry laws, replacing laws that prohibited carrying or that issued carry permits on a very restrictive basis. Many other federal, state and local gun control laws have been eliminated or made less restrictive; and the number of privately-owned guns has risen by about 100 million. (www.atf.gov/firearms/stats/index.htm) The numbers of gun owners and firearms, Right To Carry states, and people carrying firearms for protection have risen to all-time highs. Through 2010, the nation’s murder rate has decreased 52 percent to a 47-year low, and the total violent crime rate decreased 48 percent to a 7-year low. (www.fbi.gov/stats-services/crimestats.) The FBI preliminarily has reported that violent crimes decreased another 6.4 percent in the first half of 2011, translating into a 7 percent decrease in the total violent crime per capita rate.(Crime in the US Report from FBI website.)Clearly increasing the ease of trained citizens to protect themselves and others has an impact that reduces crime: Studying crime trends in every county in the U.S., economist John Lott and David Mustard concluded, “allowing citizens to carry concealed weapons deters violent crimes ... (W)hen state concealed handgun laws went into effect in a county, murders fell by 8.5 percent, and rapes and aggravated assaults fell by 5 and 7 percent.” (Lott, “Crime, Deterrence, and Right To Carry Concealed Handguns,” 1996)Perhaps it is time to face facts, eliminate all criminal empowerment zones and use facts not emotion in public policy, newspaper editorials and executive orders. Do we want the continuing carnage of the Peoples Republic of China? The violent crime per capita of Great Britain? Perhaps the next editorial calling for common sense gun regulation the editorial board would posture from facts not emotion and realize the issue is not guns, it is not knives or hammers. The issues still waiting to be addressed are mental illness diagnosis and treatment, and better protection for our children and grandchildren by training those willing to be armed and allowing trained, background checked, citizens to exercise their right to protect themselves, their loved ones and others when necessary.Very truly yours,Mark A. JacksonAdrianEditor’s note: A shortened version of this letter was printed to meet the Telegram’s 400-word limit.Checks are still in the mailTo the editor,Sometimes good things come to those who wait.And to those who resist.For two years, U.S. Treasury Department officials have tried to coerce those who received payment of federal benefits by paper check into switching to direct deposit or debit card forms of payment.Payments will only be made electronically as of March 1, 2013, they said. You have to switch.To a large degree, the threats worked. Millions of scared seniors converted for fear of losing their benefits.But now the truth comes out.“We don’t have authority to stop people’s payment if they don’t switch by March 1,” Treasury’s Walt Henderson told Michelle Singletary of the Washington Post. “You will still get a paper check.”The reason, according to Singletary, is that the recipient has to sign up for direct deposit or the debit card before the paper checks will stop.So if you don’t sign up, the checks will continue to be sent.Much has been made of the so-called safety that electronic payments provide. But in addition to the errors that can occur with direct deposit, scammers are now bilking elderly people out of their electronic payments.After determining a person’s bank account number, these crooks are contacting Social Security and having the direct deposit diverted to another account, often leaving those people with nothing to pay the rent, buy food, or cover the costs of other necessities.Of course, no payment method is immune to errors, fraud, or drawbacks. Checks are sometimes delivered late. So is direct deposit. Both can be stolen. Debit cards carry lots of fees, and avoiding them can be difficult.People have long been empowered to decide for themselves which payment option — paper check, direct deposit, or debit card — worked best for them. They weighed the advantages and risks of each and made a decision.That’s the way it should be.In April 2011, 2,157 Lenawee County Social Security beneficiaries received paper check payments. As of this month, the number is down to 877.The U.S. Treasury Department owes a huge apology to everyone who felt forced to change because of the agency’s strong-arm rhetoric that implied they would lose their benefits if they did not.They also deserve an opportunity to switch back to paper check payments if they so desire.Anything less is unacceptable.Doug SpadeAdrianPresident Obama’s orders and plans make senseTo the editor,President Obama is to be commended for his courageous efforts to prevent the gun violence that continues to threaten American society. His resolve to close loopholes in background checks for those trying to buy guns, ban assault weapons and give greater access to mental health services should help a great deal in putting an end to this epidemic.The recent ad by the NRA is disingenuous. Of course, as the daughters of the president, Malia and Natasha, need special protection from the Secret Service. They are special targets by the very virtue of their being President Obama’s daughters, and they are watched by men specially trained in weapons. But putting guns in the hands of teachers and administrators — who are trained to instruct and care for children — does not give their students more protection; it simply brings more dangerous weapons into the classroom — weapons that could very easily be taken from the teachers and used against the students.When he was being arrested in the Garden of Gethsemane, Jesus told Peter, “Put your sword back into its sheath, for all who take the sword will perish by the sword” (Matthew 26:52, New American Bible). Jesus’ words to Peter could well be heeded today. Living with a mindset that using weapons as a protection against others with weapons only increases the danger that we face.To paraphrase the NRA’s infamous slogan, “Guns do not protect people.” But our joint efforts to make background checks more stringent, ban assault weapons, take greater care of people with mental illness and — especially — change our hearts, could certainly bring us greater protection and a less violent society.Barbara L. KelleyAdrian | 法律 |
2016-50/4330/en_head.json.gz/12476 | Court decision on 60-day overpayment rule imposes heavy burden on providers
Duane Morris LLP
As a result of an August 3, 2015 federal court decision, nursing homes and other health care providers that participate in Medicare or Medicaid are well-advised to pay careful attention to the law that requires report and return of any overpayment within 60 days of the date on which the overpayment is “identified.” In Kane v. Healthfirst, Inc. et al., the Southern District of New York found that the word “identified” means the date on which a provider is “put on notice” that a claim may have been overpaid. The court said that providers cannot delay commencement of the 60-day period until the overpayment amount has been definitively determined.
The defendants in the case had argued that simply being on notice of a potential overpayment was not enough to trigger the 60-day repayment rule, which was a provision in the 2010 Affordable Care Act. While recognizing the burden on providers to bring to conclusion a thorough and definitive investigation of a potential overpayment within 60 days, the court was firm in its finding, referring to the “demanding standard of compliance.” However, there was a suggestion that prosecutorial discretion could act to assist a provider that did not comply with the letter of the law but acted diligently to attempt to determine an overpayment amount within the required timeframe.
This case, triggered by a former employee of one of the provider defendants under the False Claims Act whistleblower provision, is important because it is the first time there has been a court opinion addressing the meaning of the term “identified” as used in the law. Draft regulations published in 2012 have not been finalized.
Duane Morris LLP -
Susan V. Kayser Filed under
“Fraud in the Inducement” Is No Defense To Advancement Claims By Officers and Directors
* How Emails Between Counsel Can Bind Their Clients To ADR
* Is the U.S. Tax Code Set to Be Trumped?
* The Online Gift Bounty and Concerns for the Holiday Season
* OCC Announces FinTech Companies Can Now Apply for Special Purpose National Bank Charters | 法律 |
2016-50/4330/en_head.json.gz/12517 | Warning! False M.C. Escher prints are being offered for sale!
In California, in the Sacramento area, so-called M.C. Escher woodblock prints/proofs are being offered for sale. These prints are also being offered for sale at eBay by various individuals/dealers. The prints are NOT printed from the original blocks. It concerns the following prints (numbers relate to the prints as depicted in the book: M.C. Escher, His Life and Complete Graphic Work [ published by Abrahams, New York])163; 164; 172; 175; 178; 179; 183; 184; 187; 195; 196; 293; 361; 364; 368; 370; 393; 398 and 430.
Auction in Switzerland ?
These prints were first offered at eBay in May 1999 by a company called Every Era, Sacramento. The story behind them was that "in about 1958 an auction was held in Switzerland. The purpose was to liquidate the business of a printer who specialized in private press editions. During the course of that auction a single lot consisting of hundreds of reams of blank paper was sold. It was later discovered that buried deep within the masses of blank paper these were these prints we are now offering on Ebay" (end quote). They were selling 325 sets of 19 prints each. We received a set and checked them with the original woodcuts in our possession and found them to be fakes. Their measurements do not match the originals (you can look these up in the book M.C. Escher His Life and Complete Graphic Work and compare them yourself) and they had all been tampered with. They were withdrawn from eBay.
Earl M. Washington
Then the story changed. They are now being offered for sale by a Mr. Earl M. Washington, http://www.earlmwashington.com who says he is the great-grandson of another Earl M. Washington, who apparently died in 1952. He was either an artist/printmaker/block maker/collector (the story varies). These prints have nothing to do with the original prints made by M.C. Escher during his lifetime. The dimensions are wrong, some prints come from the Emblemata series, three from Scholastica and the rest are odd prints. Some of the Emblemata ones have their top and bottom text missing. Why would M.C. Escher grant permission for anyone to make a private press printing of prints that already appeared in two printings? Why would he leave out essential texts which were cut into the same block as the picture? Why include an invitation to an exhibition in it when this invitation only has text? We have access to Mr. Escher's private administration and his diaries. Nowhere can be found that an additional printing was scheduled, not in Switzerland and not in the USA. Mr. Escher was very meticulous and wrote everything down. Mr. Washington's name appears nowhere and neither do these fake prints. Most importantly, the dimensions are wrong! Copyright infringement
We take infringement of our copyright very seriously and will take the necessary legal action where necessary, as you can see below:
Cordon Art B.V. and the M.C. Escher Foundation vs. Jerome Walker d/b/a Rock Walker
United States District Court - Case No. 950863 R
In 1996, the M.C. Escher Company B.V. (formerly known as Cordon Art B.V.) and The M.C. Escher Foundation started legal proceedings against a Mr. Rock Walker for amongst other issues, copyright infringement.
On September 20, 1996 United States District Judge, Mr. John S. Rhoades
entered the following judgement against Mr. Rock Walker:
Defendant, his agents, servants, representatives, attorneys, employees, successors, assigns, as well as all entities in any way controlled by or participated in by Defendant, and all those in active concert or participation with any of them who receive notice of this Consent Judgement directly or otherwise, are hereby permanently enjoined and restrained anywhere in the world from:
Imitating, copying, using, reproducing any work of M.C. Escher, and/or preparing any derivative work(s) based thereon or authorizing any third party to imitate, copy, use, reproduce any work of M.C. Escher, and/or prepare any derivative work(s) based thereon. Etc.,etc.
The Dispute
It is rare for visual arts copyright cases to end up at court. Even more rare for the trial to be fully conducted and judgment given; roost copyright cases are settled out of court. A recent case tried in the United States has important beneficial effects for European artists whose works may be thought not to be protected by US Copyright Law. It concerned the estate of MC Escher, some of whose works were reproduced and marketed in the US without licence or other authority from the artist's copyright heirs.
In 1968 Escher established the 'MC Escher Foundation' in The Netherlands to curate and promote his works via publications, exhibitions, lectures and so on. In 1972 Escher died. Copyright in his works will expire at the end of 2042. In 1984 all copyright in Escher's works was transferred to the ownership of 'Cordon Art BV, a company incorporated in The Netherlands. Cordon Art sells copyright licences authorising the merchandising of Escher's images.
A US merchandiser, Rock Walker, manufactured large numbers of articles which carried representations of 24 different Escher images and marketed them throughout the US. Moreover, Walker retailed these articles under the trading name ‘The MC Escher Museum Foundation'. Neither Cordon Art nor the MC Escher Foundation had authorised the reproduction of the images nor the use of the real Foundation's name.
Cordon Art BV and the MC Escher Foundation brought proceedings last year against Rock Walker. The case was heard in the US District Court for Southern California (and, for those interested, is reported in 41 U.S.P.Q. 2D, 1224). The plaintiffs alleged copyright infringement of Escher's 24 images, including celebrated works such as 'Drawing Hands', 'Relativity' and 'Waterfall'; trademark infringement and unlawful interference with the plaintiffs business through the encouragement by Walker to Cordon Art's copyright licensees not to pay royalties to them.
The Copyright Issue
Under US Copyright Law between 1909 and 1978, visual works published in the US were required to display a copyright notice or, in certain circumstances, to have been registered for copyright protection purposes. If such works did not carry such a notice, or were not registered, they did not have the protection of US Copyright Law.
However, in 1992 US Copyright Law was amended. The important changes give effect, in US Copyright Law, to the most recent series of intergovernmental trade agreements made under GATT (the General Agreement on Tariffs and Trade). In essence, the changes gave copyright protection in the US back to non-US copyright owners whose works had lost protection through failure to comply with the procedural requirements for copyright notice or registration. Such copyright protection was restored, so long as: the work in question was made by a national of a country which was a signatory to the international Berne Copyright Convention, and the work was still protected by copyright law in the country where copyright was first achieved.
These changes in US Copyright Law were at the heart of the dispute. Walker agreed that the 24 Escher works had lost their copyright protection in the US through failure to display the required copyright notice, and that he was therefore free to reproduce the images without authorisation from the plaintiffs.
One of the most interesting aspects of the case centred on the way the works had been made. The final works in existence today started life as graphic representations made with pencil and paper. Escher then reproduced these images by creating woodcuts or lithography stones, referred to as the 'master blocks', from which he then pulled prints by hand to create the final limited editions.
Ownership of copyright needs to be determined by reference to the making process. The images contained in Escher's original pencil drawings automatically acquired copyright protection in The Netherlands; the further processes described above reproduced these copyright images into different media: the master blocks and finished prints.
Walker argued that Escher's prints had been published in the US without the necessary copyright notices, and were not therefore protected by US Copyright Law. The plaintiffs begged to differ. Their arguments were fascinating: the original graphic drawings and roaster blocks were never published in the US- only the resulting limited edition prints (which Walker had seen published but not bearing copyright notices) - and therefore were still protected by US Copyright Law. Their further or alternative argument (if necessary) was that, even if copyright had been lost through failure to publish a copyright notice, the copyright had been restored in 1992 through amendments to the US Copyright Act 1976, enacted by Congress following the GATT agreement. These were the issues. Walker freely admitted reproducing Escher's works without authority.
The Judgment
The court found in favour of the plaintiffs, holding that Walker's argument failed because the original drawings and master blocks were protected by copyright law at all times in the US. Moreover, the court ruled that, even if copyright had been lost at any time prior to 1992, it had been restored by the amendment to US Copyright Law enacted by Congress following the GATT agreement.
The court's reasons were as follows: the original drawings and roaster blocks were never published in the US, and therefore were protected by US Copyright Law. The final limited edition prints (that were published in the US) were effectively reproductions based almost entirely on the original drawings and master blocks, and were not therefore substantially 'new' works that would have required copyright notices in order to be protected.
As for the amendment to US Copyright Law following the GATT agreement, the court explained that Escher's prints fulfilled the three criteria required by US law after 1992 to prove that any lost copyright had been revived: the works were still protected under Dutch Copyright Law; any copyright lost in the US was because of failure to comply with US procedures (ie no copyright notice) and Escher was at all times a Dutch national entitled to the protection of the Berne Copyright Convention (because The Netherlands is a signatory, as is the US). Envoi
Thank goodness UK Copyright Law is more straightforward than in the US. We have no legal requirement that works have to carry a copyright notice or have to be registered in order to be protected against copyright infringements. In the UK, copyright is automatically acquired by the artist as soon as he or she makes a work. That said, it is sensible for the artist to endorse upon the work, preferably on its face, margin or bleed: ©; Year of making; initials or name (eg © 1997 Henry Lydiate). Such an endorsement or notice is required in any event for works to be protected outside the UK in countries which have also signed the Berne Copyright Convention (which includes most developed countries in the world).
The case also sets a precedent for European (including UK) artists and their heirs who understood their copyright work to have lost protection against infringement in the US through any previous failure to register or display a copyright notice there. Such 'lost' copyrights now appear to have been restored.
© Henry Lydiate 1997 | 法律 |
2016-50/4330/en_head.json.gz/12620 | Agreement reached in WTO on government procurement - Nortrade
Agreement reached in WTO on government procurement RSS From: regjeringen.no/International relations
Today, Norway and 40 other countries concluded negotiations on the revision of the WTO agreement on government procurement. Norwegian Foreign Minister Jonas Gahr Støre commented, “The result is a user-friendly, flexible agreement both for Norwegian suppliers and for government clients.”
The agreement is beneficial for Norwegian suppliers because it gives them greater opportunity to take part in government procurement processes in countries such as the US, Canada, South Korea and Japan. For example the US is now opening up the procurement of most of its telecommunication services to international competition. The new agreement also paves the way for the participation of new WTO members, which will also benefit the Norwegian business sector.
Under the agreement, which is voluntary for WTO members, companies in member countries may submit tenders in government procurement processes in other member countries. The parties have reached agreement on which public authorities and what types of procurement are to be included. All the parties are now opening up access to their markets. The agreement also includes improvements to the rules, creating greater openness, predictability and competition in government procurement processes. It will mean equal treatment of local, national and foreign suppliers. “Openness and transparency in government procurement is an important contribution to the fight against corruption. This is very important for Norway,” said Mr Støre.
The agreement does not address how a country’s public sector is to be organised. The question of whether, and to what extent, the public sector is to produce its own goods and services or purchase them from private sector suppliers will still be decided by each individual country. From : http://www.regjeringen.no/en/dep/ud/press/news/2011/wto_procurement.html?id=667112 | 法律 |
2016-50/4330/en_head.json.gz/12678 | Apple agrees to pay up to $400 million in e-books price-fixing case
Apple settles e-book antitrust dispute with U.S. states, consumer group
Apple loses e-book antitrust appeal
E-book buyers will soon get settlement payments from Apple price-fixing case
Apple has reached a settlement in a long-standing case that accused the company of fixing the price on ebooks, with the company paying up to $400 million, depending on the outcome of its appeal in the case, a law firm has announced.
Apple would pay the $400 million in the class-action lawsuit if its appeal of a 2013 court ruling that found the company guilty of antitrust violations is dismissed, said class-action law firm Hagens Berman Sobol Shapiro, which is representing ebook customers in 19 states and four U.S. territories.
If the U.S. Court of Appeals for the Second Circuit reverses and remands the case back to district court, the settlement agreement calls for Apple to pay consumers $50 million to settle their claims, the law firm said. The U.S. Department of Justice and several state attorneys general would be free to continue pressing their claims if that happens, the law firm said Wednesday.
If the court of appeals reverses the 2013 decision by the U.S. District Court for the Southern District of New York, Apple would pay no damages, the law firm said.
The law firm believes the appeals court will uphold the lower court’s decision, Steve Berman, managing partner of Hagens Berman, said in a statement.
Apple representatives didn’t immediately respond to a request for comment on the settlement.
The DOJ, in April 2012, filed an antitrust complaint accusing Apple and five book publishers of fixing the prices of ebooks.
Before this settlement, Hagens Berman and the state attorneys general have agreed to $166 million in settlements on behalf of consumers from the five publishing companies.
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2016-50/4330/en_head.json.gz/12718 | Monday, 22nd April 1996.
Prayers--Read by the Lord Bishop of Blackburn.
Law of Murder Review
Lord Ackner asked Her Majesty's Government:
What are the reasons for the Home Secretary's continuing delay in publishing the report of the review of the law of murder, announced on 24th January 1995, and his conclusions thereon.
The Minister of State, Home Office (Baroness Blatch): My Lords, this was always a sensitive and complex issue. However, my right honourable friend the Home Secretary announced the Government's conclusions on the review of the law of murder on 19th April when a copy of the report was placed in the Library. The Government are not persuaded that an adequate case has been made to change the law.
Lord Ackner: My Lords, I am grateful to the Minister for her Answer and also for her courtesy in sending me a copy of the report last Friday. It was the third time of asking and it demonstrated the validity of the proposition that perseverance doth keep honour bright.
I have two questions of the Minister, the first of which she will probably agree with but the second probably not. The first question is: does she agree that the essential question for the interdepartmental steering group was a short one; namely, where the accused overreacted and used excessive force to defend himself or prevent crime, but believed that such force was necessary and reasonable, he should be guilty of manslaughter and not murder, as recommended by the Criminal Law Revision Committee, the Law Commission and your Lordships' Select Committee and as supported by the Court of Appeal of Northern Ireland and your Lordships' Appellate Committee in the Clegg case?
The second question is: does the Minister agree that the Home Secretary rejected those recommendations for a wholly fallacious reason; namely, and I quote from the report,
"because the defendant could only",
and I emphasise the word "only",
"be convicted of manslaughter", thereby missing the entire point that in manslaughter the judge has the fullest discretion to sentence from life imprisonment down to conditional discharge?
Baroness Blatch: My Lords, as regards the second question, I certainly do not agree that my right honourable friend has been fallacious at all. As regards the first question, there were four specific questions before the review. The first was whether a person who 22 Apr 1996 : Column 892
used excessive force resulting in death in self-defence or the maintenance of law and order should be liable to a charge of murder, manslaughter or some other charge. All previous reports were taken into account in coming to a view about that. The second was whether any specific, complete or partial defences should be provided. The third was whether a new defence or offence should apply only to soldiers and police officers or more generally. The fourth was whether official guidance to soldiers and police officers on the use of firearms should have any status in law. My right honourable friend commissioned that review. The review body has reported and its considerations are before your Lordships.
Lord Campbell of Alloway: My Lords, may I ask a short and simple question? As this is a matter of considerable urgency and great importance, when may we expect a Bill?
Baroness Blatch: My Lords, it is a matter of some importance but not of great urgency because the recommendation is that there should be no change.
Lord McIntosh of Haringey: My Lords, the Minister will accept that this is not and should not be a party political issue. Perhaps I may concentrate on one of the issues with which the review was concerned, which is the question of whether there should be a separate law for the Armed Forces and the police? Will the Minister take it that we on these Benches strongly support the view that terrorism should be countered within the existing criminal law and that it would be wrong to have a separate law for the Armed Services and the police? Will she confirm that the Armed Forces and the police representatives would oppose such a change, as stated in the review?
Baroness Blatch: My Lords, I am happy to put on record that the noble Lord has been entirely consistent over this matter. There has been a considerable body of evidence to support the conclusion that there should be no distinction between uniformed personnel and ordinary civilians.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that many of us believe that the Government are extremely sensible not to become entangled in further amendments to the law on this somewhat controversial issue and believe that they are wise to leave things as they are?
Baroness Blatch: My Lords, I am grateful for my noble friend's comments. It is worth noting that the conclusion, albeit that it discussed a third option, was anything but unequivocal on the point. It said that it gave rise to considerable debate.
Lord Donaldson of Kingsbridge: My Lords, is the noble Baroness aware that many of us on these Benches have views exactly the opposite to those of the noble Lord, Lord Boyd-Carpenter?
Baroness Blatch: My Lords, we live in a democracy and everybody has a right to a view. Having read the 22 Apr 1996 : Column 893
report, I believe that it is painstaking in its consideration of these matters and that, on balance, the conclusion that it is not an easy subject, but rather a difficult and delicate one, is correct.
Lord Ackner: My Lords, does the noble Baroness agree that the decision in the report strengthens even further the case for the abolition of the statutory mandatory life sentence?
Baroness Blatch: My Lords, it depends how one reads the conclusions. The report says that it is difficult to make changes in that particular aspect of the law without regarding more fundamental issues. However, the report does not conclude that we should necessarily resort to a fundamental review.
Mr. Jason Mitchell: Inquiry Findings
2.44 p.m. Lord Harris of Greenwich asked Her Majesty's Government:
What action they propose to take following the inquiry into the case of Mr. Jason Mitchell, a paranoid schizophrenic, who murdered three people.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, this was a local inquiry set up by Suffolk Health Authority. I understand that the authority has agreed to invite the inquiry team back in six months' time to review progress in implementing the local recommendations.
Lord Harris of Greenwich: My Lords, I thank the noble Baroness for that reply. Is she aware of the very high level of public concern in relation to this question? There are a great many reports of cases of paranoid schizophrenics killing while released into the community. Is she aware that I know of nine such cases where people in that category have killed while in the community? Is she aware that many of us are concerned about the sheer repetition of such cases? I am sure that the noble Baroness will be the first to confirm the high level of public disquiet. One of the reasons for that concern is the acute shortage of community health nurses. Is she aware that only one out of every five schizophrenics in the community has a community health nurse? In that situation, is it sensible for the Government to propose closing 50 psychiatric hospitals in the next five years?
Baroness Cumberlege: My Lords, we are very much aware of the public disquiet. However, it is interesting to note that convictions for homicide under Section 2 of the Homicide Act 1957 and hospital orders imposed under the mental health Acts are no higher now than they were 20 years ago although of course in that time the total number of homicide convictions has increased substantially. However, we realise that there is 22 Apr 1996 : Column 894
enormous public disquiet. That is why we are undertaking a major programme to provide medium-secure beds and secure beds. Indeed, for those who do not require 24-hour nursing care, we appreciate what the noble Lord says about community psychiatric nurses. It is our intention to ensure that those numbers are increased.
Lord Strabolgi: My Lords, may I ask the noble Baroness when the report on the independent lay assessors is likely to be published? Those outside independent people seem able to overrule the professional opinions of psychiatrists and doctors in insisting on the release of dangerous mental patients, very often with disastrous consequences.
Baroness Cumberlege: My Lords, yes. The noble Lord is correct that we are at present assessing the role of lay members on the mental health review tribunals. At present, nearly all members have some involvement with mental health services in either a professional or a voluntary capacity. Sometimes that experience and knowledge are of extreme value. But we appreciate that there may need to be a review of the procedures of mental health review tribunals system and that is being undertaken at the moment.
Baroness Cox: My Lords, is my noble friend aware that I have served on a mental health tribunal and there was great anxiety about the availability of secure beds for potentially dangerous discharged patients? Will my noble friend assure the House that that shortage is being dealt with as a matter of real urgency? | 法律 |
2016-50/4330/en_head.json.gz/12962 | Supreme Court weighs arguments over 'Thank God for dead soldiers' funeral protest
Westboro Baptist Church says war deaths are punishment for U.S. immorality
SCOTUS weighs limits of free speech protection
Dylan Slagle
/ Carroll County Times
Isaiah Phelps-Roper, 17, and Rebekah Phelps-Davis, both of Topeka, Kan., protest the funeral of Marine Lance Cpl. Matthew A. Snyder at St. John Roman Catholic Church in Westminster, Md.
updated 10/6/2010 7:12:25 PM ET
Newsweek: Revisiting the Westboro Baptist Church
Newsweek: SCOTUS to hear church free speech case
Snyder is asking the court to reinstate the lower-court verdict's fine against the Westboro members who held signs outside the funeral of Lance Cpl. Matthew Snyder, including ones that read "Thank God for Dead Soldiers, "You're Going to Hell" and "God Hates the USA." The Marine was killed in a Humvee accident in 2006. The church also posted a poem on its website that attacked Snyder and his ex-wife for the way they brought up Matthew. Advertise
Westboro members, led by the Rev. Fred Phelps, have picketed many military funerals to make their point that U.S. deaths in Afghanistan and Iraq are punishment for Americans' immorality, including tolerance of homosexuality and abortion. The case pits the right of the father, Albert Snyder, to grieve privately against the church members' right to say what they want, no matter how offensive. The members of the small church welcome the attention the protests have brought, mocking their critics and vowing not to change their ways whatever the outcome at the Supreme Court. "No American should ever be required to apologize for following his or her conscience," said Margie Phelps, a daughter of Fred Phelps and the lawyer arguing the case for the church. Fundamentalist church members turned out in advance of the argument Wednesday morning to march in front of the Supreme Court building with placards of the type they have been carrying to military funerals. One young boy held up a sign that reads, "God Hates You." A line of people trying to get in to hear the court argument stretched around the corner of the high court, across the street from the U.S. Capitol. Art Lien
/ NBC News
Margie Phelps argues for the Westboro Baptist Church before the U.S. Supreme Court on Wednesday, Oct. 6, 2010, in Washington, D.C.
Snyder undertook the lawsuit after the Phelpses picketed the funeral of his son, Lance Cpl. Matthew Snyder, in March 2006. The Marine was killed in a Humvee accident. Snyder won an $11 million verdict against the church for intentional infliction of emotional distress, among other claims. A judge reduced the award to $5 million before the federal appeals court in Richmond, Virginia, threw out the verdict altogether, citing the church's free speech rights under the First Amendment. For Snyder, the case is not about free speech but harassment. "I had one chance to bury my son and it was taken from me," Snyder said. Forty-eight states, 42 U.S. senators and veterans groups have sided with Snyder, asking the court to shield funerals from the Phelpses "psychological terrorism." While distancing themselves from the church's message, media organizations, including The Associated Press, have called on the court to side with the Phelpses because of concerns that a victory for Snyder could erode free speech rights. The Associated Press contributed to this report. People.com
Video: SCOTUS weighs limits of free speech protection
Closed captioning of: SCOTUS weighs limits of free speech protection Advertise
good evening. the u.s. supreme court
sometimes deals in esoteric legal questions but not today. here's the case, a young marine is killed in iraq. at his funeral back home, protestors show up, saying "thank god for dead soldiers
." and worse. can you imagine being that marine's parents and imagine how that would make you feel? today, the court got this case. they're not being asked to decide if it was a terrible thing to do, it was. they have to decide if it was free speech
on the part of the protestors. it's where we begin tonight with pete williams
. pete, good evening.
>> reporter: this case has aroused strong passions, partly because of the setting, a military funeral
, and partly because of the hateful message and several of the justices seem to be offended by it, too. when a dream of serving in the u.s. marines
ended in iraq's al anbar province
, his family gathered for his funeral at this maryland church. but they had protestors with signs that said "thank god for dead soldiers
." fred phelps
shows up at military funerals to claim that because the nation tolerates gay rights
, u.s. war
deaths are god's punishment.
i pray that they kill more of them guys. these idiots are still talking about patriotism.
>> reporter: their message at the funeral outraged albert, who sued for emotional distress over the protest and a diatribe phelps
put on line saying schneider raised his son for the devil.
speaking of a father, their conduct was so extreme, it went beyond all possible bounds of decency.
>> reporter: but phelps
' daughter said that funerals are public events open to protests.
the mere fact that you call yourself having your feelings hurt over words is not enough to shut up speech.
>> reporter: but if she was expecting a ringing endorsement from the court, she didn't get it. justice ginsburg
called it exploiting a private family's grief. why should the first amendment tolerate that when there are so many other places to spread an anti-war message, like public buildings
or parks? the phelps
insist they keep their distance at funerals, but justice scalia
says that doesn't mean you can have a protest that defames the corpse. he asked, suppose someone walks up to a woman that has just been to the grave of her son killed in war --
you have one and only one opportunity to bury your child. and aiz civilized society, we shouldn't be forced to skip the funeral.
>> reporter: but free speech
advocates say without the idea to express ideas even offensive, it would suffer.
the public discourse
could become bland and there would be no meaningful exchange of ideas.
>> reporter: the court has recognized limits on free speech
like fighting words
or shouting fire in a crowded theater
. and the court seemed to at least willing consider it again this time. brian?
starting us off at the court tonight in | 法律 |
2016-50/4330/en_head.json.gz/13055 | Category: United States
Who is Oliver Wendell Holmes, Jr?
Oliver Wendell Holmes, Jr., served on the Supreme Court until the age of 90.
President Teddy Roosevelt came to regret nominating Oliver Wendell Holmes to the Supreme Court.
Oliver Wendell Holmes, Jr. is one of America’s best known judges to serve on the United States Supreme Court. Known for his sharp writing and speaking abilities and his rather impressive walrus mustache, Justice Oliver Wendell Holmes is widely referenced and quoted in discussions about American law. Often called “The Great Dissenter,” he is known for sometimes contradictory opinions that formed his own philosophy on law and legal proceedings.
Oliver Wendell Holmes, Jr., born in 1841 was the son of a well-known poet and philosopher. As a youth, Holmes was exposed to the best private education in Boston, and raised in a highly literary family. At Harvard, Holmes was disappointed with his education, and frequently wrote critical articles as editor of the Harvard Magazine. Though poised for a well-placed career, Homes chose to join the army after graduation, and served on the Union side of the Civil War. He fought in the bloody battles of Antietam and Fredericksburg. Perhaps his first famous quote comes from this era, when he reportedly shouted “Get down, you fool!” at President Lincoln, who was being an obvious target while visiting troops during the Battle of Fort Stevens. Oliver Wendell Holmes suffered three serious wounds and numerous illnesses, and completed his service in 1864. Ad
After the war, Holmes occupied himself with starting a family and attending Harvard Law School. He practiced law for nearly twenty years, and contributed to many prominent law journals. In 1881, he published his famous work, The Common Law, based on a series of lectures that he had given at universities. Shortly after its publication, Oliver Wendell Holmes was nominated to the Massachusetts State Supreme Court, where he served as a justice for twenty years. Under the advice of Massachusetts Senator Henry Cabot Lodge, President Theodore Roosevelt nominated Holmes to the United States Supreme Court in 1902, a decision he would later regret. Holmes had spent his career developing a clear theory about the importance and jurisdiction of federal law, and would often argue against Roosevelt’s proposals. He supported the formation of non-violent trade unions, and generally supported the practice and protection of free speech. Oliver Wendell Holmes is considered one of the biggest supporters of judicial restraint, or allowing the law to decide rather than basing rulings on the personal opinions of judges. Oliver Wendell Holmes, Jr. retired from the Supreme Court at age 90, in 1932. By the time of his death in 1935, Holmes had contributed much of the foundation of modern constitutional law in America. His extensive writings are considered some of the greatest legal texts of his time, and are widely studied and reproduced among the legal profession. Through his contributions as a lawyer, judge, and law theories, Oliver Wendell Homes, Jr. is considered a giant in the American practice of law. Ad
What Field Do Most Harvard Graduates Go into?
What is a Penumbra?
What Have Been the Most Important Supreme Court Cases?
What is the United States Supreme Court?
What is the US Attorney General? | 法律 |
2016-50/4330/en_head.json.gz/13146 | Sponsors & Advertisers Students Close Journals Higher Education You are here: Home Page > Law > Constitutional & Administrative Law > Achieving Democracy $95.00 Hardcover This item is out of stock. It can be ordered now for delivery when back in stock. Published: 03 February 2014 208 Pages 6-1/8 x 9-1/4 inches ISBN: 9780199965540 Also Available As: Ebook This title is available as an ebook. To purchase, visit your preferred ebook provider. Also Available In: Oxford Scholarship Online This book is available as part of Oxford Scholarship Online - view abstracts and keywords at book and chapter level. Bookseller Code (06) Connect with OUP Overview Description Table of Contents Author Information Reviews and Awards Close https://global.oup.com/academic/covers/pop-up/9780199965540 Achieving Democracy The Future of Progressive Regulation Sidney A. Shapiro and Joseph P. Tomain Provides a clear history of regulation to enable an understanding of the beneficial functions of government Provides a clear statement of principles to enable an understanding of the connections among philosophical pragmatism, progressive government, and democracy Makes a sustained philosophical argument for positive government by offering numerous political, economic, and regulatory examples Restores philosophical pragmatism as a basis for regulatory policy, and constructs a new model for future regulatory practice Achieving Democracy The Future of Progressive Regulation Sidney A. Shapiro and Joseph P. Tomain Description Democracy is the ability to participate freely and equally in the political and economic affairs of the country. Americans have relied on philosophical pragmatism and on the impulse of political progressivism to express those creedal democratic values. Achieving Democracy argues that, in the last 30 years, however, by focusing on free markets and small government, America has since lost its grasp on these crucial democratic values. Economically, the vast majority of Americans have been made worse off due to a historically unprecedented redistribution of wealth from the lower and middle classes to the top one percent. Politically, partisan gridlock has hampered efforts to seek fairer taxes, responsive and effective regulation, reliable health care, and better education, among other needs. Achieving Democracy critiques the history of the last 30 years of neoliberal government in the United States, and enables an understanding of the dynamic and changing nature of contemporary government and the future of the regulatory state. Sidney A. Shapiro and Joseph P. Tomain demonstrate how lessons from the past can be applied today to regain essential democratic losses within the successful framework of a progressive government to ultimately construct a good society for all citizens. Show more Achieving Democracy The Future of Progressive Regulation Sidney A. Shapiro and Joseph P. Tomain Table of Contents IntroductionPart I: Democracy, Progressivism, and PragmatismChapter 1: Pragmatism and Government RegulationChapter 2: History LessonsChapter 3: Public Ambivalence About GovernmentPart II: The Failure of NeoliberalismChapter 4: Government and MarketsChapter 5: Why Government FailsPart III: Pragmatic RegulationChapter 6: A Return to PragmatismChapter 7: Policy, Politics and InstitutionsPart IV: The Progressive Future of RegulationChapter 8: Let Government GovernIndex Achieving Democracy The Future of Progressive Regulation Sidney A. Shapiro and Joseph P. Tomain Author Information Sidney A. Shapiro is Professor of Law at Wake Forest University School of Law. Before beginning his teaching career, he served as an attorney with the Federal Trade Commission and the Department of Health, Education and Welfare. Professor Shapiro is a founding member and now Vice-President of the Center for Progressive Reform (CPR), a nonprofit research and educational organization of sixty scholars dedicated to protecting health, safety, and the environment through analysis and commentary. He has been a consultant to the Occupational Safety and Health Administration (OSHA) and the Administrative Conference of the United States (ACUS), and he has testified in Congress on regulatory policy and process issues. He is the co-author of The People's Agents and the Battle to Protect the American Public and co-author of Risk Regulation at Risk: Restoring a Pragmatic Approach. In addition, Professor Shapiro has published over 85 articles on regulatory policy and process topics, including a book on occupational safety and health law and policy.Joseph P. Tomain is Dean Emeritus and the Wilbert & Helen Ziegler Professor of Law at the University of Cincinnati College of Law. He has held positions as Visiting Environmental Scholar at Lewis & Clark Law School; a Distinguished Visiting Energy Professor at the Vermont Law School; a Visiting Scholar in the Program of Liberal Studies at the University of Notre Dame; a Visiting Fellow at the Harris Manchester College, Oxford University; and a Fulbright Senior Specialist in law in Cambodia. Dean Tomain serves on a number of civic organizations including Chair of the Board of the Knowledge Works Education Foundation; founder and principal of the Justice Institute for the Legal Profession; Board Member of the Greater Cincinnati Foundation. He has written extensively in the energy law field, and his publications include: Regulatory Law and Policy; Energy Law and Policy for the 21st Century; Nuclear Power Transformation, among others. He authored Creon's Ghost: Law, Justice, and the Humanities (Oxford University Press, 2009); Ending Dirty Energy Policy: Prelude to Climate Change. Achieving Democracy The Future of Progressive Regulation Sidney A. Shapiro and Joseph P. Tomain Reviews and Awards "Achieving Democracy is a richly textured and beautifully argued account of the pragmatic capacity of administrative government, emphasizing the importance of understanding that capacity, and why we have failed to understand it. This book provides a solid foundation upon which to construct a more intelligent and sophisticated conversation about the potential of the US administrative state and how we should comprehend the interrelationship between markets and government." -Dr. Liz Fisher, Reader in Environmental Law, Faculty of Law, University of Oxford "Achieving Democracy offers a sweeping portrait of and compelling brief for government regulation in the United States, from a philosophical, historical, political, economic, and ethical perspective. Shapiro and Tomain remind us that government regulation can be the friend of justice, liberty, and prosperity alike, and that the public ends of government are not adequately captured in the economic marketplace. Their call for a renewed and reshaped commitment to positive government could not come at a better time." -Lisa Heinzerling, Professor of Law, Georgetown University Law Center "In Achieving Democracy, Professors Shapiro and Tomain provide a powerful critique of laissez faire economic liberalism and pragmatic defense of government programs aimed at protecting the public from the perils of unconstrained markets." -Tom McGarity, Joe R. and Teresa Lozano Long Chair in Administrative Law, University of Texas School of Law "Our current situation of political disenchantment and deadlock is a potential teaching moment, and Shapiro and Tomain are just the teachers we need. Drawing on a remarkable range of thinking in philosophy, political science, and law, they advance a revised conception of democracy, and a revised administrative practice to accompany it. Achieving Democracy is a great introduction to the most adventurous recent thinking about politics." -William H. Simon, Arthur Levitt Professor of Law, Columbia Law School
Share: Also of Interest Achieving Democracy Sidney A. Shapiro and Joseph P. Tomain The Informal Constitution Abhinav Chandrachud The South Dakota State Constitution Patrick M. Garry Constitutional Dialogue in Common Law Asia Po Jen Yap Comparative Matters Ran Hirschl The Sovereignty of Law T.R.S. Allan Constitutional Courts and Deliberative Democracy Conrado Hubner Mendes The Democratic Constitution, 2nd Edition Second Edition Neal Devins and Louis Fisher The Oxford Handbook of the Indian Constitution Sujit Choudhry, Madhav Khosla, and Pratap Bhanu Mehta Rulemaking by the European Commission Carl Fredrik Bergstrom and Dominique Ritleng Constitutional Referendums Stephen Tierney Extra-Legal Power and Legitimacy Clement Fatovic and Benjamin A. Kleinerman Constitutional Courts and Deliberative Democracy Conrado Hubner Mendes Constitutional Fragments Gunther Teubner The Three Branches Christoph Moellers An Introduction to Contemporary International Law Third Edition Lung-chu Chen Related Categories Law > Constitutional & Administrative Law Law > Constitutional & Administrative Law > Government Powers Law > Constitutional & Administrative Law > Parliamentary & Legislative Practice Law > Law & Society About Us | 法律 |
2016-50/4330/en_head.json.gz/13209 | The Hillmon Case
The Hillmon Story
The Supreme Court Decision
The Hearsay Rule & the Hillmon Exception
State of Mind: The Hillmon Case, the McGuffin, and the Supreme Court
The Exhumation
The Karass
Forensic Results
Marianne Wesson
A DEATH AT CROOKED CREEK by Marianne Wesson
The Hearsay Rule and the Hillmon Exception
By Marianne Wesson
The hearsay rule is nearly as old as the law of evidence. Observed nearly everywhere in the United States and the U.K., the rule prohibits the use of statements made outside of court as evidence that the statements are true. Here’s how it works: suppose a party to a lawsuit wants to prove that the stop sign at Fourth and Main was obscured by a tree branch on June 3rd, 2004 . It would be perfectly proper for the party to call as a witness Carol, to testify under oath that she inspected the intersection on that date and saw that the stop sign was obscured by a tree branch. It would, however, violate the hearsay rule for the party to call as a witness Susan, to testify that she has never seen the intersection, but Carol told her that she examined it on June 3rd and noted that the stop sign was obscured by tree branches. In federal courts in the United States , the hearsay rule is found at FRE (Federal Rule of Evidence) 802. (Hearsay is defined in Rule 801.)
The hearsay rule is notorious, however, for its exceptions. For example, if in the suit about the stop sign, the defendant wants to introduce the plaintiff’s statement (generally known as an admission) that the sign was obscured by a tree branch on the pertinent day, this evidence is allowed, on the theory that a party’s own statements are admissible again him or her even if they are made out of court. (In the Federal Rules of Evidence, this exception is found at FRE 801(d)(2)(A).)
There are numerous other exceptions, most of them resting either on some variant of the admission exception or (the most numerous category) on the presumed trustworthiness or reliability of the out of court statement. For example, most dying declarations statements by persons who know or believe they are about to die, about the circumstances surrounding their death are admissible, on the theory that (as the Victorians put it) no man would meet his Maker with a lie upon his lips. (FRE 804(b)(2)). Statements against the interest of the person who made them (for example confessing to a crime, or admitting that the out-of-court declarant owed a debt or had injured someone) are often an exception to the hearsay rule, on the premise that a speaker would have no incentive to make a false statement so much to his or her disadvantage. (FRE 804(b)(3)). Most regularly kept business records are admissible despite their hearsay nature, because no business could long remain operational if its records were not kept accurately and truthfully. (FRE 803(6)).
But the exception that the Supreme Court invented in the Hillmon case an exception for statements, made out of court, that describe the speaker’s or writer’s intentions’ does not seem to me to qualify for this presumption of trustworthiness or reliability. On the contrary, in my opinion it is very easy to lie about one’s intentions– statements about the speaker’s intentions are not especially trustworthy, but rather particularly unreliable. Why then would the Court have invented a rule that has so little justification in logic or policy?
It has been my theory that the Court acted as it did in the Hillmon case because it felt a tremendous pressure to come up with a reason to make the famous letters, ostensibly from Frederick Adolph Walters to his sister and to his fiance, Alvina Kasten, admissible. The letters were undoubtedly hearsay they were written outside of court, and offered to prove that their contents (I expect to leave Wichita on March 5 with a certain Mr. Hillmon) truly represented the intentions of the writer. The suggestion put forth by the insurance companies that the letters were business records was rightly rejected out of hand by the Court. If they were to be admissible, then some new exception to the hearsay rule must be found. And I believe the Court wanted them to be admissible because it believed (as do most who read the Court’s opinion) that the letters proved that John Hillmon was still alive, and that he and his wife were seeking to defraud the insurance companies after having murdered Frederick Adolph Walters.
From this stew of mystery and indignation and (as I believe) mistake, the Court created a rule of evidence that is still with us today. In the Federal Rules of Evidence, it is (part of) Federal Rule 803(3). It makes admissible an out-of-court statement about the speaker’s or writer’s intentions, a rule that makes no sense except as an effort to stop Sallie Hillmon’s lawsuit from succeeding.
But what if the Court were wrong? What if it is after all John Hillmon who rests in the grave? What would this discovery mean for the law of evidence? | 法律 |
2016-50/4330/en_head.json.gz/13250 | Justices to Consider Whether Employees Of Contractors Have Whistleblower Protection
From Human Resources Report
Stay informed and ready to meet both everyday challenges and long-term planning and policy-making goals, with focused news, practical information, and strategic insights on all HR-related developments.
By Lawrence E. Dubé
The U.S. Supreme Court May 20 agreed to review whether the Sarbanes-Oxley Act provides whistleblower protection to employees who work for a publicly owned company's contractors or subcontractors, rather than for the public firm itself (Lawson v. FMR LLC, U.S., No. 12-3, cert. granted 5/20/13).
The U.S. Court of Appeals for the First Circuit held 2-1 that while SOX applied to publicly owned Fidelity mutual funds, the act did not provide the same protection to employees of an investment advisory firm that managed the funds ( 670 F.3d 61, 33 IER Cases 457 (1st Cir. 2012); 30 HRR 159, 2/13/12).
Former employees Jackie Hosang Lawson and Jonathan M. Zang filed a petition for high court review in June 2012. FMR LLC, the parent corporation of a group of companies that provided advisory services to the mutual funds, opposed the petition.
Solicitor General Donald B. Verrilli filed an amicus brief on behalf of the United States, also opposing the employees' petition. The solicitor general argued that while the First Circuit erred in its interpretation of Sarbanes-Oxley, Supreme Court review of the SOX issue would be premature and should await further “percolation” in the appellate courts.
SOX Protection Claimed Through Mutual Fund Link
According to the First Circuit decision, Lawson and Zang filed separate SOX whistleblower complaints with the Labor Department against their former employers, which provided investment advisory services to Fidelity mutual funds.
Lawson filed her lawsuit against FMR LLC and its subsidiary Fidelity Brokerage Services LLC doing business under the name Fidelity Investments. Zang named FMR LLC and another subsidiary, Fidelity Management & Research Co.
Lawson alleged she was harassed and ultimately forced to quit because she provided Fidelity managers with information on inappropriate expense reporting, retention of investment company fees, and methodologies for reporting or accounting for mutual fund expenses and operations. Zang contended he was fired for informing Fidelity management that disclosures that were being prepared for submission to the Securities and Exchange Commission did not accurately reflect the details of some fund managers' compensation.
The two former employees eventually filed a SOX action in the U.S. District Court for the District of Massachusetts. The trial court denied a motion to dismiss ( 724 F. Supp. 2d 141, 30 IER Cases 966 (D. Mass. 2010); 28 HRR 386, 4/12/10) and later decided to certify an immediate appeal of its order to the First Circuit (28 HRR 861, 8/9/10).
The appeals court 2-1 reversed the district court and directed it on remand to dismiss the whistleblower claims, concluding Section 806 of SOX does not cover the employees of private companies that contract with the defined public companies covered by the federal statute.
Conflict With ARB Ruling
In their petition for Supreme Court review, Lawson and Zang cited a conflict between the First Circuit decision and the DOL Administrative Review Board's decision in Spinner v. David Landau and Associates, DOL ARB, No. 10-111, 5/31/12 (30 HRR 637, 6/11/12).
In Spinner, Lawson and Zang wrote, a three-member panel of the administrative board found that SOX did protect employees of contractors and subcontractors of a public company.
Unless the conflict between ARB and the First Circuit is resolved, the employees argued, “[a]n employer will as a practical matter be subject to different standards depending on where an employee worked or resided at the time of the alleged retaliation, a difference that is particularly problematic because many of the affected firms are national employers.”
Opposing the petition for Supreme Court review, FMR argued “courts of appeals are in agreement that the text of Section 806 limits the private cause of action to employees of public companies.”
FMR wrote that “petitioners have not cited a single case in which this Court has granted certiorari to review a conflict between a court of appeals decision and a decision of an administrative tribunal like the ARB, and we are aware of none.”
Contending that extending SOX coverage to the employees of private contractors would expose businesses to a “particularly expensive and potentially destructive form of civil liability,” FMR urged the justices to deny the petition for Supreme Court review.
Buy Human Resources Report now | 法律 |
2016-50/4330/en_head.json.gz/13274 | CONSTITUTIONAL LAW; DRUNK DRIVING; TRAFFIC ACCIDENTS; DRUNK DRIVING; October 27, 2003
MANDATORY CHEMICAL TEST IN SERIOUS ACCIDENT CASES WHERE DWI SUSPECTED
Sandra Norman-Eady, Chief Attorney
You asked (1) if PA 03-265 requires drivers suspected of driving while intoxicated (DWI) who are involved in accidents resulting in serious injury or death to submit to chemical tests against their will, (2) for the legislative history of this provision, and (3) for the constitutionality of this law, including whether an arrest must precede testing and whether force may be used to obtain test samples.
Prior to October 1, 2003, the effective date of PA 03-265, the only requirement for mandatory testing in motor vehicle accident cases was the implied consent law, which required testing of anyone killed in a motor vehicle accident.
PA 03-265 expanded this law, requiring, rather than allowing, a blood or breath test to be conducted on a driver who survives an accident resulting in death or serious injury if the police have probable cause to believe the person was DWI.
The act requires that tests for fatally injured drivers or pedestrians and surviving operators, to the extent that the act authorizes testing, be capable of showing the presence of any drug as well as alcohol.
The act does not establish a standard for police when determining whether someone involved in an accident has been “seriously injured.
The mandatory testing provision in PA 03-265 was not debated in either the House or Senate.
In the Judiciary Committee public hearing on the underlying bill (HB 6698), four speakers testified in favor of the provision.
Representatives of the Connecticut Police Chiefs Association did not comment on the bill in their prepared testimony, however, they stated their support in response to questions posed by the House chair.
Other supporters were the attorney general, who stated that mandatory blood testing is vital to enforcement in accidents resulting in fatalities or serious injuries, and the parents of two people killed in motor vehicle accidents.
In responding to questions from them, the proponent of the bill stated that it was intended to mirror the law in Delaware, Florida, and New Hampshire, which permits police to forcefully obtain chemical samples from drivers who refuse to submit to such tests.
A law that requires accident survivors to submit to mandatory chemical testing raises two possible constitutional questions:
whether it violates a person’s right under the Fourth Amendment to be free of unreasonable searches and seizures and, if results of the test are offered as evidence in a subsequent prosecution, whether admitting the evidence violates Fifth Amendment protections against self-incrimination.
The law is well settled that it is not an unreasonable search within the meaning of the Fourth Amendment to the United States Constitution, as made enforceable against the states under the Due Process clause of the Fourteenth Amendment, for police to obtain a warrantless involuntary blood sample from a defendant believed to be DWI provided (1) there is probable cause to arrest the defendant for that offense, and (2) the blood is extracted in a reasonable manner by medical personnel pursuant to medically approved procedures.
The U.
Supreme Court has held that the Fifth Amendment is a bar against compelling communications or testimony, not compulsions that make a suspect or accused the source of real or physical evidence.
Thus, it has found that blood test results do not violate the Fifth Amendment.
Several states, like Colorado, Florida, Illinois, Maine, New Hampshire, South Carolina, South Dakota, and Texas, have laws like Connecticut’s that require police to have drivers who survive an accident resulting in death or serious injury submit to a chemical test if the police have probable cause to believe the person was driving under the influence of alcohol or drugs.
Some states have upheld these “involuntary” tests in cases where police used reasonable force to obtain blood samples.
Other states, like California, Hawaii, Idaho, Kansas, Louisiana, Nevada, New Mexico, and Washington, permit police to require these drivers to submit to chemical tests.
Courts in states with mandatory and permissive statutes have upheld their constitutionality and found test results admissible as evidence in subsequent prosecutions.
At least three state courts, Colorado, Maine, and Oregon have been asked to determine whether an arrest must precede mandatory testing in order to be permissible under the Fourth Amendment.
These courts decided that the tests are permissible based on probable cause and exigent circumstances (i.
, alcohol dissipates quickly in the blood).
MANDATORY TESTING LAW
Until October 1, 2003, the only mandatory testing law involving motor vehicle accidents applied to deceased victims.
As part of the investigation of any motor vehicle accident resulting in a death, this law required the chief medical examiner or other pathologist to order a blood sample taken from any deceased driver or pedestrian and examine it for the presence of alcohol.
During this same pre-October 1, 2003 period, the law permitted, to the extent allowed by law, a blood or breath sample to be taken from any surviving vehicle operator and tested for alcohol (CGS § 14-227c).
At that time (and still today), the implied consent law permitted a person to be tested after he was arrested for DWI, informed of his constitutional rights, provided a reasonable opportunity to telephone an attorney, and informed of the consequences if he failed to take or pass the test (CGS § 14-227b).
PA 03-265, AAC The Department of Motor Vehicles, Drunken Driving and the Licensing of Sixteen and Seventeen Year Old Motor Vehicle Operators, requires, rather than allows, a blood or breath test to be taken from any surviving operator when (1) an accident results in serious physical injury or death and (2) the police have probable cause to believe the operator was DWI.
A serious physical injury is one that creates a substantial risk of death or causes serious disfigurement, serious impairment of health, or serious loss or impairment of the function of a body organ.
(But the act does not establish a standard for determining serious physical injury.
) The act also requires that both tests examine for the presence of any drug, as well as alcohol.
(Since evidentiary breath tests cannot detect the presence of drugs, the act, in effect, requires blood tests of surviving operators.
Unlike the prior law that permitting testing, the act does not require the operator to be placed under arrest before he is required to submit to a test.
PA 03-265 became effective on October 1, 2003.
LEGISLATIVE HISTORY OF PA 03-265
The House and Senate both acted on the bill on June 4, 2003.
The House passed the bill (sHB 6698) after debating provisions, other than mandatory testing.
The Senate placed the bill on consent and passed it without debate.
Four speakers testified in support of the legislation at the Judiciary Committee’s public hearing on April 4, 2003.
The bill’s proponent, Senator Andrew Roraback, provided comments relevant to legislative intent.
In relevant part, he stated:
What the bill is intended to do is to have Connecticut mirror circumstances that they have in New Hampshire and Delaware and Florida where if someone refuses to have their blood taken or their breath analyzed, they’re going to be held down by the police and compelled to give of their blood or breath and I share your view that driving is not a right, it's a privilege.
And if you’re going to get a driver’s license, one of the things that you agree is, if you cause an accident that results in the death or serious bodily injury of another, you consent to have your blood taken or your breath analyzed.
The battle that will be fought in this process is some people take the position that it’s a violation of your Fifth Amendment Rights to compel you to give of your blood or breath, but I don’t think it’s a violation of your Fifth Amendment Rights because if you don't want to have a driver’s license, then you don't need to submit yourself to that exposure.
CONSTITUTIONALITY OF MANDATORY CHEMICAL TESTS
Fourth Amendment Analysis
Supreme Court has held that it is not an unreasonable search for police to obtain a warrantless involuntary blood sample from a defendant believed to be DWI provided (1) there is probable cause to arrest the defendant for that offense, and (2) the blood is extracted in a reasonable manner by medical personnel pursuant to medically approved procedures (Schmerber v.
California, 384 U.
757 (1966).
(The law is well settled that states are privileged under their state law to adopt higher, but not lower, standards for police conduct than those required by the Fourth Amendment (Cooper v.
58 (1967 (state constitutional provision on search and seizure);
Sibron v.
New York, 392 U.
40 (1968) (state statute)).
Schmerber was arrested for drunk driving while receiving treatment in a hospital for injuries he received when the car he was driving skidded across a road and hit a tree.
The arresting officer smelled liquor on Schmerber’s breath and noticed other indicia of intoxication.
During his treatment, a police officer ordered a doctor to take a blood sample, which confirmed that Schmerber was intoxicated.
The blood test was introduced as evidence in court and Schmerber was convicted.
At the time of Schmerber’s arrest, California law authorized police to make warrantless arrests when there was reasonable cause to believe that a felony was committed.
The Court found that the blood test was an appropriate search incident to arrest because of the fast rate at which alcohol in the blood begins to diminish.
The Court also found the particular test chosen to be appropriate and that the test was performed in a reasonable manner.
Must An Arrest Precede Test? In State v.
Baker, 502 A.
2d 489 (1985), the Maine Supreme Court interpreted Schmerber as sanctioning blood tests as a warrantless search based upon probable cause and exigent circumstances rather than as a search incident to arrest.
Based on this interpretation, the court upheld the constitutionality of a blood test that preceded a defendant’s arrest.
The Oregon Supreme Court held that, under the federal constitution, “an arrest…is not required prior to the warrantless extraction of blood for the purpose of determining blood alcohol content, so long as the extraction is based on probable cause sufficiently strong to have justified such an arrest.
” The Court concluded that the “evanescent nature of the evidence sought, not the existence or absence of an arrest…justifies [the test] (State v.
Milligan, 748 P.
2d 130 (1987)).
Lastly, the Colorado Supreme Court has upheld the constitutionally of an involuntary test where the police had probable cause to arrest.
The facts do not indicate whether the defendant was arrested for DWI, rather they are that the defendant was charged with vehicular homicide and assault more than one month after a blood sample was taken (People v.
Shepard, 906 P.
2d 607 (1995).
Use Force to Secure Blood Sample.
The Delaware Supreme Court has upheld the use of a stun gun as a reasonable step to secure a blood sample (McCann v.
State, 588 A.
2d 1100 (1991)).
In State v.
Lanier, 452 N.
2d 144 (1990, the South Dakota Supreme Court upheld the admissibility of a blood test when five or six officers restrained a DWI suspect while blood was being withdrawn.
Similarly, in Carleton v.
Superior Court, 170 Cal.
3d 1182 (1985), the California Appeals Court upheld the admission of chemical analysis results of a blood sample procured after six police officers restrained a DWI suspect with a carotid hold around his neck.
In all three cases the suspects had been aggressive, and the Courts ruled that under the totality of the circumstances, the force used was reasonable.
On the other hand, the New Jersey Supreme Court has found unreasonable force in a case where a defendant refused a blood test, expressing his fear of needles, and offered to take a breath test.
The Court found that the totality of the circumstances, the defendant’s fear, the relatively minor offense committed (accident with no injuries), and the fact that test results were not needed to make the state’s case, made the test and the force used by police to obtain the sample, unreasonable (State v.
Ravotto, 777 A.
Fifth Amendment Analysis
Supreme Court in Schmerber held that the Fifth Amendment privilege against self-incrimination protects an accused only from being compelled to testify against himself or otherwise provide the state with evidence of a testimonial or communicative nature.
The Court reasoned that blood tests, like fingerprints, do not require physiological responses and thus are neither testimony nor evidence relating to some communicative act or writing by the petitioner.
Courts in states that require or permit blood tests in DWI cases have allowed the test results to be admitted as evidence in subsequent criminal prosecutions if the Schmerber test for obtaining the chemical sample was met.
SN-E: | 法律 |
2016-50/4330/en_head.json.gz/13310 | Submit Search Federal Bureau of Investigation Pecos Father and Daughter Sentenced in Methamphetamine Conspiracy
Western District of Texas
Pecos Father and Daughter Sentenced in Methamphetamine Conspiracy
In Pecos today, a federal judge sentenced 56-year-old Jose Luis Corrales to 365 months and 28-year-old Angelica Corrales to 210 months in federal prison, announced Acting United States Attorney Richard L. Durbin, Jr., Homeland Security Investigations (HSI) Special Agent in Charge Waldemar Rodriguez and Pecos Chief of Police Clay D. McKinney.
Both defendants are from Pecos. In addition to the prison terms, visiting U.S. District Chief Judge of the Southern District of Mississippi Louis Guirola, Jr., ordered the defendants to serve a five-year term of supervised release upon completion of their prison terms.
According to court records, Jose Luis Corrales and Angelica Corrales pled guilty to one count of conspiracy to distribute methamphetamine, admitting that from October, 2013, continuing until August, 2014, the two distributed over 3000 grams of methamphetamine. Court records further reveal that Angelica Corrales admitted she sold at a minimum three grams of methamphetamine, supplied by her father, three times a day for a year.
This case was investigated by the Department of Homeland Security Investigations—Alpine and the Pecos Police Department with assistance from the United States Border Patrol, Department of Public Safety, the Texas Rangers, and the Federal Bureau of Investigation. Assistant United States Attorney James J. Miller, Jr., prosecuted this case on behalf of the Government. | 法律 |
2016-50/4330/en_head.json.gz/13336 | Home/ Technology/ Legal/Regulatory 53877
An appeals court overturns a $2.5 million patent judgment against e-retailer Newegg
The appeal stems from a 2010 U.S. District Court decision.
Online personal computer and consumer electronics retailer Newegg.com Inc. has won a victory in a patent infringement lawsuit, overturning a $2.5 million judgment against the e-retailer in a lower court.
The United States Court of Appeals for the Federal Circuit based in Washington, D.C., today overturned the judgement against Newegg, No. 13 in the 2012 Internet Retailer Top 500, in a lawsuit filed by Chicago-based Soverain Software LLC.
In April 2010 a jury and judge for the U.S. District Court for the Eastern District of Texas ordered Newegg to pay $2.5 million in damages to Soverain Software for violations of three of its patents that cover the underlying technology that e-retailers use to handle purchases and payments, as well as for their online shopping carts. Newegg appealed the decision in August 2010.
A split decision for Barnes & Noble in a patent lawsuit
The appeals court ruled today that Soverain Software’s claims weren’t valid because the company wasn’t able to answer the “question of obviousness,” legal jargon for saying that Soverian Software failed to prove in a clear-cut manner that Newegg had violated its patents.
Newegg legal counsel Lee Cheng says today’s decision could help two other retailers that Soverain has successfully sued, Avon Products Inc. (No. 37) and Victoria’s Secret, a part of Limited Brands (No. 19). In November 2011 a jury in a case filed in the U.S. District Court for the Eastern District of Texas ordered Avon and Victoria’s Secret to pay Soverain Software $18 million in fees for patent infringement violations. “Our appeals decision proofs the invalidity of their claims,” Cheng says.
Soverian Software has yet to comment on the court decision, including if it will file for an appeal. For his part, Newegg’s Cheng called the decision “vindicating.”
Newegg isn’t disclosing how much it spent on legal fees over two years working on an appeal. But Cheng says Newegg may try to recoup its legal fees from Soverain Software. “We are looking at all options,” he says.Newegg continues to use the courts to aggressively and successfully defend itself against patent infringement suits. In May 2012 Newegg also won a key patent infringement case against Kelora Systems LLC.
Kelora sued Newegg and others claiming infringement for patents related to “executing a guided parametric search” and a process for “identifying a single item in a family of items.” But in a 40-page ruling handed down by Judge Claudia Wilken in the U.S. District Court for the Northern District of California, the court declared that Newegg and other big web merchants weren’t infringing on Kelora’s patent. Wiken’s ruling dismissed Kelora’s patent infringement claim as invalid and ruled that defendants in the case may recover the costs of bringing the motion from Kelora.
Lee Cheng
Soverain Software
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Amazon will build a third warehouse in California | 法律 |
2016-50/4330/en_head.json.gz/13522 | Mad about reefer: City reviews pot policy following raid
By Chris Grygiel on October 29, 2010 at 5:31 PM
Following a controversial raid during which police busted down the door of Army veteran who uses marijuana for medical purposes, Mayor Mike McGinn said Friday the city would review how it deals with pot, which voters have told authorities to make the lowest possible law enforcement priority. “It’s not the policy, or the goal, of the city to investigate, arrest and prosecute individuals who possess small amounts of marijuana or…who are growing small amounts for medical use,” McGinn said Friday in response to a question during a news conference. “So we are working with the police department, and we will reach out to the City Attorney’s office, to address this at a policy level…I don’t want to say that we have specific, concrete steps to address this, because we don’t…but I expect we’re going to have further announcements on how we’re going to proceed in the near future.”
Medical Marijuana for sale in Calif. (Associated Press photo)
Earlier this month, Seattle police raided a Leschi residence for a suspected illegal marijuana grow. The found a man who uses medical marijuana to treat pain resulting from being hit by a car in 2005. (The Stranger spoke to the man).
No charges were filed. The ACLU complained police didn’t follow their own guidelines to address whether the person was a medical marijuana user and failed to do basic investigative steps.
Police say criminal drug grows can occur even in apartments, and point out a deputy prosecutor and a Superior Court judge agreed that they had probable cause to search for a criminal drug grow. The search warrant was approved Oct. 18, but court documents show no property was seized. Police have said they have met with with medical marijuana authorities to determine guidelines to differentiate criminals from medical marijuana patients.
In 2008, the state Health Department set a final rule defining a 60-day supply of medical marijuana at 24 ounces and up to 15 plants. Seattle voters in 2003 voters passed an initiative making the investigation, arrest and prosecution of marijuana offenses, when the drug was intended for adult personal use, the lowest law enforcement priority. Medical marijuana has been legal in Washington since 1998. Seattle City Attorney Pete Holmes has a policy of not filing charges for simple marijuana possession. chrisgrygiel View Comments Strange Bedfellows -- Politics News Search | 法律 |
2016-50/4330/en_head.json.gz/13811 | « Morning Wrap |
| 50 Years Later, Minow Reflects on 'Vast Wasteland' Speech »
Judge Accuses D.C. of Discovery Violation 'So Extreme As To Be Literally Unheard Of' In a scathing opinion (PDF) issued Monday, U.S. District Court Chief Judge Royce Lamberth accused the city and its attorneys of "repeated, flagrant, and unrepentant failures to comply with Court orders" in their handling of discovery in a six-year class action suit.
The case - brought over the city's alleged failure to make preschool special education programs accessible - was scheduled for trial on April 6. When the parties arrived, however, plaintiffs’ counsel informed Lamberth that the city’s attorneys were continuing to “dump” thousands of e-mails and planned to continue releasing them even after the trial was over.
Comparing the city’s behavior to “a standup comic who delivers the punch-lines of his jokes first” or “a plane with landing gear that deploys just after touchdown,” Lamberth wrote that “a discovery violation of this exotic magnitude is literally unheard of in this Court.”
At the time, Lamberth ordered (PDF) the city to turn over all e-mails within a week of the trial’s conclusion on April 7; the city had waived its right to review the e-mails for privilege, he ruled. The city asked him to reconsider, a request he denied in Monday's decision.
Ariel Waldman, senior counsel to the attorney general, declined to comment, citing the pending litigation. The lead counsel for the class, Bruce Terris of Washington’s Terris, Pravlik & Millian, said he thought Lamberth’s opinion was an “accurate” depiction of what’s been going on in the case. Terris said he saw the opinion as a warning to attorneys and clients who might fail to comply with discovery orders in the future.
“If [attorneys] knew that decisions like this were likely or even possible, they would lean on their clients something awful to make sure their clients complied with discovery rules,” he said.
Lamberth has yet to rule on the merits of the case since there are several post-trial motions still pending, including the city’s motion to decertify the class (PDF) and for relief (PDF) from Lamberth’s previous ruling granting the class partial summary judgment.
The case stems from allegations that city school officials failed to identify and provide special education programs to preschool students in need for years, in violation of the Individuals with Disabilities in Education Act (IDEA) and other federal and local statutes, according to the complaint (PDF). In October 2010, Lamberth granted the class summary judgment (PDF for the time period ending in 2007, finding that city school officials had violated the IDEA and Rehabilitation Act in failing to identify, reach out to, and efficiently handle referrals from families in need of preschool special education. A schedule was set for filing motions on relief, and also for proceeding to trial on the charges for the time period from 2007 through the present, Terris said. Lamberth noted in his opinion yesterday that he first “refereed” a discovery dispute in the case in 2008, when he criticized the city for failing to respond to requests for document production during the three years after the class first filed suit in 2005. The problems continued and came to a head on April 6, according to Lamberth, when plaintiffs’ counsel told the court that the city’s attorneys had indicated that they planned to continue submitting e-mails on a “rolling” basis throughout the trial. When Lamberth pressed the city’s attorneys for an explanation, he wrote, they responded that new searches had continued to yield thousands of e-mails, and that the city was too understaffed to review all of them before the case went to trial.
The bench trial went forward and concluded the next day. At that time, Lamberth ordered the city to produce all of the e-mails the plaintiffs had requested – the city’s attorneys had waived their right to a privilege review at that point, he wrote – within a week. The city asked Lamberth to reconsider, writing in its motion (PDF) that “the circumstances here simply do not meet the standard for imposing such a severe sanction.” The city’s attorneys also argued that they had acted in good faith, that allowing documents to come in after trial wouldn’t prejudice the other side and that the plaintiffs’ counsel had also engaged in “dilatory discovery.”
In his opinion, Lamberth wrote that he was keeping the sanction in place because “the Court felt that strong specific deterrence was particularly necessary in light of the District’s failure to get the message the first time.”
As for the city’s argument that it had tried in good faith to comply with discovery orders? Too little, too late, Lamberth wrote.
“The Rules … require adherence to a very precise framework for navigating the discovery process,” he wrote. “A good-faith effort to produce documents in the absence of adherence to Court orders and the Federal Rules is useless.”
National Law Journal photo by Diego M. Radzinschi.
Posted by Zoe Tillman on May 10, 2011 at 10:26 AM in Current Affairs, D.C. Courts and Government, Points of View , Politics and Government | Permalink
Immigration attorneys priodve counsel, legal assistance and representation to individuals who are faced with an issue related to processing of their documentation related to immigration. They also represent individuals in court who are facing deportation or when challenging a decision made by an immigration judge.They are also available for consultation related to immigration law and rules and how the changes to these laws and rules may affect their clients.Immigration attorneys also develop public policy related to immigration and are responsible for interpreting international law and how these law may affect policy under development.Hope this helps.
Houcine |
That accusation was something that has to be appealed to the Judge, I think they did absolutely the right thing and I was on their place I'd do the same. That was a very smart and moreover honest decision. I couldn't have expected any better from them. I first heard of this case on the internet radio and I can't deny I was extremely pleased to find this out.
Account Deleted |
“If [attorneys] knew that decisions like this were likely or even possible, they would lean on their clients something awful to make sure their clients complied with discovery rules.” Except that decisions like this are handed down by the fistful against the District of Columbia, and yet it's attorneys still continue to one-up each other's frauds and mistakes.
"Unheard of"? Not if this judge has been talking to his colleagues: try Barham v. Ramsay, which included all of the above behaviors, and added in deliberate destruction and editing of evidence. As far as I know, sanctions are still being considered there as well. Posted by:
ArlingtonAaron |
“If [attorneys] knew that decisions like this were likely or even possible, they would lean on their clients something awful to make sure their clients complied with discovery rules.” This quote amazed me about how clueless some attorneys are concerning discovery rules and the potential penalties that come with violating them. Hopefully this ruling will do its part in spreading the word that the FRCP's discovery rules must be followed or else parties will pay the consequences. Posted by:
Mike Hamilton (e-discovery beat) | | 法律 |
2016-50/4330/en_head.json.gz/13824 | Protect stream access
There is legislation under consideration that would undermine one of the most significant conservation programs in American history (see “Bill mires Mitchell Slough,” Feb. 10, 2011). House Bill 309 is a blatant attempt to “define” hundreds of miles of stream channels as irrigation ditches and deny us access to a natural resource Montanans nurtured for a half century. Exactly fifty years ago fish biologists identified three perils that threatened our rich heritage of rivers and streams: stream channelization, water pollution, and dewatering. Within two years the Montana Legislature passed the first stream preservation act in the nation designed to prevent meandering steam channels from becoming bulldozed flumes. The legislation was signed into law by a Republican governor whose conservative philosophy included conservation. Cleaning up the water and protecting the amount of water in streams followed. The challenges came in all sizes. In the 1970s, multinational corporations laid claim to the Yellowstone River as part of a potential coal bonanza. The claims would have depleted the longest free flowing river in the lower 48 states. The Legislature responded by placing a moratorium on industrial water permits and rewriting Montana water law with in-stream flow protection. The intellectual and political leadership came from a Glendive-area legislator whose livelihood was irrigated agriculture. Stream conservation challenges have been met all across Montana from fish passage up the Tongue River to proposals to dam the Yaak. They even included convincing British Columbia not to mine and drill their portion of the Flathead. In the process we became a place of legend. Our waters had magic in their names: the Big Blackfoot, Big Spring Creek, the Big Hole, Madison, Missouri. The list goes on. We labeled them “Blue Ribbon Streams.” How appropriate for the Last Best Place. Through it all, the Montana courts, and then the Legislature, defined the terms of our access to these waters: They were open to the people. There was to be no privatization of this public resource. Commercial fishing outfitters and individual anglers stood shoulder to shoulder in defense of this common resource and it has worked remarkably well for the last quarter century. The one exception to this success story occurred when an investment banker, a rock star, and a few others decided they needed to cut the public out. The fight was over access to a slough on the Bitterroot River where the locals had been tossing worms and flies at fish for generations. The people prevailed in preserving public access. The Montana Supreme Court ruled the slough was indeed a natural water body and not an irrigation ditch as these few landowners asserted. Those seeking exclusive privilege to water and fish then brought this bitter fruit from the Bitterroot to the 2011 Montana Legislature. The attempt to legislate restrictions on public access to Montana streams became HB 309. The bill pretends to have something to do with irrigation. It is really all about public access and there is the potential for a damaging outcome given today’s conservative anti-conservation political ideology. Once again, it is time for the people to stand and speak. On Mar. 8 there will be a rally at the Capitol at 2 p.m., before a meeting of the Senate Agriculture Committee at 3 p.m. Be there to make democracy work, and if you can’t come, contact your state senator and respectfully demand a “no” vote on HB 309.
Jim Posewitz | 法律 |
2016-50/4330/en_head.json.gz/13832 | CEO Harris to retire from Legal Aid Society
Longtime Legal Aid Society of Rochester New York Inc. chief Alan Harris plans to retire, officials said Tuesday.
“Alan has managed the Legal Aid Society with a steady hand and is poised to leave the agency on a sound financial footing and with a great reputation,” Chairman Jose Cruz said.
A 33-year veteran of the society, Harris has been the organization’s president and CEO since 1990. Slated to step down in November, he is to be succeeded by Carla Palumbo, Legal Aid Society chief operating officer.
Recently named the society’s COO, Palumbo has been with the Legal Aid Society for 29 years. She also has been a Rochester city councilwoman for five years and is a former Monroe County legislator.
A non-profit that traces its history to 19th century Rochester, the Legal Aid Society advises and represents area low-income residents in civil matters, including immigration, housing and family-law cases. It also represents minors involved in the juvenile justice system.
What You're Saying Jason Marks at 8:43:36 AM on 4/24/2014
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2016-50/4330/en_head.json.gz/13917 | | United States of America v. Howard Dennis Kelly
United States of America v. Howard Dennis Kelly
UNITED STATES OF AMERICA, PLAINTIFF,v.HOWARD DENNIS KELLY, DEFENDANT.
The opinion of the court was delivered by: David G. Larimer United States District Judge
Howard Dennis Kelly ("Kelly") was charged in a one count indictment with escape from a federal institutional facility (a halfway house in Rochester, New York). Kelly was convicted after a three-day jury trial and was sentenced by this Court principally to a term of 54 months imprisonment. Kelly filed a direct appeal and the Second Circuit Court of Appeals affirmed the conviction in a summary order, United States v. Kelly, 368 Fed. Appx. 194 (2d Cir.), cert. denied, ____U.S. ___ 131 S. Ct. 349 (2010).
Kelly then filed the instant motion, pro se, to vacate or set aside the judgment, pursuant to 28 U.S.C. § 2255. The Government responded to the motion (Dkt. #130). Thereafter, Kelly filed several lengthy documents (Dkt. #132, 138, 139, and 140), some entitled "Justice in the Balance" in which he rails against the Government attorney, and this Court.
After reviewing the motion and all the prolix materials submitted by Kelly, as well as the Government's response, I find no basis to grant the motion and, therefore, the motion is in all respects denied.
The criminal case against Kelly was a rather simple, uncomplicated one. Trial, including jury selection, closing arguments and proof took only three days. Kelly was serving a prior sentence and was allowed to transport himself from the Fort Dix Federal Correctional Institution to the halfway house in Rochester, New York. He left Fort Dix but never appeared at the Rochester, New York halfway house. He was eventually tracked down hiding at a campsite in the New Hampshire woods where he was found in possession of numerous false and fraudulent identification cards, documents and bank accounts.
The Government's evidence at trial was straightforward and very strong. There were live witnesses and documentary evidence indicating that Kelly was released and directed to appear at the halfway house. He signed documents acknowledging that requirement and there was a witness from Fort Dix who described personally advising Kelly of the requirements and witnessing Kelly's signature on the appropriate documents.
Kelly, on appeal, challenged the element of willfulness and the Court's charge on the matter, and the Second Circuit found no error and affirmed the conviction. In essence, Kelly challenged the sufficiency of the evidence and the Second Circuit rejected that.
As the Government notes, Kelly has submitted a 119 page pro se motion, not to mention the numerous papers referenced above that Kelly filed subsequent to the Government's response. Like the Government, this Court has some difficulty deciphering precisely what Kelly's claims are but does not disagree with the Government's analysis that Kelly asserts misconduct on the part of the Government prosecutor and this Court. In addition, Kelly claims his several defense counsel and appellate counsel provided ineffective assistance and, finally, Kelly claims that he is actually innocent of the charge of escape.
Dealing with the actual innocence claim, even if such is cognizable on a § 2255 motion, the claim lacks merit here. Even a cursory review of the trial record indicates that the Government presented evidence from which a juror could find guilt beyond a reasonable doubt. The charge was straightforward and simple and the proof was very strong. Kelly has failed to present any new reliable evidence of his so-called actual innocence. The trial jury's verdict and the Second Circuit's affirmance of the verdict and judgment warrants rejecting out of hand this aspect of Kelly's motion.
The numerous claims of judicial and prosecutorial misconduct were advanced by Kelly as part of his direct appeal of the conviction. On appeal, Kelly submitted a 45 page pro se supplemental brief together with a 52 page memorandum with exhibits. A § 2255 motion is not a vehicle to relitigate matters previously raised and rejected on direct appeal. Kelly's rambling diatribe against all the participants in his criminal trial deserve little consideration here; the Second Circuit found that none of his claims had merit. The claims lack merit and are supported by nothing in the record.
Kelly's claim that his counsel provided ineffective assistance of counsel is belied by the record. Kelly fails to meet the stringent standard for proving such claims as established by the United States Supreme Court in Strickand v. Washington, 466 U.S. 668 (1984). Kelly must establish that counsel's performance was deficient and that it was prejudicial to his case. Defendant must prove both prongs of this test and there is a strong presumption that defense counsel's conduct fell within the broad spectrum of reasonable professional assistance. Disagreements about trial strategy, etc., do not form the basis for a claim of ineffective assistance of counsel.
In his motion, Kelly lists scores of items he claims constituted ineffective assistance. It is hard to keep track, but it appears there were well over 100 instances. As an aside, it seems difficult to imagine that there could be that many deficiencies in a trial that lasted little more than three days.
The Government sets forth in its response, p. 12-14, a recitation of defense counsel's activities on Kelly's behalf. Kelly's second guessing and conclusory statements provide no basis for a legitimate ineffective assistance of counsel claim.
In addition, as the Government notes in its response, it is virtually impossible for Kelly to demonstrate prejudice in light of the exceptionally strong and forceful nature of the Government's case.
The motion of Howard Dennis Kelly to vacate the sentence and judgment pursuant to 28 U.S.C. § 2255 is in all respects denied.
The defendant's motion to amend (Dkt. #139) is granted. Defendant's motion (Dkt. #132) pursuant to 18 U.S.C. § 3332 is denied.
I deny a certificate of appealability because Kelly has failed to make a substantial showing of a constitutional violation. | 法律 |
2016-50/4330/en_head.json.gz/13925 | 332 U.S. 145 - Gayes v. State of New York Homethe United States Reports332 U.S.
332 US 145 Gayes v. State of New York 332 U.S. 145
91 L.Ed. 1962
GAYESv.STATE OF NEW YORK.
Rehearing Denied Oct. 13, 1947. See 68 S.Ct. 27.
Mr. Herbert Wechsler, of New York City, for petitioner.
Mr. Harry L. Rosenthal, of Rochester, N.Y., for respondent.
Mr. Justice FRANKFURTER announced the judgment of the Court in an opinion in which the CHIEF JUSTICE, Mr. Justice REED and Mr. Justice JACKSON join.
This is another case in which release is sought from confinement under a sentence by a State court following a plea of guilty, on a claim of a denial of due process of law through want of benefit of counsel.
The circumstances are these. On July 15, 1938, Gayes, then a lad of 16, was arraigned in the County Court of Monroe County, New York, upon an indictment charging burglary in the third degree and petty larceny. According to the record of conviction, he was asked, in accordance with the requirement of § 308 of the New York Code of Criminal Procedure, whether 'he desired the aid of counsel,' and he answered 'No.'1 Imposition of sentence was postponed to July 28. When on that day Gayes appeared for judgment, he was asked, again according to the requirements of New York law, whether 'he had any legal cause to show, why judgment should not be pronounced against him.' New York Code of Criminal Procedure, § 480. And 'No sufficient cause appearing,' the record continues, Gayes was committed to a New York State Vocational School to be dealt with there according to law. It appears from the facts before us that Gayes did not stay at this correctional institution as long as New York law would have authorized his detention. See New York Penal Law, Consol.Laws, c. 40, §§ 2184—a and 2189, in connection with § 407. For on October 14, 1941, he pleaded guilty, in the County Court of Schenectady, New York, to a new charge of burglary in the third degree. The record of this latter proceeding does not indicate whether this time he was or was not represented by counsel. But no claim is made that this plea of guilty, or the sentence under it, has any infirmity Penal Law, Consol.Laws, c. 40, §§ 2184-a is that he was sentenced as a second offender by the inclusion of the improper sentence to the vocational school in 1938.
In accordance with New York procedure, Gayes, pro se, filed in the County Court of Monroe County, New York, an application to vacate the judgment rendered against him in that court on July 28, 1938. He claimed that in the proceedings which led to that judgment he had not been informed of his 'Constitutional Rights of Assistance of Counsel,' that he 'could not have understood his rights to Counsel' and that 'youths of the age of 16 years cannot Intelligently and Competently waive their rights.' Since, according to this claim, the first sentence was void, he challenged the validity of the sentence in 1941 because the length of the second sentence was partly based upon the 1938 conviction.
Upon this record, the county court denied the motion without opinion. As New York law then stood, no review could there be had of this determination. See People v. Gersewitz, 294 N.Y. 163, 61 N.E.2d 427. This made the county court the highest court of the State of New York for purposes of our review. Canizio v. New York, 327 U.S. 82, 85, 66 S.Ct. 452, 453, 90 L.Ed. 545. But see Chapter 706 of the New York Laws of 1947, amending Code Cr.Proc. § 517. We brought the case here, 329 U.S. 710, 67 S.Ct. 365, as one of a series, for further consideration of the circumstances under which the requirements of due process imply a duty to supply counsel to defendants in State prosecutions.
The guiding principles bearing on the general problem have been set forth in the opinion in Foster v. Illinois, 332 U.S. 134, 67 S.Ct. 1716, just decided. Insofar as the facts of this case present a particular variant, they are controlled by our decision in Canizio v. New York, supra. We there held that whatever doubts may arise from the circumstances of a plea of guilty, if, before sentence is imposed, the opportunities required by the Constitution for meeting the legal implications of the plea are satisfied, the sentence must stand. And so, the questions that may be raised regarding the circumstances attending the imposition of Gayes' commitment to the vocational institution in 1938 are not now open. Gayes is complaining of his sentence following his plea of guilty in 1941.2 What he wants is to be relieved of his imprisonment under that sentence. That sentence, to be sure, partly took into account his earlier sentence in 1938. But upon his subsequent sentence, as a second offender, in 1941, he had full opportunity, so far as appears, to contest whatever infirmity he may have claimed in the earlier sentence when the fact of that sentence was included in the sentence which he is now serving.3 Since the process leading up to the second sentence is not challenged he cannot now, so far as the United States Constitution is concerned, by a flank attack, challenge the sentence of 1938.
Mr. Justice BURTON concurs in the result.
Mr. Justice RUTLEDGE, with whom Mr. Justice BLACK, Mr. Justice DOUGLAS, and Mr. Justice MURPHY concur, dissenting.
A 16 year old boy, indigent and alone, without relatives, friends, money or counsel to aid him and, according to the undenied allegations of the petition, without knowledge of his constitutional rights,1 pleaded guilty in 1938, under an indictment specifying two highly technical and distinct charges,2 to the crime of burglary in the third degree.3 The property he was charged with intending to steal4 consisted of cigarettes of the value of 75 cents, two flashlights worth $1.00, and $3.00 in currency. The sentence imposed on that plea has been served.5 He is now confined as a second offender under sentence for another offense of similar character imposed in 1941,6 when he was 19 and also without relatives, friends or counsel so far as appears.7
One part of the opinion announced in this case, as I understand, takes the view that because Gayes did not attack the 1938 sentence in 1941, when he was sentenced as a second offender, he is forever foreclosed from doing so on the facts and issues presented on this record, although as a second offender he is now suffering the consequences of the 1938 sentence.8 For this conclusion reliance is placed upon no New York authorities; indeed, as I read the state cases, the Court's decision is made in the face of their rulings that the procedure petitioner has followed is the appropriate one for raising the issues he presents.9
I am unwilling to subscribe to such a doctrine of forfeitures concerning constitutional rights, which in the extreme circumstances of this case seems to me shocking.
Under all of the New York decisions which have passed upon the question,10 the proper and apparently the necessary procedure, see People v. Keller, Gen.Sess.N.Y. County, 37 N.Y.S.2d 61, 62, for attacking a sentence as second offender, upon the ground that the former conviction was invalid, is first by motion in the court imposing the initial sentence to vacate it, after which if the motion is successful the sentence for the second offense may be attacked and vacated.11 In other words, the second offender, situated as is petitioner, must first overturn his first conviction in the court where it was obtained, before he can attack the second sentence founded in part upon that conviction.
This procedure in my opinion is a reasonable one within the power of a state to require, at least where both offenses have taken place within its jurisdiction. And I know of no reason why this Court should disregard or override it. Much less is it within our province to invert the state procedure, if that is the effect of the dubious suggestion that petitioner's rights perhaps may be saved upon some other record 'that discloses circumstances other than those before us,' presumably if at all by motion before the court which imposed the 1941 sentence to vacate it.12
No state decisions are cited or, it would seem in view of the contrary authorities cited above,13 can be cited to support such a view. Nor is it required by anything said or done in Canizio v. New York, 327 U.S. 82, 66 S.Ct. 452, 90 L.Ed. 545, if indeed such a matter could ever be within our function. The Canizio decision has no relevance to this case, either for prescribing the state procedure or for the constitutional issue. It held only that where a defendant had counsel at the time of his sentence and could then have moved to withdraw his prior plea of guilty, he was not prejudiced by the convicting court's previous failure to inform him of his right to counsel.
That case had nothing to do with the state procedure open to one convicted as a second offender for challenging his sentence on the ground that the first conviction was invalid for federal constitutional reasons. And the facts, on the merits, were very different from those presented here. Whereas, among other things, in that case the petitioner did have counsel before his sentence was imposed, here not only was Gayes denied counsel altogether in the first trial, but so far as the record discloses he had none in the trial for the second offense. I do not think the Canizio decision can be held to cover such a wholly different situation as this. It did not rule that, if a convicted person has never had counsel, the fact that in a later proceeding he conceivably might have had such aid if he had applied for it cures the denial, more particularly when so far as appears he was treated no better during his trial for the second offense than during the first, and when moreover his present attack is made as a preliminary one required by state law to showing the second sentence invalid.
In my judgment it is for the state, not this Court, to say whether the attack upon the first sentence as increasing the second shall be made on the flank or frontally, or perchance in either way. Indeed, under the law of New York, which is controlling on us, the so-called 'flank' attack is apparently the only one now open to petitioner. In the face of so clear a violation of constitutional right as this case presents, we should neither foreclose that avenue nor substitute for it another dubiously available one of our own manufacture.
The judgment should be reversed.
Subsequent to the proceedings before the County Court of Monroe now under review, the minutes of the original proceedings against Gayes came to light. By stipulation of counsel these minutes are here. According to them, the precise question put to Gayes by the Assistant District Attorney in the presence of the Judge was, 'Do you need a lawyer before you enter a plea of guilty or not guilty to this indictment?' To which Gayes replied, 'No, sir.' It may be inconclusively debated whether if Gayes was asked 'if he desired the aid of counsel,' as stated in the entry in the record of conviction, he was better informed of his rights, than if he was asked, 'Do you need a lawyer?' In view of our disposition, the difference in significance becomes immaterial, and it is also immaterial whether, if there were a difference, we could consider, even in a case involving belated release from State detention, a matter not before the court whose judgment is here for review. But the differences that may exist between formal entry in the minutes of an acceptance of a plea and what was actually said contemporaneously lends foce to the caution frequently expressed that every intendment must be made in support of the due observance of law in the rendering of judgments which are collaterally attacked, often after a considerable passage of time.
Gayes is detained under the 1941 sentence imposed by the County Court of Schenectady. A motion attacking that sentence would, under New York law, have to be made in that court. What he is asking is the invalidation of the prior sentence, underlying as it were the Schenectady sentence, presumably as a first step in getting relief from detention under the latter sentence. We are treating this proceeding, for our purposes, as one seeking, in effect, relief from the 1941 sentence without regard to formal distinctions which might otherwise be relevant.
According to the State, Gayes could have raised the claim he now makes against the 1938 conviction at the time he was sentenced in 1941, and from a denial of relief could have appealed to the higher courts. This was not contradicted by the petitioner and is not brought into question in any opinion of the higher courts of New York. It has been ruled in courts of very limited authority that a second offender cannot apply for resentenceon a claim that there was a defect in the first sentence imposed by another court. See People v. Keller, 37 N.Y.S.2d 61 (Gen.Sess.N.Y.County), and People v. Paterno, 182 Misc. 491, 50 N.Y.S.2d 713 (Chatauqua County Court). Neither case, however, presented the claim that a violation of the United States Constitution vitiated the first sentence, and neither case raised the power of the court at the time of sentencing to consider such a claim. It is certainly within the power of a duly advised defendant, before pleading guilty as a second offender, to raise the constitutional invalidity of the first sentence so as to secure opportunity appropriately to challenge such invalidity. Nothing that is herein decided precludes petitioner from raising a denial of his constitutional right upon a record that discloses circumstances other than those before us. An order on such a motion is now reviewable by the New York Supreme Court and in certain instances by the New York Court of Appeals.
No answer was filed to the petition and the trial court determined the issues on the pleadings without hearing or appearance of petitioner in court, in person or by counsel. The allegation of petitioner that when asked whether he 'desired counsel,' he answered 'no' in the belief that he would have to pay the lawyer's fee, and was not informed to the contrary is, of course, to be taken as true in the absence of denial and of contrary evidence which might have been tendered on a hearing.
The first count charged that petitioner 'broke and entered the building and garage of Francis Marolow * * * with intent to commit therein the crime of larceny'; the second count charged petit larceny of the property described in the text above.
The sentence was to confinement in the New York State Vocational Institute, which when imposed for an unspecified term under New York Penal Law, § 2184-a carried a maximum of 10 years, which is the maximum for burglary in the third degree as a first offense. N.Y.Penal Law, § 407(3).
Under the second count, for petit larceny or theft, being also presumably the property with respect to which it was charged in the first count that petitioner broke and entered with intent to commit larceny.
Petitioner was held under the first sentence, see note 3, until December 14, 1943, when the New York Board of Parole directed that service of the sentence as second offender begin. The date of termination of the latter sentence, see note 6, was correspondingly postponed.
The sentence of 10 to 20 years as second offender is mandatory. N.Y.Penal Law § 1941. Had petitioner been sentenced in 1941 as a first rather than a second offender, the maximum sentence allowed would have been 5 to 10 years, N.Y.Penal Law, §§ 2189, 407, and he might have been sent to a reformatory rather than prison. N.Y.Penal Law § 2185.
The 'Record of Conviction' in the trial for the second offense, contained in the record here, discloses that petitioner, having been charged and arraigned, first pleaded not guilty, then ithdrew th at plea and entered one of guilty. It is then recited that petitioner appeared for judgment and, 'having been asked by the clerk whether he had any legal cause to show why judgment should not be pronounced against him, and no legal cause having been shown' or appearing to the court, judgment and sentence were thereupon pronounced. There is no recital that petitioner was represented by counsel, was informed of his rights in any manner, or admonished of the consequences of his plea.
See notes 3, 5, 6 supra. See also note 12 infra and text.
See note 11 infra.
In the absence of determination by a state's highest tribunal the rule announced and applied by other state courts is to be taken by us as determining questions of state law. Cf. West v. A.T. & T. Co., 311 U.S. 223, 61 S.Ct. 179, 85 L.Ed. 139, 132 A.L.R. 956.
If the 1938 conviction is held void, under state law petitioner then may move to vacate the 1941 sentence in the court which imposed it, and for resentencing according to state law. See People ex rel. Sloane v. Lawes, 255 N.Y. 112, 174 N.E. 80; People ex rel. Carollo v. Brophy, 294 N.Y. 540, 63 N.E.2d 95; People v. Keller, Gen.Sess.N.Y.County, 37 N.Y.S.2d 61. And the proper forum for attacking the 1938 conviction, as a preliminary to attack on that of 1941, is the one where the former was obtained, by the motion to vacate which petitioner has employed. People v. Bernoff, Misc., 61 N.Y.S.2d 46; People v. Foster, 182 Misc. 73, 42 N.Y.S.2d 831; People v. Paterno, 187 Misc. 56, 60 N.Y.S.2d 813, with which compare People v. Paterno, 182 Misc. 491, 50 N.Y.S.2d 713; cf. People v. Gersewitz, 294 N.Y. 163, 167, 61 N.E.2d 427, 428, 429; People v. Keller, supra, Gen. Sess.N.Y.County, 37 N.Y.S.2d 61 at page 63.
The opinion announced in conjunction with the Court's judgment seems to suggest that the decisions establishing the state procedure followed in this case are not controlling for our disposition, on what basis I am unable to understand, see note 10 supra, unless upon the untenable one that state rulings upon criminal procedures and the proper forum for utilizing them are not binding for federal determinations to the same extent as are such rulings in civil matters.
Only upon some such basis is the dubious suggestion justified that petitioner should have raised the question of the validity of his first sentence at the time of his sentencing as a second offender and in that forum. Not only is this contrary to the established state procedure, see note 11, but it is expressly qualified by the further suggestion that petitioner's rights may possibly be saved 'upon a record that discloses circumstances other than those before us,' and it seems to be contradicted by the further statement that 'the questions that may be raised regarding the circumstances attending the imposition of Gayes' commitment * * * in 1938 are not now open.' It is pertinent to inquire whether Gayes is to have another chance, through a local procedure prescribed by this Court alone, or whether the constitutional questions now presented are foreclosed by his failure to follow a procedure not prescribed or, so far as appears, permitted by the state.
See note 11. | 法律 |
2016-50/4330/en_head.json.gz/13978 | I put Middle Earth Journal in hiatus in May of 2008 and moved to Newshoggers.I temporarily reopened Middle Earth Journal when Newshoggers shut it's doors but I was invited to Participate at The Moderate Voice so Middle Earth Journal is once again in hiatus. Sunday, January 21, 2007
The Wheels of Injustice
According to media reports the Pentagon has finalized new rules for deciding the fates of detainees at Guantanamo and other places and is moving ahead with reviewing procedures, and conducting rehearsals so hearings can be done "correctly".The hearings will evaluate whether the detainees can be classified as "enemy combatants" a designation that allows them to be held indefinitely and prevents them from challenging their detention in the U.S. court system.Combatant Status Review Tribunals were held for 558 detainees between July 2004 and January 2005. All but 38 were pronounced "enemy combatants".These rules and procedures and rehearsals are formal and ceremonial window dressing for what amounts to, in my opinion, a kangaroo court, a drum head courts martial, and one more level of violation Bush/Cheney/Gonzales/Rice have brought on our Constitution and our tradition of fair play and human rights.Defense attorneys have condemned the hearings as shams because classified evidence is withheld from the detainees, and they are not afforded defense lawyers.The problem with evidence that is kept classified are the questions is it substantive? Is it garbage? Or does it even exist in the first place?Colonel Dwight Sullivan Chief Defense Council (USMC Res.) has been quoted as saying, "the rules appear carefully crafted to ensure that an accused can be convicted--and possibly executed--based on nothing but coerced evidence. ""The rules would allow an accused to be executed based on nothing but hearsay." (statement before the Senate Armed Services Committee 8-2-06)Martin Pinales president , National Association of Criminal Defense Lawyers has said, "hearsay, double hearsay, and coerced confessions are all admissible, including statements extracted from witnesses by torture."Col. Sullivan goes on to say, "the prosecution can base its entire case on hearsay without calling witnesses, but if the defendant offers his own hearsay statement without taking the stand, the judge must tell the members, essentially, that the evidence isn't believable."It gets worse, and even less honorable in that the rules do not protect against unreasonable searches and seizures--even searches that could intrude into a person's body. Under the manual of rules a defendant can have his body cavities forcibly searched without his consent, and any evidence derived thereof may be admitted against him. A defendant could be subjected to surgery in an effort to obtain something the prosecution wants to see. A defendant has no right to object to such a search under these rules and the authorities don't even need to obtain a search warrant from a judge.Jumana Musa, Advocacy Director for Domestic Human Rights and International Justice, Amnesty International USA points out:"Civilians picked up far from any battlefield still may be tried in a military system of justice, and defendants can be convicted on evidence obtained through coercion or cruel, inhuman and degrading treatment that would be inadmissible in any other U.S. judicial forum. The commissions are not bound by any precedent or case law, making mounting an effective defense extremely difficult."Nan Aron, president, Alliance for Justice points out, "these rules permit death penalty verdicts against detainees who have confessed under torture and coercive interrogation."The U.S. Army Field Manual FM 34-52 used to say, "Experience indicates that the use of prohibited techniques is not necessary to gain the cooperation of interrogation sources. Use of torture and other illegal methods is a poor technique that yields unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the interrogator wants to hear." (Donald Rumsfeld had that paragraph and others removed and replaced with verbiage that remains classified.)Elisa Massimino, Washington director, Human Rights First sums it up best: "no civilized nation permits convictions to rest on coerced evidence, and reliance on such evidence has never been acceptable in military or civilian courts in this country. There's a good reason why such tainted evidence is not allowed. It is inherently unreliable, and permitting its use debases the military justice system and dangerously undermines the prohibition on torture and abusive treatment. The fact the military commission rules allow such evidence to be used calls the legitimacy of the entire system into question."I am in full agreement with the interpretations of Ms. Massimino, Nan Aron, Jumana Musa, Martin Pinales, and Colonel Sullivan.Coercion, torture, hearsay, double hearsay, no witnesses required, cruel, inhuman, degrading, debasement, the deliberate use of interrogation techniques that experience indicates are the least efficient, and least reliable to the exclusion of everything else.And lets not forget the 38 detainees who were determined not to be terrorists. My newspaper reading over the past few years tells me the Bush administration still wants those people sentenced to life in prison.Bush/Cheney/Gonzales/Rice are a small intellectually incestuous, culturally isolated group of people who are not representative of either the character or intent of the American people.They are the wrong people in the wrong jobs at the wrong time. | 法律 |
2016-50/4330/en_head.json.gz/14039 | (http://thecrimereport.org/2004/05/17/iraq-prison-planner-was-controversial-tx-official/)
Iraq Prison Planner Was Controversial Tx. Official
By | May 17, 2004
Lane McCotter, who helped set up Iraq’s Abu Ghraib prison for U.S. military use headed the Texas prison system during one of its most controversial periods and later resigned as director of Utah prisons after an inmate died while shackled naked to a chair, says the Houston Chronicle. McCotter, now director of business development for a private prison company, Management & Training Corp., says he never trained U.S. military personnel working in Iraq’s prisons and turned over the management of Abu Ghraib to military officials before the U.S. began housing prisoners there. Sen. Charles Schumer, D-New York, wants Attorney General John Ashcroft to investigate how people like McCotter were chosen to oversee the opening of prisons in Iraq. Schumer noted that McCotter is an executive for a company operating a private prison in New Mexico that the Justice Department criticized last year for unsafe conditions and lack of medical care for inmates. McCotter left Iraq in early September; the first documented abuses in Abu Ghraib prison occurred in October. McCotter said he had nothing to do with training military personnel to run the prisons. McCotter was picked to head the Texas prison system in June 1985 after intense lobbying by Gov. Mark White. Managing the system in those days meant complying with the strict guidelines established by U.S. District Judge William Wayne Justice to meet terms of a settlement in a long-standing prison overcrowding lawsuit. McCotter spent 18 months administering the Texas system, a period when prison violence made frequent headlines and Justice was threatening to fine the state as much as $1,000 a day if it did not make court-ordered improvements. McCotter was widely criticized for the early release of thousands of violent convicts who accrued “good time” in segregation cells where they were placed because they were too dangerous to mix with others. McCotter resigned under pressure from newly elected Gov. Bill Clements. His supporters claimed McCotter had been unfairly made a scapegoat during the bitter political campaign; they noted that prison violence dropped significantly during his tenure. McCotter recently said that, “like all Americans, I am offended and sickened by the improper actions that have taken place at Abu Ghraib since my departure. Certainly those who have acted improperly should be fully prosecuted.” Link: http://www.chron.com/cs/CDA/ssistory.mpl/front/2572688 | 法律 |
2016-50/4330/en_head.json.gz/14168 | 27282930311 Other2 34 Other5 Both6 Both7 Both8 Other9 1011 House of Representatives12 House of Representatives13 House of Representatives14 House of Representatives15 Other16 1718 Other19 Other20 Other21 Other22 Other23 2425 Senate26 Senate27 Senate28 Senate12 Senate
Additional estimates hearings
Senate Occasional Lecture
Courts Administration Legislation Amendment Bill 2015
Amends the Federal Court of Australia Act 1976, Family Law Act 1975 and Federal Circuit Court of Australia Act 1999 to: designate the Federal Court of Australia (including the National Native Title Tribunal), the Family Court of Australia and the Federal Circuit Court of Australia as a single administrative entity under the Public Governance, Performance and Accountability Act 2013 and a single statutory agency under the Public Service Act 1999; establish shared corporate services functions for the courts; maintain heads of jurisdiction’s responsibility in relation to the business and administrative affairs of their respective courts; provide for a chief executive officer (CEO) for each head of jurisdiction to assist with the management of administrative affairs and provide that the CEOs also hold the position of Principal Registrar; provide for the Federal Court CEO to have responsibility for managing the shared corporate services, with a requirement for consultation; and provide that the Federal Court CEO is the accountable authority for the administrative entity and the agency head for the statutory agency. Also makes consequential amendments to 16 Acts. Bill
Aged Care Amendment (Independent Complaints Arrangements) Bill 2015
13 Aug 2015 Chamber
Amends the: Aged Care Act 1997 to: transfer responsibility for the management and resolution of aged care complaints from the Secretary of the Department of Social Services to the Aged Care Commissioner; rename the Aged Care Commissioner to the Aged Care Complaints Commissioner; and make consequential amendments; and Australian Aged Care Quality Agency Act 2013 to make consequential amendments. Bill
Civil Law and Justice (Omnibus Amendments) Bill 2015
Amends: the Administrative Appeals Tribunal Act 1975 in relation to: notification of applications for review; non-disclosure of certain information; the method of giving documents or things for the purposes of proceedings; tribunal members’ powers to dismiss certain applications; and the reinstatement of withdrawn applications; the Bankruptcy Act 1996 in relation to: confidentiality requirements relating to statements of affairs; removal of certain requirements to notify, and lodge requests with, the Official Receiver; imposition of time limits for certain applications; and removal of an obsolete reference; the Evidence Act 1995 to make a drafting change; the Federal Circuit Court of Australia Act 1999 to: provide arresters with the power to use reasonable force to enter premises to execute an arrest warrant; and remove an obsolete reference; the Federal Court of Australia Act 1976 in relation to: the jury empanelment process; the pre-trial process for indictable offences; and technical amendments; the International Arbitration Act 1974 in relation to: enforcement of foreign arbitral awards; confidentiality provisions to arbitral proceedings; and technical amendments; and 10 Acts to make consequential amendments. Bill
Judiciary Amendment Bill 2015
Amends the: Judiciary Act 1903 to: consolidate the Australian Government Solicitor (AGS) into the Attorney-General’s Department (AGD); and remove provisions relating to AGS’s former role as a statutory corporation; and Director of Public Prosecutions Act 1983 and Freedom of Information Act 1982 to make consequential amendments. Also makes transitional arrangements in relation to AGS being consolidated into the AGD. Bill
Construction Industry Amendment (Protecting Witnesses) Bill 2015
Employment Summary
Amends the Fair Work (Building Industry) Act 2012 to extend the period during which the Director of the Fair Work Building Industry Inspectorate can apply to a nominated Administrative Appeals Tribunal presidential member for an examination notice by a further two years (until 1 June 2017). Bill
Defence Legislation Amendment (Military Justice Enhancements—Inspector-General ADF) Bill 2014
Amends the Defence Act 1903 to: strengthen and clarify the independence, powers and privileges of the Inspector-General ADF; provide a statutory basis to support regulatory change including the re-allocation of responsibility for investigation of service-related deaths and the management of the Australian Defence Force redress of grievance process to the Inspector-General ADF; and require the Inspector-General ADF to prepare an annual report. Bill
Tribunals Amalgamation Bill 2015
Amends: 12 Acts, including the Administrative Appeals Tribunal Act 1975, to merge the Social Security Appeals Tribunal and the Migration Review Tribunal and Refugee Review Tribunal into the Administrative Appeals Tribunal; and 31 Acts to make consequential amendments. Also provides for transitional arrangements. Bill
Civil Law and Justice Legislation Amendment Bill 2014
Amends the: Bankruptcy Act 1966 in relation to: the Official Trustee; the Official Receiver; the National Disability Insurance Scheme; the offence of concealment; declarations in statements received electronically; indictable and summary offences; and the location of certain offences in the Act; International Arbitration Act 1974 to clarify the application of the Act to certain international arbitration agreements; Family Law Act 1975 to: make technical amendments; clarify the appeal rights available for court security orders; and create access to the Family Court of Australia for court security orders made by the Family Court of Western Australia; Court Security Act 2013 to: provide for the disposal of unclaimed items seized by or given upon request to court security officers; and clarify the processes by which court security orders can be varied and revoked; Evidence Act 1995 to: reflect changes to the Model Uniform Evidence Bill; remove all references to the Australian Capital Territory; and make technical amendments; Protection of Movable Cultural Heritage Act 1986 to enable the National Cultural Heritage Committee to continue to function when membership falls below the maximum number; and Copyright Act 1968 to extend the legal deposit scheme to include work published in electronic format. Bill | 法律 |
2016-50/4330/en_head.json.gz/14389 | News 2016 Presidential Election
3 blockbusters among Supreme Court's last cases Filed under
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WASHINGTON -- The Supreme Court has 11 cases, including the term's highest profile matters, to resolve before the justices take off for summer vacations, teaching assignments and international travel.The court is meeting Monday for its last scheduled session, but will add days until all the cases are disposed of.A look at some of the cases:-Gay Marriage: Actually two cases. One is a challenge to California's constitutional ban on same-sex marriage. The other is an attack on a provision of federal law that prevents legally married gay couples from receiving a range of tax, health and pension benefits.-Affirmative action: A white woman denied admission to the University of Texas seeks to overturn the school's consideration of race among many factors in filling the last quarter of its freshman classes. A broad ruling could end the use of race in college admissions nationwide.-Voting rights: A suburb of Birmingham, Ala., wants the court to end the nearly 50-year-old requirement for some state and local governments, mainly in the South and with a history of discrimination in voting, to get the advance approval of any changes in the way they hold elections.-Native American adoption: A wrenching dispute over who gets custody of Native American girl, her biological father or the adoptive couple who cared for her until she was 2. The case involves the interpretation of a 1978 law intended to prevent American Indian children from being taken from their homes and typically placed with non-Indian adoptive or foster parents.-Generic Drugs: The industry is asking the Supreme Court to extend protections that makers of generic drugs have from state court lawsuits if federal officials have approved the design of the brand-name version the generic drug copied.-Private property: A Florida property owner wants compensation, under the Constitution's requirement that the government must pay if it takes your property, for a local government's refusal to issue a development permit.- Workplace discrimination: Two cases test different aspects of federal law barring discrimination on the basis of race. In one, the court has to decide what level of responsibility it takes to be considered a worker's supervisor in a discrimination complaint. The other asks whether an employer's action can be considered retaliation against an employee who complains of racial harassment if retaliation was a motivating factor, or must it be the only factor. View Comments
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2016-50/4330/en_head.json.gz/14433 | Home EJIL Analysis The UK Conservative Party Proposes Changes to Human Rights Protection The UK Conservative Party Proposes Changes to Human Rights Protection
Published on October 6, 2014 Author: Martin Browne For those accustomed to the debate surrounding the European Convention on Human Rights in the UK, it is a refreshing to hear a clear statement from Chris Grayling, the Secretary of State for Justice, that the Convention is “an entirely sensible statement of the principles which should underpin any democratic nation,” and this on the 14th anniversary of the Human Rights Act 1998 taking legal effect, which allowed any individual to seek redress for human rights violations directly in UK courts.
Headlines have trailed that the Secretary of State, on behalf of the Conservative Party and in advance of the UK general election in May 2015, has issued a threat that the UK will denounce the Convention and repeal the Human Rights Act unless the European Court of Human Rights changes its approach and respects parliamentary sovereignty. Leaving aside the fact that the Court does respect parliamentary sovereignty, subjecting human rights protection to the control of one nation State would be dangerous and would reverse in an instant the progress made in the setting of human rights standards in the last 60 years.
Beyond the headlines are more damning proposals, accurately summarised here – that essentially would remove the right of some individuals to hold the State to account and establish asymmetrical application of human rights dependent upon the qualities of an individual’s ‘responsibilities in society’, the seriousness of the case, and the wonderfully vague threshold of whether the case arises in an area of law that already applies human rights law.
Combined with a severe restriction in the funding available to bring an application for judicial review, and other cuts to legal aid, the whole picture is that the UK government is in the process of retrenchment, fearful of its supreme will foundering on the shores of judicial independence and individual empowerment to bring human rights claims as has been achieved in a long line of famous cases concerning topics from the freedom of the press, to the retention of DNA by police.
In reality, as the proposals include re-incorporating ‘the original post-war Convention’ it may be that these fears are overplayed. This was underlined by the former Attorney-General, Dominic Grieve (who it is suspected was sacked for advising that these very proposals are illegal) who claimed that 99% of decisions taken by the UK courts under a British Bill of Rights, including by the Supreme Court, will be identical to what the ECtHR presently determines. The UK government will be aware of this fact, and their bare politicking is evident when their proposals themselves misrepresent the effect of the Court’s decision in Vinter v UK by stating that Strasbourg prevents the use of whole life tariff sentences without parole, even when the opposite is true.
The charade could be accepted as a cosmetic change, but critically the proposals risk a number of potentially significant breaches of international obligations in the process.
Extra-Territoriality
The plan to remove the extra-territorial application of human rights from the purview of UK courts is one of the clearest changes signalled in the strategy paper. It amounts to dangerous rejection of key developments of human rights law that has been developed in over 60 years of jurisprudence, the removal of which is justified on the basis of saving the British Armed Forces the bother of responding to relatively infrequent and occasionally well-founded human rights claims (see posts about Al-Skeini here and here). A consequence of these proposals will be to deny redress in domestic courts for alleged human rights violations committed by armed forces in areas under their control as has occurred in Basra or Helmand. As long as membership of the Convention is retained, a residual route may remain permitting those individuals to bring cases directly to the attention of the Court in Strasbourg through Article 34. The result: every case, weak or strong, will have to be addressed directly at the European Court level, devoid of the domestic filter.
An unintended consequence of these proposals, moreover, seems to be that members of the armed forces may not be able to raise actions before domestic courts for alleged violations of their human rights committed outside UK territory see, eg., Smith and others v The Ministry of Defence (discussed here by Marko).
The proposals would place the UK in breach of Article 1 of the Convention by which the parties are obliged to secure to everyone in their jurisdiction the rights it confers. The proposals set out that the ability to claim rights are to be linked to an individual’s responsibilities in society, consequently an individual will qualify for the ‘qualified rights’ by way of good behaviour. For clarity, qualified rights form the majority of the claims brought to the Court by way of the individual petition as it is the area in which the State can act to limit the provision of a right upon certain parameters being met, namely a clear legal basis, the pursuit of a legitimate aim, and that it is an action which is necessary in a democratic society.
These plans therefore seek to overhaul this well established test, by permitting the government to excuse its behaviour because of an individual’s particular characteristics. Clearly any rule that has this effect cannot be seen as promoting the universality of human rights protection.
A judgment “if it is to lead to a change in [UK] laws” will henceforth be treated by the UK as advisory only. This is a restatement of the principle of sovereignty and is aimed at warning the Court against future findings of incompatibility. Yet the loose language reveals that determinations of individual decisions that do not require legislative change, such as in the Abu Qatada litigation, will remain binding, defeating any political effect that statement was intended to have.
Other International Legal Obligations
Amongst the proposals is an express intention to weaken guidance in the Ministerial Code requiring compliance with the “overarching duty on Ministers to comply with the law including international law and treaty obligations”. This is potentially one of the most far reaching proposals, extending beyond the field of human rights to affect the whole of the UK’s interaction with international bodies, but unfortunately detail is lacking. This Code is part of the Secretary of State’s Oath of Office. Therefore a removal of this ‘overarching duty’ clears the path for unlimited legislation inconsistent with international law and treaty obligations, and not just limited to the issue of withdrawal from the Convention.
This in turn, affects the sanctity of other international obligations. As a result of the proposals a domestic court will no longer be permitted to extend protection against deportation to those found guilty of ‘serious crimes’ or who are labelled a ‘terrorist’ even where there are substantial grounds for believing that the individual will be subject to torture on deportation (Article 3 UN Convention against Torture). Notably, an example is given of a ‘serious crime’; causing death by dangerous driving which can result in a non-custodial sentences if no aggravating features are present.
As the individual would lose their “right to claim the right to stay”, there is a further risk of rendering a British national de facto stateless, particularly if the mechanism is given a form of automatic application.
Vague definitions populate the whole document. In yet another example, human rights laws will no longer apply in “trivial cases”. The pitfalls of trusting a government department to accurately determine who falls within the categories of ‘foreign criminal’, ‘serious criminal posing a threat to the UK’, or a ‘terrorist’ are notorious. One day prior to the announcement of these proposals, a prosecution against Mozzam Begg for facilitating terrorism was dropped following the disclosure that he had met with MI5 before and after visiting Syria, and was acting with their knowledge and tacit consent. Under a British Bill of Rights and Responsibilities he may have been labelled a ‘serious criminal posing a threat to the UK’ thereby losing his right to remain in the UK.
Playing politics with a constitution?
In spite of the focus on new devolution settlements in the wake of the Scottish Independence Referendum, not one word in the proposal mentions the Good Friday Agreement which entrenches the UK’s obligation to ensure respect for the European Convention in Northern Ireland. Equally no mention is made of s. 100 of the Scotland Act 1998 which is often considered to ‘constitutionalise’ the Human Rights Act, at least north of the border. This oversight is compounded by the fact that Northern Ireland has in recent years engaged in a process of consulting about Northern Irish Bill of Rights to supplement Convention rights in light of the unique political situation in that jurisdiction. It is entirely possible that Scotland too would want specific rights included or excluded within its own distinct legal system.
In 2015 the UK will hold a summit venerating the Magna Carta on its 800th anniversary. On Tuesday David Cameron announced that this old English document, which was supported by a European alliance of Barons, and which is now all but repealed in practice, meant more to him than the European Convention, influenced by eminent Conservative party figures. This paradox further indicates how these proposals are aimed at political objectives rather than legal ones.
Clearly, a significant number of constitutional questions are raised by the asymmetric differentiated application of human rights within a State. A constitutional and international legal quandary awaits any government that attempts implementation of these half-baked proposals.
Filed under: EJIL Analysis, European Convention on Human Rights, European Court of Human Rights, Extraterritorial Application, Human Rights Tags: UK Human Rights Act « Announcements: EJIL: Live!; IL... The Tories and the ECHR: Mere ... »
Aurel Sari October 6, 2014 at 12:38
It would be a surprise, to me anyway, if the exclusion of domestic claims brought by current or former service personnel in relation to overseas deployments (a la Smith) was an unintended consequence of these plans. Given the less than flattering reception of Smith (eg Policy Exchange, Fog of Law, 2013), this is hardly coincidence. Assuming that the UK remains a party to the ECHR, the Convention will of course continue to apply to deployed operations in accordance with the Strasbourg jurisprudence. The question really is this: is it a good idea to compel future claimants to go to Strasbourg by removing the domestic ‘filter’, as you put it? Considering that the basic point made by the majority in Smith was that applying Convention rights in combat and other operations requires fine judgment and appreciation of the facts (eg as demonstrated recently in Long), one could be forgiven for thinking that such attention to detail might be expected more readily in domestic proceedings than before the European Court. From the pan into the fire?
Martin Browne October 6, 2014 at 13:34
Aurel,
Thank you for your comment. I agree with your scepticism that the exclusion of claims relating to overseas deployment is a false ploy. The availability of domestic proceedings allows for scrutiny to be carried out swiftly, in a constructive manner and, as you identified, finely tuned to the context, allowing for a balancing act to be carried out by the court most able to assess the delicate relationship between the state’s obligations and its military operations. There are also policy benefits to the domestic process. At a time when the backlog at the ECtHR has been reducing, it would be a detrimental step for states to start compelling Strasbourg to hear more cases on such complex issues.
It seems completely incongruous for the UK to give away an area of competence to Strasbourg, willingly inviting the court to rule that a future British Bill of Rights is incompatible. For pessimists, this might be seen as a precursor to a bigger fight on derogations, or ultimate withdrawal from the Convention system.
Großbritannien auf dem Weg ins verfassungsrechtliche Irrsal? October 6, 2014 at 16:20
[…] können soll, ohne dass sie damit einen offenen Rechtsbruch begeht (dazu auch hier, hier und hier). Und eine Regierungspartei, die einen offenen Rechtsbruch ankündigt, versündigt sich nicht nur […]
Martin BrowneMartin Browne is a Member of the Manchester International Law Centre and works at Burton Copeland solicitors. He was awarded an LLM (adv.) from Leiden University and studied for his undergraduate degree at Durham University.Full bio: http://www.law.manchester.ac.uk/milc/ EJIL: Live! | 法律 |
2016-50/4330/en_head.json.gz/14516 | City of Delavan considers its Sho-Deen options
Town of Delavan Sho-Deen development fight continues
DELAVAN—City officials still are considering how to respond to a court decision that might mean 600 new homes just outside the city.
Last week, the town of Delavan board approved the rezoning and conditional use permits necessary for the Sho-Deen Group's plan to build more than 600 homes on an estimated 285 acres. The land is located northwest of the Delavan Lake Inlet at the corner of County F and Mound Road.
The town action followed the District 3 Court of Appeals ruling the city of Delavan could not impose density limits on the subdivision in the town. The city had used its extraterritorial rights and denied a preliminary plat for part of the development. Sho-Deen took the city to court and won. An appeals court affirmed the lower court's opinion.
Delavan City Administrator Denise Pieroni said the city had not decided how—or even if—it will respond to the court's decision.
“We won't know anything until our meeting on March 11, when the city council meets,” Pieroni said.
It's possible the city council could hold a special meeting to address the issue, but so far nothing has been planned, Pieroni said.
Pieroni declined to comment on any of the city's options, saying that any options would have to be discussed in closed session.
If the city decided to appeal to the state supreme court, it would have 30 days to do so, according to document from the city's attorney Steven Koch.
The city originally denied the preliminary plat for part of the development because it “failed to comply with the city's extraterritorial land division requirements,” Koch wrote.
Sho-Deen's plans for the area in question called for 74 lots over 36 acres with an average lot size of 0.36 acres. The city's land division requirements call for a minimum lot size of one acre. Those requirements were established when the city updated its code in February, 2011. The changes were made to bring the city into compliance with state statutes, Koch wrote.
The area where the Sho-Deen Group plans to build was zoned residential when the company bought the land.
The area had been designated “urban density residential” in long-range plans by the town and county with less than five acres per dwelling. The Southeast Wisconsin Regional Planning Commission had designated the area for sanitary sewer service.
Last updated: 4:54 pm Monday, February 24, 2014 | 法律 |
2016-50/4330/en_head.json.gz/14588 | Spahr pleads guilty, faces up to 15 years in prison
By Matt Durr
[email protected] — William Spahr Jr. will be sentenced on April 27 after pleading guilty Monday in Hillsdale County Circuit Court to one count of second degree home invasion.Spahr, 47, of Hillsdale faces up to 15 years in prison for the crime.Hillsdale City Police arrested Spahr after connecting him to two home invasions that were reported on Feb. 15 near the campus of Hillsdale College.Shortly after midnight on Feb. 28, HCP responded to complaints of a prowler in the area of Manning Street near River, which is close to the campus. While searching the area, police saw a suspect who matched the description of the prowler and investigated the man. Officers spoke to the suspect, who turned out to be Spahr, but let him go after he denied any wrongdoing and officers did not have any reason to further investigate him.When the HCP morning shift arrived, another complaint was filed in which the witness said they saw a man in a window near the area in question. Officers followed up with Spahr and after locating evidence of the burglaries, he was arrested around 4 p.m. that same day.As part of the plea bargain, Spahr will not be charged in any other home invasions he may have been involved with and he will not be charged as a habitual offender, despite his previous record.In March of 2010 Spahr was charged with first degree home invasion; however, that charge was reduced to trespassing. He served 25 days in jail and paid fines for that charge. | 法律 |
2016-50/4330/en_head.json.gz/14650 | House Of Lords Denies Pleural Plaques Sufferers The Right To Compensation
Claiming pleural plaques compensation on grounds of negligence
The highest court in the UK, the House of Lords, has today announced that it will not overturn the law which prevents sufferers of pleural plaques from claiming compensation on the grounds of negligence.
Despite a five day hearing earlier this year in the House of Lords, in which sufferers of pleural plaques argued that they should be compensated for the negligent exposure to asbestos they suffered, the law lords upheld the verdict passed by the Court of Appeal in January 2006. The law states that pleural plaque sufferers, whose cases have not yet been settled, will not be permitted to claim compensation.
Pleural plaques are areas of thick scar tissue which form in the chest lining and diaphragm and are caused by asbestos exposure. Over time, this thickening of the pleural membrane, which lines the lungs, can make breathing difficult and can, in some cases, be accompanied by the development of other more serious respiratory diseases including mesothelioma and lung cancer.
Adrian Budgen, head of the industrial diseases team with law firm Irwin Mitchell, commented: “I am extremely disappointed that the decision to deny pleural plaques sufferers’ access to justice has not been overturned by the House of Lords today. I represent many families who will be devastated by the news.
“This decision will impact upon thousands of people who have faced emotional anguish since their diagnosis. Pleural plaques is a consequence of negligent exposure to asbestos. This exposure physically scars victims and is often a precursor to very serious, and sometimes fatal, disease.”
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2016-50/4330/en_head.json.gz/14680 | Home › Authors › Dr John Tribe
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Dr John Tribe LL.B LL.M Ph.D is the Senior Lecturer in Law at the School of Law & Social Justice, University of Liverpool. Following completion of postgraduate work at University College London, where he was awarded the Joseph Hume Scholarship in Law, John was appointed to his first academic post at Kingston Law School in August 2003 as a Lecturer in Law. He was the curator of a display on the history of bankruptcy at the Royal Courts of Justice (2010-2011) and is an editorial board member of Corporate Rescue and Insolvency, an Advisory Board Member of Mithani: Directors Disqualification, a consultant editor of Bankruptcy and Personal Insolvency Reports and a co-author of Personal Insolvency Law in Practice. John has published widely on personal insolvency, corporate insolvency and bankruptcy history. In 2006 he gave evidence to the Scottish Parliament on bankruptcy reform and his work has been supportively cited by a number of his senior colleagues. An experienced media commentator, he has appeared on BBC television and given a number of quotes to the national press on personal insolvency matters. John has undertaken commissioned research for the Insolvency Service (2005 and 2007), Grant Thornton (2007), KPMG (2009), Baker Tilly (2011) and the London Gazette (2012 - ongoing).
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2016-50/4330/en_head.json.gz/14718 | Download our plug-in for Chrome to get customizable, real-time news alerts Possis Medical Shareholders Appeal Dismissal
By Amanda Ernst Law360, New York (March 7, 2007, 12:00 AM EST) -- One month after a district court dismissed a securities class action against Possis Medical Inc., shareholders that claim that the medical device maker covered up news about its marquee product’s clinical trials filed a notice of appeal on Friday.The plaintiffs said they will appeal U.S. District Judge James M. Rosenbaum’s ruling dismissing their amended complaint with prejudice on the grounds that they had not met the pleading standards laid out in the Private Securities Litigation Reform Act and the Federal Rules of Civil Procedure....
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2016-50/4330/en_head.json.gz/14719 | Download our plug-in for Chrome to get customizable, real-time news alerts Utah Group Sues To Block Permit For Sports Complex
By Dan Rivoli Law360, New York (January 12, 2011, 6:31 PM EST) -- A nonprofit group dedicated to restoring Utah's Jordan River has sued the U.S. Army Corps of Engineers for giving Salt Lake City permission to dump millions of tons of fill material on wetlands to build a sports complex.The Jordan River Restoration Network and four Salt Lake County residents filed a lawsuit Tuesday in the U.S. District Court for the District of Utah claiming the multimillion-dollar project does not warrant a permit under the Clean Water Act to discharge material into the wetlands.The JRRN claims...
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2016-50/4330/en_head.json.gz/14729 | Supreme Court Gives Deference to USPTO in Post Grant Proceedings
Andrews Kurth Kenyon LLP
The Supreme Court issued its much-anticipated decision in Cuozzo Speed Technologies v. Lee1 on June 20, 2016, resolving two important issues related to Inter Partes Review (“IPR”) of patents and other Patent Trial and Appeal Board (“PTAB”) proceedings, such as Post Grant Review (“PGR”) and Covered Business Method proceedings (“CBM”). The issues decided were (1) the proper standard for claim construction used by the PTAB in an IPR, and (2) whether appellate review is available for a decision from the United States Patent and Trademark Office (“PTO”) on whether or not to institute an IPR. The Supreme Court affirmed the Federal Circuit on both issues, holding that the PTO has the authority to determine the standard for claim construction in PTAB proceedings, and thus affirming the PTAB’s use of the “broadest reasonable interpretation” standard, and that institution decisions in IPRs are, for the most part, not subject to appellate review.
Institution Decisions Are Not Generally Subject to Judicial Review The Court first addressed the issue of appellate review of institution decisions. For most PTAB proceedings, including IPRs, a statutory framework sets minimum thresholds for the Director to institute a proceeding. With respect to an IPR, the scope is limited to “a ground that could be raised under section 102 or 103 and only on the basis of prior art consisting of patents or printed publications.”2 For institution, “the Director may not authorize an inter partes review to be instituted…[unless] there is a reasonable likelihood that the petitioner would prevail with respect to at least 1 of the claims challenged in the petition.”3 35 U.S.C. §314(d), entitled “No appeal,” expressly states that “[t]he determination by the Director whether to institute an inter partes review under this section shall be final and nonappealable.” Before the Federal Circuit, the patent owner, Cuozzo, argued that §314(d) was intended to preclude only interlocutory appeals of institution decisions, and not foreclose appellate review of institution decisions following a final decision. The Federal Circuit rejected this argument and held that 35 U.S.C. §314(d) bars any judicial review of the PTO’s initial institution decision “even after a final decision.”4
A 6-2 majority of the Supreme Court affirmed. “Like the Court of Appeals, we believe that Cuozzo’s contention that the Patent Office unlawfully initiated its agency review is not appealable.”5 This holding flowed mainly from the express language of 35 U.S.C. §314(d). The majority rejected the view that this language only precluded interlocutory appeals, as was urged by Cuozzo and the dissent. While recognizing a “‘strong presumption’ in favor of judicial review that we apply when we interpret statutes,” the majority ultimately concluded that the statute and its legislative history provided “clear and convincing” indications that overcame this presumption.6 The majority did, however, limit the reach of this decision, stating that “we do not categorically preclude review of a final decision where a petition fails to give ‘sufficient notice’ such that there is a due process problem with the entire proceeding, nor does our interpretation enable the agency to act outside its statutory limits… .”7 The majority continued by noting that “[s]uch ‘shenanigans’ may be properly reviewable in the context of §319 and under the Administrative Procedure Act, which enables reviewing courts to ‘set aside agency action’ that is ‘contrary to constitutional right,’ ‘in excess of statutory jurisdiction,’ or ‘arbitrary [and] capricious’.”8 This qualification in the scope of this decision may prove to be important in future cases, such as in the context of CBM reviews in which the Federal Circuit has undertaken appellate review of PTO institution decisions related to the threshold question of whether a patent qualifies as a “covered business method.” 9, 10 For now, it is clear that “where a patent holder merely challenges the Patent Office’s ‘determin[ation] that the information presented in the petition… shows that there is a reasonable likelihood’ of success ‘with respect to at least 1 of the claims challenged,’ §314(a), or where a patent holder grounds its claim in a statute closely related to that decision to institute inter partes review, §314(d) bars judicial review.”
Only days after issuing the decision in Cuozzo Speed Technologies v. Lee, the Supreme Court granted a certiorari petition from a patentee claiming that the PTAB should not have instituted an inter parte review because contrary to 35 U.S.C. §315(b) the petition was filed more than one year after a petitioner was sued. The Supreme Court vacated the Federal Circuit’s decision that it lacked authority to review the institution decision and remanded the case with instructions to the Federal Circuit to review it in light of Cuozzo Speed Technologies v. Lee.11
In another decision that followed on the heels of Cuozzo, the Supreme Court denied a patentee’s certiorari petition that had asked the Supreme Court to review a number of questions, one of which was the type of patent that is reviewable under the CBM program.12 Denials of certiorari are often not particularly noteworthy. However, this one coupled with the aforementioned grant and remand may signal that the Supreme Court has left room for potential review of at least some specific PTAB institution decisions.
The Proper Claim Construction Standard for PTAB Proceedings
The tension with respect to the claim construction standard used in PTAB proceedings is that it is a different, and potentially broader, standard than is used in district court litigation. District courts use the standard set out by the Federal Circuit in Phillips, which provides a framework for determining the “ordinary and customary meaning” of claim terms, as they would be understood by a person of ordinary skill in the art.13 In contrast, the PTAB follows 37 C.F.R. §42.100(b), which states that “[a] claim in an unexpired patent shall be given its broadest reasonable construction in light of the specification of the patent in which it appears,” which is the same standard used by the PTO in ex parte patent prosecution. However, since the broadest reasonable construction (“BRI”) standard can result in broader claim scope than the Phillips standard, patent owners have voiced concern that there is potentially a greater likelihood that a claim will be found invalid at the PTAB than in district court over the same prior art.
Before the Federal Circuit, Cuozzo challenged the PTO’s use of BRI, arguing that the district court claim construction methodology, not BRI, should be employed at the PTAB. Cuozzo argued that the BRI standard is an inappropriate standard for IPRs because, unlike the various other proceedings in front of the PTO, IPR does not grant the patent owner the unfettered right to amend his claims. The Federal Circuit rejected this argument and affirmed the PTO’s use of BRI noting that “[e]ven if we were to conclude that Congress did not itself approve the broadest reasonable interpretation standard in enacting the AIA, [35 U.S.C.] §316 provides authority to the PTO to adopt the standard in a regulation,” 14, 15 which it did in promulgating 37 C.F.R. §42.100(b).
Thus, the true issue before the court was not which claim construction standard was more appropriate, but simply whether the PTO’s adoption of the BRI standard was a reasonable exercise of its rulemaking authority. On this issue, the Supreme Court unanimously affirmed, finding an “express delegation of rulemaking authority” by Congress to the PTO and finding that “the Patent Office’s regulation [implementing the BRI standard] is a reasonable exercise of its rulemaking authority.”16 In reaching this conclusion, the Supreme Court considered and rejected concerns regarding unfairness to a patent owner, the risk of inconsistent results between PTAB proceedings and district court litigation, and policy considerations favoring uniformity. The Supreme Court concluded that “the Patent Office’s regulation, selecting the broadest reasonable construction standard, is reasonable” and specifically noted that “we do not decide whether there is a better alternative as a policy matter. That is a question that Congress left to the particular expertise of the Patent Office.” 17
The Supreme Court’s holding, while affirming the Federal Circuit’s decision and maintaining the status quo, is nonetheless significant. The BRI standard is clearly here to stay and parties to PTAB trials need to appreciate how the scope of the claims may be broader in PTAB proceedings than before a district court. For parties challenging patent validity, this potential advantage should not be ignored. The decision also reinforces the importance of the pre-institution phase of PTAB proceedings. The success rate for petitioners seeking to invalidate claims following a favorable institution decision is significant. Since routine institution decisions are not subject to appellate review, it is imperative for petitioners to use care in preparing an effective petition and equally important for patent owners to fully consider how an optional Patent Owner’s Response may be used to prevent or limit institution on one or more grounds.
While opportunities for appellate review are clearly limited, parties disappointed with PTAB institution decisions should consider if the decision is truly outside the scope of judicial review or if aspects of the decision would render review under the Administrative Procedures Act (“APA”) appropriate. That is, the Supreme Court’s Cuozzo decision left opportunities for patentees to potentially challenge institution decisions based on “constitutional”, “other less closely related statutes” to APA, and issues outside the APA section employed in Cuozzo.18 In this vein the recent Supreme Court grant of certiorari and remand for the Federal Circuit to consider appellate review for institution decisions contrary to 35 U.S.C. §315(b) will be instructive.
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2016-50/4330/en_head.json.gz/14767 | Canadian Labour Congress July 14, 2016 10:21 ET
Supreme Court Ruling Protects Non-Union Workers From Unjust Dismissal
OTTAWA, ONTARIO--(Marketwired - July 14, 2016) - Today's Supreme Court of Canada (SCC) ruling in Wilson v. AECL will deliver accountability and fairness to roughly 500,000 non-unionized federal employees, said the Canadian Labour Congress (CLC). The SCC upheld the interpretation that, under the Canada Labour Code, dismissing an employee without cause is unjust, and therefore not permitted. "This ruling is a win for all federally-regulated employees, particularly those who do not currently benefit from the protection of a union. Now, about half a million people can rest assured that they can't be terminated by their employers at will. Employers must have just cause for firing an employee," said CLC President Hassan Yussuff.
The plaintiff in the case, Joseph Wilson, was fired from Atomic Energy of Canada Limited (AECL) after having reported improper procurement practices within the organization. AECL never specifically denied having terminated Wilson's employment for whistleblowing. Instead, AECL argued that because they paid him severance in lieu of notice, the dismissal was legal, and that termination without cause did not necessarily mean the termination was unjust. The CLC and other Canadian unions intervened on behalf of the 500,000 non-union workers employed in banks, telecommunications, transportation companies and some Crown corporations, who will be affected by the ruling.
"We hope today's ruling sends a wake-up call to employers. Firing someone without cause or warning is unfair, plain and simple. I applaud the court for recognizing this and upholding the principles of the Labour Code in their decision today," said Yussuff.
The federal government has already committed to performing a review later this year of Part III of the Canada Labour Code, which covers unjust dismissal protection.
"We will keep pushing to strengthen protections for all workers. The government needs to seize this opportunity to more clearly define 'unjust dismissal' and reconfirm the original intent of a law intended to ensure that workers are treated fairly," said Yussuff.
The Canadian Labour Congress, the national voice of the labour movement, represents 3.3 million Canadian workers.
Chantal St-DenisCLC [email protected] | 法律 |
2016-50/4330/en_head.json.gz/14935 | E-book Publishers Reach $69 Million Settlement With States
Judge approves ebook price-fixing settlement
Apple Claims US Government Sides with 'Amazon's Monopolistic Grip' in E-book...
Apple, Booksellers Oppose Proposed E-book Price-fixing Settlement
Three book publishers will pay more than US$69 million to U.S. states to settle charges they collaborated to fix prices of e-books.Hachette Book Group, HarperCollins Publishers and Simon & Schuster have agreed to an antitrust settlement with the attorneys general of 54 U.S. state, districts and territories, Connecticut Attorney General George Jepsen announced Wednesday. The three publishers also agreed to change the way they price e-books going forward, Jepsen said in a press release.The same three publishers agreed to settle a U.S. Department of Justice e-book pricing-fixing case in April. Defendants Apple, Penguin Group and MacMillan have not settled either case.The attorneys general filed a civil antitrust case Wednesday in U.S. District Court for the Southern District of New York against the five publishers. The lawsuit accused the five publishers of conspiring and agreeing "to increase retail e-book prices for all consumers."The lawsuit and settlement come after a two-year antitrust investigation by the DOJ and the Connecticut and Texas attorneys general. The investigation allegedly found that the publishers worked with Apple to set prices for e-books and limit the discounts retailers could give. The publishers case consumers to pay "tens of millions" of dollars more for e-books, Jepsen said in the press release."While publishers are entitled to their profits, consumers are equally entitled to a fair and open marketplace," Jepsen said in a statement. "This settlement will provide restitution to those customers who were harmed by this price-fixing scheme, but it also will restore competition in the e-book market for consumers' long-term benefit."Much of the money collected in the settlement will be returned to consumers.A representative of Simon & Schuster called the settlement "fair." "We're pleased to now have put this matter behind us, and moving forward, to continue our work with authors and accounts to grow the market for books of all formats -- and to take advantage of the many opportunities afforded us by publishing in the digital era," he said.Representatives of the two other settling publishers weren't immediately available for comment.Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's e-mail address is [email protected]. | 法律 |
2016-50/4330/en_head.json.gz/14990 | Attorney Steven Adair MacDonald Examines Why Tenancy Buyouts are Booming
Steven Adair MacDonald, of Steven Adair MacDonald & Partners, P.C., in light of a Newsweek article about buyouts of San Francisco’s rent-controlled units, sheds light on the proliferation of tenancy buyouts.
Steven Adair MacDonald & Partners, P.C.
When skyscraper construction is held up due to one residential tenant obstructing the demolition of the pre-existing building, such huge payments, like we’re seeing in New York, might be expected.
Steven Adair MacDonald &...
In recent months, multi-million-dollar tenancy buyouts, particularly in Manhattan, have become commonplace. Although not approaching the levels seen in New York City, San Francisco attorney Steven Adair MacDonald, founder of Steven Adair MacDonald & Partners, P.C., predicts seeing the first million-dollar San Francisco tenancy buyout before the end of the decade. Currently, according to a March 25, 2016, Newsweek article, the average buyout price in San Francisco is around $43,000. The article further reports that since March 2015, buyouts have jumped significantly, with the average number of evictions climbing from 151 per month to more than 200. “When skyscraper construction is held up due to one residential tenant obstructing the demolition of the pre-existing building, such huge payments, like we’re seeing in New York, might be expected,” said MacDonald. “However, San Francisco has very serious height limitations on construction, particularly in the traditional residential neighborhoods.”
Even so, MacDonald, who represents landlords as well as tenants, reports that six-figure buyout agreements are now becoming common in San Francisco. In fact, he just negotiated one for a tenant in the city’s desirable Russian Hill neighborhood whose huge flat was renting for somewhere between $4,000 and $5,000 per month below market, due to strict rent control. That deal garnered a gross settlement of almost a quarter-million dollars for his client. “I view a buyout as a scenario where a landlord lacks ‘just cause’ for termination of a tenancy under San Francisco’s eviction control law, yet wishes to do so nonetheless,” said MacDonald. “As a last resort an owner may decide to invoke the Ellis Act (a state law trumping local eviction protections), but proceeding with an Ellis Act eviction is invariably complicated with negative consequences, prompting many landlords to offer a tenant a sum of money in exchange for the tenant’s agreement to vacate the property voluntarily.”
However, the financial benefit a landlord could gain from putting a rent-controlled unit back on the market at current rental rates is substantial. Many tenancies under rent control date back thirty years or more, which results in artificially deflated rent that is disadvantageous to the owner. A buyout allows for a new tenant paying market rent or a new owner using the unit as he or she chooses. Under certain circumstances “protected” tenants cannot be otherwise evicted, even in the case of a good faith owner move-in.
“When a landlord is considering invoking the Ellis Act, and has stated their intention to proceed, a tenant needs to evaluate the financial possibilities under that process versus what they might gain through voluntary negotiations,” said MacDonald. “In any event, an owner should gladly pay more than the legally required minimum relocation money to obtain the vacancy free and clear of the potential constraints required under the Ellis Act.”
About Steven Adair MacDonald & Partners, P.C.
The MacDonald firm represents both landlords and tenants in all forms of litigation in San Francisco and throughout the Bay Area, and employs a team of aggressive landlord-tenant experts. The firm handles cases involving evictions, rent-control disputes, habitability issues, commercial landlord-tenant disputes, short-term-rental issues and more. For more information or a free consultation, please call (415) 956-6488, or visit http://www.samlaw.net. The law office is located at 870 Market Street, Suite 500, San Francisco, CA 94102. About the NALA™
The NALA offers small and medium-sized businesses effective ways to reach customers in the digital age, while providing a single-agency source that helps them flourish in their local community. The NALA offers its clients an array of marketing tools from press release campaigns and social media management to a cause marketing program. The NALA’s mission is to make businesses relevant and newsworthy, both online and through traditional media, by providing increased exposure at reasonable costs. For media inquiries, please call 805.650.6121, ext. 361.
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Executive Business Services +1 805.650.6121 Ext: 361 | 法律 |
2016-50/4330/en_head.json.gz/15017 | 13 years for man who beat girlfriend
STOCKTON - A man who beat his 20-year-old girlfriend into a coma was sentenced Friday to more than 13 years in state prison.
Jennie Rodriguez-Moore
STOCKTON - A man who beat his 20-year-old girlfriend into a coma was sentenced Friday to more than 13 years in state prison.Raoul Leyva, 34, was convicted by a jury in February of attempted voluntary manslaughter for brutally beating Brandy Marie Arreola, now 21, and leaving her with brain damage.Arreola, whose words were barely audible, spoke for just about a minute at the sentencing, enough to make her wishes clear."I want him in jail," she said from her wheelchair, her mother, Diana Munoz, repeating her words for clarity.The sentence, though it was the maximum, drew disappointment from Munoz, now the caretaker of the disabled Arreola."I feel like he should go to prison for the rest of his life," Munoz said to the judge. "He took everything away from her."Look at my daughter. She spent three months in a coma ... and she wakes up at night screaming and crying because of what he's done to her."Munoz feels her daughter's attack might have been prevented if Leyva had been locked up in prison that day.Leyva, who has become a poster child for Assemblywoman Susan Eggman's proposal to amend prison rules in AB109, was released early from county jail for overcrowding reasons after he was booked for violating state parole. Under AB109, parolees now serve revocations at the county jail instead of going back to prison."He should never have been out," Munoz said in court.Leyva also gave a statement, saying he prays for Arreola every day. "I still love you," he told Arreola.Prosecutor Thomas Testa asked Judge Seth Hoyt Jr. to give Leyva the maximum penalty. Leyva, Testa said, has been able to finagle the system, having been in and out of prison on charges that include prior domestic violence and having violated parole on a habitual basis."I ask the court to throw the book at him," Testa said.Hoyt Jr. did just that, handing down the maximum term of five years and six months in state prison on one count of attempted voluntary manslaughter and five more years on an enhancement for causing brain injury to be served consecutively.Leyva was found guilty on other enhancements and one count of causing corporal injury, but the law didn't allow the court to add more years on those charges, Hoyt Jr. said.For other violations, Hoyt Jr. increased the total term to 13 years and six months, of which Leyva was ordered to serve at least 85 percent.Leyva must pay $10,000 in restitution to the state, and an undetermined amount is expected to be added for Arreola's medical expenses.Hoyt Jr. said if he had the power to incarcerate Leyva for life he would do that. Hopefully, the judge said, Leyva changes his ways so no other woman can endure what Arreola did."To know she is sentenced for life, certainly this punishment I'm giving you today does not equal what she has to go through," Hoyt Jr. said.Before Arreola could be wheeled out of court, Munoz muttered with disappointment, "Thirteen years. Are you kidding me?"Contact reporter Jennie Rodriguez-Moore at (209) 943-8564 or [email protected]. Visit his blog at recordnet.com/courtsblog. | 法律 |
2016-50/4330/en_head.json.gz/15033 | US court grants new appeal hearing for Buju BantonThe Associated PressPosted:
08/20/2014 05:45:18 AM MDTKINGSTON, Jamaica (AP) — A lawyer for convicted Jamaican reggae star Buju Banton said Tuesday that a U.S. federal appellate court agreed to a new hearing on his latest appeal. The Grammy-winning singer is serving a 10-year sentence for convictions on cocaine conspiracy and trafficking charges stemming from a 2009 arrest that followed a sting operation. He was convicted in 2011 after his first trial in 2010 ended with jurors deadlocked. In an email, attorney Charles Ogletree said the 11th U.S. Circuit Court of Appeals in Atlanta had agreed to hear oral arguments on the case. "Mr. Buju Banton was pleased to learn that the 11th Circuit granted a new hearing of his appeal. We too are looking forward to the appellate argument," said Ogletree, a Harvard University law professor who took over Banton's case in February. In 2012, a panel of the appellate court upheld Banton's convictions. His former defense lawyer had argued that a government informant improperly entrapped the singer. It's not clear when the hearing will take place. The husky-voiced Rastafarian singer, whose real name is Mark Myrie, has long been a prominent figure with the reggae-rap hybrid of dancehall reggae music and traditional reggae.Advertisement | 法律 |
2016-50/4330/en_head.json.gz/15103 | July 2 nd 2010 7 Comments Share
Substantive Law: Legislation What Is the Public Works Protection Act Anyway? by
Jean-Marc Leclerc More posts by Jean-Marc »
A little-known Ontario law called the Public Works Protection Act, R.S.O. 1990, c. P.55 received much publicity in the last few days due to the decision to designate a large swath of downtown Toronto as a “public work” (http://www.e-laws.gov.on.ca/html/source/regs/english/2010/elaws_src_regs_r10233_e.htm). It was said this was due to G20 security concerns, giving police wide powers to search people who even dared to venture near the G20 security zone.
Many were caught off-guard by this formerly little-known legislation. What does it do?
It is a short, six-section Act (http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90p55_e.htm). Its key provision is s. 3, which states that a guard appointed under the Act or a peace officer may “require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and address, to identify himself or herself and to state the purpose for which he or she desires to enter the public work.” In addition to these identification requirements, s. 3 permits a warrantless search of “any person entering or attempting to enter a public work,” as well as any vehicle which is “suspected of having been in the charge or under the control” of any such person.
The definition of “public work” in section 1 of the Act is very broad. It includes “any railway, canal, highway, bridge, power works,” and “any provincial and any municipal public building.” It also includes “other building, place or work designated a public work.” Hence the designation of a large part of downtown Toronto as a “public work.”
If there is a refusal to comply with a direction made under the Act, that person may be subject to a fine of $500 and to a two month term of imprisonment.
What does this mean? A number of eerie scenarios arise. Technically, under the Act, if a person entered Toronto’s City Hall – a public, municipal building – police officers would have the right to search that person without a warrant. There is no requirement to prove reasonable and probable grounds to believe an offence has been committed. The police could also search that person’s car too.
Bizarrely, because a public highway is designated a public work, police technically would have the right under the statute to conduct a warrantless search of any person who entered any public highway in Ontario.
Only a few decisions have considered the Public Works Protection Act. In a 1993 decision called R. v. Nicolosi, [1993] O.J. No. 3406, the Crown sought to justify a search of a vehicle on the basis that the Act permitted a warrantless search of a vehicle that had entered a highway. Justice J. MacDonald held “the evidence herein does not establish that any of the steps taken by police were for the purpose of protecting a public work.” Although this was probably the right conclusion, the reasoning misses the point, which is that the legislation expressly designates a highway as a “public work.” There is no additional requirement under the statute to prove that police are protecting a public work.
Most other decisions have involved Charter challenges to the Act when people entering a courthouse are searched. Not surprisingly, these challenges have failed, largely on the basis that a courthouse is like an airport where (i) searches are not conducted for the purpose of enforcing the criminal law or investigating an offence, and (ii) people expect they will be subject to some kind of security screening when entering a building like a courthouse. The leading decision on this is the Ontario Court of Appeal’s decision in R. v. Campanella, 2005 CanLII 10880 (http://www.canlii.org/en/on/onca/doc/2005/2005canlii10880/2005canlii10880.html), as discussed in comments on Slaw.
What impact does this have on the G20 designation and beyond?
Although it was initially reported that police had the power under the Public Works Protection Act to search any person within a five metre designation of the security fence that was erected in Toronto – a position from which the police have since resiled (see http://www.thestar.com/article/830030–no-extra-powers-granted-to-police-during-g20-summit-liberals) – any attempt to enforce the Act in this way would not have complied with the language of the Act or with the Charter. Section 3 of the Act only permits police to search any person “entering or attempting to enter a public work.”
It is difficult to imagine how standing five metres away from a fence – some 16 feet away – could amount to “attempting to enter a public work.”
Equally, and more seriously, it is difficult to imagine how anyone charged with enforcing Canada’s laws, particularly Toronto’s Chief of Police, could have concluded the legislation would give the right to search anyone coming within 16 feet of the fence. It is not a difficult issue. It is a simple question of statutory interpretation.
As for other instances where the Public Works Protection Act could be applied, the Court of Appeal in Campanella justified the constitutionality of courthouse searches because there were large signs to alert the public of the fact that searches were taking place. Any person could refuse a search if they left the building. Although the regulation designating large parts of Toronto as “public works” has now been repealed, the Campanella decision confirms that without appropriate safeguards, the Public Works Protection Act cannot be used to arbitrarily designate locations as “public works” to give carte blanche to police to conduct indiscriminate searches.
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July 3rd, 2010 at 10:27 am Thanks for this, there hasn’t been much written on the actual Act itself.
Even if the Act is held to be constitutional, there is still considerable ambiguity around Regulation 233/10.
Laura Blondeau, spokeswoman for Community Safety Minister Rick Bartolucci, stated,
“What the Ontario government did do, in the same way we process all regulations, is to create a regulation to ensure all areas within the security perimeter were equally considered public lands under the Public Works Protection Act.”
Lorne Gunter has suggested that The Star overreacted, and the 5-meter perimeter only applied within the zone. Police Chief Bill Blair confirms that this is the manner the regulation was intended, but acknowledges communication issues did exist with officer about the application.
Police board chair Alok Mukherje has said,
There was an honest misinterpretation by people who were dealing with these matters in the midst of the heat of the moment.
It was the government, the minister of community safety, that realized that there was a misinterpretation. And they drew it to the attention of the staff and they then advised the chief right away… There was no willful misinterpretation. There was no intent to mislead anybody.
And as far as the police officers were concerned, they were advised right away, as soon as the mistake was detected.
However, we have numerous credibly eye-witness accounts (and photos) of police officers applying the regulation as a 5-meter perimeter outside the fence. We also have statements by the Chief that suggest that a misinterpretation was deliberate, and justified by saying,
…I was trying to keep the criminals out.
The Regulation itself states,
1. The area, within the area described in Schedule 1, that is within five metres of a line drawn as follows:
The problem is that there are two plausible interpretations for “within;” a perimeter, within which 5-meters this Regulation is effective, or 5-meters on both sides of a line that is drawn and including the entire area within. Now we can look at all kinds of tools of statutory construction, and most still favour the secondary reading: Ejusdem Generis, Contemporanea Expositio, Casus Omissus, and Verba Generalia Restringuntur ad habilitatem rei vel personae. The reason for this is that the simple and obvious meaning of the Regulation is that presumably the entire area is considered a public works, not just the 5-meter margin within the fence. The government would want the expanded police powers throughout the designated area. This would be strengthened if we look at the application of the Act in other circumstances; In Pari Materia. We could also cite Generalia Specialibus Non Derogant in response to any claims of Leges Posteriores Priores Contrarias Abrogant by pointing to s. 3 of the Act, Powers of guard or peace officer
3.A guard or peace officer,
(a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and address, to identify himself or herself and to state the purpose for which he or she desires to enter the public work, in writing or otherwise;
This only reinforces that the intended or reasonable application of the Regulation includes 5-meters out from the fence. We can also point to the Golden Rule against absurdity at this point, because the contrary meaning simply doesn’t make sense.
We might be able to look at Expressio Unius Est Exclusio Alterius, or perhaps Noscitur a Sociis, to claim that if it was both sides of the line it would be stated, but it’s still a weak argument. The Penal Rule in favour of a defendant where ambiguity exists would certainly work; but that’s only likely to come up at a hearing, well after any application of the Regulation have already occurred.
Special thanks on Prof. Randal Graham for bestowing on me the magical powers of statutory interpretation. Lawrence Gridin
July 3rd, 2010 at 12:33 pm There were actually a few areas outside the fence that were in fact part of the public work. This is because the fence did not travel exactly along the line defined in the regulation.
For instance, on Bay Street, the line defining the public work ran down the middle of the street. In some areas, the fence was slightly west of the middle of the street. If you stood in the space that was between the edge of the fence and the middle of the street, technically you’d be within the public work and subject to search.
The much, much bigger problem than splitting hairs over the “5 meter rule” is that police were using O. Reg. 233/10 as a pretext to search people all over Toronto. Forget about 5 meters. People kilometers away were told that they must submit for a search or be arrested immediately. They were told that the authority for this was “Public Works Protection Act, you can look it up.” That’s a way bigger problem than a law legitimately used to protect a (relatively) small area surrounding an international conference.
I am deeply troubled by the apathy of the public towards what is probably the most massive systematic violation of ss. 7, 8, 9, and 10 of the Charter that has ever occurred in Canada.
Simon Borys
July 3rd, 2010 at 8:57 pm Excellent article! I’m glad somebody wrote it. I agree that the Public Works Protection Act being used in the manner it was is very problematic and, in my opinion, unnecessary.
My reasoning for this is that the police already have very broad powers of arrest under the Criminal Code. Section 495 allows them to arrest anyone who they believe, “on reasonable grounds…is about to commit an indictable offence.”
Section 31 also entitles them to arrest for Breach of the Peace, including where a person is only about to join in or renew a breach of the peace. Between these two authorities, police had sweeping powers to arrest and search (incident to arrest) people at the G20 who were little more than unruly or about to engage in any type of unruly or illegal activity.
Police also have a Common Law authority to subject people to Investigative Detention if they believe they are connected to criminal activity. The authority for Investigative Detention also extends to searching the person detained for weapons.
Furthermore, police receive training in identifying and articulating the characteristics of an armed person (at both the Ontario Police College and in-service) – I know this because I used to be a police officer before going to law school – which they can use to help them identify people who should be detained for further investigation.
Along with the explicit powers under the Criminal Code, police had sweeping powers under Common Law to deal with people at the G20. With all this authority behind them, I think police had sufficient ammunition to deal with problem people at the summit. If there was someone there who they didn’t have the authority to stop and identify, our legal system would suggest they didn’t need to. Our system clearly does not support the random stopping and identifying of people going about their daily business.
In my mind, the only reason to enact legislation that takes away the officer’s need to articulate a reason for stopping someone, is a lack of ability on the officer’s part to articulate those reasons.
Bands of heavily armed police officers stopping people on the streets of Toronto and asking them for identification is a little too reminiscent of the Gestpo stopping people to ask for their papers.
July 5th, 2010 at 1:40 pm Lawrence, I would not say the public is apathetic. Most people I know were deeply troubled by what occurred last Sunday on many fronts. The challenges are (1) articulating what the specific problems were and (2) knowing how to react so that those responsible are held accountable and this does not happen again. The natural inclination is to form groups on Facebook and hold more protests on the streets of Toronto, but are these the most effective actions?
Dave Kincaid
July 6th, 2010 at 8:37 am I don’t really believe there was any malice by any particular group, govt or police through this fiasco. It was well intended. But you know where the road paved with good intentions leads.
This act itself is very offensive in its misuse and potential for misuse against the charter. The CCLA is appealing for petition support for it’s revision or repeal.
I wish them well.
July 7th, 2010 at 12:20 pm Personally I don’t think Facebook groups and more protests will be effective.
There will be a civilian and SIU probe of the role of police, but many are saying that is still not enough. Seems they might get it, in the form of political accountability.
Internal pressures within the Ontario Liberal Party are asking why the measures were necessary and enacted in this manner,
On the eve of Wednesday’s caucus and cabinet meetings, grassroots Liberal activists and MPPs were privately expressing concern over the debacle and what it says about the government’s principles and its competence.
Members of all three opposition parties at the Federal level have signed a motion to convene the Standing Committee on Public Safety and National Security (SECU) to address the G20 measures.
Even Amnesty International has called for an independent review.
The G20 measures have disturbed many citizens across political lines and ideological persuasions. As I’ve said, I don’t have to agree with protesters or their cause to want them to be treated in a respectful manner that would make Canada proud.
A video of a police search outside the 5 meter area can be found here.
John Morriss
August 6th, 2010 at 11:18 pm There are two troubling (to me) aspects of the PWPA that I have not seen mentioned.
First, the Act specifically includes “other work, owned, operated or carried on by”…”private enterprises”. This seems a needlessly open-ended definition of a ‘public’ work. An office building, shopping mall, apartment building, parking garage, convenience store…? Secondly, the Act allows the person having charge of a public work to appoint guards having the powers of peace officers under the Act. The Act does not require this person to seek permission of anyone, nor does it require that anyone be notified of the designation. So the Chair of the Toronto District School Board could designate all teachers as guards; the Chair of the board operating Sherway Plaza could make all of the mall cops guards.
These are the thoughts of one with no legal training whatsoever. I hope someone here will be able to relieve my concerns… | 法律 |
2016-50/4330/en_head.json.gz/15126 | News in brief Courts 'locking up too many youths'
Too many young criminals are being locked up - even by the Government's own criteria, a charity has warned.Guidelines for youth courts suggest that those under 14 should be given custodial sentences only as a "last resort". The law states children aged 14 and under should not be locked up unless they have committed a grave offence or have committed a serious offence and are deemed to be a persistent offender. But a study by children's charity Barnardo's found that more than a third of 12 to 14-year-olds who were locked up did not meet the conditions. The scale of the problem means that in just one year 170 youngsters in England and Wales were wrongly put behind bars. Barnardo's chief executive Martin Narey said: "Until 1998 it would have been illegal to send a child of this age to custody unless they had committed one of the so-called 'grave offences'. "Now we do this every year to more than 400 children aged 12, 13 and 14. "This is a tragedy for the young people themselves, it's a shocking waste of money and, in terms of reducing their offending and doing anything to protect victims, it is almost invariably ineffective. "We are calling for stricter, clearer rules on sending children as young as 12 to custody so that practice can be brought into line with government policy." A Ministry of Justice spokesman said: "It is a fundamental part of the justice system that individual sentencing decisions are a matter for the independent judiciary, which is able to consider the circumstances of both the offence and the offender." More about: | 法律 |
2016-50/4330/en_head.json.gz/15163 | Audit finds problems at Worcester Probate and Family Court
By Shaun Sutner TELEGRAM & GAZETTE STAFF
Trial court officials are probing the Worcester Probate and Family Court’s fiscal operations and the job duties of Paul V. LaCava, a top aide to Register of Probate Stephen G. Abraham, after a state audit found financial and personnel irregularities in the register’s office.The 2011 audit report by state Auditor Suzanne M. Bump determined that Mr. LaCava taught courses at three colleges during work hours, and pointed to loose accountability for workers in the probate office.Meanwhile, auditors from the Administrative Office of the Trial Court have been at the register’s office this week, and fiscal reviews by the Trial Court have been conducted during the past year since Ms. Bump’s Dec. 7, 2011, audit of the probate and family court, according to Trial Court spokeswoman Joan Kenney.Trial Court officials said they also are “actively working on issues” raised in Ms. Bump’s most recent post-audit review, which was issued Jan. 22 and focused on Mr. LaCava’s job performance and time and attendance.That report noted that the Trial Court was supposed to review issues related to Mr. LaCava’s job by the end of 2012.An earlier post-audit review, issued on Sept. 24, 2012, and based solely on the reporting of Mr. Abraham’s own office, reported that probate and family court officials implemented all six of the state auditor’s recommendations.The key actions, as reported to the auditor, were re-educating employees about proper procedures on time and attendance reporting, and developing controls strengthening the supervisory oversight of the collection of fees.Christopher Thompson, a spokesman for Ms. Bump’s office, said the auditor’s office generally verifies self-reporting by state agencies during regularly scheduled audits, which are typically done every three years.The auditor’s 2011 report found that in addition to Mr. LaCava’s college teaching, “proper time and attendance records for employees of the Register of Probate’s Office were not kept.”Also, the audit found that about $3,500 in filing fees for domestic relations cases were missing and not reported to the auditor’s office as required by state law. Mr. Abraham attributed the missing funds to a bookkeeping error.Mr. LaCava’s official title is head administrative assistant, a court position for which he was paid $68,487 in 2012, according to state payroll records.The 2011 audit determined, however, that Mr. LaCava, a former Worcester assistant city manager, performed only three of the 19 duties listed in his union job description, and failed to carry out 16 higher-level duties such as budgeting and fiscal planning.Ms. Bump’s office also said that while officials in the register’s office told them that Mr. LaCava functioned more as a special assistant register of probate, a non-union position, he did not meet the minimum educational and experience requirements for that job.Mr. LaCava, 62, graduated from the former Worcester State College in 1977 with a Bachelor of Science degree in sociology, and from Assumption College with a Master of Business Administration degree in 1987, according to school officials.In an email, Ms. Kenney, the Trial Court spokeswoman, said, “staff from the Trial Court’s Human Resources Department is compiling information regarding the duties and job responsibilities of the Head Administrative Assistant in the Worcester Register’s Office, and a meeting there is planned.”Mr. LaCava did not return a call seeking comment. Mr. Abraham, who was first elected to the $110,000-a-year register’s post in 2003 when he was still a Worcester city councilor, did not respond to specific questions for this story.The 2011 Bump audit found that from July 1, 2008, to May 31, 2010 — the spring 2009 and fall 2010 semesters — Mr. LaCava taught 21 courses at Quinsigamond, Worcester State and Curry College during times when probate and family court records showed that he was working in the registry office.“Based on the information provided to us, it appears that (Mr. LaCava) was paid by the (Worcester Probate and Family Court) for hours in which the individual did not work, and no leave time was used to account for his absence,” the auditors wrote.State payroll records show that Mr. LaCava apparently made $2,163 last year at Quinsigamond Community College, where he is still a part-time instructor in sociology. Mr. LaCava also is still listed on the Curry College website as a lecturer in criminal justice and sociology. He is no longer on the payroll at Worcester State, where he was an adjunct professor of urban studies at the school in 2010 and 2011.After the 2011 audit, Mr. LaCava was not disciplined, though Mr. Abraham said Mr. LaCava no longer taught during standard work hours. At the time, Mr. Abraham defended his subordinate, saying he permitted Mr. LaCava to take on the teaching jobs. | 法律 |
2016-50/4330/en_head.json.gz/15188 | New ammunition rule stymies Maine retail giant L.L. Bean
Published November 24. 2013 12:08AM By Greg Smith Day Staff Writer
Some gun owners call it a hindrance, while some lawmakers say it's a necessary safeguard.The ammunition certificate requirement of the state's new gun law went into effect on Oct. 1, and at least one major retailer was as confused as some gun owners.In an statement last week, the sporting goods retailer L.L. Bean said it had taken a cautious approach to ammunition sales to Connecticut residents until it could consult with the Connecticut State Police on the scope of the new law.For about a week following passage of the law, L.L. Bean spokeswoman Carolyn Beem said, it was difficult to understand whether it applied to Connecticut residents buying ammunition in another state. Multiple calls were made to state police for clarification.L.L. Bean did not sell to any Connecticut resident who did not have a certificate during that time, she said."When we got clarification of the law and understood that it only applies to ammunition purchased by residents in the state of Connecticut, we resumed our selling to Connecticut residents," Beem said. "When we spoke to the state agencies, they said they are fielding phone calls and emails from all across the country with all the new laws that have been implemented."Lyme First Selectman Ralph Eno, a longtime pistol permit holder and hunter, was stunned when he stopped by an L.L. Bean store in Maine on his annual hunting trip for partridge and woodcock, and was not able to buy shotgun shells.Eno said the most troubling aspect of the incident is that pistol permit holders like himself already have undergone required screening, which trumps the certificate. Eno said he was under the impression that L.L. Bean was interpreting the law by reading from a state police memo, though state police have not yet responded to a request for that memo or acknowledged its existence."It really just struck me as being an overreach," Eno said. "(The pistol permit) means you've done it already, and to a greater degree."Eno said he reached out to local legislators to ask why out-of-state retailers were under the impression that they couldn't sell to Connecticut residents without the ammunition certificate.The law requires an application process for the ammunition certificate, along with a $35 fee and criminal background check. It is not needed, however, if the purchaser has a pistol permit or a new long gun eligibility certificate, which requires a background check and a firearms training safety course. The long gun eligibility certificate will be required to purchase a rifle or shotgun as of April 1, 2014.Essentially, the new law requires background checks for the purchase of any gun or ammunition.Ron Rando, owner of Ron's Guns in East Lyme, said he has received several dozen reports from hunters about being denied ammunition at other out-of-state retailers - places such as Kittery Trading Post, another popular Maine sporting goods retailer."I've heard from a bunch of people," Rando said. "I don't know what right Connecticut has to tell Maine or New Hampshire they can't sell ammo to a person in Connecticut. It's like saying, 'I'd like to buy 10 pounds of lobster,' and they say, 'No, sorry, you're from Connecticut.' It's unconstitutional, as far as I'm concerned."Michael Lawlor, Connecticut's under secretary for criminal justice policy and planning, said the law is very clear, and it does not apply outside the state of Connecticut. He said it should not cause any undue burden since most people who use firearms already have some type of credential, eliminating the need for the certificate."And those who don't have a relatively easy way to get it," Lawlor said. "I think that it's like having a driver's license to drive, or having a prescription if you need to get medication from a pharmacist. It's just a simple safeguard that balances citizens' rights to keep and bear arms against the state's priority to protect public safety."He said the state had issued 1,080 ammunition certificates as of last week.Other upcoming deadlines associated with the new law include the assault-style weapon certificate, which must be applied for by Dec. 31. Ownership of large-capacity magazines also must be declared by Dec. 31.Bill Lacey, a longtime former New London police officer who retired as a captain and is now president of the Bozrah Rod and Gun Club, said those eligible to buy guns should not be affected by the new eligibility certificates, but some hunters and target shooters may find it an added hassle.He called the changes pertaining to guns a "feel-good law," making it more difficult for law-abiding citizens while not addressing problems such as mental health issues and illegally obtained weapons."It's a big infringement on law-abiding citizens when what we need is enforcement of existing laws," he said.In his time at the police department, he said, he saw too many lenient sentences for those arrested for carrying a pistol without a permit, people who commit crimes or re-offend with the illegal guns.As for the ammunition certificate, he said it does nothing to stop people from buying ammunition outside the state and bringing it back [email protected]
Assault weapons, large capacity magazines must be registered by end of year
Connecticut dealers see ammunition shortage due to laws
In region's rural towns, guns outnumber people
State, retailers figuring out gun law intricacies | 法律 |
2016-50/4330/en_head.json.gz/15199 | The art of listening
Jenny MontgomeryFebruary 1, 2012
Features, Law Firms, Running the firm
2040 vision: Lawyers look at the future
New partnerships require a shared vision, bit of nerve
Lawyers talk about considerations in leaving firms, opening new practices
Starting an IP practice
When a client visits attorney John Rowe’s law office, Rowe’s first priority is to figure out what the client
wants. That may sound like a simple task, but sometimes he’s got to chip away at the surface to discover the real reason
someone needs his assistance.
“Customarily, I’ll ask them what their goals are, what’s on their mind,” he said. “And then
we can ask questions based on that to help zero-in more accurately on that which is their underlying concern, which may be
what they expressed or it may be something else.”
Rowe and like-minded attorneys say that in order to serve clients effectively, they have to devote their full attention to
what their clients say and how they’re saying it. Word choice, intonation and subtle changes in body language may sometimes
reveal a truth that an inattentive attorney may miss. And lawyers who understand the distinction between hearing and listening
may have an advantage over those who don’t.
Being respectful
Mark Torma, a lawyer with South Bend’s Drendall Law Office, said that he has learned through discussions with other
lawyers that people in his profession may not necessarily be putting the client’s needs first.
“All too often, it’s easier to figure out what’s important to you – what’s more profitable,
what’s more interesting,” he said.
Torma recently became the interim executive director of the Volunteer Lawyer Network, based in St. Joseph County. He said
many pro bono clients, based on their lack of experience interacting with lawyers, may not be able to express the problems
they’re trying to solve. But if he doesn’t let them speak freely, the attorney-client relationship may be off
to a rocky start.
“If you cut them short, don’t give them time to breathe and tell their story, generally you don’t get as
much cooperation from them,” Torma said. “The important thing to do is to pay attention to the value the client
gives each of the cases, and that’s not easy to do.”
Rowe shares a similar philosophy.
“What the people are saying and what they mean likely are not the same,” Rowe said. “And unless I listen
appropriately and do my best to determine not only what they are saying but what they mean, then my ability to react adequately
– to teach or advise depending upon the need – wastes my time and their money,” he said.
Rowe’s office is in Linton, a town of less than 6,000 people, about 30 miles southeast of Terre Haute, and he thinks
that may give him an advantage in reading his clients.
“I am very blessed in that my practice is made up of a lot of folks in whose culture I’ve grown up. That is,
it’s a rural, agricultural mining community. When they say something, that elicits all sorts of triggers,” he
said. “So I think when we use our vocabulary, our body language, it gives me a leg up on understanding what they’re
really saying.”
Watching for cues
Skilled communicators understand that a person’s body language may reveal much more than the spoken word. But if you’re
not watching for those cues, you may be missing out on important information.
Barnes & Thornburg litigator Jimmie McMillian has witnessed this behavior in depositions.
“I think part of listening is looking at body language, knowing when it seems like the witness seems like they want
to provide a little bit more,” McMillian said. “Sometimes, they’ll look down like they’re thinking
– and if you’re not looking at them, you don’t realize that they’re actually thinking about whether
they should say the next thing.”
In the public setting of a courtroom, visual cues can help an attorney understand what a witness may be withholding, Torma
“I often think that in the courtroom specifically, for both the lawyers and the clients who are often speaking as witnesses,
what’s even more important than listening is watching because everyone is very much aware that they are being recorded,”
Torma said. “So it’s actually more important to pay attention to what they do when they’re not talking.
It’s fairly nerve-wracking for people, so they take some time to process what they’re going to say.”
Going off-script
McMillian said one challenge in questioning people is that they don’t always react as expected. You may have a long
list of questions, neatly arranged in the order you prefer to ask them. But making the most of an interview requires flexibility.
“Sometimes it’s hard to bear off that outline and ask good follow-up questions, as opposed to being locked to
the outline and being more focused on your next question than the witness’ answer,” he said.
St. Joseph Superior Judge Jenny Pitts Manier has seen in her courtroom examples of both artful questioning and amateur interrogation.
In a recent trial, one attorney would question a witness, listen carefully to the response and then follow up with a question
that showed he was paying attention.
“It seemed to be the fruit of attentive listening and very useful trial technique – not for just that person’s
client, but also the jury,” she said.
In the same case, the opposing counsel asked essentially the same questions, as if he had not been paying attention.
“If one were reading a jury, one might be able to discern a bit of tedium on the part of the jury,” Manier said.
Alienating a jury may not be the best trial tactic, and sometimes it begins early on, before the jury has been chosen.
“I’ve experienced that many years ago in jury selection, where the counsel rising to do voir dire, it was as
if he had been in another building,” she said. That attorney, she recalled, had obviously not listened to the questions
that had already been asked of the jury pool.
Manier said that “when you call people off the streets out of their lives and ask them to suspend their lives for this
process,” the least attorneys can do is be respectful and attentive and not waste jurors’ time by asking them
to answer the same questions again and again.
Narrowing your focus
To be attentive – to be in the moment – attorneys can’t engage in multitasking.
“It’s an art to be patient,” McMillian said. “I also think part of being a good listener is being
able to clear out all of the other stuff that we as lawyers have cluttering our minds. There’s kind of this pressure
today to get onto the next case, the next thing, the next matter, be efficient. There’s this pressure to move extremely
fast all the time. And to be a good listener, sometimes you have to clear all of that out. For the next 10 minutes, an hour,
whatever it takes, I’m going to look and think and focus solely on you.”• | 法律 |
2016-50/4330/en_head.json.gz/15234 | Monkey 'selfies' spark copyright dispute
LONDON — A series of “selfies” taken by Indonesian monkeys has sparked a copyright argument between a British photographer and Wikipedia.
Photographer David Slater had asked for the portraits of crested black macaque monkeys taken in 2011 to be removed from the web site, arguing that he owns the copyright to the images.
Slater told the BBC that although the monkeys pressed the button, he had set the self-portraits up by framing them and setting the camera on a tripod.
But Wikimedia Foundation, the group behind the free information-sharing site, rejected Slater’s request because he didn’t take the photos. It said today no one owned the copyright to the images, because under U.S. law, non-humans — the monkeys in this case — couldn’t have copyright. | 法律 |
2016-50/4330/en_head.json.gz/15264 | Subscribe to Today in Liberty
National Right-to-Carry Reciprocity Act is common sense legislation Fri, 11/18/2011 - 10:30am | posted by Rep. Tom McClintock
On Wednesday, the House of Representatives passed the National Right-to-Carry Reciprocity Act, a piece of common sense legislation that protects the rights of gun owners in states that have concealed carry laws. Below is the speech I have on the House floor in support of the measure (transcript below): Today the House will consider HR 822, a long-overdue measure to assure that states recognize the concealed weapons permits issued by other states. This very simple measure has unleashed a firestorm of protests from the political left. I noted one polemicist, who obviously has not read the Constitution, fumed that this is a Constitutional violation of states’ rights enshrined in the tenth amendment. What nonsense. Article IV of the Constitution could not possibly be more clear: “Full Faith and Credit shall be given in each State to the public Acts, Records and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.” It is precisely this article that requires one state to recognize driver’s licenses, birth certificates or arrest warrants issued by another state. Without it we are not a union but a loose confederation. We are told it is “dangerous” and “risky” to allow honest and law-abiding citizens to exercise their lawfully issued permits in other states. Upon what basis do they make this claim? Certainly not upon any empirical data. The impact of right to carry laws – that is, laws that require the issuance of a concealed carry permit to any law-abiding citizen – has been studied extensively, with the vast preponderance finding that crime rates have fallen in those states after they have adopted such laws. No credible study has ever found that the enactment of such laws has produced an increase in crimes, suicides or accidental deaths. Overall, states with right-to-carry laws have 22 percent lower violent crime rates, 30 percent lower murder rates, 46 percent lower robbery rates and 12 percent lower aggravated assault rates as compared to the rest of the country. Indeed, right-to-carry laws have been so successful than no state has ever rescinded one. So if the left cannot make a rational case on constitutional grounds or empirical grounds, what is the problem? I suspect it comes down to what Ronald Reagan once called “This irreconcilable conflict…between those who believe in the sanctity of individual freedom and those who believe in the supremacy of the state.” Years ago, I had the honor to work for the legendary Chief of the Los Angeles Police Department, Ed Davis. During his 8 ½ years as Chief of the LAPD, crime dropped in Los Angeles while in the same period, across the rest of the nation, it ballooned more than 50 percent. Chief Davis invented “Neighborhood Watch” and “community based policing” and was an ardent opponent of laws restricting ownership of firearms by honest citizens. His successful philosophy was predicated on the principle that, as he put it, “It is not the responsibility of the Police Department to enforce the law. That is the job of every citizen. The police department,” he said, “is there to help.” As citizens we are an integral part of the laws we enact. That does not mean we act as vigilantes – but it does mean that each of us has an inalienable right to defend ourselves and our families from violent predators with whatever force is necessary. If we see a child being molested or a woman being robbed or an old man being beaten, we have a moral responsibility to intervene to the extent that we can. A concealed weapon in the hands of honest and law-abiding citizens makes us all safer. Simply knowing that there are responsible citizens among us capable of responding with force is itself a powerful deterrent to crime. That is the well-documented experience of every state with a right-to-carry law. But a society in which honest and law-abiding citizens are disarmed by their government is a society in which the gunman is king. This is a truth that should be self-evident, but it is lost at the altar of the authoritarian left, which seeks to concentrate all power in government at the expense of the people. Perhaps the best test of the self-evident nature of this truth is illustrated in a full-page newspaper ad I once saw that offered a cut-out sign, which in 150-point type read: “There are no guns in this house.” The caption under it asked, “Would you post this sign in your front window?” Related Posts
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National Right-to-Carry Reciprocity Act
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2016-50/4330/en_head.json.gz/15299 | More Employers Fight Unemployment Benefits
By Peter Whoriskey
It's hard enough to lose a job. But for a growing proportion of U.S. workers, the troubles really set in when they apply for unemployment benefits.
More than a quarter of people applying for such claims have their rights to the benefit challenged as employers increasingly act to block payouts to former workers.
The proportion of claims disputed by former employers and state agencies has reached record levels in recent years, according to the Labor Department numbers tallied by the Urban Institute.
Under state and federal laws, employees who are fired for misbehavior or quit voluntarily are ineligible for unemployment compensation. When jobless claims are blocked, employers save money because their unemployment insurance rates are based on the amount of the benefits their workers collect.
As unemployment rolls swell in the recession, many workers seem surprised to find their benefits challenged, their former bosses providing testimony against them. On one recent morning in what amounts to one of Maryland's unemployment courts, employees and employers squared off at conference tables to rehash reports of bad customer service, anger management and absenteeism.
"I couldn't believe it," said Kenneth M. Brown, who lost his job as a hotel electrician in October.
He began collecting benefits of $380 a week but then discovered that his former employer, the owners of the Gaylord National Resort and Convention Center, were appealing to block his unemployment benefits. The hotel alleged that he had been fired for being deceptive with a supervisor.
"A big corporation like that. . . . It was hard enough to be terminated," he said. "But for them to try to take away the unemployment benefits -- I just thought that was heartless."
After a Post reporter turned up at the hearing, the hotel's representative withdrew the appeal and declined to comment. A hotel spokesperson later said the company does not comment on legal matters. Brown will continue to collect benefits, which he, his wife and three young children rely on to make monthly mortgage payments on their Upper Marlboro home.
Unemployment compensation programs are administered by the states and funded by payroll taxes that employers pay. In 2007, employers put up about $31.5 billion in such taxes, and those taxes typically rise during and after recessions, as states seek to replenish the funds.
With each successful claim raising a company's costs, many firms resist letting employees collect the benefit if they consider it undeserved.
"In some of these cases, employers feel like there's some matter of principle involved," said Coleman Walsh, chief administrative law judge in Virginia, who has handled many such disputes. But, he said, "nowadays it appears their motivation has more to do with the impact on their unemployment insurance tax rate. Employers by and large are more aware of unemployment as a cost of business." | 法律 |
2016-50/4330/en_head.json.gz/15532 | Click here to search Basic Law
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The German constitution, the Basic Law ( Grundgesetz), guarantees the right to own property, freedom of movement, free choice of occupation, freedom of association, and equality before the law. However, the constitution modified the operation of the unfettered free market by means of its “social market economy” ( Soziale...
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2016-50/4330/en_head.json.gz/15554 | Home > Career Resources > Tips & Advice > Legal Corner > Contract
Article exclusively contributed by Woo Kwan Lee & Lo Legal duty in giving referencesBy Camus Wong, Solicitor, Litigation Department, Woo Kwan Lee & Lo The case of Spring v Guardian Assurance plc and others, which was heard in the UK, dealt with an ex-employee's claim in respect of an unfavourable reference provided by his former employers. The Defendants were insurance companies and the Plaintiff had been a sales director and office manager for them. It was initially found that the Plaintiff had incorrectly sold a policy with the aim of generating substantial commission for himself at the client's expense. He was later dismissed, when it was discovered he was planning to join a rival firm, and he then attempted to set up a business selling insurance policies for another company, namely SA. SA and the Defendants were members of "the Life Assurance and Unit Trust Regulatory Organisation" ("the Organisation"). Their code of conduct required SA to ask the Defendants to supply a reference for the Plaintiff. One was provided, describing him as a man of little or no integrity who could not be regarded as honest. The Plaintiff brought an action alleging three things: malicious falsehood; breach of an implied contractual term that the Defendants would prepare any reference using reasonable care and make it full, frank and truthful; and negligence in providing an unsatisfactory reference. The trial judge held that the person who handled the matter for the Defendants had only acted through other servants or agents and honestly believed what they said about the Plaintiff in the reference. There was no evidence of malice on his part. As the Plaintiff was not a member of the Organisation, there was no implied contractual term between him and the Defendants for the provision of a reference. The trial judge therefore dismissed the first two claims but allowed the third, holding that the Defendants owed a duty of care in regard to the reference and had been negligent in preparing it. Both sides subsequently lodged appeals against the rulings. The UK Court of Appeal upheld the trial judge's findings and stated that the major issue for the Defendants' appeal was whether a duty of care was owed in giving a reference or in obtaining information on which it was based. The Court held that the giver of a reference owed no duty of care in the tort of negligence to the subject of the reference and that his duty was governed by and laid in the tort of defamation. Therefore, the only remedy available for an error or falsehood was an action in defamation, or for the associated tort of malicious falsehood, in which it would be necessary to prove malice. The Court also said that employers were under no legal duty to give a reference, though they were commonly thought to be under a moral and social duty to do so, if one was requested. The Defendants' appeal was thus allowed and the Plaintiff then appealed to the House of Lords. They held that an employer has at least a moral obligation (not a legal one) to give a reference because the employee may stand little chance of getting another job without one. If prepared to provide one, the employer owes a duty of care in its preparation, having special knowledge of the employee's character, skill and diligence in the performance of his duties. When such a reference is provided, it is plain that the employee relies upon the exercise of due care in its preparation before making it available to a third party. The House of Lords therefore allowed the Plaintiff's appeal. In summary, unless an employment contract has an express term about the provision of a reference, there is no general duty imposed on employers to provide one. Nevertheless, it is common practice for an employer to give a reference almost as a matter of course. The provision of such is expected of employers and is an accepted practice in the current employment market. If an employer declines to give a reference without good reason, it would damage the prospects of a former employee and might also affect the relationship with existing staff. Since employers owe a duty of care when preparing references, they are advised to exercise reasonable skill and care to ensure the accuracy of the stated facts. In failing to do this, an employer would be liable for negligence and the employee might thereby suffered economic consequences, which would be clearly foreseeable in the case of a carelessly given reference. Q&A on personal data in references Q1 Is it a legal requirement for Hong Kong employers to give a reference letter? A1 No. Unless an employment contract has an express term about the provision of a reference, there is no general duty imposed on employers to provide one. But, if the employer does agree to give a reference letter, it should be prepared with due care and not include potentially defamatory information. Q2 What can I do if I consider there is inaccurate personal data in my reference letter? A2 You can ask your ex-employer to correct the inaccurate data pursuant to section 22 of the Personal Data (Privacy) Ordinance ("the Ordinance"). If the ex-employer agrees there is an inaccuracy, he should make the necessary correction and supply you with an amended copy of the reference no more than 40 days after receiving the request. If the former employer does not accept there is an error or inaccuracy, he may refuse to comply with a request to correct. However, he must then issue a notification of refusal to comply with the data correction request and state the reasons under section 25 of the Ordinance. Taken from Career Times 28 January 2005 (Last review date: 23 August 2013)
Disclaimer: The opinions expressed in this article are those of the contributor
Jurisdiction for contracts performe... Employer unable to enforce contract... 想學寫CV？參考下CV範例啦！ | 法律 |
2016-50/4330/en_head.json.gz/15555 | Contact: Jodie Underwood
Number: (206) 553-5443
Anchorage Cocaine Trafficker Sentenced to 15 Years
SEP 10 -- (ANCHORAGE, AK) – DEA Acting Special Agent in Charge Mark C. Thomas and the United States Attorney for the District of Alaska, Karen Loeffler, announced that on August 31, 2009, Stacy Demetrius Hunt, a resident of Anchorage, Alaska, was sentenced in federal court to 15 years in prison on his conviction of trafficking cocaine.
According to information presented to the court, Hunt was charged with attempted possession of a kilogram of cocaine with the intent to distribute in 2004. At the time of his arrest, Hunt gave an alias, then fled and remained a fugitive for almost four years. On December 13, 2007, Hunt was arrested by the Oakland Police Department for allegations of domestic violence, and it was discovered that there was a warrant for his arrest in this case. At the time of sentencing, Judge Beistline noted Hunt’s lengthy criminal history and his disrespect for the law. Based upon these facts and other factors, Judge Beistline imposed a sentence five years above the recommended sentence under the U.S Sentencing Guidelines.
This case was investigated by the Drug Enforcement Administration and the Anchorage Police Department. | 法律 |
2016-50/4330/en_head.json.gz/15560 | Office of Inspector General Home > About EEOC > Newsroom > Press Releases
TARGET STORES SUED FOR DISABILITY DISCRIMINATION
EEOC Says Retail Giant Failed to Reasonably Accommodate Employee With Intellectual Disability and Cerebral Palsy
LOS ANGELES – The U.S. Equal Employment Opportunity Commission (EEOC) today filed a discrimination lawsuit against national retailer Target Stores, Inc. for unlawfully denying a reasonable accommodation to an employee with multiple disability-based impairments and substantially reducing his work hours due to the medical conditions. The disabled worker could not effectively communicate with others without the assistance of a job coach because of his cerebral palsy and limited intellectual functioning.
The EEOC charged in its lawsuit that Target subjected this employee at Target’s store in Foothill Ranch in Southern Orange County to discriminatory practices on the basis of disability when it failed to notify his job coach and parents of any in-person meetings involving work issues and job performance, as requested. The disabled employee was compelled to attend these in-person meetings alone without the assistance of a job coach or parent, even though repeated requests had been made by both the job coaches and parents to be in attendance at the meetings. Target had hired this employee with full knowledge of his disabilities and need for a reasonable accommodation, according to the EEOC. Such alleged conduct violates Title I of the Americans With Disabilities Act of 1990 (ADA) and Title I of the Civil Rights Act of 1991. The EEOC filed suit in U.S. District Court for the Central District of California after first attempting to reach voluntary settlement out of court (EEOC v. Target Stores, Inc., Case No. SACV 09-0963).
“What is particularly disturbing here is that Target already knew this employee was disabled and needed assistance with communicating during in-person meetings,” said EEOC Regional Attorney Anna Y. Park of the agency’s Los Angeles District Office. “Target’s failure to provide a reasonable accommodation denied him equal benefits and privileges of employment. Despite his disabilities, the employee in this case was qualified and motivated to work, but Target denied him an equal opportunity to succeed in the workplace.”
Minneapolis-based Target operatesmore than 1,700 stores in 49 states nationwide, including more than240 Super Target stores, according to company information.
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov. | 法律 |
2016-50/4330/en_head.json.gz/15565 | Submit Search Federal Bureau of Investigation Tuscaloosa County Man Sentenced to Three Years in Prison for Defrauding SBA and Financial Institutions
Northern District of Alabama
Tuscaloosa County Man Sentenced to Three Years in Prison for Defrauding SBA and Financial Institutions
BIRMINGHAM—A federal judge today sentenced a Tuscaloosa County man to three years in prison for his schemes to defraud financial institutions and the Small Business Administration of more than $3 million, announced U.S. Attorney Joyce White Vance and FBI Special Agent in Charge Richard D. Schwein Jr.
DANNY RAY BUTLER, 58, of Fosters, Ala., pleaded guilty in February to three counts each of wire fraud and bank fraud, and consented to forfeit $1.76 million to the government as proceeds of illegal activity. U.S. District Judge L. Scott Coogler sentenced Butler to the prison term, ordered him to forfeit the $1.76 million and to pay restitution of $1.76 million to the SBA and $50,000 to Next Gear Capital, a finance company that loaned money to Butler’s used car dealership. The court will decide later the amount of restitution that Butler must pay to Alabama One Credit Union, which he defrauded.
Butler’s crimes were related to three separate fraud schemes.
Butler owned and operated Butler Wholesale Inc., a used car lot in Tuscaloosa, and Fosters Groceries, LLC, a company formed to build and operate a grocery store in Fosters. According to his plea agreement and other court records, Butler defrauded the SBA of $1.76 million in connection with a loan to build Fosters Groceries. He also engaged in a check-kite scheme that caused Alabama One Credit Union to lose about $1.28 million, and he misrepresented Butler Wholesale’s car inventory to Next Gear Capital, causing Next Gear to lose $50,000.
“The defendant perpetrated his two most lucrative schemes—the SBA fraud and the check-kite scheme—simultaneously, garnering the use of $3 million to satiate his need for money,” the government said in its sentencing memorandum. Butler created counterfeit documents, altered existing documents, forged signatures, and repeatedly lied to his several victims, the government said.
The SBA is a federal agency that supports and protects the interests of small businesses. Through public and private partnerships, the agency helps Americans start, build, and grow small businesses. One of its supports is the SBA 504 Loan Program.
In early 2010, Butler sought to borrow about $5 million from West Alabama Bank and Trust to build a grocery store in Fosters. When the bank refused to finance the entire project, Butler applied for and obtained an SBA 504 loan. West Alabama Bank and Trust ultimately agreed to loan Butler half of the project’s total cost, and SBA agreed to finance 35 percent. Butler was required to provide the remaining 15 percent as his cash injection into the project.
Almost immediately, after construction was complete, Butler defaulted on the loans by failing to make payments to SBA and West Alabama Bank and Trust as promised, according to court records.
Butler’s check-kite scheme in 2011 and 2012 involved carefully timed deposits and checks between his Fosters Groceries account at West Alabama Bank and Trust and his Butler Wholesale account at Alabama One Credit Union, in order to artificially inflate the account balances. He deposited hundreds of checks, totaling about $45 million, from one account to the other at the two financial institutions, according court records. When the bank and trust discovered the check-kite scheme in February 2012 and refused to honor a number of Fosters Groceries’ checks deposited into Butler’s Alabama One Credit Union account, the credit union lost about $1.28 million.
The third fraud scheme involved Butler’s misrepresentations to Next Gear Capital. Butler received loans from Next Gear to buy inventory for his car lot. A specific car secured each loan, and Next Gear inspected the dealership’s inventory monthly. According to court records, Butler employed various schemes to defraud Next Gear and continue receiving loans. His misrepresentations included listing cars as part of the dealership’s inventory, even though they already had been sold, and lying to Next Gear representatives when they inspected his inventory.
The FBI and SBA-OIG investigated the case. Assistant U.S. Attorney George A. Martin Jr. prosecuted it. | 法律 |
2016-50/4330/en_head.json.gz/15664 | FMLA miles measured by road miles; enhanced severance promise yielded unexpected results; employer’s request that employee take a polygraph test was unlawful.
FMLA Miles Measured By Driving DistanceBellum v. PCE Constructors Inc., 5th Cir., No. 04-60409, April 25, 2005. An employee was not protected under the Family and Medical Leave Act (FMLA) because his employer did not have at least 50 employees within 75 driving miles of the employee’s worksite, the 5th U.S. Circuit Court of Appeals ruled. The employer, PCE Constructors Inc., was headquartered in Baton Rouge, La., but managed construction projects at customer sites across several southern states. Larry Bellum managed one such project for a PCE customer in Fernwood, Miss. In late 2000, Bellum took a leave of absence to have open-heart surgery. After a few months, Bellum attempted to return to his job, but was told he was no longer needed and was formally terminated. Bellum filed suit in Mississippi federal court against PCE, claiming that the FMLA guaranteed him the right to return to his job. The FMLA applies only to companies that have 50 or more employees working at or within 75 miles of an affected employee’s worksite. PCE had only 41 employees at the Fernwood site, with an additional 14 employees working at the Baton Rouge headquarters. The central issue in this case was whether PCE’s headquarters was located within 75 miles of the Fernwood site. If it was, PCE would have the required number of employees to be subject to the FMLA. The “straight line” distance between the Fernwood site and the Baton Rouge headquarters was less than 75 miles. But the driving distance between the two sites using established public roads was greater than 75 miles. Thus, the only way Bellum could avail himself of the FMLA’s protections was if the court adopted the linear approach, not the driving approach. Unfortunately for Bellum, the district court adopted the driving approach, which left PCE with less than the required 50 employees, and the 5th Circuit affirmed that decision. The court rejected Bellum’s argument to strike down a U.S. Department of Labor (DOL) regulation stating that the 75-mile distance was to be measured by surface miles, using surface transportation over public streets. By Declan C. Leonard, an attorney with the law firm of Albo & Oblon in Arlington, Va. Extra Severance Pledge Yields Surprise ResultsGresham v. Lumbermen’s Mutual Casualty Co., 4th Cir.,No. 04-1868, April 13, 2005. An employer’s failure to articulate payment conditions for an enhanced severance benefit that were consistent with those of its basic severance plan exposed the employer to unexpected contractual liability, according to the 4th U.S. Circuit Court of Appeals. In December 1998, Thomas Gresham accepted a written offer to become a vice president in the professional liability division of Kemper Casualty Co. The offer letter (“1998 agreement”) provided that Kemper would pay Gresham one year’s base salary if it terminated him without cause. At the time, Kemper offered a benefits plan that included one week’s severance pay for each year of service, and disallowed severance to any employee offered employment by a purchasing company. The terms of the basic plan were neither mentioned in nor incorporated into the 1998 agreement. In January 2003, Kemper decided to shut down its professional liability division and began to seek a buyer. On May 1, 2003, Gresham received a 60-day termination notice, and Kemper entered into an asset transfer agreement with The St. Paul Insurance Companies. As part of that agreement, St. Paul offered employment to Gresham, who accepted and continued to perform the same function at the same office, but with a different title and for a different company. He then asked Kemper for the promised severance benefit. Kemper refused to pay, stating that the company’s plan precluded severance because of Gresham’s continued employment with St. Paul. Gresham then filed a lawsuit for breach of contract and violation of Maryland’s Wage Payment and Collection Law. The lower court ruled for Kemper, finding that Gresham had been terminated “for cause” under the terms of the 1998 agreement, based on his employment with St. Paul and, therefore, was not entitled to severance under the circumstances. On appeal, the 4th Circuit reversed, finding that the 1998 agreement was not ambiguous and did not incorporate the terms of the general severance plan. Therefore, Gresham’s continued employment did not preclude the payment of severance. It further held that an employee is “terminated” for purposes of a severance agreement when the employer sells the business in which the employee works. Based on that rationale, the court determined that Gresham was not terminated “for cause” when his employment with Kemper ended. By Maria Greco Danaher, an attorney with the firm of Dickie, McCamey & Chilcote in Pittsburgh. Polygraph Test Request UnlawfulPolkey v. Transtecs Corp., 11th Cir.,No. 04-14949, March 29, 2005. An employer acted unlawfully when it asked an employee to submit to a polygraph test in the absence of reasonable suspicion that the employee was involved in a mail tampering incident, the 11th U.S. Circuit Court of Appeals held in a rare case under the federal Employee Polygraph Protection Act (EPPA). The U.S. Department of Defense contracted with Transtecs Corp. to operate the mailroom at the Naval Air Station in Pensacola, Fla. Sabrina Polkey was the mailroom supervisor. One day, Polkey discovered 14 opened and undelivered Christmas cards in a wastebasket at the front desk. Polkey contacted her supervisor, Carl Kirtley, and informed him that she suspected Ronnie Cole, who had been assigned to work the front desk that day, of tampering with the mail. Kirtley also suspected that Cole was responsible, but arranged for all mailroom employees to take polygraph tests. Cole took the test that same day; his results indicated he was not truthful when he denied opening the mail. Kirtley again asked the remaining employees to submit to polygraph examinations. Polkey and the other employees refused. Polkey was fired less than a week later. Polkey sued under the EPPA, alleging that Transtecs unlawfully asked her to submit to a polygraph exam; she also challenged her termination. The trial court granted summary judgment in Polkey’s favor on the EPPA claim, and the termination claim was settled. Transtecs appealed, arguing that the EPPA does not proscribe a mere request that an employee submit to a polygraph test if the test was never administered. Transtecs further claimed its request that Polkey submit to a test fell within either or both of the EPPA’s exceptions for national defense and security matters and for ongoing investigations. The 11th Circuit found that the EPPA expressly prohibits a covered employer’s request or suggestion that an employee submit to a polygraph exam, whether or not the testing actually takes place. The national defense and security exemption, by its own terms, applies only to the federal government and does not extend to defense contractors, the court also concluded. Turning to the ongoing investigations exception, the court stated that Transtecs satisfied two of the four requirements: It was conducting an investigation into the mail tampering incident, and Polkey had access to the Christmas cards and the wastebasket where they were found. Under the circumstances, Transtecs did not have to meet the third requirement of providing written notice of the test because that rule applies only to examinees. Polkey never became an examinee. Thus, Transtecs’ ability to rely on the ongoing investigations exception to avoid liability hinged on meeting the one remaining requirement: a reasonable suspicion of Polkey’s involvement in the mail tampering. Transtecs failed on this count because Kirtley conceded that at the time of his second request to submit to a polygraph test, he did not actually suspect Polkey. Moreover, the court noted that Transtecs had decided to test all the mailroom employees to clear itself of any liability, not to identify wrongdoers. The 11th Circuit, therefore, affirmed the lower court’s judgment in Polkey’s favor. By Lawrence Peikes and Meghan D. Burns, attorneys with the law firm of Wiggin and Dana LLP in Stamford, Conn., and New Haven, Conn., respectively.Professional PointersThe FMLA’s coverage threshold is quite a bit higher than those under the federal discrimination laws. Moreover, the FMLA has technical requirements as to which employees are protected, and there is relatively little case law to guide employers in complying with the 12-year-old statute. Furthermore, DOL regulations interpreting and implementing the law have been subject to much scrutiny and attack in the courts. For all these reasons, employers should exercise particular care in developing and applying FMLA policy.Companies often attract high-level employees with offers of better benefits than those available to rank-and-file employees, but there are risks in entering into such agreements. If determined to be necessary, enhanced benefits agreements should be reviewed to ensure that their terms and business restrictions are consistent with those of basic plans—at least to the extent that the employer intends them to be so. Employers rarely use polygraph testing as an investigatory tool, and this case provides a good illustration of why not. The EPPA generally prohibits a covered employer from requiring, requesting or suggesting that an employee submit to a polygraph exam, even where the test ultimately is not administered and no adverse employment action is taken as a consequence. An exception is made for “ongoing investigations,” but, as the defendant in this case came to learn, that exception is narrowly circumscribed. LIKE
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2016-50/4330/en_head.json.gz/15803 | Judicial Activism For Submariners
[Intel Source: The Sub Report] Back in February 1998, USS La Jolla (SSN 701) collided with and sank a fishing boat off the coast of South Korea. Since I've seen the reports, I can't comment about what a cluster the whole operation was, but I can discuss the continuing legal efforts by one of the ship's officers at the time to clear his name. From the article:"A Navy officer faulted in the collision of a U.S. submarine and a South Korean fishing vessel in 1998 has won the right to take his fight to clear his name back to federal court."The U.S. Court of Appeals on Friday said a federal judge could not prevent Cmdr. Charles H. Piersall III from trying to void a nonjudicial punishment against him, according to court records..."...He then went to the Board of Correction for Naval Records, claiming that he had the right to reject the mast’s findings because the proceedings were held on dry land, not aboard the USS La Jolla, said Eugene Fidell, a military law expert who represented Piersall."When the correction board rejected Piersall’s claim, he pursued the matter in federal court.But the judge tossed the suit. The Navy secretary had argued that Piersall lost the right to pursue the matter in federal court when he failed to request a court-martial before the mast, records say."The Navy secretary also claimed that civilian courts are prohibited from interfering with the military justice system, but the U.S. Court of Appeals found otherwise and overturned the district court’s ruling."I'm not really sure that CDR Piersall has much of a leg to stand on, notwithstanding this procedural victory. (As I read it, the Court of Appeals ruling only had to do with plantiff's ability to pursue the case, and not on the merits of the case itself.)Article 15 of the UCMJ covers administrative, "non-judicial punishment". This is how the military disposes of cases short of court martial. Normally, service members can request court martial (where rules of evidence apply, but the potential punishment is much greater) except in one important case:"...However, except in the case of a member attached to or embarked in a vessel, punishment may not be imposed upon any member of the armed forces under this article if the member has, before the imposition of such punishment, demanded trial by court-martial in lieu of such punishment."He didn't demand a trial by court martial, and the Navy wouldn't have had to give him one, due to the portion of Article 15 quoted above. His main argument seems to be that the NJP was held ashore, rather than on his ship. I've always been taught that the caveat was intended to allow a ship's CO to dispose of a case quickly, without a need for lawyers, when the ship was deployed and no lawyers were available. Nowadays, it's really only submarines that would not be able to get the people needed for a court martial onboard within a reasonable amount of time if needed; nevertheless, the caveat still exists. Since the UCMJ doesn't require the mast be held on the ship where the offense was committed, my guess is that the case will be laughed out of course.On the other hand, if CDR Piersall ends up winning his case, just about every officer who's been taken to Admiral's Mast in the last several years would be able to contest their cases...Going deep...
What was it, something like a 27 ton trawler I think? If he was CDO at the time he obviously had no clue about his watch team and OOD and is distancing himself from the fact. I can't believe this made news, he's just another whiner that is trying to get a federal case through the court. And they said it could impact his career? LOL, it is over shipmate, say sayonara, mabuhai, and adios. Whether slacking or using white knuckled fingers, I've seen the same making wrong judgement calls and put a ship in jeapordy. He just got caught. 'nuff said We don't see the same from more recent accidents. They have enuf self respect to take responsibility and move on.
Chap said...
I was at Group 7 when the Boss flew to Chinhae to work this. Knew some of the players. Concur with your "cluster" designation.I believe the term is "sea lawyer".From a purely legal perspective it's an interesting counterpoint to the doctrinal challenges being done for medical malpractice. I am afraid, however, that I do not get the point of why the colliding CDO is doing this.
Bubblehead said...
One of my fellow JOs on Topeka had been Nav on La Jolla until a couple months before the collision; unfortunately, something like this tends to make selection boards less likely to believe what said CO might have written about earlier officers, and messes with a shot at XO.
Chucky said...
Anonymous said...some have enuf self respect to take responsibility and move on. Chap said...he's afraid he does not get the point of why the colliding CDO is trying to clear his name. Don't know 'bout you, but this is crystal clear to me. Clearing his name is not about self-respect or integrity, you know..."a man fighting at the highest levels for his principles". If he was really fighting for principles, the colliding CDO would be contesting the merits of his dereliction of duty, not just the technicality of how he was "awarded" his Article 15. If he succeeds, he will sue the USN for "ilegally" tarnishing a record that caused his non-promotion to CAPT. He would then be entilted to back pay since the date he would have made CAPT. Do the math: we're talking at least a couple of millions, to include the "suffering" he went through.Hopefully, with this money, he'd go back to Korea and buy fishing rods for the fishermen who lost their 27 ton trawler.
ihatehaters said...
I was onboard the USS La Jolla during the collision and was one of the four rescue divers that night that swam out and and retrieved the Korean crew from there sinking ship. The crew was intoxicated and violated rules of navigation. That being said the US Navy has the most sophisticated navigation electronics in the world. A lot of people had there careers and lives changed and don't pass judgement on anyone trying to take full advantage of the court system
Victory For SPUD-LIB!
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SPUD-LIB: An Open Letter To Frank J. And Instapund...
Sad News From Guam
Don't Play This Game...
Joe Buff Speaks The Truth
Catblogging Time Again!
German Submarine Down?
"A New Dimension In The Expansion Of Militarism"
The SPUD-LIB Manifesto | 法律 |
2016-50/4330/en_head.json.gz/15852 | County officials discuss procedural changes
PARKERSBURG – Based on a West Virginia Ethics Commission Committee on Open Governmental Meetings advisory opinion, Wood County officials are discussing some procedural changes.
Earlier this month, the ethics commission ruled the proposed changes submitted by Wood County are in compliance with the state’s Open Meetings Act. Prosecutor Jason Wharton said the county officials wanted to wait on the committee’s ruling before altering policies or procedures. A committee, which consisted of Commissioner Blair Couch, Wharton and county administrator Marty Seufer proposed the changes after concerns about compliance with the state’s Open Meetings Law were raised.
During what was designated a “work session,” the commissioners earlier discussed numerous items not listed on their agenda and made a number of rulings, including allocating funds to several entities without prior notification to the public. During a subsequent meeting with the commissioners, the prosecutor pointed out “a work session, where a quorum of a governing body is present and matters requiring official action by the governing body are discussed, are meetings subject to the requirements of the Open Meetings Act.”
The commissioners then formed the committee and the proposed changes were submitted to the ethics commission for consideration. The committee ruled the Wood County Commission complies with the Open Meetings Act if it makes the agenda available for public viewing “at least two days prior to the meeting.” Under the current schedule that means the agenda must be ready Tuesday afternoon if there is a Thursday meeting, and Thursday afternoon for a Monday meeting. The commission voted in January to hold meetings on Mondays and the first and third Thursday monthly.
“We will also be adding a line item on your agenda informing the public that correspondence including invoices, exonerations that will be acted on during that next meeting will be available for public viewing during regular office hours starting late in the day two days prior to the meeting,” Seufer told commissioners. “Nothing will be added to that after the close of business on Tuesday or Thursday.”
“If there is an emergency, like a grant or something that needs to be added on to the agenda, there may be special circumstances,” Commissioner Blair Couch noted.
“If it falls under the new definition of emergency as outlined by the Legislature, it can be added, you just have to explain why,” Wharton said.
New deadlines for invoices caused some concern for the clerk’s office finance department.
“We will have to cut off the deadline a day early,” county Clerk Jamie Six said. “That could cause more late fees.”
“We will need to make some modifications to the current purchasing procedures to comply,” Seufer said.
Six said it was the county commission’s policies that “created the difficulties in the first place. Why don’t you just have a standing order, like other counties do, that as long as a purchase isn’t over the budgeted amount available, it goes through. You have always wanted to see all of them. You have already approved the purchase, so you still have prior knowledge and if the funds aren’t there a red flag comes up in our office,” Six said.
“It seems like this is more complicated than it needs to be. I’m not sure why the previous commissions did it this way. It seems like duplication,” Commissioner Steve Gainer said.
Couch, the senior member of the commission, noted the commissioners have the right to request further clarification of a purchase, noting there have been issues of concern in the past.
“I’m not against changing policies or procedures, as long as we maintain checks and balances,” Couch said.
“We wanted to wait until the opinion was rendered before addressing purchase order procedure changes,” Wharton said.
“The key is not overspending. If it is it comes up red, we know to stop it,” Six said. “We’ve been discussing this for the last two years.”
Commission President Wayne Dunn asked Six and Seufer to discuss changes and submit recommendations for the county commission to consider.
PACF Civic Leaders Fellowship program is accepting applications
PARKERSBURG — The Wood County Commission on Monday morning will address the allocation of hotel-motel taxes with ...
VIENNA — From noon to 3 p.m. today, shoppers at Grand Central Mall are encouraged to donate new bed and bath ...
Wood County Circuit Court hears sentencings, arraignment
PARKERSBURG — Three sentencings and an arraignment were heard in Wood County Circuit Court on Friday.
* Kyle ... | 法律 |
2016-50/4330/en_head.json.gz/15874 | | IN RE 2125 S ST.
IN RE 2125 S ST.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
In re Search Warrant Dated July 4, 1977, for Premises at 2125 S Street, Northwest, Washington, D.C.
The opinion of the court was delivered by: BRYANT
MEMORANDUM AND ORDER On July 8, 1977, agents of the Federal Bureau of Investigation (FBI) executed a search warrant on the premises of the Founding Church of Scientology, Washington, D.C.
Issued on the strength of a lengthy affidavit alleging that certain Church officials had conspired "to steal documents from the Government of the United States by means of the burglary of U.S. Government offices and theft by operatives of the Church in the employ of the U.S. Government" and to obstruct justice by "preparing a false response to expected inquiries . . . by law enforcement authorities and federal grand juries,"
the warrant directed the agents to file cabinets located in the rear of the fourth floor of the building that houses the Church's Washington offices. There, the affiant stated he had probable cause to believe, the agents would find copies of the stolen documents as well as written plans, scenarios, directives and a summary of grand jury testimony prepared in furtherance of the alleged conspiracies. The warrant directed the agents to leave no stone unturned. It identifies 148 documents and files allegedly stolen from government offices. It also lists as appropriate for seizure the summary of grand jury testimony and 12 other documents and categories of documents that the government apparently believes constitute evidence of the alleged conspiracies. Finally, item number 162 of the warrant authorizes the agents to seize: Any and all fruits, instrumentalities and evidence (at this time unknown) of the crimes of conspiracy, obstruction of justice and theft of government porperty [sic] in violation of 18 U.S. Code §§ 371, 1503 and 641 which facts recited in the accompanying affidavit make out. While the FBI agents were conducting the search the Church filed a motion in this Court seeking to restrain them from doing so and to impose a protective order sealing all documents seized, primarily on the ground that the warrant was overbroad on its face in violation of the Fourth Amendment to the United States Constitution. The Church argued in addition that should the contents of some of the seized documents be disclosed to representatives of the numerous federal agencies with which it is presently involved in civil litigation, its attorney-client privilege would be violated and its litigation prospects irreparably damaged. This Court denied the motion without reaching the merits of the Church's contentions. On July 11 the Church renewed its request for a protective order; with the consent of the United States Attorneys responsible for the criminal investigation, an order was entered prohibiting disclosure of the seized materials to attorneys for or employees of agencies involved in civil litigation with the Church. The order was to remain in effect for ten days. The Church has now moved for return of the property seized from its Washington files on July 8. Rule 41(e), Fed. R. Crim. P. In effect this is a motion to suppress. Id. The Church asserts four grounds for invalidating the seizure: The warrant was overbroad -- or "general" -- on its face; the agents conducted the search in a manner violative of the Fourth Amendment; the agents employed unnecessary force in violation of 18 U.S.C. § 3109; and any probable cause that might have been established by the affidavit had grown stale by the time it was executed. Having considered the memoranda filed by representatives of the Church and of the government and heard their oral arguments with respect to the warrant's facial validity, I find I need go no further. I hold that the grant of authority to the agents to search for and seize any evidence of conspiracies to steal government property and to obstruct justice
amounted to a "general warrant" and therefore contravened the Fourth Amendment's guarantee against unreasonable searches and seizures. I am not persuaded that the Supreme Court's recent decision in Andresen v. Maryland, 427 U.S. 463, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976), is to the contrary. I The Fourth Amendment to the Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. (emphasis added). The Fourth Amendment serves to prevent both unjustified and arbitrary interferences with personal security and property.
In the first instance the amendment is designed to ensure that the government cannot interfere with a person's security unless it has a good reason for doing so. The particularity requirement ensures as well that the government cannot conduct a search indiscriminately, as by rummaging through a person's belongings in search of any evidence of any crime whatsoever. It accomplishes this end in two ways. First, it leaves to a neutral judicial officer the initial decision as to what can be seized.
Second, it circumscribes the permissible bounds of the search itself; as a commonly-used example illustrates, an officer executing a warrant could not reasonably expect to find a stolen elephant in a kitchen closet or in the drawer of a desk. As particularity is required, so necessarily is generality forbidden. Opposition to the so-called "general warrant" has firm roots in the history of Anglo-American law. As Justice Stewart has observed, writing for a majority of the Supreme Court in Stanford v. Texas, 379 U.S. 476, 481-82, 13 L. Ed. 2d 431, 85 S. Ct. 506 (1965): These words [commanding a particularized description of the place to be searched and the persons or things to be seized] are precise and clear. They reflect the determination of those who wrote the Bill of Rights that the people of this new Nation should forever 'be secure in their persons, houses, papers, and effects' from intrusion and seizure by officers acting under the unbridled authority of a general warrant. Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists. The hated writs of assistance had given customs officials blanket authority to search where they pleased for goods imported in violation of the British tax laws. They were denounced by James Otis as 'the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book,' because they placed 'the liberty of every man in the hands of every petty officer.' The historic occasion of that denunciation, in 1761 at Boston, has been characterized as "perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country. 'Then and there,' said John Adams, 'then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child of Independence was born.'" Boyd v. United States, 116 U.S. 616, 625, 29 L. Ed. 746, 6 S. Ct. 524 (1886). Also it is significant, in considering the propriety of seizure of a Church's documents, that the First and Fourth Amendments share at least in part a common heritage. Historically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure power. Marcus v. Search Warrant, 367 U.S. 717, 724, 6 L. Ed. 2d 1127, 81 S. Ct. 1708 (1961). In fact, unlimited power to search was first directed at nonconforming religious groups. In Tudor England officers of the Crown were given roving commissions to search where they pleased in order to suppress and destroy the literature of dissent, both Catholic and Puritan. Stanford v. Texas, supra, 379 U.S. at 482. I make reference to the First Amendment not to suggest that overtones of religious persecution attend the criminal investigation of the Church of Scientology, but to make clear the need for increased sensitivity in cases in which religious organizations are involved, irrespective of the nature or gravity of the charges against them. Cf. Stanford v. Texas, supra; Marcus v. Search Warrants, supra. The flaw I find in the warrant involved here is precisely the evil that inheres in general warrants. The warrant in this case authorized -- if indeed it did not direct -- agents of the FBI to examine carefully and completely the contents of every document in the fourth-floor files of the Church and to make ad hoc, on-the-spot decisions as to which of those documents constitute evidence of conspiracy -- an amorphous and open-ended crime that, as discussed below, has since its conceptual inception perplexed commentators and courts alike. In my view this warrant -- addressed as it is to the crime of conspiracy -- invited the agents to seize any documents in the Church's files that struck their fancy. As the Supreme Court put it in another context in Marcus v. Search Warrants, supra : "The warrants gave the broadest discretion to the executing officers; they . . . left to the individual judgment of each of the many police officers involved the selection of such magazines as in his view constituted 'obscene publications.'" 367 U.S. at 732. In the present context as well, the sweep of that discretion is constitutionally intolerable. II The government rests its case, and quarrels with the analysis presented above, primarily on the authority of Andresen v. Maryland, 427 U.S. 463, 49 L. Ed. 2d 627, 96 S. Ct. 2737 (1976). In fact, as counsel for the government has indicated, the warrant involved in this case was patterned after the one at issue in Andresen. As I have suggested, I do not believe that Andresen stands for the proposition that a warrant authorizing search for evidence of particular conspiracies comports with the particularity requirement of the Fourth Amendment. Nevertheless, Andresen closely resembles the present case in numerous respects and obviously must be examined here. Andresen can best be understood in the light of the Supreme Court's earlier opinion in Warden v. Hayden, 387 U.S. 294, 18 L. Ed. 2d 782, 87 S. Ct. 1642 (1967). In Warden a majority of the Court joined in abandoning the so-called "mere evidence" rule, which had prohibited seizure of items having only evidential value as distinguished from contraband, fruits and instrumentalities of crime. Warden involved a "hot pursuit," warrantless search that culminated in retrieval not only of a robbery suspect, weapons, and ammunition he allegedly used, but also of clothing he allegedly wore during the robbery, found in a washing machine in the basement of his house. The Court was hard put, on the facts of that case, to draw distinctions in terms of interests the Fourth Amendment is designed to protect between the clothing, on the one hand, and the weapons and ammunition, on the other. Chief Justice Warren and Justice Fortas concurred in the result only, expressing apprehension that abandonment of the "mere evidence" rule was not only unnecessary but also likely to destroy the Fourth Amendment's prohibition against general searches. 387 U.S. at 310-12. Justice Douglas dissented vigorously on essentially the same ground. Id. at 312-25 At the time of the Court's decision in Warden, despite some ambiguity it was generally assumed that the Fifth Amendment stood as a bar to seizure of an individual's personal papers, as well as to compelled production of such papers. E.g., Boyd v. United States, 116 U.S. 616, 29 L. Ed. 746, 6 S. Ct. 524 (1886). Warden, however, expressly left open the question whether that was so. 387 U.S. at 303. The Supreme Court apparently determined to resolve much of this ambiguity in Andresen. It upheld a conviction for the crime of "false pretenses" as defined by Maryland law, see Md. Ann. Code, Art. 27, § 140 (1976), over petitioner's contentions that the Fifth Amendment barred seizure of his personal business records and that warrants authorizing searches for documents in his offices were unconstitutionally general. The warrants at issue directed seizure of certain specified "items pertaining to sale, purchase, settlement and conveyance of lot 13, block T, Potomac Woods subdivision, Montgomery County, Maryland," 427 U.S. at 480 n. 10, "together with other fruits, instrumentalities and evidence of crime at this [time] unknown." Id. As does the Church here, Andresen based his "generality" argument on the catch-all phrase at the conclusion of each warrant. He contended, according to the Court, that the "other-fruits" clause permitted the executing officers to search for and seize evidence of any crime. After rejecting petitioner's Fifth Amendment claim, for reasons not germane here, the Court began its Fourth Amendment analysis by reaffirming the rule that: General warrants, of course, are prohibited by the Fourth Amendment. "[The] problem [posed by the general warrant] is not that of intrusion per se, but of a general, exploratory rummaging in a person's belongings. . . . [The Fourth Amendment addresses the problem] by requiring a 'particular description' of the things to be seized. Coolidge v. New Hampshire, 403 U.S. 443, 467, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971). This requirement "'makes general searches impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.'" Stanford v. Texas, 379 U.S. 476, 485, 13 L. Ed. 2d 431, 85 S. Ct. 506 (1965), quoting Marron v. United States, 275 U.S., at 196. Andresen v. Maryland, supra, 427 U.S. at 480 (emphasis added). The Court then stated that, taken in context, the challenged phrase must be read as authorizing only the search for and seizure of evidence relating to 'the crime of false pretenses with respect to Lot 13T. . . .' Id. (citation omitted). Since the warrants therefore "did not authorize the executing officers to conduct a search for evidence of other crimes," said the Court, they did not run afoul of the particularity requirement. Id. at 481-82 (emphasis added). Petitioner in Andresen had a second Fourth Amendment claim, which pertained to documents referring to a lot other than 13T that were seized pursuant to a clause in the warrant authorizing search for "books, records, documents, papers, memoranda and correspondence, showing or tending to show a fraudulent intent, and/or knowledge as elements of the crime of false pretenses . . . ." Id. at 481 n.10. Apparently he contended that these items were irrelevant to the charge concerning Lot 13T and therefore should have been suppressed according to Warden v. Hayden, supra. The Court disagreed, observing that intent to defraud is an element of the crime of false pretenses in Maryland and that it is well settled that "proof of similar acts is admissible to show intent or the absence of mistake." Andresen, supra, at 483. Moreover, said the Court, Lot 13T and the other lot [about which evidence was seized] had numerous features in common. Both were in the same section of the . . . subdivision; both had been owned by the same person; and transactions concerning both had been handled by petitioner. Most important was the fact that there were two deeds of trust in which both lots were listed as collateral. Id. at 484. III The government apparently would have me read Andresen, in conjunction with Warden v. Hayden, as sanctioning any warrant that directs the executing officers to search for "evidence of" a particular crime. The logic of the government's position is clear and, I admit, parallels statements made by the Court in Andresen : If the affidavit and warrant together identify in precise terms the crime believed to have been committed, and the warrant directs the agents to search for "evidence of" that crime, then the agents have no discretion to search for evidence of other crimes, and the particularity requirement is satisfied. Were the government correct, the particularity requirement would be rendered a nullity. Hence I cannot believe that the Court intended Andresen to be interpreted so broadly, or so literally. For a warrant must satisfy both the probable cause and particularity commands, not simply the former: "[No] Warrants shall issue, but upon probable cause [to believe a particular crime has been committed], . .. and particularly describing the place to be searched and the persons or things to be seized." U.S. Const. amend. IV (emphasis added). To say that mechanical inclusion of the phrase "evidence of " in a warrant automatically and necessarily renders it particular rather than general is to say, simply, that we no longer prohibit general searches. To be sure, searches for "evidence of" crimes are no longer prohibited, and in Andresen the Court did validate a warrant authorizing just that. This in no way means, however, that the particularity requirement has been discarded along with the "mere evidence" rule; rather, the government can safely assume only that searches for particular evidence will be condoned. As the Court put it in Warden, if . . . rejection [of the "mere evidence" rule] does enlarge the area of permissible searches, the intrusions are nevertheless made after fulfilling the probable cause and particularity requirements of the Fourth Amendment . . . ." 387 U.S. at 390 (emphasis added). Andresen must, I believe, be read in the light of the Court's reiteration of our historical proscription of general warrants and the Court's statement, derived from numerous prior cases, that " [as] to what is to be taken, nothing is left to the discretion of the officer executing the warrant." 427 U.S. at 480 (emphasis added). I do not take this statement literally to mean that the executing officer can make no determinations at all with respect to what is to be seized. Such an application of the Court's language would require me to ignore the rule permitting the executing officer to seize manifestly criminal objects such as contraband that he encounters inadvertently in plain view.
What I do take the Court to mean, however, is that a neutral and detached judicial officer must in the first instance ensure that strict standards exist to guide the officer in his exercise of discretion. Evidently the majority
of the Court was satisfied that the judicial officer who issued the warrant in Andresen could reasonably have concluded that a search for evidence pertaining to the sale of a specific parcel of real estate -- precisely and unmistakably identified as "Lot 13T" -- is sufficiently circumscribed to comport with the rule against discretionary searches and seizures. Presumably the agents could readily determine whether a particular document pertained to that lot simply by inspecting its contents in a cursory fashion -- that is, by keying on the magic words, "Lot 13T." Thus they could instantly seize -- or eliminate from their scrutiny -- any document that on its face did not relate to that property.
Try as the government might, the same cannot be said about a search for evidence of a conspiracy -- irrespective of the precision with which the underlying substantive offense is described.
Indeed, because of the permissive rules of evidence available to prosecutors seeking to prove conspiracy, in this context especially the distinction the government urges between impermissible searches for evidence of any crime and permissible searches for evidence of a particular crime is patently hollow. For there is nothing "particular" about conspiracy. As counsel for the Church points out, perhaps the best known statement in our jurisprudence concerning the law of conspiracy was that of Justice Jackson in Krulewitch v. United States, 336 U.S. 440, 93 L. Ed. 790, 69 S. Ct. 716 (1949): The modern crime of conspiracy is so vague that it almost defies definition. Despite certain elementary and essential elements, it also, chameleon-like, takes on a special coloration from each of the many independent offenses on which it may be overlaid. It is always 'predominantly mental in composition' because it consists of a meeting of minds and an intent. The crime comes down to us wrapped in vague but unpleasant connotations. It sounds historical undertones of treachery, secret plotting and violence on a scale that menaces social stability and the security of the state itself. . . . . . . [Even] when appropriately invoked, the looseness and pliability of the doctrine present inherent dangers which should be in the background of judicial thought wherever it is sought to extend the doctrine to meet the exigencies of a particular case. Id. at 446-47, 449. Inasmuch as conspiracy "almost defies definition," it is no surprise that the rules of evidence that pertain to it are loose and pliable as well. This is so principally because the underlying substantive offenses do not limit the scope of relevant evidence that might be introduced at trial. Rather, evidence of conspiracy could also include evidence of any action taken by one of the accused confederates -- no matter how trivial or manifestly innocuous on its face -- that might somehow be connected to an agreement to commit the substantive offenses, or be said to constitute an act in furtherance of such an agreement. See, e.g., Wharton, Criminal Evidence, § 642 (13th ed. 1973). Thus "evidence of conspiracy" is a virtually open-ended proposition. It seems self-evident, then, in considering both the warrant and the affidavit supporting it, see Moore v. United States, 149 U.S. App. D.C. 150, 461 F.2d 1236, 1238 (1972), that the agents in this case had no clear standard to guide their exercise of discretion. Item 162 of the warrant authorized them to search for and seize "evidence at this time unknown" of the two conspiracies outlined in the affidavits. Such evidence, quite clearly, is of a character substantially different from the evidence involved in Andresen. In that case, subjective judgments by the officers as to what may or may not be evidence were narrowly confined by the objects of the search -- documents pertaining to the sale of a specific parcel of real estate, precisely identified as "Lot 13T." Thus a search for "unknown evidence" pertaining to a single real estate transaction may be said to be particular in the sense that the agents know essentially what they are looking for, and definite limitations exist with respect to their exercise of discretion as to what to seize. In the present case, by contrast, despite the detail with which the alleged conspiracies to burglarize government offices, steal government property, and obstruct the criminal investigation are described in the affidavit, the potential fruits of the search were limited only by the number of documents in the Church's files. To be sure, the affidavit provided the agents with substantial guidance as to what to look for. But neither the warrant nor the affidavit -- nor both construed together -- placed practical limitations upon their determinations respecting what to seize. For unless the contents of any particular document rendered it manifestly criminal, the decision whether to seize it was complicated by the subjective considerations attending the law of conspiracy. In effect, each agent had been delegated authority to consider the relevance of the documents according to his own subjective standards as to what evidences the conspiracies suggested by the affidavit. As a practical matter, therefore, a directive to seize "evidence at this time unknown" of conspiracy is a "wild card" permitting seizure of anything at all. In terms of the damage done to the Church's interest in freedom from unjustified, indiscriminate seizures, item 162 is indistinguishable from a warrant to seize evidence of "any crime." Under the circumstances of this case, the government's argument that the affidavit was sufficient to establish the necessary particularity is on especially tenuous ground. For the government concedes that "certain documents . . . should not have been seized," that indeed "approximately half of the documents will be returned . . ." Memorandum in Opposition To Motion For Return of Property at 4. Though, as the government suggests, the fact of improper seizure may not ipso facto demonstrate an improper warrant, that fact certainly provides strong indication that the agents themselves did not construe the affidavit as limiting their discretion. Moreover, even assuming arguendo that the government's broad interpretation of Andresen is the correct one, I would still find it difficult to condone a warrant authorizing search for and seizure of evidence of conspiracy "at this time unknown." For unless the warrant directed the executing officers to seize only evidence objectively pertaining to specific acts of conspiracy identified in the affidavit -- as distinguished from evidence of any potential act in furtherance of the conspiracies described -- the officers would maintain their license to rummage through the files and take whatever they pleased. Indeed, even a warrant authorizing search only for unknown documents pertaining to specific acts of conspiracy would seem to suffer for want of particularity. Execution of such a warrant, again, would vest in the agents discretion to make difficult, subjective determinations with respect to relevancy. Thus I must admit that I have serious doubts whether any warrant authorizing search for and seizure of "documentary evidence of conspiracy at this time unknown" could withstand constitutional scrutiny. IV I recognize and share the Supreme Court's concern that the "complexity of an illegal scheme . . . not be used as a shield to avoid detection when the State has demonstrated probable cause to believe that a crime has been committed and probable cause to believe that evidence of this crime is in the suspect's possession." Andresen, supra, 427 U.S. at 481 n.10. At the same time, of course, a complex legal scheme cannot be used as a shield from the commands of the Fourth Amendment. Thus it may be said that a far-flung criminal scheme -- such as conspiracy -- justifies an equally far-flung search for evidence of that scheme. The Fourth Amendment, however, as the Court has repeatedly recognized, commands more than a justification for an intrusion into a person's privacy. It also commands that no such intrusion be executed in an arbitrary, or indiscriminate manner. Thus steps must be taken to ensure that the intrusion is confined to its justifiable limits. This is so especially where searches for documents are involved. We recognize that there are grave dangers inherent in executing a warrant authorizing a search and seizure of a person's papers that are not necessarily present in executing a warrant to search for physical objects whose relevance is more easily ascertainable. . . . In both kinds of searches, responsible officials, including judicial officials, must take care to ensure that they are conducted in a manner that minimizes unwarranted intrusions upon privacy. Andresen, 427 U.S. at 482 n.11. This rationale, it seems to me, applies with still more force in a case involving a search through a religious organization's files. Once government agents have a search warrant in hand, only the requirement that the warrant "particularly [describe] the place to be searched, and the persons or things to be seized" serves to protect citizens from unjustified interferences with personal security or property. The particularity requirement -- and nothing else -- confines the intrusion to its justifiable limits.
In Andresen the Supreme Court evidently believed that the precision of the term "Lot 13T" was sufficient to accomplish that purpose. Here, however, there is no such precision. This is why the warrant cannot stand. [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 436 F. Supp.] ORDER Upon consideration of the foregoing assessment of the challenged process, the Court ORDERS that the government, forthwith: (1) return to petitioner all material seized on July 8, 1977 in a search of its premises by agents of the Federal Bureau of Investigation under color of authority of a warrant dated July 4, 1977; (2) destroy any and all copies of such materials in its possession or control and any and all fruits of the search and seizure, including but not limited to notes, memoranda, correspondence, photographs or other materials seized or any information otherwise gleaned during or as a result of the search; (3) retrieve any copies of any materials seized or any fruits of the search and seizure which have been disseminated to any persons outside the Fraud Section of the United States Attorney's Office, including any copies of such items or notes or memoranda concerning them made by such persons; (4) destroy all materials retrieved pursuant to paragraph (3) of this order without making copies thereof or notes concerning them; and (5) report in detail in writing to this Court, with copy to counsel for petitioner, on its compliance with the terms of this order not later than one week from the date hereof. And it is further ORDERED that execution of the above is stayed pending final resolution of this matter if the government elects to appeal; otherwise its terms shall be effected automatically upon expiration of the time allotted for filing notice of appeal. In the interim the documents shall be impounded by the Clerk. WILLIAM B. BRYANT / Chief Judge Our website includes the main text of the court's opinion but does not include the | 法律 |
2016-50/4330/en_head.json.gz/15969 | - Tips for your life
Tips for your life » Culture And Society » Policy » Why is society so common prison laws and concepts
Why is society so common prison laws and concepts
Psychological distributing manners of the penitentiary system in the modern Russian society due to the fact that, in its everyday, ordinary experience any citizen is safe from the fact that he will be faced with the powerlessness against people in authority. origins penetration of prison laws and concepts in everyday life Russian citizens have no personal experience of detention, of course can be found in the history of the country, where the chance of becoming the innocent convict was not even every second, but generally everyone. As one sixth of the land for decades defending the concepts of "human rights" and the "presumption of innocence" by themselves were viewed as suspicious fact. Background In the long days of the Soviet Stalinist terror was not a single family, or otherwise coming into contact with the area, either by inmates - relatives, friends and relatives, or by the guardians - people serving in the extensive system of GULAG.People were born, grew up and brought up, one way or anothe
r every day soaking everyday, everyday role-playing experience, concluded in the coordinate system "the guard-protected."The whole country lived "in the area at the camp." From this system entered into society and the rules of life on the "prison concepts", consisting of several postulates: the cult of force, the cult of perverted justice, including the cult of punishment justly romantizirovanie image has stayed, "leaning to the area 'rights. Modernity Sociological studies conducted in recent years show that the average figure of the total number of prisoners - a year from 850,000 people (plus / minus) - at present, most of the Russian population has no direct experience of prison.However, there is general knowledge, confirmed by statistics, that the Russian judicial system operates solely on the conviction and only 0.7% cases of justification.That is, once in the millstones of modern Russian judicial system, to avoid prison terms is unlikely.Therefore, an old Russian saying "from prison and from scrip does not renounce" is relevant at the moment. Prison same concept of "justice" are the kind of alternative to state justice.Groin problem solver applied to him a man of justice, through their looking or by "thieves in law", from a psychological point of view, can not be unattractive. Therefore, in addition to the objective components affecting the spread of the prison-camp concepts, there are also subjective.For example, such as the transfer of the prison-zonovskih lexicon in the rhetoric of high-ranking officials, the highest political authority, seeking to speak to supposedly plain citizens - the language of their country. This trend also contributes to the improvement of the psychological situation, as happens so long zombie, plunging the consciousness of the majority of the electorate in the typology of the area.And so the power of intentionally il unwittingly gives a signal to society that it belongs to the citizens of the country as the head of the prison system to convict.A typology of the zone, as mentioned above, all conceptually simple and primitive acts hierarchical setting: godfather - a man of authority, implementing authority and the prisoner. civilizational progress in the developed democratic countries for several decades trying to implement the humanistic tendency in the legal relationship between society and the state.These trends are based on the liberalization of political regimes and criminal law.But Russian legislature in recent years are different from their own way - by tightening both criminal law and the increasing restrictions of other rights and freedoms.Legislative repressive psychologically extends to behavioral motivation of citizens do not feel the legislative protection, to seek other remedies.Therefore, no general humanization of consciousness of the whole society - from top to bottom - the elimination of perverse expected conceptual prison law is not necessary. Sources: «When zone and live» percentage of acquittals reached historic lows - 0.7%.The need for the courts finally eliminated the Armed Forces: Russia imposed in less than one percent of acquittals accused to justice 0
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2016-50/4330/en_head.json.gz/15981 | | James J. Hanson v. Experian Information Solutions
James J. Hanson v. Experian Information Solutions
JAMES J. HANSON, PLAINTIFF,v.EXPERIAN INFORMATION SOLUTIONS, INC., DEFENDANT.
The opinion of the court was delivered by: Judge Robert W. Gettleman
Plaintiff James J. Hanson has sued defendant Experian Information Solutions, Inc., under the Fair Credit Reporting Act ("FCRA") alleging that defendant: (1) failed to follow "reasonable procedures to assure the maximum possible accuracy" of the information in plaintiff's consumer report in violation of 15 U.S.C. § 1681e(b); and (2) defendant's failure to conduct a "reasonable reinvestigation" upon receipt of plaintiff's dispute that information in his consumer report was inaccurate in violation of § 15 U.S.C. § 1681i(a)(1). Defendant has moved for summary judgment, arguing that it reported plaintiff's account accurately as a matter of law and that its reinvestigation was reasonable as a matter of law. Because key material facts remain in dispute, defendant's motion is denied.
Sometime in late summer 2009 plaintiff began receiving notices from various banks that his credit accounts were being cancelled or his credit limits reduced because of negative information appearing on his credit report. In November 2009 plaintiff telephoned Trans Union, LLC to ask about the source of the negative information. He learned that Barclays Bank Delaware had reported him as being delinquent on a credit card. Plaintiff later learned that the account also appeared on an Experian credit report dated December 24, 2008.
At that time plaintiff had a Barclays credit card account ending in # 9790. That account was in good standing and was listed under plaintiff's then current address on Farwell Avenue in Chicago, where he had lived since May 2007. The reportedly delinquent card had an account number ending in #0234 and was listed as a negative item opened in April 2008, with a past due amount of $211. The account showed that plaintiff had never made a payment. The delinquent account was listed under plaintiff's previous address on Claremont Avenue in Chicago. Plaintiff had not lived at that address since early 2007.
Plaintiff later learned that the allegedly delinquent account was an AirTran credit card offer by Barclays that plaintiff had applied for but never received, activated, or used. Plaintiff applied for the card in April 2008 while traveling. He was solicited to apply for the card while at the airport in Atlanta, Georgia. According to plaintiff, someone approached him on foot, offering free AirTran tickets as among the benefits for use of the card. Plaintiff has testified that he was never informed of the terms and conditions of the card. He filled out a paper application on which he provided his current address on Farwell Avenue.
A few weeks later plaintiff received a letter at his Farwell address from AirTran explaining the rewards program. Plaintiff had not received the AirTran card or any paper work from Barclays. Because he never received the card, he never activated or used it.
The person who solicited plaintiff at the airport worked for a third-party company hired (apparently by Barclays) to solicit credit card applications. Barclays did not receive the paper application, and neither Barclays nor Experian has produced it. Barclays relies on the third-party company to mail the applicant the card member agreement, the credit card, and the terms and conditions upon approval. Barclays has produced a printout of a computerized version of plaintiff's application that indicated plaintiff's address as on Claremont. Barclays' records show that the card and card member agreement were mailed to plaintiff at the Claremont address on May 6, 2008.
The terms and conditions of the card indicate that there is an annual fee. They also provide, "I understand that the use of any account opened or any card issued in connection with this offer will constitute my acceptance of and will be subject to the terms and conditions of the Barclays' card member agreement that will be sent to me." The amounts owed on the account consist solely of the annual fee and interest.
Barclays' records indicate that the plaintiff called them on November 21, 2009, to "update the address" associated with the account. Plaintiff does not recall calling Barclays or ever contacting Barclays about the account.
On February 1, 2010, plaintiff wrote to Experian indicating that in reviewing his credit report he found a negative item with which he disagreed, indicating that the item was the Barclays card. His letter stated, "[T]his card was never issued to me nor did I ever use this card. I am unaware of how a balance of $211 was incurred. I would appreciate it if you could look into this matter and inform me how something like this could have happened."
After receiving the letter, defendant contacted Barclays via an Automated Consumer Dispute Verification ("ACDV") form, quoting plaintiff's letter. The ACDV form listed the Farwell address as plaintiff's current address and the Claremont address as plaintiff's previous address. Barclays responded with a simple generic code "01-account information accurate as of date reported." Barclays marked in its response that its records showed the Farwell address was the "same" and the Claremont address was "unknown."
In addition to sending Barclays the ACDV form, defendant claims to have reviewed its own records to determine that the Barclays' account was accurately reported on plaintiff's credit report. On February 24, 2010, defendant mailed to plaintiff the results of its reinvestigation and a summary of his rights under the FCRA.
Summary judgment is appropriate when the movant shows that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Only disputes or facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant has the initial burden of pointing out the absence of a genuine issue of material fact. Once the movant has met that burden, the nonmoving party must go beyond the pleadings and present specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. Ltd.v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
The complaint alleges that defendant violated the FCRA by failing to maintain reasonable procedures to assure maximum possible accuracy of plaintiff's credit report in violation of §1681e(b) and failing to conduct a reasonable reinvestigation of plaintiff's consumer dispute in violation of § 1681i. Defendant has moved for summary judgment on both claims, raising a variety of arguments.
First, defendant argues that both of plaintiff's claims fail as a matter of law because defendant accurately reported the Barclays' account. A prima facie case under both §1681e and §1681i requires plaintiff to establish that the information published by the credit reporting agency ("CRA") was inaccurate. DeAndrade v. Trans Union LLC, 523 F.3d 61, 67 (1st Cir. 2008). To support its argument, defendant states in its opening memorandum (p. 5) "the undisputed evidence shows that plaintiff applied for the Barclays Account in April 2008 with the 6500 N. Claremont Ave. ... address. When plaintiff applied for the Barclays Account, he was informed both orally and in writing that there would be an annual fee for the card, and that failure to pay amounts owed on the account, including the annual fee, could subject the account to interest, late fees, and adverse credit reporting."
Defendant has a very myopic view of the record. Plaintiff of course disputes that he signed up for the card under the Claremont address, and there is no reason he would have done so, given that he had not lived on Claremont for almost a year at the time he filled out the paper application. Plaintiff has also stated that he was not informed, either orally or in writing, of the terms and conditions of the account. Those terms and conditions indicate, as plaintiff notes, that "I understand that the use of any account opened or any card issued in connection with this offer with constitute my acceptance of and will be subject to the terms and conditions of the Barclays' card member agreement that will be sent to me." Because, according to plaintiff the card and statements were sent to the Claremont address, he never received them, never activate or used the card, and never accepted the terms and conditions. Because there is a dispute as to the material facts surrounding plaintiff's application for the card, defendant cannot establish that it accurately reported the account. Summary judgment on this claim is therefore denied.
Next, defendant argues that plaintiff has failed to identify a "factual discrepancy" on his credit report sufficient to trigger a duty to reinvestigate under §1681i. See DeAndrade, 523 F.3d at 68. Essentially, defendant argues that plaintiff identified a legal dispute with Barclays the merits of which defendant could not and is not required by the FCRA to determine. According to defendant, no reasonable investigation on its part could have uncovered any inaccuracy in plaintiff's credit report. Thus, defendant argues, plaintiff "crosses the line between alleging a factual deficiency that defendant was obliged to investigate pursuant to the FCRA and launching into an impermissible collateral attack against Barclays' right to seek payment on the Barclays Account."
This argument in belied by defendant's own records which, at the time defendant received plaintiff's dispute letter, showed that plaintiff had another Barclays account in good standing listed under plaintiff's correct address. Indeed, defendant's records showed that every one of plaintiff's active accounts listed the Farwell address, and that every account that had been associated with the Claremont address was closed. Therefore, defendant possessed evidence available that suggested a problem with the disputed Barclays account. According to plaintiff, defendant never reviewed that evidence or chose to ignore it.
Next, defendant argues that despite having no duty to reinvestigate, it did so and its reinvestigation was reasonable as a matter of law. According to defendant a CRA complies with the reinvestigation requirement by contacting the furnisher of the disputed information to verify the accuracy. 15 U.S.C. § 1681i(a)(1)(A). Defendant did this by sending Barclays the ACDV form, which it argues is sufficient as a matter of law. See e.g., Lee v. Experian Information Solutions, 2003 WL 2287351 at *3 (N.D. Ill. 2003). It then argues that nothing in Barclays' response or defendant's own records suggested that the Barclays' account did not belong to plaintiff. But Barclays' response to the ACDV form listed the Claremont address as "unknown," and listed Farwell as plaintiff's current address. And, as noted above, defendant's records indicate that at least eleven of plaintiff's credit accounts had been changed from the Claremont address to the Farwell address before plaintiff applied for the Barclays account at issue. A rational trier of fact could conclude that those records gave defendant reason to believe that Barclays' information about the disputed Barclays account was inaccurate.
Finally, defendant argues that plaintiff cannot establish that defendant's reporting of the Barclays account caused him any injury. Plaintiff seeks statutory damages for willful violations, and has alleged that defendant's actions have caused him emotional distress. Plaintiff's own testimony, if it provides reasonable detail, is sufficient to support such a claim. RuffinThompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 609 (7th Cir. 2005). Plaintiff has submitted his own testimony and that of an expert witness to support his claim for damages. Additionally, plaintiff has provided some evidence that defendant's credit report was viewed by third-party businesses during the time period of alleged inaccurate reporting, and that the credit report may have contributed to adverse credit actions. Although plaintiff's evidence of damages is rather weak, it is sufficient to survive summary judgment.
For the reasons set forth above, defendant Experian's motion for summary judgment is denied.
Robert W. Gettleman United States District Judge | 法律 |