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2016-50/4389/en_head.json.gz/15378 | Aug 5, 2011 7:23PM ET
A Hollywood Lawyer Agreed to Go to Jail for John Edwards
Adam Martin
Flickr user Eric Johnson, Pierce O'Donnell
If you've ever read Deadline Hollywood or the columns of Art Buchwald you've been exposed to the clients of Pierce O'Donnell. The high-profile Los Angeles lawyer has represented both Buchwald and Deadline editor Nikki Fink against heavy hitters including Paramount, Disney, and News Corp. He also ran for Congress in the Glendale-Burbank-Pasadena area, and co-wrote a book, Fatal Subtraction: The Inside Story of Buchwald V. Paramount, about his representation of Buchwald. More recently, he represented victims of Hurricane Katrina in a lawsuit against the U.S. government. Now, he's probably going to jail.
O'Donnell is known as a tenacious litigator who goes up against the big boys. In 1988, he sued Paramount Pictures for $5 million on Buchwald's behalf, claiming the studio had ripped off the idea for Coming to America, the Eddie Murphy hit, from a treatment Buchwald had pitched six years earlier. Paramount settled out of court. That launched his high-profile career, during which he represented The Wire creator David Simon as he and Barry Levinson accused Warner Brothers of stealing details from Homicide to make a show called Polish Hill.* Later, he represented Faye Dunaway when she sued Andrew Lloyd Webber for firing her from Sunset Boulevard. O'Donnell's Hollywood resume stretches on and on. And given the number of high-power players he's worked for and protected, he's not the kind of guy you would expect to end up going to jail over $20,000 in campaign donations.
But O'Donnell has pleaded guilty to two misdemeanor campaign finance fraud charges, and has agreed to take six months in jail should a judge sentence him on Nov. 7. The mystery is why such a savvy litigator got involved in a scam so simple and easy to catch. Here's what he did in 2004, according to Friday's Los Angeles Times:
In a plea agreement with prosecutors, O'Donnell admitted to asking 10 people, including employees of his law firm and at least one relative, to each make donations of $2,000. He then reimbursed them, thereby masking that he was the source of the funds. The attorney agreed to serve six months in federal prison for the "conduit contribution" charges, in addition to a $20,000 fine and 200 hours of community service.
Reimbursing people for their campaign donations is a big, obvious Campaign Finance Law 101 no-no. So which politician inspired such ardor that the savvy legal mind would risk jail time to push his electoral chances? None other than John Edwards, who would go on to get the vice presidential nomination
The unlawful Edwards bundling was not the first time O'Donnell was accused of dodgy campaign contributions. He was accused of "reimbursing 22 employees and others for $25,500 in contributions to the 2001 mayoral campaign of [Los Angeles mayor] James K. Hahn, in violation of a $1,000 per person limit," according to The New York Times. In fact, it was news of those allegations that led Edwards to return $44,000 from a 2003 fundraiser O'Donnell organized. O'Donnell hasn't offered comment on the charges, but the crux of his defense team's arguments hinged not on whether he had committed the campaign finance fraud, but rather he was being singled out for prosecution. A Los Angeles Times story from 2008 reported that his team had "presented prosecutors with nearly two dozen illegal campaign contribution cases that they say were handled administratively by the Federal Elections Commission, even though most involved larger amounts of money and more egregious conduct than is alleged in O'Donnell's case." And that argument may have actually worked. At Politico, Josh Gerstein noted prosecutors were originally seeking a plea bargain that included a felony conviction, which would entail O'Donnell's losing his law license permanently (it is currently suspended). O'Donnell's defense team characterized the case as a victory because he pleaded guilty only to a misdemeanor, . "From the outset of this case, we have been seeking to get the charges reduced to misdemeanors," his lawyer, Brian J. O'Neill, told the Orange County Weekly. The U.S. Attorney prosecuting the case, André Birotte Jr., was more smug. "As an experienced attorney and former candidate for the United States Congress, Pierce O’Donnell should have been well aware of federal election laws concerning campaign contributions," he said in a statement. And, now, unless a judge intervenes in November, O'Donnell is headed to jail.
*Correction: This story previously incorrectly said that David Simon once sued Warner Bros. The 1992 dispute Simon and director Barry Levinson had with Warner Bros. was resolved before going to court, so it was incorrect to refer to it as a lawsuit.
Word from the Supreme Court on DOMA: 'Looking Good' for Gay Rights — Maybe
Florida's War on Bongs Has Arrived
[email protected]
Follow @ghostofkelor | 法律 |
2016-50/4389/en_head.json.gz/15388 | Belgian lawmakers extend euthanasia to children
By JOHN-THOR DAHLBURGAssociated Press Published: February 14, 2014 12:05 AM
BRUSSELS -- Belgian lawmakers voted overwhelmingly on Thursday to extend the country's euthanasia law to children under 18.The law empowers children with terminal ailments who are in great pain to ask to be put to death by their doctor if their parents agree and a psychiatrist or psychologist certifies they are conscious of what their choice signifies.It has wide public support, but was opposed by some pediatricians and the country's Roman Catholic clergy. As House of Representative members cast their ballots and an electronic tally board lit up with enough green lights to indicate the measure would carry, a lone protester in the chamber shouted "assassins!"Hans Bonte, a Socialist, said no member of the House hopes the law will ever be made use of. But he said all Belgians, including minors, deserved the right to "bid farewell to life in humane circumstances" without having to fear they were breaking the law.The 86-44 vote in the House, with 12 abstentions, followed approval by the Senate in December.[Article continues below] Laurent Louis, an independent House member who opposed the legislation, said the majority of his colleagues were violating the natural order."A child is to be nurtured and protected, all the way to the end, whatever happens," Louis said. "You don't kill it."Another House member, Catherine Fonck, said the legislation was riddled with flaws and didn't address the possibility that one parent may favor euthanasia while the other is opposed.All 13 proposed amendments seeking changes in the bill were defeated.Daniel Bacquelaine, a physician and leader of the centrist Reform Movement, said it is wrong to think life and death questions should be reserved for adults. He stressed that the law imposed no obligations, and that no child, family or doctor would be forced to apply it.The law will go into effect when signed by King Philippe. The Belgian monarch is not expected to oppose the measure, said Jean-Jacques De Gucht, a co-sponsor.Belgium's euthanasia law, passed in 2002, previously applied only to legal adults. The neighboring Netherlands allows euthanasia for children as young as 12, providing their families agree. | 法律 |
2016-50/4389/en_head.json.gz/15422 | 96 Civ. 8052 (HB)(THK)
U.S. District Court, S.D., New York
Calzaturificio Claudia s.n.c. v. Olivieri Footwear Ltd.
In the framework of an ongoing contractual relationship between a US buyer and an Italian seller - in the course of which the seller had usually delivered the goods making them available at its own factory ("ex works") - the buyer failed to pay four invoices issued by the seller and marked "ex works". The seller commenced an action to recover payment. The buyer contested: the existence of a contractual relationship with the seller; that it agreed to delivery "ex works"; that it had received the goods; and that any delivery was either late or non-conforming.
Citing U.S. case law on interpretation of CISG, the Court stated that in interpreting CISG the Court must look to its language and to the general principles upon which it is based (Art. 7(2) CISG) and that case law interpreting Art. 2 of the Uniform Commercial Code (UCC), although not applicable per se, may be used to interpret CISG when the provisions in both instruments contain similar language. The Court, however, at the same time stressed that while the UCC and CISG are similar with respect to certain provisions, they differ with respect to others, such as the writing requirement and the parol evidence rule, so that where controlling provisions are inconsistent, it is not appropriate to apply UCC case law in construing contracts governed by CISG.
As to the absence of a writing stating the terms of the contract the Court, citing scholarly writings, held that unlike the UCC, under Art. 11 CISG sales contracts need not be evidenced by a writing and may be proved by any means, including negotiations and oral statements or agreements made prior to a writing. Therefore, also in view of the provisions on interpretation of the contract and usage binding on the parties contained in Arts. 8 and 9 CISG, contracts governed by CISG are freed from the limits of the parol evidence rule, being allowed the recourse to extrinsic evidence.
Applying Art. 8 CISG and considering that the invoice had been unilaterally prepared by the seller and that the buyer had objected to the delivery "ex works", the Court held that it was not possible to establish whether the buyer had agreed to or intended to be bound by the terms of the four disputed invoices. Nor was it possible to conclude that the delivery "ex works" amounted to a course of dealing, binding on the parties according to Art. 9(1) CISG, since the seller had failed to submit sufficient evidence with regard to the terms of the other transactions successfully concluded with the buyer.
The Court denied the seller's motion for summary judgment there being too many issues to be solved at trial. | 法律 |
2016-50/4389/en_head.json.gz/15495 | On Some Charges - WSJ
Qwest Jury Is Stuck
On Some Charges
In Trial of Former Officials,
Panel Resolves 24 Counts,
Can't Agree on 20 Others
Shawn Young Staff Reporter of THE WALL STREET JOURNAL
The jury in the case of four former Qwest Communications International Inc. executives on trial facing fraud and conspiracy charges in Denver told the judge they had reached decisions on 24 of the 44 charges. But in a note revealed yesterday, they told the judge that so far they are "not able to reach unanimous decisions on the remaining charges." Judge Robert Blackburn of the U.S. District Court for the District of Colorado told the jury, which has entered its second week of deliberations, to keep working at it.... | 法律 |
2016-50/4389/en_head.json.gz/15683 | Home > Legislation > 106th Congress > S.1214 S.1214 - Federalism Accountability Act of 1999106th Congress (1999-2000)
Sen. Thompson, Fred [R-TN] (Introduced 06/10/1999)
Senate - Budget; Governmental Affairs
[displayText] => Committee on Governmental Affairs. Reported to Senate by Senator Thompson with amendments. With written report No. 106-159. Minority views filed.
Summary: S.1214 — 106th Congress (1999-2000)All Bill Information (Except Text)
There are 2 summaries for S.1214. Reported to Senate amended (09/16/1999)Introduced in Senate (06/10/1999) Bill summaries are authored by CRS.
Shown Here:Reported to Senate amended (09/16/1999)
Federalism Accountability Act of 1999 - Requires: (1) the report accompanying any public bill or joint resolution reported from a Senate or House committee or conference to contain an explicit statement on the extent to which the bill or joint resolution preempts State or local government law, ordinance, or regulation and an explanation of the reasons for such preemption; or (2) in the absence of such a report, the committee or conference to report to the Senate and House a statement containing such information before consideration of a bill, joint resolution, or conference report.Prohibits construing any statute or rule enacted after this Act's effective date as preempting in whole, or in part, any State or local government law, ordinance, or regulation, unless: (1) the statute or rule explicitly states that such preemption is intended (and in the case of a rule, that such preemption is authorized by the statute under which the rule is promulgated); or (2) there is a direct conflict between such statute or rule and a State or local law, ordinance, or regulation so that the two cannot be reconciled or consistently stand together.Directs the head of each Federal agency to: (1) be responsible for implementing this Act; and (2) designate an officer (to be known as the federalism officer) to manage the implementation and serve as a liaison to State and local officials and their designated representatives.Requires agencies to provide for notice of rulemaking and consultation with State and local officials regarding any preemption or other significant federalism impacts that may result.Requires federalism officers to identify each proposed, interim final, and final rule having a federalism impact that warrants the preparation of a federalism assessment that shall assess and explain the extent of preemption, the significant impacts on State and local governments, the measures taken to minimize such impacts, and the extent of consultation. Sets forth: (1) agency procedures for the preparation, consideration, submission, and publication of federalism assessments.Describes the terms and conditions regarding judicial review of agency compliance with the federalism assessment requirements under this Act.Requires an agency to consult with State or local officials when developing a performance plan that includes a State- administered Federal grant program.Requires: (1) the Director of the Office of Management and Budget to submit annually to the Director of the Congressional Budget Office (CBO) information describing interim final and final rules issued during the preceding year that preempt State or local authority; and (2) the Director of the Congressional Research Service to submit annually to the CBO Director information describing court decisions issued during the preceding year that preempt State or local authority.Directs CBO, after each session of Congress, to prepare a specified report on the extent of Federal preemption of State or local authority enacted into law or adopted through judicial or agency interpretation of Federal statutes during the previous session and to make such reports available to each congressional committee, each State Governor, the presiding officer of each chamber of the legislature of each State, and other public officials and the public on the Internet.Amends the Congressional Budget Act of 1974, with respect to Federal intergovernmental mandates, to require a Senate or House committee to include in its report accompanying a public bill or joint resolution that would place caps upon, or otherwise decrease, the Government's responsibility to provide funding to State, local, or tribal governments under a Federal program under which $500 million or more is provided annually under entitlement authority, a statement of how the committee specifically intends the States to implement the reduction and to what extent the legislation provides additional flexibility to offset such reduction. Requires the CBO Director to include in statements on public bills or joint resolutions (other than appropriation bills and joint resolutions) reported by any Senate or House committee that make such reduction, if no additional flexibility is provided in the legislation, a description of whether and how the States can offset the reduction under existing law or, if additional flexibility is provided, whether the resulting savings would offset the reductions in that program. Congress.gov | 法律 |
2016-50/4389/en_head.json.gz/15697 | Office of Inspector General Home > About EEOC > Meetings and Hearings > 3-15-11
Meeting of March 15, 2011 - Employment of People with Mental Disabilities
Ruby Moore
The Georgia Advocacy Office
Ruby Moore is the Executive Director of the Georgia Advocacy Office, the designated Protection and Advocacy System for People with Disabilities in Georgia. Moore is nationally known for her work in the disability field over the past 35 years, particularly in the areas of employment, augmentative communication, and the design and implementation of supports necessary for people with significant disabilities to live, work, play, and go to school in the community.
Her experience includes growing up with family members with disabilities, working in both institutional and community settings, running provider organizations, working within and outside government bureaucracies, individual and systemic advocacy, directly supporting individuals to obtain employment, housing, and other supports necessary to live in the community, and working to improve local, state and national disability policy.
Moore has over 30 years of experience helping people wrongly considered “unemployable” due to their disabilities to get jobs (and build careers). She was one of the architects of the national supported employment initiative and was one of a small group of people working on early national technical assistance grants to the states for their statewide change grants. She ran an employment institute in MA, and was an employment provider for 16 years. She helped to set up statewide employment institutes and technical assistance centers in NH and CT. Moore also ran a federally-funded model demonstration program securing high quality employment for people with dual sensory impairments (“deaf-blindness”) in New England, replicated the project in California, and provided technical assistance across the United States and in several other countries. Moore hosts a statewide employment initiative in GA. | 法律 |
2016-50/4389/en_head.json.gz/15902 | Blogging from the Highlands of Scotland until I returnto the Murcia region of Spain in the early part of 2017 for a few weeks'From fanaticism to barbarism is only one step' - Diderot
EU Citizenship, Verhofstadt and actual EU law - or does this no longer matter?
I was startled to learn of the somewhat left-field proposal by Guy Verhofstadt (widely quoted in the media, but I include this BBC link here). Guy Verhofstadt, in case you have just crawled from out of some subterranean cavern, is actually an MEP from Belgium and is leader of one of the [minor] groupings in the European Parliament called "Group of the Alliance of Liberals and Democrats for Europe", see his page here.
Mr Verhofstadt seems to be implying that a modification of "EU Law" can somehow be "fast-tracked" to allow "EU Citizenship" to be retained on an individual basis by UK citizens, when the UK leaves the EU, as seems to be likely a few years from now.
Now I do not doubt that that this may be a theoretical possibillity, but I think the likelihood of this or any other 'ad hoc' modification of EU Law being "fast tracked" is, ahem, illusory - it might happen after MANY years of tedious negotiation, but the idea such a change could be fast-tracked is just so much hot air, in my view.
To bring this whole nonsense proposal back down to some semblance of reality, here is what the official EU website says about the status of EU citizenship here:
What is EU citizenship?
- Any person who holds the nationality of an EU country is automatically also an EU citizen. EU citizenship is additional to and does not replace national citizenship. It is for each EU country to lay down the conditions for the acquisition and loss of nationality of that country.
- Citizenship of the Union is conferred directly on every EU citizen by the Treaty on the Functioning of the EU. This seems to imply that the status of 'EU citizen' is entirely dependent on being a citizen of an EU member state. Whether it follows that if one is a citizen of a member state of the EU which ceases to be a member state of the EU that such a citizen might retain the status of EU citizen, is not at all clear, whatever Mr Verhofstadt may care to assert.
Frankly, though, I'd never heard of the "Treaty on the Functioning of the EU" before - as this is stated in the official website of the EU one must suppose it is a real thing and not just wishful thinking; have you heard of this before? By the way, if you want to 'blow your mind', you could always read this document and try to understand it - here. This is just a minor example of the "Alice in Wonderland" fantasy-land that the decision of the UK to leave the EU seeks to consign to unlamented history! My best reading of this fantasy is that it is a part, or apparently subsidiary to, the 'Lisbon Treaty'
I think what this whole [probably minor and best forgotten little nugget of an] episode reveals is just how much of a wake-up call the UK has delivered to the schlerotic EU and just how desperate it is to try and defuse this 'crisis' - that is to say, the decision of the UK electorate to leave this cosy (suffocating?) little club.
Natrually it is no surprise to learn that the UK political party, or the remnants of its following after recent elections, in both the UK and the EU, which participates in this frankly minor and inconsequential grouping, is the "Liberal Democrats" - as a true 'Liberal' and a true 'Democrat' I do not wish of course to try and and silence these people, rather do I celebrate the welcome diversity of views which they represent. However, I would love to know the legal basis under which the so-called "associate citizenship" of Mr Verhosfstadt's fantasy-thinking might be conferred. It is either a naive declaration with little consensual acclaim (from the rest of the EU, or at least its two or three most influential members), or it is a sign of the increasing desperation of the EU hierarchy to try and respond, perforce feebly, to the existential crisis that the imminent departure of the UK from the EU represents. If EU citizenship does not depend on being a citizen of an EU member-state, on what does it depend? Is it proposed that any existing 'EU citizen' holds that status independently of a similar citizenship status of a member state of the EU? If this new status is to be conferred upon UK citizens, presumably it must apply also to citizens of all EU member states. If accepted as a valid EU treaty amendment (fast- or slow-tracked) it seems to imply that EU citizenship may be granted completely independently of any partuclar citizenship status of an EU member state. Is the EU, in Mr Verfofstadt's thinking, to abrogate to itself the power of granting citizenship of the EU to anyone, independently of whatever status they may or may not hold in any member (or former member) atate if the EU?
It strikes me that whilst the UK occasionally arrives at a pragmatic interpretation when responding to contemporary events, it would be highly unusual for an entity so hidebound by its own self-image as the EU to do likewise. Please wake me up when the dysfunctional EU actually bucks it historic reputation and shows it is capable of genuine change, not the kind of desperate gesture politics that Mr. Verhofstadt seems to be peddling.
EU Referendum,
EU UK,
Over-spending and Debt at Christmas - please try and resist the temptation
I rarely touch on personal domestic matters, but at this time of year many people will become increasingly "excited" over the coming few weeks in the run-up to Christmas or the Festive Season or the Holiday Season or however you choose to describe it. I have little or no religious faith (I hover between Agnosticism and Atheism), but I have felt since I was becoming a teenager and then young adult that the idea that there was some "power" overseeing humanity was so much superstitious nonsense. I try to be "nice" in my personal dealings, so I hope that not too many are offended by my cavalier viewpoint, but ultimately if you are offended I'm afraid you will have to live with it, because in reality I don't much care. You have your views and I have mine.
In any case, however you view the coming few weeks, many people including me look upon the forthcoming Christmas holidays/festival/celebrations as an opportunity to get together with friends and family, eating and drinking rather more than is usual during the rest of the year, also offering hospitality and gifts to various family, friends and acquaintances and receiving similar in return. However, the simplest thing I can urge upon you is to not overdo it, and remember that if you are incurring debts, or your friends and family are, to fund this annual extravanganza, that booms generally are followed by busts. Debts incurred to fund this period will fairly soon have to be repaid, somehow or other. I realise that for younger families with young children that they will want to provide their children with a happy and exciting Christmas and certainly will not wish their own children to feel they are less fortunate than some of their classmate contemporaries, who receive the latest "must have" toys, games, clothes and gadgetry generally at this time of year. I understand the pressures that people face in a "consumer" society. Most of us have budgetary limits in what we can do; some of us have more "discretionary" income, beyond the absolute essentials, than others. Some amongst us have almost no such "discretionary" income at all and whatever "joy" (if any) they can look forward to over the coming weeks will be dependent on the help of others, which I hope will be as generous as others' means will allow.
But for everyone, I would like to urge some level of moderation, both in the desire to "give" and expectation of what you may wish or expect to "receive"; we all want to enjoy oursleves, but not at the expense (surely) of subsequent weeks or months of actual or near penury to pay for it. I volunteered for some years, quite some years ago now, with a charity organisation that sought to help people in various personal struggles and I always remember that another volunteer, when we were both "on duty" around this time of year, tried to explain to me the pressures she was under not to disappoint her own children in their expectations, which she was barely able (if at all) to satisfy. I am not "wealthy", but I suppose I am "comfortable" in comparison to many others, so it's possible that I don't always understand fully the pressures that face some others, I don't deny it, but I am very aware that not everyone is so fortunate as me.
In Nairn we have a weekly newspaper, published every Tuesday, as I have mentioned a few times before - The Nairnshire Telegraph does not have any online presence, so it is not possible to link to their articles, but one item they carry every week is a sort of 'moral homily' from some religious bloke signing himself 'Sandy Shaw - Nairn Christian Fellowship' and they are usually pretty trite, apart from being poorly written and full of logical non sequiturs. I read them, or at least glance at them, every week when I am in Nairn, and usually indulge in a little derisive chuckle and have at least once before written about something I read in the column - for example, in November/December 2011 when I wrote this. The article today (Tuesday, 6th December 2016) is the usual mix of religious mumbo-jumbo mixed in with practical advice, so whilst I find the former risible I am happy to acknowledge that that there is considerable "common sense" in the latter. The article this weeks is pithily entitled "Debt" and I reproduce it below:
The Nairnshire Telepgraph
Tuesday, December 6, 2016 - page 8
Whatever your views on "religion" (and I have already expressed my own scepticism and indeed scorn for these "notions" and "beliefs" as they are what I regard as fiction), there is I think a good deal of common sense in the linked article. Do with my article what you will. In any case, enjoy yourselves over the coming weeks, but don't overdo it in any sense.
Nairn,
Murder in Nairn - 12 years ago today - police still "absolutely committed" to solving crime
(Please see UPDATE at end)
Today is the 12th anniversary of the murder of Nairn resident Mr Alistair Wilson. The crime remains unsolved and no motive for the killing, even if one is known or suspected, has been revealed. However, Police Scotland state that they remain absolutely committed to finding his murderer and that the case remains "active".
It is to be hoped that the perpetrator of this crime will be identified and made to pay for it, sooner rather than later.
You can visit the page for this unsolved crime in the Police Scotland website here:
Alistair Wilson
Anyone with any information in connection with the murder of 30-year-old banker Alistair Wilson should contact Police Scotland on 101, or Crimestoppers in confidence and complete anonymity on 0800 555 111.
Contact Police Scotland on 101, or Crimestoppers in confidence and complete anonymity on 0800 555 111 My most recent previous article on the murder is here. There are links to all my posts on this murder, so close to where I live, in the right-hand column under the heading 'Murder in Nairn' articles.
UPDATE (Friday 02DEC2016 20.20 GMT) - To mark the 12th anniversary of the murder, according to this article in the Daily Record published on 30th November 2016, apparently a radio call-in was held on the John Beattie show on BBC Radio Scotland during which an "anonymous caller phoned the John Beattie show as it discussed the case" and provided information, which was not broadcast but has been passed by the BBC to Police Scotland, who in turn have stated that the information provided will be "thoroughly investigated". Perhaps we will learn in due course that this information is significant and will allow the investigation to make progress, but as yet no-one not privy to the investigation can make any inferences and I for one certainly do not do so, although I am obviously extremely intrigued by and interested in this development.
Highland Region,
Police Scotland,
John Gordon Macintyre, Nairn - Obituary
J Gordon Macintyre
5 October 1931 - 25 September 2016
Rest in Peace Always known as "J Gordon Macintyre", Gordon Macintyre was a flamboyant and eccentric, but hugely likeable fixture of Nairn (and beyond in certain circles) for many decades. I first met Gordon soon after I came to live in Nairn in September 2000, as I was invited by one of my new neighbours to join her as a guest at a chamber music concert at Clifton House, which it so happens is just around the corner from where I now live, and immediately joined the Nairn Performing Arts Guild (NPAG), a registered charity run by him and which organised chamber music recitals, plays and readings of various kinds. I remained a member until NPAG was succeeded by Music Nairn, when Gordon and his wife, Muriel, decided to move from their long-term home and business at Clifton House (run for many years as a quirky and wonderful small hotel and restaurant, until a few years before they moved), as they now wished to 'retire', to a new home just outside Nairn at Geddes.
From the word go I seemed to 'click' with Gordon - I liked him a lot and I think that feeling was reciprocated. He was an unusual and rather eccentric man, specially when compared with his rather more down-to-earth, fiercely intelligent and occasionally 'waspish' wife Muriel. But Gordon was of course in his own way a practical businessman too, running their hotel and restaurant business very successfuly in his own inimitable and flamboyant way. Muriel sadly passed away some years ago, in June 2009. Gordon was always immaculately and often colourfully attired, often sporting one of his extensive collection of bow-ties or cravates; even in his later declining years, though his attention to the detail of his wardrobe perhaps had slipped a little, he still managed to look smart and certainly always stood out from the crowd in whichever gathering he found himself. I count myself fortunate to have known Gordon, albeit only in the later stages of his life - it made settling in to my new home in Nairn so much more pleasurable.
It so happens I was away at my holiday home in Spain for a month from toward the end of September, as it turns out just a few days after his demise, which I had not heard about when I left for Spain. However, he had telephoned me about a week prior to this (I think therefore only three or four days before before his death) to ask me to postpone a visit to his home that we had been talking about, as he was feeling 'off-colour', saying that he would contact me when he was feeling a bit better. In the light of his death so soon after the call, I now think he was probably telephoning, consciously or unconsciously, to say 'goodbye'. It so happens his obituary was in our local weekly newspaper, The Nairnshire Telegraph (no online presence) only this week, in the issue dated Tuesday 25th October, a month after his death, whereas his obituary in The Scotsman was published only a few days before that on 20th October (read it here), to which it bears a certain similarity, so it is possible his family had deliberately kept his death low-key for the first month, it being inconceivable to me that it would not have been written about sooner, specially in our local newspaper, otherwise.
In any case, I am very saddened to learn of Gordon's death. I am just grateful that I had the pleasure of knowing him and for his friendship.
J Gordon Macintyre,
A "senior moment" with my refrigerator and temperature monitoring
I feel a bit silly writing this, but perhaps knowing about my forgetfulness might prompt others not to be so careless as I've obviously been.
I have always had a thermometer inside my refrigerator to monitor the internal temperature for chilled food, but I haven't been checking it as often as I obviously should have been - or "putting two and two together" over the past several weeks when certain foods (specially cream, for example) have been "spoiling" far more rapidly than they normally do, so I have been disposing of half-full tubs after only a very few days and buying fresh tubs. The problem is that, because it is summer (or at least what passes for summer in the north of Scotland), I have not been taking account of the fact that ambient temperatures indoors, specially at night, have been considerably higher than in much of the rest of the year.
Although my refrigerator is pretty modern (and large) and works very well, and because it is frost-free requires little maintenance whilst in use, apart from making sure the interior shelving remains clean and hygienic, specially after any inadvertent spillage or leakage, I had forgotten to adjust the rotary thermostat inside the door to regulate the temperature inside the refrigerator part to take account of the warmer weather we've been having recently; the freezer part is completely automatic and has never not done the job it is supposed to.
Yesterday I did check the inrerior thermometer properly, however, and was a little shocked to realise the refrigerator interior temperature was hovering around 12-13 degreesC, instead of the 3-5 degreesC it should be. So I have now turned up the rotary control by several steps. Overnight the refrigerator cooled down considerably, to about 0-1 degrees, so throughout today I've been making small adjustments to achieve the desired 3-5 range. I won't be making the elementary mistake of not checking the internal temperature regularly in future!
I'm now reasonably confident I won't have to throw away so much prematurely spoiled food in coming weeks as I have been finding it necessary to do recently.
NB/ It so happens the refrigerator at my home in Spain is almost exactly the same as the unit in my kitchen here in Scotland (same make and model, slightly different trim and a different body colour), but I've always been much more aware of the need to monitor/regulate the temperature there, because I expect it to be warmer, whereas for most of the year in Scotland it's less necessary, even though the central heating is on from early Autumn until late-Spring, but except in really severe winter weather I prefer not to have the central heating on all night, because I sleep better in slightly cooler air.
Miscellany,
Further thoughts on the EU, "Brexit" and related matters
As we are now at the beginning of September, and the end of the main summer holiday period when many politicians, civil servants and citizens generally will have been on holiday, it is I think now appropriate to write the kind of article I am now writing. As has often been the case in earlier years the month of August has, apart from being an hiatus in 'business as usual' for politics, also been a time when eccentric stories become newsworthy for broadcasters searching for things to write about during the dog days of summer.
For most, probably all, of my adult life I have been strongly supportive of the EEC (later the EU) and of the UK joining it and remaining a part of it. Personal circumstances meant I was not able to vote in the 1975 referendum, two years after the UK joined the EEC, to decide whether the country should remain or leave - I lived then in a place called Djibouti (wedged between Ethiopia/Eritrea and Somalia) in the north-east of Africa, and at that time people living outside the UK could not vote in UK elections, except in very special circumstances. But had I been in a position to vote, I would certainly have voted to remain in the EEC.
Broadly speaking, with perhaps just a few qualms, I supported most of what was done later, where it affected the UK. The Schengen Treaty (from 1985 to 1995 until 1997 when it was incorporated into EU law by the Amsterdam Treaty), did not and does not affect the UK, or as it so happens Ireland (that last bit is really irrelevant to me, of course, because even though it might otherwise affect Northern Ireland, there has been a common travel area between the UK and Ireland for a long time, unaffected by the independence of Ireland from the UK). The fact that the UK is an island nation meant, in my view, that it was practical, if not in the view of some I suppose entirely desirable, not to adopt Schengen. I doubt if it would have been easily do-able if we had land borders other than with Ireland. It is probably no accident either that our decision to remain outside Schengen coincided with plans to build the Channel Tunnel link between the UK and France (constructed between 1988 and 1994) - the value of that decision has perhaps only become more sharply defined by the events of very recent years.
The Single European Act, whose main purpose was to enhance 'free trade', ultimately came into force in 1987, having been delayed in its implementation by actions in Denmark, Greece, Italy and Ireland. Interestingly, it is probably the only piece of EU legislation largely championed from inception to conclusion by the UK. Because the UK has, for decades and indeed centuries, been all about 'free trade'. It did extend QMV ('Qualified Majority Voting') though, as part of the price paid [by the UK] for certain other countries (basically France and a few others) to allow this legislation to pass. The subsequent Treates (Maastricht, Amsterdam and Nice), whilst ratcheting the EU's control a little tighter with each step, seemed to me 'acceptable' in the greater scheme of things.
What really began to make me rethink my view of the fundamental wisdom of the UK being a member of the EU were the referendums on the now-defunct European Constitution held in 2005 in both the Netherlands and France, in which both rejected its proposals (others had already had referendums to ratify it), which effectively halted that particular process, and specifically what followed a few years later; the UK government had earlier promised a referendum, but the rejections by others made that pointless. Having read the draft European Constitution in great detail myself, in anticipation of a referendum being held in the UK, I too would have voted against it had I had the opportunity.
What followed a few years later was the Lisbon Treaty, effectively the European Constitution rewritten, pushed through in spite of being initially rejected in a referendum in Ireland in 2007, later shoved through in that country in 2009 in the face of the economic crisis facing that country after the 'crash' of 2007/2008; but let's face it, no one really cares what Ireland thinks (certainly not most of the other members of the EU, other than the UK), so they were 'prevailed upon' to allow it to pass. The reality is that the UK independently bailed out Ireland during this crucial period, not because of any undue sentimentality (that is not the British way), but simply in a recognition of the historic intertwining links between the British and much smaller Irish economies, although perhaps influenced also by the social and familial links between the two countries. The harsh reality, though, is that without UK support, Ireland would have been 'sunk', as otherwise Ireland would have been consigned to the same 'hell'/purgatory currently occupied by Greece. As for the semi-clandestine ratification by the UK of that Treaty by our then Prime Minister, Gordon Brown, I would prefer to remain silent; the level of contempt I have for that man is infinite and only a modicum of concern about the libel laws of this country will restrain me from writing what I really think about that excuse for a man; as I am also Scottish (and 1/4 quarter Irish as it so happens, with reference to earlier comments) I don't think accusations of 'racism' apply, although I am quite happy to acknowledge that it is my firm belief that the "socialism" that Gordon Brown and those who think like him profess to believe in, is one of the greatest evils that existed when I was born and unfortunately continues, luckily in much reduced form, to this day, I have grown weary of glossing over this basic reality in recent years, so this is the first time, apart from brief allusions to it in Twitter from time to time, that I have really 'let rip' on this issue. Unfortunately there is not a great deal to choose between the destructive effects of the "socialism" offered by Labour ('new', and the 'old' back-to-the-future kind which current leader Corbyn represents) and that offered by the SNP.
On Friday 2nd September our sad excuse for a First Minister in Scotland, Ms Nicola Sturgeon, gave up on her 'day job' of actually running Scotland in accordance with the Scotland Act (as amended), in favour of a pointless resurrection of the obsessive and obsessed SNP policy of wanting to rip Scotland out of the UK, despite very recent opinion polls demonstrating that the people of Scotland, apart from adherents of the 'SNP cult' which Ms Sturgeon leads, have little or no desire for this to happen, and far less desire for the holding of another referendum to try and change the result of the referendum held on the matter as recently as September 2014.
Despite the febrile predictions of those who campaigned vociferously for the UK to remain a member of the EU, the economy continues to be robust and the exchange rate of our currency, the Pound, although somewhat lower than before the EU Referendum (but arguably now at a more sensible level to meet both the needs of exporters and holidaymakers requiring to purchase a foregin currency to help fund their annual vacation abroad), has certainly never been in danger of 'collapse' and indeed in recent weeks has been strengthening somewhat from its low point after the EU Referendum - fine, so long as it does not become too strong and begin to adversely affect exports. As with everything else in life, the level at which the exchange rate hovers is a balance of complex and sometimes conflicting interests.
Now that summer is almost over, and more or less normal business has resumed, one imagines (and hopes) that the government will begin seriously to put in place the process of the UK leaving the EU. I am not one of those people that wants precipitate action, but I do want to see some concrete moves in this direction fairly soon, to give voice to the results of the referendum in June. The attempt in the past few days at a tax grab by the European Commission (EC), against the wishes of EU member state Ireland for whose benefit the EC purports to be acting, is just the latest example of the malign anti-competitive instincts of some EU member states and the bureaucrats of the EC and only reinforces the need for us in the UK to get out of the economic and political dead-end that the EU represents.
SNP,
First review - new Sun Dancer restaurant and bar in Nairn
The new Sun Dancer restaurant and bar in Nairn finally opened a week ago yesterday (i.e. Sunday 14th August); I do not think it has yet been advertised in any way, certainly it was not in last week's Nairnshire on Tuesday 16th, so it seems to have undertaken what is usually known as a "soft opening". Rumours locally are that it was originally scheduled to open in May, presumably in order to catch the late-Spring and early-Summer trade, but local rumours are that its opening was delayed for various reasons; I will not repeat any of the reasons I heard about though, as this is mere hearsay and the important point, as I see it, is that it has now opened.
I visited with my partner yesterday Sunday 21st August around lunchtime and we had ice cream milkshakes in the ground floor cafe - very nice they were too and the interior is bright, cheerful and modern in feel and the young lady serving us was pleasant and friendly. We asked if we could visit upstairs to see the bar/restaurant and being told "yes" went up to take a look.
It was much more spacious than I imagined it would be (I live close by so have followed its progress over the months). It is well laid out and the tables are not too crowded together. There is a bar area in one corner, with comfortable and quite smart furniture in that part of the floor. The tables and chairs of the main restaurant part are also quite smart and the balcony at the front has some tables and chairs, pleasant for a drink on a nice day or evening. We asked to book a table for the same evening and returned for our meal later with time for pre-dinner drinks.
The staff are friendly and pleasant, although still obviously learning their jobs and getting comfortable with their work environment, drinks and menus, etc. We had a very nice meal indeed, broadly comparable with the two other what I consider decent eateries in Nairn (The Classroom and The Bandstand) and the cost was broadly similar too; the Sunny Brae is lovely too of course, but is rather more refined in many ways than those three (including the Sun Dancer), only being a bit more expensive.
There was a Sunday menu on offer, 2 courses for £15.95, with 3 courses being a few pounds more; there was a small but sufficient range of options for starters, mains and puddings/desserts, although we understand there may be a more extensive menu in due course, but that they are trialling a slighlty more restricted menu, at least at the beginning, not to over-complicate matters. The food as mentioned was pretty good, so this represents good value I think, specially for an evening meal, with drinks (campari/soda, guinness [2 pints in all], a large glass of white and a small glass of red, for the cheese we had for dessert), the total bill was about £66-, rounded up to £71- (for 2 persons) with tip, a bit less than we would normally have added, for the reasons mentioned later in this review.
The table settings are nice (white quality table cloths, decent cutlery and crockery, high quality cloth-like paper napkins) and the dining table seats are quite comfortable and smart. It is obvious considerable care has been taken with designing a very pleasant venue to take full advantage of the lovely views out over the Firth; we had a corner window table just inside the outdoor balcony so the views were excellent, but most tables (even those not directly adjacent to the large windows) will have good views of the Firth.
The only criticism I would have is that the service was very slow and somewhat disjointed, but always pleasant and friendly, although it did require us on several occasions to try and attract the staff's attention after we had been waiting for lengthy periods, both to place our orders and to receive each course, requiring us to query the delays throughout the evening. For example we had to wait 15 minutes after finishing our main course before managing to attract the attention of someone to take our dessert order (the cheese board for both of us, which was excellent when it came, but obviously required no "cooking"), then after 25 minutes of waiting for it to be delivered, we managed to attract the attention of a waitress returning to the kitchen with used crockery from another table, when it was delivered rapidly; probably it had been waiting for delivery to us in the kitchen for some time, I suspect.
Getting the bill took another while, a pattern throughout the whole evening. However, I think this will become a great place to eat in Nairn, assuming they maintain their initial food standards (which are quite high in local terms I'd say), once they become rather slicker in the service area. I put the delays down to the staff still becoming familiar with their roles, so expect and hope this is merely a "teething" problem. I think they have been quite busy during their first week of operation, from what the lady who appeared to be in charge indicated to us, and it was certainly pretty busy on Sunday evening when we were there, so everyone there was flung into the deep end whilst still learning their jobs. We shall certainly visit again in a month or so (rotating it in with the other places already mentioned, which we will undoubtedly visit again in the intervening period), and hope we will have an equally enjoyable meal, but experience somewhat slicker service, once the staff have become more comfortable in their jobs. However, first impressions are that it is a very welcome addition to Nairn's dining scene.
NB/ This review is a slightly more detailed version of one I have already placed in the restaurant's own recently-created Facebook page here.
My aim here, as with all reviews of restaurants and hotels which I add in various places (my own blog or 'social media' or specialised review sites), is to be honest and completely fair. I do not think the Sun Dancer yet has a listing in Tripadvisor, but perhaps that will come in due course.
Sun Dancer Nairn
Why it became necessary for the UK to vote to leave the EU
An article in this week's Spectator magazine has crystalised many of my reasons for voting as I did in our referendum on EU membership held on 23rd June last.
Dan Hannan (still an MEP), for a former committed "Europhile" such as me, brilliantly nails the lies and deceptions at the heart of the so-called "EU project". I voted Leave on 23rd June and have become more certain since then that it was the correct choice. For me this has got NOTHING to do with 'immigration', despite those who voted Remain presumptuously telling everyone who voted Leave that this was the reason we voted the way we did. Frankly I think this illustrates perfectly the sad beggar-thy-neighbour mindset of many (if I hope not most) Remain voters.
Sovereignty is not some esoteric concept, it is the basic choice as to how we make our laws and who is competent to adjudicate on them.
What really changed my mind about the "virtues" of the EU (which are many) is the callous way it has treated Greece, in the name of "EU solidarity"; Greece is not entirely innocent of course, it is not as straightforward as that, but what its treatment does illustrate is that a supranational body, the EU, is prepared to ride roughshod over the democratically elected government of a small and relatively "unimportant" member state, not for any noble reason, but simply to protect the financial institutions of its most powerful member state, Germany. To be frank, it is a moral outrage. I am equally disgusted by the petty arguments of some of my former "friends" who think the GBP exchange rate is sufficient reason to sell the soul of our country, the UK. I loathe almost everything Gordon Brown ever did as Chancellor and Prime Minister, but the one good thing he ever did was to make it impossible for the then Prime Minister, Tony Blair, to take the UK into the cesspit of the poorly-designed Euro, a continuing shambles, which tries to align the economies of vastly different countries, without the real and necessary mechanisms which make a 'currency union' successful, for example those which allow the US to have a common currency across 50 diverse economies, or the UK to have a similar common currency across its four component parts (and the separate regions of those four component parts).
Those mechanisms involve not just "benefits", but "obligations", which means sticking to certain basic rules - which means that countries within the Eurozone which flout the laid-down budgetary deficit rules regularly, rather than exceptionally, need to understand they cannot continue along this path if the currency union is to have any meaning and achieve longevity. This is however merely a symptom of the malaise at the heart of the EU. It seems that certain larger member states think they can flout fiscal and other rules, simply because they are large and economically significant, or powerful politically, whereas smaller states must be punished severely if they step out of line. This is not "democracy". The UK is undoubtedly a "more significant" country economically and politically, along with 3-5 other EU member states, but above all we are a democracy, and have been for quite a long time, and we think we believe in that old-fashioned concept called "fair play", not just "might is right". If I believed that true "reform" of the EU was possible I would have been amongst the first to have argued that the UK should remain a member, but empirical evidence over many years has demonstrated that this is not possible. We can and must leave the EU, and that is what we voted for on 23rd June, to ensure our democratic future as a free and successful economy, not as a vassal member state of the increasingly undemocratic entity that the EU has developed into. Other EU member states, including some if not all of the more powerful ones, have stated repeatedly that they wanted the UK to remain a member of the EU, but have consistently shown that they are unwilling to, or incapable of, making the "reforms" necessary for a true democracy such as the UK to remain. 23rd June 2016 was "crunch time" and the bluffs with which the EU has endeavoured to fob us off for many years have lost their power that day. Personally I very much regret that this decision has been made necessary. I believe that a brighter future for the UK is possible outside what has become the straightjacket of the EU. I wish the EU a bright and successful future too, of course, but am much less sanguine about that.
EU Referendum results - the UK votes to leave the EU
Somewhat surprisingly, the EU Referendum in the UK yesterday, 23rd June 2016, has resulted in a narrow but decisive vote to 'Leave'. Although this is the result I favoured, so am pleased, it has still somewhat surprised me. In due course, quite possibly after a change in leadership of the Conservative Party, as the Prime Minister David Cameron announced this morning that he plans to step down as Leader and therefore as Prime Minister in the expectation that a new Conservative Party leader will be in place for the Autumn Conservative Party conference, to be held this year between 2-5 October in Birmingham, the country's departure from the EU will formally be triggered under Article 50 of the Lisbon Treaty, which generally provides for a 2-year period for negotiations by a country wishing to leave, although this period may be extended by mutual agreement.
Full details of the results are available via the BBC EU Referendum microsite here - as mentioned above, the overall result was quite narrow (Leave - 51.9%; Remain - 48.1%) on a turnout of 72.2%.
Within the UK as a whole, the following regional results were declared:
England and Wales both voted to 'Leave':
- England (Leave - 53.4%; Remain - 46.6%; Turnout - 73%)
- Wales (Leave - 52.5%; Remain - 47.5%; Turnout - 71.7%)
Scotland and Northern Ireland both voted to 'Remain':
- Scotland (Leave - 38%; Remain - 62%; Turnout - 67.2%)
- Northern Ireland (Leave - 44.2%; Remain - 55.8%; Turnout - 62.9%)
The only other matter of particular interest is that within England, much of London voted to 'Remain', along with Scotland and Northern Ireland this was insufficient to outweigh the 'Leave' majorities in much of the rest of England and in Wales. In some parts of London, the results were fairly close, but in other boroughs 'Remain' had considerably more votes than 'Leave'
You can find more detailed infrmation about specific areas in the BBC microsite linked above.
It will take a little while to see how this development is going to play out in various ways over the next couple of years. I am cautiously optimistic, overall.
Referendum 2016
The EU Referendum in the context of Scotland's place in the UK
In my most recent article on the EU Referendum, just over a week ago ("Thoughts on the Pound and the Stockmarkets ahead of the EU Referendum" - link here), I mentioned at the end that I would write about it in the context of Scotland within the UK "hopefully in the next day or so". This is that article.
The reason this article has been delayed for longer than I had originally planned is largely because of personal circumstances (my own travel arrangements and having my partner here for several days after a month apart whilst I was in Spain at my home there), but an additional couple of days were added to the delay because of the shocking incident in which an MP was murdered on the street close by her constituency office. I am not going to comment on what may have motivated the perpetrator - there has been enough of that, much of it hysterical and intemperate, in the media and so-called "social media". The only comment I would make is that the rush to judgement by some has, curiously, overlooked the bile directed at this lady prior to her killing by supposed supporters of the Labour Party, or at least the part of it that is now in charge of its destiny - here is a link to a Tweet in which is embedded some of this bile: https://twitter.com/EnemyWithinn/status/743818860663549952. There are unpleasant people in all political parties of course, and some with no connection to any political party, but a bit of calmness and, above all, objectivity is badly needed.
Anyway, onto the main subject of this article. As I indicated in my last article, referenced above, it was my intention to vote 'Leave', but that article was written whilst I was still in Spain. Since then I have returned back to the UK and waiting for me was my postal vote ballot paper and associated documents (explanatory notes, return envelope, etc) and I mailed off my ballot paper last Monday, having put my 'X' in the 'Leave' box as I earlier suggested I would. I'm not going to rehash all the points I made in my earlier article - I have formed a view, for good or ill, with which some will agree and some will disagree. I believe in a democratic system and will be happy (more or less) to accept the result in due course, whatever it is. Obviously I shall be happier if 'Leave' prevails, preferably by a comfortable margin, but will accept with good grace the decision if it goes the other way to 'Remain', hopefully also with a comfortable margin.
In the context of Scotland, it is the announced intention of the Scottish Government, currently led by the Scottish National Party (SNP), to press for another 'Independence Referendum', should Scotland vote to 'Remain' next week, but the rest of the UK vote to 'Leave'. The last referendum was held in September 2014 and the result was that a comfortable majority of Scots wished to remain within the UK, a decision that pleased me greatly. I wish Scotland to remain in the UK - I am quite comfortable describing myself as British and Scottish, or Scottish and British if you prefer it that way. Many of my friends from other parts of the UK are happy to consider themselves British too, but in addition English, Welsh or Northern Irish as is appropriate - this all seems very normal to me. I have never felt anything other than 'at home' when living in or visiting all parts of the UK and the banter about 'Jocks' and kilts has almost always been completely good-natured. Most from other parts of the UK who live in or visit Scotland feel the same way, in my experience, although it is undeniable that there have been lapses from this good-neigbourliness by a few of my fellow Scots on occasion, generally supporters of the aims of the SNP sadly. Although I would in general have been in favour of voting 'Leave' in the upcoming EU Referendum in any case (but I am not a fanatic about it - I was until a few years ago a strong supporter of UK membership of the EEC/EU, but have gradually changed my views to some extent), it is certainly in my view wise to do my little bit to try and ensure that the margin between how the rest of the UK decides to vote next week and how people here in Scotland decide to vote is not significant, as the opinion polls might lead one to believe may be the case. Opinion polls have seemed to show that there is stronger support for 'Remain' here in Scotland than in the rest of the UK. We won't know how accurate these polls were and are until the 'morning after the night before' (so to say) of the vote on 23rd June.
In the two urban settlements here that I have most recently visited (Nairn, where I live, and Inverness, which is only about 15 miles distant) I have no clear feel for current local sentiment, although those I have spoken to seem to favour 'Leave' and it is the case, which to be honest I find quite bizarre and perplexing, that the only posters I have seen on public display (on lamp-posts and the like) are those favouring 'Vote Leave'; I have not observed any at all which advocate 'Remain' or 'In', in either Inverness or Nairn. As this part of Scotland is now largely represented at both Westminster and Holyrood by SNP MPs and MSPs, who presumably favour 'Remain' in accordance with that Party's policy position, there seems to be a disconnect of some kind. Either the opinion polls are badly wrong or SNP supporters have developed a reticence in displaying their views that certainly never existed in the run-up to the Scottish Referendum in September 2014. Who knows what the truth is, but we will all know overnight next Thursday/Friday how the country (the UK) has voted overall and how the various component parts of it have voted too. It promises to be an interesting week, but I hope it will be reasonably calm and that there will be no more violence of the appalling kind that happened in Birstall, West Yorkshire a few days ago.
Scottish Referendum 2014
Scotland voted "NO" on18th September to remaina part of the UK - I am very happy!
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Active inclusion of people excluded from the labour market
The Commission is hereby recommending that Member States establish an integrated and comprehensive strategy for the active inclusion of people excluded from the labour market. The strategy is to be made up of three coordinated strands based on which active inclusion policies are to be implemented: sufficient income support, inclusive labour markets and access to quality services.
Commission Recommendation 2008/867/EC of 3 October 2008 on the active inclusion of people excluded from the labour market [Official Journal L 307 of 18.11.2008].
With this Recommendation, the Commission is encouraging Member States to take action for the active inclusion of people excluded from the labour market. To this end, the Commission recommends that the Member States draw up and implement an integrated comprehensive strategy. The strategy should be composed of the following three strands:
sufficient income support;inclusive labour markets;access to quality services.
The actions should support the employment of those who can work, providing the resources required for a dignified life, and promote the social participation of those who cannot work.
The Member States are further recommended to ensure that the inclusion policies are effective. This should be done by:
combining the above three strands of the strategy in an appropriate manner;implementing the strategy in an integrated manner across the three strands;coordinating the policies among authorities at local, regional, national and European Union (EU) level;including all relevant actors in the development, implementation and evaluation of the strategy.
In particular, the inclusion policies should take account of fundamental rights, the promotion of equal opportunities for all, the specific needs of disadvantaged and vulnerable groups and the local and regional contexts. In addition, the inclusion policies should contribute to preventing the intergenerational transmission of poverty.
Furthermore, the Commission recommends that the Member States organise and implement active inclusion policies with the detailed set of common principles and practical guidelines put forward in the document. With regard to:
sufficient income support, Member States should recognise and implement the right of individuals to adequate resources and social assistance as part of consistent and comprehensive efforts to fight social exclusion;
inclusive labour markets, Member States should provide assistance for those who can work to enter or re-enter and stay in employment that best relates to their capacity to work;
access to quality services, Member States should ensure that proper social support is given to those that require it, in order to promote social and economic inclusion.
The Member States are also recommended to ensure that the necessary resources and benefits are provided under the social protection instruments, taking into account the economic and budgetary constraints. Active inclusion measures may also be funded from the Structural Funds. Information about the rights and support measures available to all must be publicised widely, and if possible, through electronic means.
In addition, Member States should simplify administrative procedures. At the same time, access for the public to the appeals systems should be made easier.
Finally, the Commission is also recommending that the Member States take steps to enhance indicators and statistical data on active inclusion policies. The Open Method of Coordination (OMC) on social protection and inclusion should be employed for monitoring and evaluating these policies on the basis of close collaboration between the Social Protection and the Employment Committees and with the support of the activities funded by the Progress programme.
The active inclusion measures should be aligned with the social cohesion objectives of the Lisbon Strategy.
Poverty and social exclusion are addressed, in particular, in the Council Recommendation 92/441/EEC of 24 June 1992 on common criteria concerning sufficient resources and social assistance in social protection systems. While this Recommendation still applies, additional measures need to be taken to implement it fully. Subsequent instruments include, among others, the OMC on social protection and inclusion and the European employment strategy. Furthermore, the persisting problems, especially in terms of poverty and joblessness, require that social protection systems are modernised and that comprehensive and integrated policies are initiated. These are the objectives of the "active inclusion" approach that complements social assistance benefits with support to enter the labour market and with access to quality services.
For further information, please visit the European Commission Directorate-General for Employment, Social Affairs and Equal Opportunities website on active inclusion. | 法律 |
2016-50/4389/en_head.json.gz/16110 | | U.S. Ex Rel. United States Ex Rel. Irving Ramey (#B-00964 v. Marcus Hardy
U.S. Ex Rel. United States Ex Rel. Irving Ramey (#B-00964 v. Marcus Hardy
United States District Court, Northern District of Illinois
U.S. EX REL. UNITED STATES EX REL. IRVING RAMEY (#B-00964)v.MARCUS HARDY
Name of Assigned Judge GARY FEINERMAN Sitting Judge if Other or Magistrate Judge than Assigned Judge `
DOCKET ENTRY TEXT:
Petitioner's motion to stay proceedings and hold federal habeas corpus in abeyance [3] is granted. The case is stayed pending the disposition of ongoing state court post-conviction proceedings. Respondent need only enter an appearance at this time; no response to the petition is required at this time. Petitioner shall file a status report by 3/1/2013 regarding the state post-conviction proceedings.
O [For further details see text below.] Docketing to mail notices.
Irving Ramey, an Illinois state prisoner, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has paid the statutory filing fee, as directed by the 9/13/2012 order. Although the petition appears to be timely, Petitioner concedes that he has exhausted state court remedies as to only two of the claims raised in his habeas petition. He requests that this case be held in abeyance pending resolution of a successive post-conviction petition now pending in state court. Petitioner filed his federal habeas petition now to preserve his right to federal review of his conviction, and he intends to amend once the state court proceedings have concluded. The motion is granted. This case is stayed pending disposition of the ongoing post-conviction proceedings. Petitioner shall directed to file a status report by January 1, 2013, notifying the Court as to the posture of the state court case.
Respondent need only enter an appearance at this time. Respondent will be directed to answer the petition (or amended petition]) or otherwise plead after the stay has been lifted. This preliminary order does not, of course, preclude the State from making whatever waiver, exhaustion or timeliness arguments it may wish to present in the future.
Petitioner is instructed to file all future papers concerning this action with the Clerk of Court in care of the Prisoner Correspondent. Petitioner must provide the Court with the original plus a judge's copy (including a complete copy of any exhibits) of every document filed. In addition, Petitioner must send an exact copy of any court filing to the Chief, Criminal Appeals Division, Attorney General's Office, 100 West Randolph Street, 12th Floor, Chicago, Illinois 60601. Every document filed by Petitioner must include a certificate of service stating to whom exact copies were sent and the date of mailing. Any paper that is sent directly to the judge or that otherwise fails to comply with these instructions may be disregarded. | 法律 |
2016-50/4389/en_head.json.gz/16154 | Manning defense focuses on mental health
FORT MEADE, Maryland (AP) — Lawyers for Army Pfc. Bradley Manning opened their case Monday in the sentencing phase of his trial by attacking commanders’ decisions to send the young intelligence analyst to Iraq and let him keep his top-secret security clearance despite emotional outbursts and concerns about his mental health.
Manning, a 25-year-old native of Oklahoma, gave more than 700,000 documents and some battlefield video to WikiLeaks while working as an intelligence analyst in Iraq. He was convicted July 30 of 20 counts, including six federal Espionage Act violations, five theft counts, and a federal Computer Fraud and Abuse Act charge.
Manning says he leaked the material to expose wrongdoing and provoke discussion about U.S. military and diplomatic affairs. His lawyers are presenting evidence in hopes of a lighter sentence.
Manning’s brigade commander, Col. David Miller, testified the 2nd Brigade’s 10th Mountain Division deployed in late 2009 with 10 to 15 percent fewer intelligence analysts than the authorized number. But Miller denied feeling any pressure to take soldiers who should not have deployed.
“In a counterinsurgency fight, you can always use more,” he said.
Miller’s executive officer Lt. Col. Brian Kerns said he had concerns before deployment about the leadership abilities of Maj. Clifford Clausen, who headed the brigade’s intelligence branch. Clausen was removed from the position in early 2010 because of his failure to effectively communicate intelligence findings to commanders, Kerns and Miller testified.
Kerns said every Army unit goes to war with the assets and resources it has at the time.
“I think it was the right decision at the time to move forward with the individuals that we had because we didn’t have anything better at the time that we could turn to,” he said.
Kerns and Clausen both testified that they received letters of reprimand as a result of an Army investigation into Manning’s actions. They are among 15 people disciplined in the case.
One of Manning’s co-workers, Sgt. Daniel Padgett, has testified about sitting down with Manning for a “counseling session” after the soldier was late for work in Iraq.
When Padgett tried to impress on Manning the importance of being on time, “his demeanor changed,” the former supervisor testified. He said Manning then stood up and overturned a table, spilling a radio and computer onto the floor.
Padgett said he moved Manning away from a gun rack while someone else restrained him until he calmed down. Padgett said he didn’t remember reporting what happened to his supervisors.
Attorney: Chelsea Manning again attempts suicide in prison
Court filing: In Army’s eyes, Chelsea Manning still a man
Church shooting suspect allowed to act as his own attorney
Jury selection resumes in Charleston church shooting trial | 法律 |
2016-50/4389/en_head.json.gz/16159 | More The Absurd Lawsuit Against Maidenform and Wacoal
We’ve all been victims of false advertising and marketing gimmicks: costly anti-aging creams that promise to dramatically reduce the appearance of fine lines and wrinkles (but never actually do); juice cleanses that claim to rid the body of toxins despite the fact that there’s no scientific evidence supporting such claims.
We are a nation obsessed with quick fixes. Desperate for a youthful glow or a dimple-free derriere, we invest our money and vanity in products we think will work like magic. When--invariably--they don’t, most of us shamefully acknowledge (at least to ourselves) that we fell for a marketing ploy and move on with our lives. But every now and then, consumers want revenge for being deceived. To wit: two women are suing lingerie brands Maidenform and Wacoal, whose lines of “anti-cellulite” shapewear they claim did not, in fact, slim their tummies, hips, thighs, rears or “shape and sculpt” their figures, as the products purport to do.
Christine Caramore and Michelle Martin, both of New York, have filed a class-action lawsuit against the lingerie companies in Brooklyn Federal Court, claiming to have been deceived by clever and false advertising. “As a result of defendants’ misrepresentations, plaintiffs and the class have suffered out-of-pocket losses, did not receive the benefit of the bargain and have been damaged,” reads the complaint. Oh, the injustice!
Indeed, it seems absurd that these women could actually win the lawsuit, walking (or waddling) away with a hefty sum of money. But it wouldn’t be the first time a clothing company has paid for misleading advertising. In 2012, Skechers coughed up $40 million to settle charges by the Federal Trade Commission (FTC) that the footwear company’s “leg-toning” Shape-up sneakers were a sham. In 2011, FTC extracted $25 million from Reebok for a similar product.
Overtime, New Computer System Put Sizable Dent in VA Benefits Backlog
Al Qaeda’s Most Dangerous Stronghold
How the Tea Party’s Apocalyptic Politics Are Destroying the Republican Party | 法律 |
2016-50/4389/en_head.json.gz/16266 | 491 F. 2d 1156 - In the Matter of Alphonse Persico HomeFederal Reporter, Second Series 491 F.2d.
491 F2d 1156 In the Matter of Alphonse Persico 491 F.2d 1156
In the Matter of Alphonse PERSICO, Appellant.
No. 867, Docket 74-1101.
Argued Feb. 5, 1974.Decided Feb. 19, 1974.
Nancy Rosner, New York City, for appellant.
Robert G. DelGrosso, Denis E. Dillon. Attys., Dept. of Justice; Edward J. Boyd V, U.S. Atty., E.D.N.Y., for U.S.
Before WATERMAN and MULLIGAN, Circuit Judges, and BRYAN, District judge.*
WATERMAN, Circuit Judge:
This is an appeal from an adjudication of civil contempt pursuant to 28 U.S.C. 1826(a) for refusal to answer a question propounded by a grand jury. Appellant refused to answer certain earlier questions on constitutional grounds and was granted 'use' and 'derivative use' immunity. Then, after answering a few questions, he objected to a particular question and, relying on Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972), maintained that the question was derived from electronic surveillance which he claimed was presumptively illegal. The Government eventually acknowledged that the line of questioning the grand jury had been pursuing was a product of the electronic interception of oral communications but strenuously affirmed that the surveillance was conducted under proper court orders and was in complete conformity with the requirements of federal law under 18 U.S.C. 2510-2520. We are thus called upon to decide whether appellant, in defending the contempt action brought against him when he refused, though granted 'use' and 'derivative use' immunity, to answer before a Grand Jury a question derived from electronic surveillance conducted under court order, has a right in a civil contempt proceeding to litigate the legality of that surveillance. We hold that he does not.
The facts in this case are not complex. On January 23, 1974, appellant was called as a witness before a federal grand jury 'investigating racketeering influence in legitimate business.' Relying on his Fifth Amendment privilege, he initially refused to answer any questions concerning his employment. Thereupon, pursuant to 18 U.S.C. 6002 and 6003 Persico was granted 'use' and 'derivative use' immunity. At this point appellant continued to be recalcitrant and began to object to questioning with reference to his employment on the ground that the questions were the product of illegal electronic surveillance. The Government requested that Judge Orrin Judd issue a contempt citation for refusal to testify. Judge Judd regarded the request as premature and, not perceiving any connection between the question and the surveillance, ordered Persico to testify under threat of contempt. Persico then answered some questions regarding his lawful employment but refused to respond to a question regarding 'any other occupation.' This refusal was again based on appellant's contention that the question was a 'fruit' of illegal electronic surveillance. The Government, conceding that this question was derived from electronic surveillance, argued that the surveillance, which was conducted pursuant to three court orders, was entirely legal. Judge Judd inspected the court orders in camera, found them to be proper, refused to grant appellant's motion that a suppression hearing be held to test the legality of the surveillance, and renewed his order to testify.
Persico returned to the grand jury where he acknowledged that he did indeed have other business interests, more particularly, an illegal gambling business involving 'horses, sports and numbers.' His cooperation ceased, however, when he was asked to identify the individuals who worked for him in these surreptitious enterprises.1 He again grounded his objections, inter alia, on the alleged illegality of the electronic surveillance which was the source of the question, saying: 'You know the answer to that question as a result of electronic surveillance of my home.' Upon this refusal to respond, Judge Judd held Persico to be in contempt and sentenced him to 60 days in jail, subject, however, to immediate release should appellant decide to answer the question. Persico then reinstituted his motion to suppress and claimed the right to examine the court orders and accompanying documents under which the three wiretaps had been authorized. This motion was denied. A concurrent motion for bail pending appeal was likewise unsuccessful. On January 28, 1974, we also denied Persico's separate application to us for bail pending appeal, but, a notice of appeal on the merits having been filed on January 25, we ordered that the appeal be speedily brought on, and it was argued on February 5.
Chapter 119 of Title 18 of the United States Code, entitled 'Wire Interception and Interception of Oral Communications,' 18 U.S.C. 2510-2520, represents an assiduous congressional effort to balance the individual's right to privacy against the Government's legitimate interest in gathering information necessary for the prosecution of crimes.2 Integral to the statutory scheme are elaborate precautions taken to insure that electronic surveillance is not used unnecessarily and that when it must be used its duration is narrowly circumscribed. To maximize compliance with the provisions of Chapter 119 by investigative authorities who desire to employ wiretaps and other electronic devices the chapter contains its own 'exclusionary rule,' 18 U.S.C. 2515, which provides:
Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.
The apparently ample breadth of this proscription has been confirmed by Gelbard v. United States, supra. In that case the Supreme Court held that in contempt proceedings instituted under 28 U.S.C. 1826(a) for failure to obey a court order to answer a question before a grand jury, the witness refusing to give the testimony may avail himself of the defense that the question propounded to him violates 2515 because it was derived from electronic surveillance conducted in violation of Chapter 119. Appellant believes that Gelbard controls our adjudication of the facts before us and that before answering questions he believes are the product of electronic interception he is entitled to have a hearing as to whether the interception was in violation of Chapter 119. Insofar as Gelbard permits a grand jury witness to refuse to answer a question derived from concededly unlawful electronic surveillance and then successfully to defend a contempt proceeding for so refusing, we agree with appellant. Gelbard does indeed govern that narrow situation. The holding there, however, was expressly predicated on an assumption by the Court 'that the communications were not intercepted in accordance with the specified procedures and thus that the witnesses' potential testimony would be 'disclosure' in violation of Title III. See 18 U.S.C. 2511(1), 2517(3).' The Court left undecided the issue of 'whether (witnesses) may refuse to answer questions if the interceptions of their conversations were pursuant to court order.' Id. at 61 n. 22, 92 S.Ct. at 2368. Here appellant urges that the mere existence of a court order should not preclude the witness from fully litigating in the contempt proceeding the lawfulness of the surveillance. We disagree.
Although the Gelbard footnote technically left 'undecided' the scope of any inquiry designed to determine the legality of a court-ordered surveillance, a careful examination of that decision is revealing. Mr. Justice White in a concurring opinion supplied the decisive vote for the majority's reversal of the Ninth Circuit's holding in Gelbard, 443 F.2d 837 (1971). In that opinion he intimated, 408 U.S. at 70, 92 S.Ct. at 2372, 33 L.Ed.2d 179, that when, during grand jury proceedings, the Government does produce a court order the traditional notion that the functioning of the grand jury system should not be impeded or interrupted could prevail at that time over the witness's interest in exploring in depth the validity of the surveillance.
Where the Government produces a court order for the interception, however, and the witness nevertheless demands a full-blown suppression hearing to determine the legality of the order, there may be room for striking a different accommodation between the due functioning of the grand jury system and the federal wiretap statute. Suppression hearings in these circumstances would result in protracted interruption of grand jury proceedings. At the same time, prosecutors and other officers who have been granted and relied on a court order for the interception would be subject to no liability under the statute, whether the order is valid or not; and, in any event, the deterrent value of excluding the evidence will be marginal at best.3 Congressional concern over disruption of smooth and efficient operation of the grand jury system is found in the legislative history of Chapter 119, also. Senate Report No. 1097, printed in 1968 U.S. Code Cong. & Admin.News p. 2112, appears to controvert Persico's contention that in defending the contempt proceedings resulting from his refusal to answer a question before the grand jury he is entitled to a suppression hearing. Though the legislative history recognizes that illegally obtained wiretap evidence, or the fruits thereof, must be excluded from any proceedings before a grand jury, the history further discloses that the exclusionary rule 'must, of course, be read in light of section 2518(10)(a) discussed below, which defines the class entitled to make a motion to suppress.' Senate Report No. 1097, supra U.S.Code Cong. & Admin.News 1968, at p. 2185. Most crucial to our task, therefore, is the congressional understanding of the effect of 2518(10)(a) on the grand jury process:
'Paragraph (10)(a) provides that any aggrieved persons, as defined in section 2510(11), discussed above, in any trial hearing or other proceeding in or before any court department, officer, agency, regulating body or other authority of the United States, a State, or a political subdivision of a State may make a motion to suppress the contents of any intercepted wire or oral communication or evidence derived therefrom. This provision must be read in connection with sections 2515 and 2517, discussed above, which it limits. It provides the remady for the right created by section 2515. Because no person is a party as such to a grand jury proceeding, the provision does not envision the making of a motion to suppress in the context of such a proceeding itself. Normally, there is no limitation on the character of evidence that may be presented to a grand jury, which is enforcible by an individual. (Blue v. United States, (United States v. Blue) 86 S.Ct. 1416, 384 U.S. 251 (16 L.Ed.2d 510) (1965).) There is no intent to change this general rule. It is the intent of the provision only that when a motion to suppress is granted in another context, its scope may include use in a future grand jury proceeding . . ..' Senate Report No. 1097, supra U.S.Code Cong. & Admin.News 1968, at p. 2195.
As noted, though Congress prescribed that illegal wiretap evidence must be excluded from all grand jury proceedings, hearings to suppress evidence were not to be permitted during such proceedings. These seemingly inconsistent policy determinations can be reconciled only by interpreting the statute as requiring exclusion only when it is clear that a suppression hearing is unnecessary, as when the Government concedes that the electronic surveillance was unlawful or when the invalidity of the surveillance is patent, such as, for example, when no prior court order was obtained, or when the unlawfulness of the Government's surveillance has been established in a prior judicial proceeding. In these situations both statutory policies-- the exclusion of illegally acquired evidence and the maintenance of unimpeded grand jury proceedings-- are served. But where illegality is claimed and, if established, can be established only by way of a plenary suppression hearing, one important aim of the legislation would be frustrated.
Appellant, however, referring also to the language of the legislative history quoted above, would have us find that the contempt proceeding here is a proceeding in 'another context' and therefore the general proscription against hearings upon motions to suppress in grand jury proceedings does not prevent motions to suppress and hearings thereon in contempt proceedings arising out of a witness's refusal to answer a grand jury's question. While appellant's argument is a superficially plausible one, his reasoning in support of the argument in unrealistic. The contempt mechanism employed here to coerce testimony is so intimately connected with the grand jury proceedings in which the testimony is desired as to be really a part of those proceedings. Obviously, any expansion of the breadth of inquiry permissible in a contemporaneous contempt proceeding initiated because of the recalcitrance of a grand jury witness necessarily inhibits the smooth functioning and efficient operation of that grand jury.
Moreover, Congress could not have intended that a contemporaneous civil contempt proceeding such as the one involved here-- a proceeding whose only purpose is to invite a recalcitrant witness to cooperate with the grand jury-- is a proceeding (in another context' rather than the context of the grand jury's proceedings. That the congressional intent was so limited is demonstrated by the language of the Senate Report that the scope of a suppression order granted 'in another context' may extend to a 'future grand jury proceeding,' that is, may extend only to a grand jury proceeding which clearly postdates the proceeding 'in another context.' Therefore the term 'another context' could not have been intended to include a hearing on a contempt citation contemporaneous with the grand jury proceeding.
We hold that in contempt proceedings initiated when a witness who has been granted 'derivative use' immunity refuses to answer questions propounded by a grand jury because he claims he is entitled to a hearing to ascertain whether the questions posed are the product of unlawful electronic surveillance the witness is not entitled to a plenary suppression hearing to test the legality of that surveillance. We hold that the refusal would be permissible only if there is an absence of a necessary court order or if there is a concession from the Government that the surveillance was not in conformity with statutory requirements or if there is a prior judicial adjudication that the surveillance was unlawful. Here there were three court orders. Inasmuch as Judge Judd conducted an in camera inspection to ascertain whether they complied with the statute and found that they did comply, Persico received all that he was entitled to receive. He therefore has no basis for complaint that his motions for suppression hearings were denied.
Persico also asserts that the procedure provided for by Rule 42 of the Federal Rules of Criminal Procedure establishes the procedure which should have been, but was not, followed in this case. This contention is without merit. Rule 42 applies only in those contempt proceedings in which the purpose is punitive, i.e., in criminal contempt proceedings. Here Persico has the power to secure his own release from confinement by agreeing to answer the question he refused to answer. Thus, the purpose of holding Persico in contempt was to coerce him to answer the grand jury's question and was not to punish him for reprehensible conduct. Persico was only a recalcitrant witness, his contempt was manifestly civil in character, and, as such, the summary procedure and the limitation of permissible confinement set forth in 28 U.S.C. 1826 was, and is, applicable here.
As his final point, appellant claims that the immunity conferred upon him, as explained to him by the Government, was not co-extensive with his privilege against self-incrimination and therefore he could not be held in contempt for refusing to testify. The Government's explanation of the 'use' and 'derivative use' immunity conferred on Persico under 18 U.S.C. 6002 was not the epitome of either precision or lucidity. Nevertheless, it probably sufficiently apprised Persico of the extent of the immunity he had been granted; at the very least its extent was implicit in the prosecutor's remark to Persico that he could be prosecuted for crimes involved in matters about which he was testifying 'if the government should show independent evidence.'4 In any event, we are not persuaded that appellant was misled inasmuch as his experienced and competent counsel must have been fully aware of the extent of 6002 immunity. For instance, she acknowledges that she previously challenged the alleged technical insufficiency of the Government's explanation of the scope of the immunity, presumably on the ground that that explanation appeared to attribute to 6002 immunity a narrowness incompatible with both the plain meaning of and the Supreme Court's understanding of the section, see Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), cited in her brief on appeal. We cannot believe that she ever understood that the Government intended to confer anything less than the full 'use' and 'derivative use' immunity 'explicitly' conferred by 6002. See Kastigar v. United States, supra at 453, 92 S.Ct. 1653. She objected to the explanations given to Persico; but whatever semantic deficiencies, if any, there may have been in those explanations they did not prevent her from outlining to her client the extent of the immunity conferred upon him.
We affirm the order below adjudging appellant in civil contempt and directing his imprisonment.
Of the United States District Court for the Southern District of New York, sitting by designation
The immediate questioning which led up to the contempt order followed an admission by Persico that he was a sole operator of an illegal gambling business:
Q. (Mr. DelGrosso) Where is your base of operations today?
A. Before I answer that, can I speak to my counsel, before I answer that question?
Q. Sure, you may.
At this time Mr. Persico left the Grand Jury Room and reentered after consulting with his counsel.
Mr. DelGrosso: Read the question back, reporter.
At this time the question was read back.
A. I-- you take them off the street corner. People take bets, you know. So there is really no place, in the house maybe, they'll take it in one day.
Q. Are you the boss of this organization?
Q. Do you have people working for you?
Q. You do?
Q. Who are these people?
A. I guess we have to go back to the Judge again.
Mr. DelGrosso: Okay. We'll go upstairs to the Judge.
Whereupon, Mr. DelGrosso and Mr. Persico left the room and reentered the room without going up to the Judge.
Q. The question was, who were the individuals who worked for you?
A. Can I read this into the record?
Q. Yes, you may.
A. You already told me that my house was bugged last spring.
Mr. DelGrosso: Yes.
A. Now you're asking me who works for my gambling business. You know the answer to that question as a result of electronic surveillance of my home. As a result of electronic surveillance, I feel you're only asking me, for me to refuse to answer, because you know this information from the electronic surveillance in my home.
I still maintain that the electronic surveillance on my home was unlawful and should not be permitted and you should not be permitted to ask me these questions.
Q. Is that it?
Q. I again ask you, sir, who are the individuals that work for you, and are you refusing to answer that question?
Q. I ask the Grand Jury foreman to order the witness to answer that question.
The Foreman: You are hereby ordered to answer the questions under the terms of the power of the grant of immunity and the power of the Grand Jury.
A. Immunity pertains to only me. Is that so?
Q. That's so.
A. It does not pertain to anybody else?
Mr. DelGrosso: No, it does not.
Whereupon Mr. DelGrosso and Mr. Persico then left the Grand Jury chamber and reentered.
Q. The question was, who are the individuals involved in the gambling operation, and do you refuse to answer? You were ordered to do so. You were ordered to do so by the Grand Jury foreman. Is that not correct?
Q. Are you going to give us those names, sir?
A. Before answering this question, I would like to know whether or not, if I am correct, that you already have this information as a result of illegal bugs in my home?
Mr. DelGrosso: I need not answer any such question. You have been ordered to give those names. If you will give those names, you will not be brought up before the judge. If you will not answer, we will have to go to the judge.
You are going to have to go to the judge, sir? Is that it, sir?
A. Yes, let's go to the judge.
The striking of this balance is achieved primarily through the statutory provisions requiring the Government to obtain a court order authorizing the electronic interception. See 18 U.S.C. 2511(1)(a), 2516(1). As might be expected, the statute also contains some express exceptions to this general mandate. See, e.g., 18 U.S.C. 2511(3), 2518(7)
The Supreme Court's continuing concern over potential obstructions to the expeditious performance of the grand jury's function is illustrated by its recent decision in United State v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), in which the Court held that a grand jury witness cannot refuse to answer questions on the ground that they are the product of unlawful searches and seizures. The Court, echoing the concerns expressed in Mr. Justice White's concurring opinion in Gelbard v. United States, supra, there stated: Permitting witnesses to invoke the exclusionary rule before a grand jury would precipitate adjudication of issues hitherto reserved for the trial on the merits and would delay and disrupt grand jury proceedings. Suppression hearings would halt the orderly progress of an investigation and might necessitate extended litigation of issues only tangentially related to the grand jury's primary objective. The probable result would be 'protracted interruption of grand jury proceedings,' Gelbard v. United States, 408 U.S. 41, 70 (92 S.Ct. 2357, 33 L.Ed.2d 179) (1972) (White, J., concurring), effectively transforming them into preliminary trials on the merits. In some cases the delay might be fatal to the enforcement of the criminal law. Just last Term we reaffirmed our disinclination to allow litigious interference with grand jury proceedings:
'Any holding that would saddle the grand jury with mini-trials and preliminary showings would assuredly impede its investigation and frustrate the public's interest in the fair and expeditious administration of the criminal law.' United States v. Dionisio, 410 U.S. 1, 17 (93 S.Ct. 764, 35 L.Ed.2d 67) (1973).
S.Ct. at 620-621
See transcript of January 23, 1974 proceedings, p. 20 | 法律 |
2016-50/4389/en_head.json.gz/16269 | Learn More About Alternative Dispute Resolution in Pascagoula, Mississippi Homealternative dispute resolutionmississippipascagoula
Pascagoula is a city in Jackson County, Mississippi, United States. It is the principal city of the Pascagoula, Mississippi Metropolitan Statistical Area, as a part of the Gulfport–Biloxi–Pascagoula, Mississippi Combined Statistical Area. The population was 26,200 at the 2000 census. It is the county seat of Jackson County. Pascagoula is a major industrial city of Mississippi, along the Gulf Coast. Prior to World War II, the town was a sleepy fishing village of only about 5,000. The population exploded with the war-driven shipbuilding industry. Although the city's population seemed to peak in the late 1970s and early 1980s as Cold War defense spending was at its height, Pascagoula experienced some new growth and development in the years before Hurricane Katrina. Today, Pascagoula is home to the state’s largest employer, Ingalls Shipbuilding, owned by Northrop Grumman Ship Systems. Other major industries include one of the largest Chevron refineries in the country; Signal International, an oil platform builder; and Mississippi Phosphates. Naval Station Pascagoula was located on Singing River Island, and was homeport to several Navy warships, as well as a large Coast Guard contingent. However, Naval Station Pascagoula was decommissioned as part of the 2005 BRAC recommendations and ceased operations in 2006. The city is served by three airports: Mobile Regional Airport, which is located in nearby Mobile, Alabama; the Gulfport-Biloxi International Airport, about 40 miles (64 km) west of Pascagoula; and the Trent Lott International Airport, located within Jackson County. The mayor of the city is Robbie Maxwell. Alternative Dispute Resolution Lawyers In Pascagoula Mississippi
Answers to alternative dispute resolution issues in Mississippi
Federal court opinions concerning alternative dispute resolution in Mississippi
470 US 93 United States v. Louisiana
263 F2d 71 United States Goldsby v. Harpole
727 F2d 502 Jc Farr v. Hk Porter Company Inc
750 F2d 1314 Jackson v. Johns-Manville Sales Corporation
808 F2d 1147 Moore v. United Services Automobile Assocation
906 F2d 149 Local Union No of International Brotherhood of Electrical Workers v. Ingalls Shipbuilding Division Litton Systems Inc
982 F2d 721 Joint Eastern and Southern District Asbestos Litigation Johns-Manville Corporation Findley v. M Blinken K Findley M K Findley M
993 F2d 7 Joint Eastern and Southern District Asbestos Litigation Johns-Manville Corporation Findley v. M Blinken K Findley M K Findley M
117 F3d 266 Atlantic Fertilizer and Chemical Corporation v. Italmare Atlantic Fertilizer and Chemical Corporation
Homealternative dispute resolutionmississippipascagoula | 法律 |
2016-50/4389/en_head.json.gz/16348 | « California Roundup |
| Supreme Court Refuses Florida Stay »
News From Central Texas
The Waco Tribune reports, "Pursuit of death penalty slows in McLennan County, Texas." It's written by Tommy Witherspoon.
Ricky Donnell Cummings, accused with three others of riddling a car and its four passengers with at least 30 bullets, is the first defendant in almost nine years for whom McLennan County prosecutors are seeking the death penalty in a full-blown capital murder trial.
Cummings, 23, is set to stand trial Monday in Waco’s 19th State District Court in the shooting deaths of Tyus Sneed, 17, and Keenan Hubert, 20, in March 2011 at the Lakewood Villas apartment complex.
Since 2005, the frequency with which prosecutors seek the death penalty has steadily declined in Texas, the state with the busiest execution chamber. That year a new law took effect providing for life without parole in capital murder cases.
Thirty-six new inmates were sent to death row in Texas in 2002. Nine years later, that number was eight.
The concern that the most vicious killers eventually might be released back into society if not sentenced to death has eased. Under the statute, life without parole is automatic for those convicted of capital murder when the death penalty is off the table.
Before 2005, capital killers with life terms could be paroled in 40 years.
Carroll Joe Parr was the last defendant to be tried for capital murder in a complete trial in McLennan County in which the state sought a
death sentence. He has been on death row since 2004 in the shooting death of Joel Dominguez during a drug deal.
In the past 12 years, 24 capital murder cases have been disposed of in McLennan County but the death penalty was sought by prosecutors only against Coble and Parr. Since the law changed in 2005, seven capital murder cases here ended in sentences of life with no possibility of parole.
In addition to the impact of the life without parole statute, officials note the shocking number of DNA exonerations of prisoners, particularly in Dallas County. That has produced increased skepticism among potential jurors, who also watch TV shows like “CSI” and sometimes
expect a mountain of scientific evidence.
The Tribune also publishes a sidebar, "Men sentenced to death for McLennan County crimes."
Tuesday, 23 October 2012 at 04:07 PM in Capital Punishment, Cost, Prosecution, Sentencing, Specific Case, Trial | Permalink
capital punishment, cost, death penalty, life without parole, McLennan County, prosecution, Ricky Donnell Cummings, sentencing, Texas, trial, Waco | 法律 |
2016-50/4389/en_head.json.gz/16378 | "It’s extremely difficult for me to avoid the conclusion that these super-gigantic collections represent an inefficient allocation of global resources."
"If 15 percent of the stuff on display at the Louvre vanished at random, the impact on the experience of visiting the museum in particular or Paris in general would be minimal. But in the majority of the cities of the world, that 15 percent would be the basis for an excellent new museum."
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Chicago dealer Richard Love files for bankruptcy
What's effort got to do with it?
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Tell me again about the public trust (a continuing...
"Nairne’s book is undoubtedly an intriguing and va...
"A big part of the business today is third-party g...
"If you’re never, ever going to show them, I see n...
"The problem with authenticating Warhol"
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2016-50/4389/en_head.json.gz/16442 | EXECUTION DRUG DEPLETED: U.S. TURNS TO STONING
By Pierce Blodyn on March 12, 2011
WASHINGTON – With supplies of execution drugs disappearing, the U.S. has turned to more primitive methods of execution.
Earlier this week the Federal government informed state attorney’s throughout the nation that the supply of a key drug used for executions has run dry. The missing drug in question is called sodium thiopental, an anesthetic used during lethal injection executions.
“At the present time, the federal government does not have any reserves of sodium thiopental for lethal injections and is therefore facing the same dilemma as many states,” wrote U.S. Attorney General Eric Holder in a March 4 letter sent to the National Association of Attorneys.
Further on in the letter Holder explains that the manufacture of the drug went out of business due to the company’s inability to escape the deadly grasp of the struggling economy.
Many federal officials along with the Bureau of Prisons’ general council have been researching alternate forms of exhibition due this “execution crisis.” So far the only state that has come forward with a plan is Ohio which will inject a surgical sedative called pentobarbital to perform their lethal injection executions.
However, the stock pile of this drug is also reported to be on its last legs as well. No other facilities are stepping forward to create more sodium thiopental or pentobarbital and with energy costs continuing to soar, the U.S. sees no way in the foreseeable future to sustain the use of modern execution techniques.
Therefore, starting in the fall of 2011 the U.S. will no longer perform executions by lethal injection, the electric chair or the gas chamber. From that point forward the U.S. will employ the following execution styles for all capital offenses.
In this method the condemned is restrained, blindfolded and often given a last cigarette. But as this will be taking place in the U.S. the condemned will not longer be offered a last cigarette as smoking is bad for one’s health.
Although, outlawed in almost all countries the practice of cutting off the offenders head with a large angled blade has mad somewhat of a come back in the past decade. Artist Tom Sachs was commissioned by Chanel to make this guillotine as seen below. The U.S. saw the advertising potential here and quickly added this method to the list of new execution styles.
Common tradition with this practice is to bury the criminal in the ground while stones are thrown at the individual until they are dead. Middle Eastern countries that employ this method bury men only up to their waists and women up to their shoulders. But like mentioned before, this will be taking place in the U.S. so both men and women will be buried up to their shoulders. Men and women have equal rights in the U.S.; to do it any other way would simply be uncivilized.
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Categories: Headlines, TopStoryTags: Bureau of Prisons, electric chair, Eric Holder, Exection drug, firing squad, gas chamber, guillotine, lethal injection, middle east, ohio, pentobarbital, sodium thiopental, stoning, U.S., U.S. Attorney General Eric Holder, united states, United States of America, washington d.c. Most Commented | 法律 |
2016-50/4389/en_head.json.gz/16535 | March 9, 1998 - Proposed Bill to Restrict Access to Databases The Honorable Howard Coble Chairman, Subcommittee on Courts and Intellectual Property Committee on the Judiciary U.S. House of Representatives B-351-C Rayburn House Office Building Washington, D.C. 20515Dear Representative Coble:The American Society for Microbiology (ASM) subscribes to the principle that knowledge generated by science is intended to benefit all humanity, and that such benefit cannot be realized without full and open access to information. Since H.R. 2652, the Collections of Information Antipiracy Act, as written, proposes perpetual exclusive protection for databases, it is contrary to the full and open access principle. H.R. 2652 will interfere with the availability and use of information that is essential for our nation's scientific community to maintain its current high standard of education and exceptional progress in research.The ASM is the largest single life science society in the world, with over 43,000 members, including scientists and science administrators in academic, industrial and government institutions, working in genetics and molecular biology as well as in agriculture, the environment and medicine. ASM members are creators and users of databases, and the Society strongly recommends that new legislation proposed for databases balance a concern for protection of the rights of database producers with accommodation of the needs of the scientific educational and research communities for full and open sharing of information.The continued development of vital areas of research, such as genomic studies, combinatorial chemistry and bioinformatics, is database dependent. There is need, therefore, to guard against entrepreneurs who will repackage, claim copyright and charge educators and researchers for the use of data which is already, or would otherwise be, in the public domain. Important genetic resources and details of drug design compiled on a continuing basis and released to the public by the National Institutes of Health and by other agencies, could be commercialized by enterprising individuals, defeating the attempt to make this information available to all to use in the search for new drug targets and drugs to treat genetic disorders and infectious diseases.Databases are protected under existing copyright law. Moreover, by appropriate application of fair-use, contracts, licensing and other technical measures, it is possible now to balance public and private interests in databases. The ASM does not believe extraordinary protection for databases is justified at this time, and the Society views H.R. 2652 as an unnecessary constraint on full and open exchange of information.The ASM concurs in the opinion of the American Association for the Advancement of Sciences (AAAS) that proposals to protect the rights of database producers in the marketplace, must guard against granting disproportionate power which will increase the costs of education and research and make access to valuable information more difficult. Moreover, the ASM joins the AAAS in calling for "Those in favor of greater database protection beyond the legal regime and market forces that have preserved the delicate balance among competing interests so effectively in the past, to assume the burden of demonstrating a genuine, compelling threat to their industry that requires new legislative action."The ASM appreciates this opportunity to comment on H.R. 2652 and it is prepared to assist in future efforts to consider matters pertaining to copyright and database protection. fShare
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2016-50/4389/en_head.json.gz/16629 | Cattlemen praise water rights decision
The California Cattlemen's Association is pleased with a judge's preliminary ruling that fees charged to the state's water rights holders are invalid.
Published on October 1, 2013 4:04PM
SACRAMENTO — The state’s largest ranchers’ organization is praising a judge’s preliminary ruling that fees charged to California water rights holders are invalid.The California Cattlemen’s Association filed a court brief in 2007 in support of the lawsuit by the California Farm Bureau Federation and other plaintiffs, the cattle group explained in a newsletter.Sacramento County Superior Court Judge Raymond Cadei signaled last month he agreed with petitioners that the fees charged by the State Water Resources Control Board disproportionately burden rights holders with funding the agency’s Division of Water Rights. The proposed ruling could be finalized at an Oct. 30 hearing.The fees are charged to some 13,000 water rights holders statewide. Each year, rights holders are charged $150 plus 5 cents for each acre-foot above 10 acre-feet.The CCA “of course supports Judge Cadei’s initial rulemaking” and hopes it is made final, the organization stated in its legislative bulletin. | 法律 |
2016-50/4389/en_head.json.gz/16670 | Open All | Close All Latest Events
CHILDLINE 1098 Events CHILDLINE 1098 SERVICE » Strategic Policy Initiative » JJ-Act » A Brief History Of Children Acts Brief History Of Children Acts
Reformatory schools Act was Introduced in India .
The Juvenile Court philosophy was first introduced in the Madras Children Act 1920, (followed by the Bengal Children Act (1922) and the Bombay Children Act (1924), thereafter by many other Children Acts).
The Criminal Procedure Code (CrPC) was amended to provide a special procedure for adjudicating criminal cases concerning child offenders.
The Children Act was passed, to function as a model legislation and for use in Union Territories .
The Juvenile Justice Act, 1986, was enacted to provide for care, protection, treatment, development and rehabilitation of neglected and delinquent juveniles and for the adjudication of certain matters related to the disposition of delinquent juveniles. It repealed all other Children Acts and provided for a uniform legal framework for the juvenile justice system throughout the country.
The Juvenile Justice Act was re-enacted with some modifications. It came into effect in April 2001. The 'Central Rules' were notified in June 2001 | 法律 |
2016-50/4389/en_head.json.gz/16720 | 3 plead guilty in murder conspiracy case
Ian Duncan, The Baltimore Sun
Three men pleaded guilty Thursday to conspiring to commit a West Baltimore murder that left two brothers dead and inspired what police believe was a revenge killing against the family of one of the suspects, the State's Attorney's Office said.Evric Morgan, 28, Rafael Hardy, 30, and Tyrell Hill, 28, all accepted deals extended by a Baltimore circuit judge to plead guilty on the eve of their trials in exchange for receiving a sentence of life with all but 20 years suspended.
A fourth defendant, Marcelle Graham, rejected the deal and is maintaining his innocence. His trial is expected to start next week once a jury is selected.The four men were charged in connection with the killing of Troy, 33, and Euclides Manley, 35, in the 600 block of Linnard St. last August. A woman was also shot in the attack, and detectives wrote in charging papers that the room where the two men's bodies were found had been "ransacked."
Just hours after vigil for the brothers, shooting broke out a second time, killing Diane Edwards, 54, and Robert Hardy, 33, the mother and brother of one of the defendants. Police said at the time that they believed the attack was carried out in revenge.Those homicides remain [email protected]/iduncan | 法律 |
2016-50/4389/en_head.json.gz/16780 | Man gets life sentence in bomb plot that included former President George W. Bush’s Dallas home Filed under
Betsy Blaney
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AMARILLO — A former Texas college student from Saudi Arabia was sentenced to life in prison Tuesday for trying to make a bomb for use in a religious attack, possibly targeting a former U.S. president.Khalid Ali-M Aldawsari was sentenced in Amarillo, where jurors convicted him in June of attempting to use a weapon of mass destruction. Prosecutors say he had collected bomb-making material in his apartment and researched possible targets, including the Dallas home of former President George W. Bush. A handwritten journal found in his apartment included notes that he believed it was time for “jihad,” a Muslim term for holy war.Although the 22-year-old Aldawsari apologized Tuesday for “these bad actions,” Judge Donald E. Walter said the evidence against him was overwhelming. Walter acknowledged he was conflicted due to Aldawsari’s youth and signs that outside influences had led him astray.“But the bottom line is that but by the grace of God there would be dead Americans,” Walter said. “You would have done it. In every step, it was you all alone.”Aldawsari stood silently in shackles as the sentence was read. The formerly clean-shaven, close-cropped man now had a full beard and long hair, and appeared to have lost a lot of weight.There is no parole in the federal system for defendants convicted of recent crimes.Aldawsari came to the U.S. legally in 2008 to study chemical engineering. He was arrested in Lubbock in February 2011, after federal agents secretly searched his apartment and found explosive chemicals, wiring, a hazmat suit and clocks, along with videos showing how to make the chemical explosive TNP.Investigators say Aldawsari’s goal was to carry out jihad. His attorneys claimed he was a harmless failure who never came close to attacking anyone.FBI bomb experts have said the amounts of chemicals in the case would have yielded almost 15 pounds of explosive — about the same amount used per bomb in the 2005 London subway attacks. He also tried to order phenol, a chemical that can be used to make explosives.Court records show that his emails and journal contained the explosive’s recipe.Prosecutors said other targets he researched included nuclear power plants and the homes of three former soldiers who were stationed at Abu Ghraib prison.Prosecutors offered to show the judge a video of the possible damage Aldawsari could have done had he succeeded in assembling explosives. Walter declined.“I’m fully aware of what 15 pounds of plastic can do,” he said.During his trial, Aldawsari’s attorneys acknowledged that their client had intent, but they argued that he never took the “substantial step” needed to convict him.Defense attorney Dan Cogdell repeatedly berated Aldawsari as a “failure” and poor student who never came close to threatening anyone. Aldawsari did not testify at trial, but on Tuesday he told Walter he felt lonely and isolated from his family, friends and faith.“I am sorry for these bad actions, but none of these bad actions did harm to the United States,” Aldawsari told Walter.Aldawsari wrote in his journal that he had been planning a terror attack in the U.S. for years, even before he came to the country on a scholarship, and that it was “time for jihad,” according to court documents. He bemoaned the plight of Muslims and said he was influenced by Osama bin Laden’s speeches.Authorities said Aldawsari purchased bottles of sulfuric and nitric acids — chemicals that can be combined with phenol to create TNP.Investigators say they were tipped to his online purchases by chemical company Carolina Biological Supply and shipping company Con-way Freight on Feb. 1, 2011. The chemical company reported a $435 suspicious purchase to the FBI, while the shipping company notified Lubbock police and the FBI because it appeared the order wasn’t intended for commercial use.Court records show that Aldawsari had successfully ordered 30 liters of nitric acid and three gallons of concentrated sulfuric acid in December 2010.At his trial, prosecutors played recordings of a frustrated Aldawsari complaining to the supply company when his order was held up. He had allegedly told the company he wanted the phenol for research to develop a cleaning solution.Aldawsari had transferred from Texas Tech in early 2011 to nearby South Plains College, where he was studying business. A Saudi industrial company was paying his tuition and living expenses in the U.S. The judge moved his trial to Amarillo, about 120 north of Lubbock. View Comments | 法律 |
2016-50/4389/en_head.json.gz/16889 | New town constable to crack down on illegal vehicle registrations
LEBANON, Maine — Town residents who have their vehicles registered out of state will be getting to know a new face — Charles Denault, a former Kittery police sergeant, was recently sworn in as the new town constable.According to Denault, who was sworn into his new position on Dec. 27, he is the town’s first constable in more than a decade. He is tasked with ensuring town residents register their cars in Maine, not out of state.Denault on Friday said registration violations cost Maine millions of dollars each year. He said unless a resident is in active duty or a full-time student, drivers are required to register their cars in Maine within 30 days of moving to Maine.So far in Lebanon, about 250 drivers have been found to have their vehicles registered in another state, and Denault said he plans to visit those drivers soon. A fine of $911 can be issued to Maine drivers who don’t have their vehicles registered in-state, he said. A fine of $137 can also be applied to Maine drivers who do not have their driver’s licenses registered in Maine.“It’s easier to register a car than to pay a fine,” he said.Denault encouraged Lebanon drivers to ensure their vehicles are registered in Maine before he visits them and issues them a fine.He noted that in New Hampshire, it is a felony to have a vehicle registered in New Hampshire when the driver of the vehicle lives out of state.The town of Lebanon has declared a zero-tolerance policy on these violations. All violations will be investigated and, if warranted, prosecuted. Any questions concerning violations may be forwarded to [email protected], a 30-year veteran of law enforcement, recently retired as sergeant from the Kittery Police Department. For more information, visit Lebanon’s website registration information page or view the informational video on the topic. Registration violations can be reported anonymously through Lebanon’s website or by phone. Information is available at 207-457-6082, or through a video at http://www.youtube.com/watch?v=NYap59dxHDY. Additional information is also available at http://www.lebanon-me.org/Public_Documents/LebanonME_Excise/index | 法律 |
2016-50/4389/en_head.json.gz/17019 | Into Africa (Part 2)
Lawyers from DLA Piper and Boehringer Ingelheim raise the bar for legal writing for law students in Zambia
By Rich SteevesJune 10, 2014
Read Part 1 of this series: here
More than half of the 90+ law students that took part in the program were female, and several of them approached Turpin and Levine with a personal question. The students wanted advice on how to balance their careers with their personal lives. Turpin and Levine decided that this conversation warranted more than just a five-minute answer, so they put together a session at the end of the week in order to address any questions the female students had on this topic.
After the certificate ceremony that marked the end of the program, the female lawyers who were part of the DLA/BI team hosted a two hour session where they talked to the 50 or so female students in attendance. The six teachers represented a continuum of experience, from those just starting their careers to those who had a great deal of experience. “They asked terrific questions, the same ones we hear in the U.S.,” Levine explains. “But it wasn’t a question of ‘how do I balance the two,’ because they don’t have a balance. They have been told they have to choose: career or family. Even their own families discouraged them to go to law school, saying it would negatively affect their personal lives.” They were also told that women cannot be good litigators because they are not taken seriously in court, and there is a real lack of diversity initiatives for women and female role models.
“This was a unique opportunity for them, this access to accomplished women,” says Andrews. “It spoke volumes about the students themselves, being assertive and asking for assistance.” She also notes that she recently heard from some of the graduates of the program who have started to plan their own women’s group.
The attorneys from DLA Piper and BI who went on the trip have many priceless memories from the experience. Many are heartwarming, but some are also amusing. “The only life threating event/thing was the power outlet in our classroom,” remembers Guntrum with a wink. “I was frightened to pull the plug in the outlet. But we survived.”
Despite the difficult conditions of the school, the students showed their dedication to the program. Turpin recalled a student that travelled by bus and by foot for more than 12 hours to get to school, but he wore a silk suit and tie to class every day. All of the attorneys remarked that the students showed great dedication, staying longer than necessary, asking great questions and showing initiative. The school’s dean stated that he had never seen the students so happy and engaged. BI even decided to give an internship to one of the program participants and received over 40 applications.
All of the lawyers from BI and DLA Piper who taught in the week long course stated that it was an unforgettable and life-changing experience for them, and they have received dozens of letters and emails from their students indicating that they feel the same way. While the lives of lawyers in the United States and Europe are hectic and busy, it’s good to know that, if they take the time to reach out and share their skills with others, they can make a profound difference in the lives of individuals like the students at UNZA. And they can feel good about their own efforts as well.
Sony’s general counsel Nicole Seligman named president of Sony Entertainment
Embracing diversity: Grace Speights on the subtleties of labor and employment litigation
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2016-50/4389/en_head.json.gz/17020 | Survey shows more fraud in U.S., globally
One in 5 global CEOs report in the survey they have been asked to pay a bribe
By Ed SilversteinJune 12, 2014
The incidence of fraud in the United States doubled from 8 percent to 16 percent over the last two years at select companies, according to a new EY Global Fraud Survey. It also appears many top executives may be underestimating risk from cybercrime.
As an illustration of the prevalence of fraud globally, 1 in 5 CEOs report they have been asked to pay a bribe. Another finding that should be a concern to general counsels and other in-house attorneys is that one in five businesses participating in the survey did not have an anti-bribery/anti-corruption policy in place.
In a statement, EY said it is “imperative” for companies to have a “robust” strategy to respond to incidents.
The EY survey of over 2,700 executives located in 59 nations show that close to 40 percent of executives saw that bribery and corruption were widespread in their nations. Yet, some 48 percent of those surveyed, saw cyber-crime to be a very low risk or fairly low risk to their business. EY says the respondents apparently underestimate risk from organized crime and foreign governments.
For instance, Crowdstrike is tracking more than 20 hacker groups with ties to the Chinese government, InsideCounsel reported recently. (The Chinese government has denied allegations of organized cyber-tactics.)
The survey included interviews with chief financial officers, chief compliance officers, general counsel and heads of internal audit.
Brian Loughman, EY Americas Leader of Fraud Investigation & Dispute Services (FIDS), called the jump from 8 to 16 percent in the United States a “significant increase.”
In a statement sent to InsideCounsel, Loughman said the survey data “suggests there is much work to be done in compliance because only 38% of c-suite executives responded they had been through ABAC [anti-bribery/anti-corruption] training.”
“To the extent compliance reports to legal there is an opportunity for improved advocacy by general counsels to strengthen the ‘tone at the top,’” he added. “Separately, 70% of our respondents in the U.S. viewed cyber security as a significant threat and considering the increasing regulatory pressure to disclose cyber incidents this should be an important area of focus for GCs in the near term.”
GCs should also find the data important, because “The implications that compliance efforts are potentially running out of steam and the evolving landscape, surrounding cyber-attacks and disclosures, will require guidance from the legal department – because of the risks posed to the organization, as well as reporting obligations,” he added.
The survey comes as cybercrime is becoming more prevalent, and the U.S. Securities and Exchange Commission (SEC) is increasingly focusing on cyber risks, Loughman said. As a result, company boards and their audit committees “need to be vigilant in monitoring these risks,” Loughman said.
The survey also showed that among the companies surveyed some 38 percent take part in ABAC training and 30 percent take part ABAC risk assessment. Similarly, one in five businesses does not have an ABAC policy, and 45 percent of the businesses do not have a whistleblowing hotline. And less than a third of businesses said they are conducting anti-corruption due diligence as part of their mergers and acquisitions, the survey showed. « Prev
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Ed Silverstein is a veteran writer and editor for magazines, websites and newspapers. A graduate of Harvard's Kennedy School of Government, he has won several...
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2016-50/4389/en_head.json.gz/17031 | Goliath vs. Goliath: Yahoo and Facebook Sue Over Patents By Anna Hicks
April 13, 2012 4 Print Article
In a rare social media court case, Yahoo recently sued Facebook for 10 patent infringements. Less than two months after Facebook filed to become publicly traded, Yahoo now claims that many of the features that have allowed Facebook to accrue 850 million users, such as the News Feed, infringe on proprietary Yahoo technology. It is unclear how much money Yahoo is seeking in the lawsuit, but one thing is for certain: if this case moves forward it could be one of the biggest spectacles in the history of patent and intellectual property law. Let’s look at the salient features of the case:
The meat of the litigation revolves around patents. For decades patents have been a significant part of intellectual property law, but in recent years they have proven problematic in the development of new software and the technological innovations. Patents will now be at the heart of a cold war between two of the biggest tech companies in the world. Yahoo, which owns about 1,000 patents, is suing Facebook over 10 patent infringements ranging from Internet advertising methods and privacy controls. One of the patents is described as “optimum placement of advertisements on a webpage.” Yahoo had warned Facebook that they would sue if the social network did not agree to license the patents in question, saying that multiple other major companies had complied. Yahoo was true to their word, and called Facebook’s bluff.
Many law analysts would say that the opening legal salvo was an attempt by Yahoo to challenge Facebook’s IPO entry (which is expected to push the company’s value to $100 billion), as it is not uncommon for patent aggregators to fleece intellectual property during public offerings. But it is uncommon for this kind of litigation to be filed by large tech companies. And it is especially unusual to see such a legal fight over social media. In fact, this is the first of its kind. While intellectual property battles are par for the course in Silicon Valley and Hollywood, for the social media world this foreign territory.
Unsurprisingly, Facebook has responded by countersuing Yahoo over its own list of 10 patent infringements, which include advertising, online recommendations and photo tags. Facebook also says Yahoo’s original lawsuit caused harm to the company, though it is unclear how they will go about substantiating that accusation. Since the original lawsuit a couple months ago Facebook has acquired 750 patents from IBM, in a move that analysts say is intended to bolster the newly public company in court and prepare it for a lengthy and in-depth legal showdown that is expected to last for years. Facebook’s new patent-purchasing is a considerably new practice for them and Yahoo says this demonstrates that Facebook is on the defensive.
However, some technology writers think that Facebook has gained both the moral and legal high ground in this battle and refer to a few of the specific patents as examples of how not only will Facebook survive the patent war, it will likely come out on top. Three particularly notable bellwether patents that will be under review are:
The news feed will be one of the most highly contested patents. This popular, nearly ubiquitous online feature, which Facebook and other social content aggregators have used in order to generate personalized stories for social media users, could get Yahoo into a bit of trouble. Their Flickr Photostream, Recent Activity, and Groups Activity all utilize a feature known as the “Dynamic Page Generator,” which is a more generalized patent and may not be able to blanket Facebook’s more specific relationship-based feed.
Photo-and-media tagging
Photo-tagging was born in 2005 and was Facebook’s proudest child, facilitating massive user growth and inspiring similar features in all major social media tools since. Yahoo followed suite in 2009 with its own photo-tagging feature, called “People in Photos” in Flickr, which Facebook says is in violation of its patent. Media tagging is rampant on the Internet now, and some say it will be difficult for either side to prove that its owns the patent.
Headline posts
This service, developed by Terry Dunkle, uses an algorithm to weight the importance of various headlines. Facebook recently purchased this patent in order to posture themselves for an infringement claim on Yahoo’s Content Optimization and Relevance Engine. They will claim that Yahoo is ripping off the FB EdgeRank news feed, even though they didn’t even develop the service for which they own the patent.
You can also expect there to be lengthy showdowns over patents pertaining to ad targeting profiles, customization of contextual media information, ad delivery based on biographical and behavioral data, ad sorting, and control over privacy settings. Many of these patents are extremely difficult to pin down, leading many to speculate that Facebook, who has recently purchased several very specific patents, could come out on top.
In many ways, this is the end of an era. It is the end of a fairly considerable alliance between Yahoo and Facebook, who for years had integrated each other’s features into their respective services. Yahoo, in fact, increased its traffic 300% within a four month period by gaining access to Facebook’s users. But the honeymoon is over. Between these two giants, and perhaps between all media giants. Indeed, some analysts think are seeing the beginning of could be a protracted battle between media and tech companies over patents.
These patent wars are just beginning and the fallout could be more intense than merely a never-ending legal imbroglio that only affects news headlines. Major litigation over patents is accelerating. Since Yahoo first sued Facebook there have been no less than five major conflicts, including disputes between Apple and Samsung, Tivo and Motorola, and Oracle and Google. Some analysts think that the escalation of these conflicts could eventually lead to major services being shutdown, which could affect government agencies and international commerce.
One also can’t help but wonder whether or not these patent battles will continue in the social media world, which is just now becoming one of the more powerful business forces in the commercial world. Could we see similar multi-billion dollar skirmishes involving names like Twitter, Pinterest, Foursquare and others? As technology further merges with social interaction, pop culture, and the public sphere it could become difficult to disentangle the tools we’re using and the patents that hold them into place.
Yahoo, which has struggled in recent years against strong competition from Google and Facebook, just recently announced it would be laying off 14% of its workforce. It’s the sixth such layoff in four years for a company with a revenue of around $5 billion dollars. The latest layoffs were largely expected though, as the company has been struggling on the stock market and seems intent on renovating its business model. It isn’t clear whether the latest round of firings had anything to do with the patent battles or whether future firings could result from unfavorable court rulings.
The patent war between Facebook and Yahoo is expected to last for years and will likely benefit neither side in the short run. In the long run, we can probably expect to see the proceedings advance like a bitter grueling divorce settlement, in which both sides bite and claw over every last detail. In the meantime, neither company’s services will be effected. Not this time at least.
Anna Hicks Tags:Anna Hicks, Facebook, Foursquare, Google, ibm, patent infringement, Patent Litigation, Pinterest, Terry Dunkle, Twitter, Yahoo, Yahoo v. Facebook Posted In:Facebook, IP News, IPWatchdog.com Articles, Patent Litigation, Patents
There are currently 4 Comments comments.
Mike Zall April 14, 2012 9:34 am
It is a watershed moment of reality for those that control the web, social media and the business seedlings in Silicon Valley. They have been living in Never-Never Land under the naive assumption that patents were mere paper trophies that would not interfere with their business models and that they could blindly move forward without dealing with those that owned these trophies. Welcome to the real world!
In all other areas of the business world, freedom to use issues are reviewed, patents enforced against competitors and litigation undertaken when necessary. The Silicon Valley world has just woken up to the fact that they need to start looking at their patent portfolios and protecting their businesses and try to avoid their neighbor’s patents or they will be eaten up. Facebook and Yahoo will eventually reach a settlement, earlier rather than latter, because each will realize that the other has additional patents to further complicate the morass and each will eventually realize that they need to move on and run their businesses rather than spend millions on lawyers and deal with the disruptive collateral damage to their businesses. Money will be paid, more than likely by Facebook to Yahoo.
Darren April 14, 2012 1:53 pm
I am surprised that everybody seems to ignore the still ongoing lawsuit,Leader v. Facebook Case No. 2011-1366 (Fed. Cir.)! It goes to the core technology of Facebook. Their is already a judgement against Facebook for infringing 11 of 11 counts. Facebook even tried to have the patent invalidated by the USPTO and lost. The USPTO “Reaffirmed” the patent. The case now is in the hands of 3 judges of the Federal Circuit Court of Appeals after the March 5, 2012 oral arguments. When Leader Technologies wins the appeal, It will only strengthen Yahoos’ case, especially against 2 of Facebook’s patents! Also Facebook’s computer expert, states that the knowledge to be able to write and understand the Leader 761 patent, (of which Facebook was proved to be infringing!). “Q. What is one of ordinary skill in the art in computer science in this case? A. One of ordinary skill in the art, as I believe, is somebody with a bachelor of science in computing science or computer engineering or equivalent and a couple years of experience. I kind of know what students can do as soon as they graduate, and you need a couple years’ experience to mature and understand what you do and how to build products within that. Because of the nature of the 761patent, they would have to have background in networking, in distributed systems, in weapon-based platforms, and a little groupware. Doesn’t have to be extensive.”. Mark Zuckerberg lacked almost all of the requirements!!!!!
For more information see http://www.donnaklinenow.com
efex April 14, 2012 3:07 pm
Yahoo are big chums of AOL and Microsoft at the minute, specially in advertising, so it will be interesting to see who wins this specially if it affects business partners.
patent litigation April 20, 2012 11:25 am
This patent infringement will likely take a toll on both Facebook and Yahoo; it’s unfortunate to see the patent wars spill over into the social media sphere. Interestingly, recently I read an item stating that Twitter has vowed not to join in the patent wars. Which is intriguing, because compared to Facebook and Yahoo, Twitter is the only company that’s not quickly sliding into irrelevance. Maybe sometimes integrity does count for something, after all.
http://www.aminn.org/patent-legislation | 法律 |
2016-50/4389/en_head.json.gz/17048 | Orrick Derivatives Month in Review - May 2012
Orrick, Herrington & Sutcliffe LLP
Dodd-Frank Act Implementation Update
Title VII of the Dodd-Frank Act, titled the “Wall Street Transparency and Accountability Act of 2010”, was enacted on July 21, 2010 and is generally intended to bring the $700 trillion over-the-counter derivatives market under greater regulation. For a summary of certain noteworthy developments in the implementation of Title VII since our last update, please click here.
City of Milan Settles with Banks in Derivatives Fraud Case
The City of Milan, Italy, has reached a settlement relating to a dispute involving fees charged by four foreign banks relating to the sale of derivatives. For a complete summary, please click here.
Greece Triggers Credit Event and Raises Questions for Sovereign CDS
On March 9th, the ISDA Determinations Committee for Europe unanimously concluded that The Hellenic Republic (Greece) had triggered a restructuring “credit event” under credit default swap contracts in connection with the exchange of its debt with private creditors. The committee’s determination was based in large part on the imposition and use by Greece of retroactive “collective action clauses” on bonds governed by Greek law which bound all holders of such debt to the decisions of a supermajority. The market's experience in connection with Greece's credit event, and other developments, have raised several questions regarding the future of the sovereign CDS market. For a complete summary, please click here.
Investment Management Industry Challenges CPO Registration Requirement
The fund industry has filed suit challenging the CFTC's modification of its Rule 4.5 to require the advisers of an investment company registered under the Investment Company Act of 1940, such as mutual funds and exchange-traded funds, to register as commodity pool operators (“CPOs”) if, generally, the fund invests a material amount of its assets in speculative commodity futures, options and swaps. For a complete summary, please click here.
Standardization of Muni CDS
On March 5th, ISDA published the 2012 ISDA U.S. Municipal Reference Entity Supplement to the 2003 ISDA Credit Derivatives Definitions, which is intended to standardize credit default swaps referencing U.S. municipal issuers or obligations as the reference entity or reference obligation with credit default swaps referencing corporate and sovereign CDS. For a complete summary, please click here.
Derivatives Reform in Europe: European Market Infrastructure Regulation (EMIR) and the Regulatory Technical Standards (RTS)
Orrick Derivatives in Review - September 2012
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2016-50/4389/en_head.json.gz/17084 | NATION NATION Legal battle flares over Dzhokhar Tsarnaev security measures
Dzhokhar Tsarnaev FBI / Associated Press Dzhokhar Tsarnaev is charged with carrying out the Boston Marathon bombings in April. Dzhokhar Tsarnaev is charged with carrying out the Boston Marathon bombings in April. (FBI / Associated Press) Alana Semuels
Civil rights groups are now weighing in on security measures placed on Boston Marathon bombing suspect Dzhokhar Tsarnaev and his lawyers, arguing that they are too restrictive and may be preventing the defense from adequately preparing for what may be a death penalty case.The American Civil Liberties Union of Massachusetts attempted to file a “friend of the court” brief in U.S. District Court in Boston on Tuesday to address the security measures, but Judge George O’Toole denied the motion the next day.
Tsarnaev was captured and arrested April 19, shortly after his brother, Tamerlan, was killed in a police shootout and four days after the bombings near the Boston Marathon finish line killed three people and injured more than 260.PHOTOS: Manhunt for bombing suspects
At issue now are the Special Administrative Measures, or SAMs, put in place by U.S. Atty. Gen. Eric H. Holder Jr. on Aug. 27. SAMs are usually used in terrorism cases in which authorities believe that the defendant could cause bodily injury to others through his contact with others.The measures order that Tsarnaev be held in solitary confinement, and that his visits and calls are subject to monitoring. The measures also restrict Tsarnaev’s attorneys from disclosing information about the trial to others, unless those people are specifically preparing his defense.Both sides have been battling since last month, when Tsarnaev’s attorneys filed a brief arguing that the measures were “unlawful and unwarranted” and violated his 1st, 5th and 6th Amendment rights. Defense attorneys said that Tsarnaev “has done nothing since his arrest to abet or encourage” others to violence and said the measures “gravely impair the ability of counsel to provide effective assistance to Mr. Tsarnaev.”Government prosecutors submitted briefs in which they argued that writings found in the Watertown, Mass., boat where Tsarnaev took refuge show “an avowed wish to incite others to engage in violent jihad.” They cite a July 2013 issue of Al Qaeda’s Inspire magazine, which lauds Tsarnaev, as proof that the defendant could still cause harm to others.The ACLU, in its brief, focused on how the measures affected Tsarnaev’s attorneys.Attorneys are given vague instructions on exactly what composes “preparing for defense,” making them worry that they will violate the measures by mistake and risk losing their legal license, said Matthew Segal, an attorney with the ACLU of Massachusetts. The measures also mean that prison officials can see any document that attorneys bring with them to prison. All in all, they represent too many hoops to jump through, he said.“Taking up attorney time with these measures violates the 6th Amendment unless it's done for a really good reason,” Segal said in an interview. “Every moment the attorney spends trying to comply with the measures is one she is not spending helping her client.”This is not the first time that the ACLU has raised objections over how the Tsarnaev trial and investigations have been handled. After a friend of Tamerlan Tsarnaev was shot and killed by the FBI during an investigation in May, the ACLUs of Massachusetts and Florida each wrote a letter to their respective state attorney general requesting that the shooting be investigated.Meanwhile, Dzhokhar Tsarnaev’s attorneys continue to argue that they are being hamstrung as they attempt to prepare for trial.In a filing on Thursday, defense lawyers argued that “the government continues to withhold reports and testimony of the greatest utility and interest concerning those closest to Tsarnaev.” The filing also reminded prosecutors that the execution of Oklahoma bomber Timothy McVeigh was delayed when it came to light that the FBI had failed to turn over 3,000 pages of interview reports.The defense is also asking for many documents, including those concerning whether Tsarnaev asked for a lawyer during questioning at a hospital; any surveillance of Tsarnaev family members; and all documents about a triple homicide on Sept. 11, 2011, concerning the possible involvement of one of the Tsarnaev brothers.ALSO:Colorado officials consider new rules on growing hempDetroit barbershop shooting called 'urban terrorism'; 3 deadWhitey Bulger has no redeeming value, prosecutors tell judgeTwitter: @[email protected] L.A. Times National on Twitter
Boston bombing suspect to face state charges in killing of MIT officer
Dzhokhar Tsarnaev photos: Police photographer faces internal inquiry
2 friends of accused Boston Marathon bomber charged with obstruction | 法律 |
2016-50/4389/en_head.json.gz/17085 | L-R: Stacy Chittick (CUA Law Class of 1994); SEC Historical Society Trustee and vice-president of development; Carla Rosati, executive director,SEC Historical Society; Trevor Harley (3L), Securities Law Student Association; Lara Driscoe (3L), Securities Law Student Association; Dana Brown (3L), Securities Law Student Association; and Professor David Lipton, director of the Securities Law Program at CUA.
CUA Law Students Present Check to SEC Historical Society
The Securities Law Students Association at the Columbus School of Law presented a check for $350 to the SEC Historical Society on April 14, 2010, helping to fund the organization’s new virtual museum section on Film, Radio and Television. The historical society's virtual museum and archive is an open door to the history of the regulation of the capital market system from the 20th century to the present. Its collection is built and exhibited independent of any oversight from the U.S. Securities and Exchange Commission.
Earlier this year, the law school’s Student Bar Association enacted a community service initiative, asking each student organization to complete an approved community service project during the school year.
The SLSA’s approved project was a fundraiser that would benefit the SEC Historical Society and the V Foundation for Cancer Research, established 17 years ago in honor of the late Jim Valvano, former head coach of the men’s basketball program at North Carolina State.
“Our fundraiser was one of the more successful, raising $350 for the Society and $150 for the V Foundation,” said Trevor Harley (3L), one of the three student leaders of the SLSA. The funds were raised through the sale of tickets to students during the recently completed NCAA national basketball tournament.
The SEC Historical Society’s Film, Radio and Television section offers web visitors historical documentaries, clips of old speeches and newsreels related to securities regulation. The check presented on April 14 will permit at least five of the exhibits to note that they were “made possible through the support of the Securities Law Student Association, Columbus School of Law, The Catholic University of America.”
Last reviewed: October 28, 2013 Contact Us/Directory | 法律 |
2016-50/4389/en_head.json.gz/17087 | Roy AlvarezOther California Cases with Mistaken Witness IdentificationsOn November 18, 1994, a man in a Jeans-For-Less store in Wilmington, California, brought clothing to the counter as if he intended to make a purchase. Instead, the man drew a pistol, came behind the counter and forced the store’s owner, Moheb Hanna, to hand over cash from a cash register. The gunman then fled.
On November 28, 1994, a man walked into Tom’s Burgers in Carson, California, inquired about the day’s specials, then drew a handgun, jumped the counter and ordered a clerk to open the cash register. The robber took $500 and fled.
On December 5, 1994, a man returned to the same Tom’s Burgers, again drew a pistol, jumped the counter and ordered the same clerk, Marcia Garcia, to open the cash register. The man took an undetermined amount of cash after pointing his gun at the restaurant manager, Lionel Brambila. The gunman then ordered another employee to open the other cash register and hand over the cash in the till. The gunman then fled. The employees told police that the same man had committed both robberies of the restaurant.
In January 1995, Los Angeles police showed photographic lineups to the five witnesses in the three robberies. All the witnesses except Brambila (who selected no one) identified the photograph of 38-year-old Roy Alvarez, who had been released from prison in 1994 after serving a sentence for armed robbery. In 1985 Alvarez had pled guilty to armed robbery and was sentenced to 15 years. At the time, police linked him to 25 different armed robberies.
On January 12, 1995, Alvarez was arrested and charged with the two robberies of Tom’s Burgers and the robbery of the Jeans-For-Less store.
He went on trial in Los Angeles County Superior Court in October 1995. Brambila, the manager of Tom’s, did not identify Alvarez, but he did tell the jury that he believed the same man robbed the restaurant on November 28 and December 5. Garcia testified that although she had picked Alvarez’s photo from the lineup, she no longer believed Alvarez was the robber.
Two other employees who witnessed the robberies, Gloria Estanislao and Cecilia Medina, also said they were no longer sure of their identifications of Alvarez. Estanislao said Alvarez resembled the robber, but that he was heavier and had a lighter complexion than the robber. Medina said that Alvarez was heavier and that the robber had acne scars, which Alvarez did not have.
Moheb Hanna, the owner of Jeans-For-Less, testified that he was positive that Alvarez robbed his store.
The detective on the case testified that the technique employed by the robber in these three crimes–posing as a customer, drawing a pistol and jumping over or going behind the counter–was “very, very rare.”
Before the case was submitted to the jury for deliberation, the trial judge dismissed the charges relating to the November 28, 1994 robbery of Tom’s Burgers for lack of evidence. The prosecution then offered Alvarez a deal to plead guilty to the remaining charges in return for a five-year prison term. Alvarez rejected the offer.
In November 1995, the jury convicted Alvarez of the December 5 robbery of Tom’s Burgers and the robbery of the Jeans-For-Less store. Prior to sentencing, Alvarez discovered that in December 1994—two weeks before he was arrested—the same detective who handled his case arrested another man, Raul Silva, on charges of committing several armed robberies of video stores in the same geographic area. Alvarez wrote a letter to Hanna, owner of the Jeans-For-Less store and said that he was not the robber and that Silva probably was. Hanna then went to the police, who put a photograph of Silva in a photographic lineup. Hanna said Silva—not Alvarez—was the gunman who robbed his store.
Alvarez’s attorney filed a motion for a new trial based on Hanna’s identification of Silva. The trial judge vacated the conviction for the robbery of the Jeans-For-Less store, and then sentenced Alvarez to 14 years in prison for the December 5, 1994 Tom’s Burgers robbery.
After his conviction was affirmed on initial appeal, attorney Valerie Wass and attorney Jill Ishida from the California Appellate Project re-investigated the case and in 2002 filed a state-court petition for a writ of habeas corpus. The petition alleged that Alvarez’s attorney had failed to call three witnesses who would have testified that Alvarez was at his job on November 28, 1994, the day of the first Tom’s Burgers robbery. The petition accused the prosecution of withholding evidence of Silva’s arrest and that Silva (who pled guilty to other robberies) committed his crimes by posing as a customer, leaping over the counter and demanding cash at gunpoint. The petition noted that Silva had acne scars on his face and that he was much skinnier than Alvarez—which fit the witnesses’ descriptions of the robber in the cases for which Alvarez was convicted.
On September 9, 2002, the Los Angeles County District Attorney’s office said it would not oppose the granting of the petition. A judge vacated Alvarez’s conviction, the prosecution dismissed the charges and Alvarez was released.
Alvarez sought compensation from the state of California, but his claim was denied. Alvarez also filed a federal civil rights lawsuit, but the case was dismissed.
In 2010, Alvarez was charged with assault for pulling a bottle from his pocket and threatening to kill a man during an argument. Alvarez was convicted and sentenced under California’s Three Strikes Law to 42 years to life in prison.
State:CaliforniaCounty:Los AngelesMost Serious Crime:RobberyAdditional Convictions:Reported Crime Date:1994Convicted:1995Exonerated:2002Sentence:14 yearsRace:HispanicSex:MaleAge at the date of crime:38Contributing Factors:Mistaken Witness ID, Official Misconduct, Inadequate Legal DefenseDid DNA evidence contribute to the exoneration?:No | 法律 |
2016-50/4389/en_head.json.gz/17107 | A Firm Where Clients Are Not Numbers
Alan Cooley
By Janee [email protected] Jeffrey Baron, Esq, owner of Baron Law Firm, PLLC, in East Northport, has established a firm that is dedicated to providing undivided attention for every client it serves. Photo provided by Jeffrey Baron
Where clients are not numbers, attorneys at Baron Law Firm, PLLC work to give every case their undivided attention and serve the community with integrity.“It’s a personal place,” Jeffrey Baron, Esq, owner of the East Northport firm, said. “Clients know that they are acknowledged here and that they are appreciated. The clients that we have, they’re with me because they like me and they trust me.”Located at 166 Laurel Road, Suite 203, the firm handles personal injury and civil litigation, representing individuals, businesses, and insurers in civil actions.“We do primarily insurance defense work and personal injury,” Baron, 46, of Commack, said. “We represent insurance companies on the defense side and we represent plaintiffs.”With five attorneys that amount to more than 85 years of combined experience, the team defends and prosecutes claims and lawsuits involving negligence, recklessness, intentional acts, omissions, products liability, wrongful death, labor law, construction accidents, municipal law, and fire, flood and other property damage.“If you bring your case here, it’s going to get done by an experienced attorney and it’s going to get a lot of personal attention because we’re like a boutique law firm,” Baron said, adding that the firm serves throughout Long Island, from Riverhead, to the five boroughs of New York City.He added, “We’re very detail oriented,” and keep the work volume relatively low to ensure the best service to every case. Baron started the office as a solo practitioner in 2002, and the office slowly began to grow, he said. The firm was formally set up in 2005. For Baron, he said he wears “two hats,” one as a lawyer, managing cases, and the other as firm operator, which includes supervising, handling finances, promotion and more.“It’s a challenge. I’m constantly learning,” Baron said. “I’m learning as a lawyer and I’m learning as a businessman.”Baron grew up in Dix Hills and graduated from Half Hollow Hills High School West in 1988. He then graduated from University of Michigan, Ann Arbor in 1992 with a bachelor’s degree in English literature, and he earned his Juris Doctorate from Benjamin Cardozo School of Law in 1995.Baron was admitted to the New York and New Jersey State Bars and the U.S. District Courts for the Eastern and Southern districts in 1996.Baron said when it comes to his cases he will always puts in his best effort and never delivers inadequacy. “If I take your case, it’s the most important thing in my life,” he said. “I refuse to do less than the best job. Anything I work on gets my full and undivided attention.”Baron added that he tries to make the office an enjoyable place for both his staff and his clients.“I take a lot of pride in my firm. It’s a reflection of me,” Baron said about the firm. “We’re like a family here and we grow together. It’s my home away from home.” May 19, 2016/
Alan Cooley/
Huntington Station Contractor ...
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2016-50/4389/en_head.json.gz/17204 | How Useful Is This Argument Against Sedevacantism?
BY Jimmy Akin
Posted 6/9/11 at 10:41 PM
Last time we dealt with the first part of a two-part query from a reader. Now for part two.
The question is: How useful can a particular quotation from Vatican I be in dealing with sedevacantists (i.e., those who say there is no valid pope at present)—particularly those who say that Pius XII was the last valid pope.
The quotation from Vatican I is:
f anyone says that it is not by the institution of Christ the Lord himself (that is to say, by divine law) that blessed Peter should have perpetual successors in the primacy over the whole Church; or that the Roman pontiff is not the successor of blessed Peter in this primacy: let him be anathema.
Since the time of Vatican I the canonical penalty of anathema—which was a special kind of excommunication done with a particular ceremony—has been abolished, so nobody today is under the penalty of anathema even if they do violate this canon.
However, this canon defines a point that appears to be divinely revealed. The obstinate doubt or denial of a doctrine that is both divinely revealed and infallibly defined by the Church as such is a heresy, and thus under certain conditions a Catholic who falls afoul of this canon can indeed excommunicate himself (and automatically so). This just isn’t the kind of excommunication formerly known as anathema.
So much for the canonical aspects. What about its utility as an argument when dealing with sedevacantists?
To assess that, we first need to understand what is being defined in this text. And we have to do that rather carefully, because infallible definitions must be construed narrowly. Thus the Code of Canon Law provides:
Canon 749 §3. No doctrine is understood as defined infallibly unless this is manifestly evident.
One results of this is that we must ask what the council was trying to define. If it is manifestly evident that a particular proposition was intended then that proposition is defined infallibly. If it is not manifestly evident then it is not to be regarded as infallibly defined.
In the case of the Vatican I statement quoted above, the purpose of the council was to define that it was “by the institution of Christ the Lord himself (that is to say, by divine law) that blessed Peter should have perpetual successors in the primacy over the whole church.” In other words, the papacy is not a man-made thing. It is not by human or merely ecclesiastical law that there be an ongoing line of successors to St. Peter with jurisdiction over the whole church. (The council also identified the bishop of Rome as that successor, but this isn’t the point that concerns us here.)
It is manifestly evident that the council wished to say that Christ’s intention that St. Peter would have an ongoing line of successors with primacy over the whole Church, but this does not mean that there would be a successor at any particular moment. There obviously isn’t a successor during the “interregnum” (between the reigns) period between the death of one pope and the election of another. Sometimes these interregna have even lasted years, when the college of cardinals had trouble making up its mind (though that hasn’t happened in a very long time; that’s why the conclave was invented, so that the cardinals would be effectively locked up together until they came up with a successor).
So if the passage from Vatican I does not ensure that there will be a successor at any particular moment then a sedevacantist could simply argue that now is one of those moments. Something either went wrong with a recent papal election, in such a way that invalidated it, or—according to one theory that at least some thinkers in Catholic history have advocated—a pope could forfeit his office through heresy.
One of these two things is, in fact, what sedevacantists claim. So I don’t see the text from Vatican I as being a useful argument against sedevacantism in general, but there is another possibility. Might it work against a specific form of sedevacantism?
According to many current sedevacantists, Pius XII was the last valid pope. He died in 1958, which was 53 years ago.
Here is where the argument gets interesting: In order to be pope, under current canon law, one must be elected by the college of cardinals. In order to be a member of the college of cardinals, one must be appointed by the pope. In order for the pope to appoint you, he must be alive.
If the last valid pope died in 1958, that would seem to mean that no cardinals have been validly appointed since then. How many cardinals are alive today who were appointed before 1958?
The longest-serving cardinal at present is Eugenio Sales, who wasn’t appointed until 1969. If his elevation to the cardinalate was invalid, and so were all subsequent elevations due to a lack of valid popes, then it would appear that the college of cardinals now has no members. With no valid members, it would seem impossible for there to be another validly elected pope.
That would be odd.
It would certainly seem to be contrary to the will of Christ who, in the words of Vatican I, willed “that blessed Peter should have perpetual successors in the primacy over the whole Church.” If Christ really wills that there be an ongoing series of successors then one would think he would keep the Church from getting into a position where it is impossible to elect any more successors.
So do we have a good argument here, from Vatican I, after all? An argument that deals a death-blow to a major current form of sedevacantism?
Let’s think about what responses a sedevacantist (of the requisite type) might make. What avenues of counter-argument might he have?
For a start, he would be able to say, “Hey, I agree with that Vatican I said. I think Christ did will that St. Peter have ongoing successors to the end of time (with gaps here and there). It’s not Christ’s will that we currently be without a pope. It’s a tragedy that we are!”
Responding to this, one might say, “Okay, but then how are we supposed to get a new pope?”
Here the sedevacantist would seem to have two options: (1) He could bite the bullet and say that there just is no way to get a new pope; we’re just stuck. Or (2) he could say that there is, in fact, a way to get a new pope, despite what you might otherwise thing.
If he picks option (1), do we have him?
I don’t think so. At least not based on what Vatican I says. The reason is this: God can will things in different senses. He can, on the one hand, will that certain things happen or not happen in what’s sometimes called a “preceptive” way. That is, he establishes a precept that things happen (Honor thy father and mother) or that they not happen (Thou shalt not bear false witness). But it’s clear that when God wills something preceptively, that doesn’t mean it’s going to come to pass. People dishonor their fathers and mothers all the time. They bear false witness all the time.
On the other hand, God can will that certain things happen or not happen in what’s sometimes called an “efficacious” way. That is, he not only wills that they happen but he arranges circumstances so that they do in fact happen. This is the case, for example, when a pope or a council speaks infallibly. God wills that when certain conditions are fulfilled, the resulting teaching will be infallible, and he brings it about that the teaching is infallible. If a pope or council were to try to define something that is false, something (pleasant or unpleasant) would happen to stop this from happening.
So one question we have to face is: What kind of willing is being talked about in the text from Vatican I?
For a variety of reasons, a very strong case can be made that it’s the first. Let me give you just one reason: In its historical context, Vatican I was dealing with people who had argued that the papacy is a man-made institution, not one that exists by the will of Christ or by divine law. That was the point this particular text was dealing with.
It was not responding to people who claimed that the papacy is a divine institution but it might not endure to the end of the world—with gaps here and there (due, at least, to interregna), but with a guaranteed new successor before the end of the world and alive at the time Christ comes back.
The latter claim does not appear to be what the council was attempting to define. As a result, it is not manifestly evident that the council defined this teaching, and so—according to the 1983 Code of Canon Law—we should not regard this teaching as having been infallibly defined.
The sedevacantist thus can say, “You’re overreaching with the text from Vatican I. It’s just an affirmation that it’s the preceptive will of Christ that there be ongoing successors to Peter—not a guarantee that there will be one alive at the time of the Second Coming.”
I think this is a valid response. I don’t think we can get from the text of Vatican I an infallible definition of the proposition that there will be a living success of Peter at the very end. We might believe this on other grounds, but it’s not what Vatican I was attempting to define, and thus it’s not something Vatican I defined.
If one can produce other grounds that guarantee a living successor of Peter at the Second Coming then it is those grounds—not Vatican I—that one should point to.
The idea that there would not be a living successor of Peter at the end of time is a very uncomfortable thought—so uncomfortable, in fact, that many sedevacantists would not want to go in this direction and would instead pick option (2) and claim that there is a way to get a new pope, despite what one might think.
What might a sedevacantist of this sort claim?
I can think of several possibilities off the top of my head:
a) There was a secret conclave before the last valid cardinals died, and there is a continuing papacy that is little known or in secret.
b) God could make a new pope known by divine (and presumably private) revelation.
c) In the absence of a valid set of cardinals, and the impossibility of generating new ones, the ecclesiastical law providing for the election of a pontiff by the college of cardinals has lapsed, making it possible to elect a new pope through some other means (such as by a tiny remnant of the “true faithful,” whether they be conceived of as bishops, priests, laypeople, or some mix of those).
In fact, variations on these the proposals are what some sedevacantists claim. In fact, some have already proposed new anti-popes citing one or another of these as the basis. (In fact, I’ve had more than one current anti-pope ask to friend me on Facebook, though I have declined these invitations since I strongly suspected it was just a ploy to get in front of my FB friends to promote their anti-papacies.) This means that they and their followers aren’t technically sedevacantists but schismatics following a false pope.
A sedevacantist could even say, “I don’t know what the method is for getting a new pope, but there must be one.”
In fact, a sedevacantist could even site the very same text from Vatican I and—again taking it beyond what the council was attempting to define—argue that this text shows that there must be a way of getting a new pope, even though it isn’t presently clear what that is.
So I don’t think that the Vatican I text is a knock-down argument against sedevacantism, even of the sort that sees Pius XII as the last valid pope.
That’s not to say it’s useless. It does, after all, show that it’s at least the preceptive will of Christ that Peter have ongoing successors, and if that’s the case then it’s reasonable to suppose, hope, and think that in a matter this important he would guide the Church in such a way that we don’t get into a no-pope-ever-again situation. But this is only one datapoint in a larger argument that must be mounted.
I think there is quite a bit of fruitful material to be mined in the area we are exploring—the implications of the will of Christ for the ongoing nature of the papacy—and how this ill-fits with the claim that the papacy has been vacant for more than half a century. The cognitive dissonance created by that idea, plus the lameness of the alternative ways of getting a pope mentioned above (each of which is fraught with problems) makes a powerful case that the sedevacantists are simply wrong, and profoundly so.
But I think in order to make that case we need to appeal to a broader array of evidence and that the text from Vatican I doesn’t settle the matter for us, as great as that would be. | 法律 |
2016-50/4389/en_head.json.gz/17290 | What is Patent Progress?
Patent Progress provides useful information and timely analysis for navigating the high-tech patent landscape. We address the patent wars, trolls and privateers that have engulfed the technology sector in an unprecedented storm of multi-jurisdictional, worldwide patent litigation, along with the conflicting incentives and systemic failure at the heart of the crisis. Patent Progress explains the misalignments and asymmetries and how the system can be reformed to promote innovation instead of conflict and litigation.
Who created Patent Progress?
Patent Progress is a project of the Computer & Communications Industry Association (CCIA). CCIA was created 40 years ago by technology companies that found their attempts to enter the hardware, software and telecommunications markets blocked by incumbents. Since then CCIA has fought for competition, innovation and open markets in technology. While CCIA has long been concerned about the anti-competitive use of patents, the use of the patent system to thwart competition and innovation has recently become a very serious problem in the U.S.
What is the Resource Center?
Because patents and patent litigation are difficult to follow, CCIA has created Patent Progress as a public resource for accurate information. The Resource Center includes case summaries of active and inactive patent litigation in the U.S. Courts and before the International Trade Commission, links to key filings and copies of the patents being litigated. It will also include our commentary on these cases as we write on issues relevant to the cases. The Resource Center also includes copies of bills being considered in Congress.
How can I contact Patent Progress?
If you would like to contact us, please click here.
How can I contribute to Patent Progress?
If you believe in our mission and have ideas for blog posts or are interested in becoming a contributor, please contact us. We strongly suggest that you comment on some posts first and become an informal contributor.
What is a patent troll?
Patent trolls, commonly referred to as “non-practicing entities” (NPEs) or more accurate as “patent assertion entities” (PAEs), assert patents against companies that have inadvertently incorporated patented technology into their products. Although trolls are sometimes the original inventor or applicant for the patent, they usually acquire patents through a subsequent transaction. Since trolls generally do not produce or sell anything, they are not at risk of infringing other patents, allowing them to assert patents aggressively without fear of retaliation. Often defendants, especially smaller companies and startups, will choose to settle to avoid expending time and resources on costly litigation.
What is a non practicing entity (NPE)?
A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it.
What is a patent assertion entity (PAE)?
A narrower term for trolls that focuses on the core business model rather than whether the entity is actually making use of the patented technology (“working the patent”). As their name implies, they generate revenue from asserting their patents to obtain licensing fees, settlements or court-mandated damages.
What is privateering?
Privateering is a recent development in which large companies work with trolls, explicitly or implicitly, to attack their rivals. In one common form, companies license patents to allies, retain a license for themselves, and then sell the patents to trolls who can use them to attack unlicensed third-parties. Unlike the company that originally owned the patents, the troll can go after that company’s rivals full force without fear of retaliation or reputational damage. A variation on privateering includes spinning patents off into shell companies that become patent assertion entities.
What is the Federal Circuit?
The Federal Circuit is short for the Court of Appeals for the Federal Circuit, also abbreviated CAFC. The Federal Circuit is a specialized appeals court that hears all appeals of federal district court decisions on patent litigation. Traditionally, when a district court case is appealed, it moves up to the regional circuit court that has appellate jurisdiction over the district court. The Federal Circuit was intended to make patent law more uniform, but it became a “booster of its specialty,” making patents easier to get, easier to assert, harder to invalidate, and available for abstract subject matter.
What is the International Trade Commission?
The International Trade Commission (ITC) is an independent, quasi-judicial federal agency that has the power to block imports into the United States for “unfair trade practices,” including patent infringement. Through the ITC, it is possible to get an exclusion order as a result of a 337 action, which permits patent owners to exclude from entry into the United States goods found to infringe a U.S. patent. Following the Supreme Court’s 2006 eBay decision, which made injunctions–particularly for non-producing entities–more difficult to obtain in patent infringement cases before the federal courts, the ITC has seen a marked increase in patent infringement complaints. With an average case length between 12 and 15 months, ITC cases are usually resolved more quickly than district court cases, but the ITC cannot award damages. Once the Administrative Law Judge (ALJ) rules on a case, following a recommendation by ITC staff, the ITC’s six commissioners vote on whether to uphold or reverse the ALJ’s decision. Following the ITC decision, the president has 60 days to override the ITC’s order. If the president does not act within 60 days, the ITC’s import ban takes effect.
What are the different types of patents?
Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof. Business method and software patents are utility patents.
Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture. Design patents do not overlap with utility patents; they are expressly limited from applying to any functional characteristic or attribute. A design patent may only protect ornamental, non-functional qualities. Smartphones may be covered by design patents in addition to utility patents.
Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant. | 法律 |
2016-50/4389/en_head.json.gz/17377 | Reformer requests court documents related to school security measures
A Windham Country Sheriff cruiser is parked outside of the Brattleboro Area Middle School as security was heightened at area schools, several weeks ago. (Zachary P. Stephens/Brattleboro Reformer file photo) Posted
Friday, February 22, 2013 5:47 am
By BOB AUDETTE / Reformer Staff
Friday February 22, 2013 BRATTLEBORO -- The Reformer will be in court at 9 a.m. on Feb. 22 asking to see any court documents related to an involuntary commitment hearing that was held on Jan. 25.
The Reformer has reason to believe the hearing was related to the implementation of precautionary security measures at schools in the region, especially those in Windham Southeast Supervisory Union, during the week starting Jan. 28.
On the night of Jan. 27, the supervisory union initiated an emergency notification system informing parents of the security measures.
"Town officials were notified that a person who had previously made nonspecific threats regarding school-age people might be returning to the area," stated Town Manager Barbara Sondag in a press release. "Taking the threats seriously, representatives from police, fire and town administration met to develop a response plan."
The press release mentioned the December shooting that left 20 children and six adults dead at an elementary school in Newtown, Conn.
"Since the recent tragedy at Newtown, we are extremely sensitive to possible threats to our children and will respond in a proactive manner," stated Sondag, noting the individual in question had violated no laws.
Ron Stahley, the superintendent of WSESU, told the Reformer that after consulting with the town, "We felt it made sense to take precautionary measures."
On Jan. 28, 40 to 50 percent of the students attending Brattleboro Union High School were kept home.
Many parents were concerned about the lack of information available to them.
"They wanted to sound like they were on top of things," said one parent. "But will all the vagueness all they did was cause a mass panic. The kids are all scared, and nobody wants to send them to school today."
The "nonspecific threats" affected not only schools in WSESU.
Schools in Winchester and Hinsdale, N.H., took precautionary measures, as did schools in the Deerfield Valley, the Windham Northeast Supervisory Union and the Windham Central Supervisory Union.
In a newsletter to parents in Winchester, Superintendent Jim Lewis stated a man who had made threatening remarks toward children had been taken into custody after being "at-large" for a few days.
Brattleboro Police Chief Gene Wrinn told the Reformer he was not aware of anyone being taken into custody, but added he was "aware of a person (but) no laws had been broken."
Chris Kibbe, the superintendent of WNESU, sent an e-mail to his faculty and administrators about the "nonspecific threats."
"On Friday, a 25-year-old patient at the Retreat was unexpectedly released," wrote Kibbe. "The police do not at this point know where he is, but he has some connection to the Windham Central area, though he apparently did not attend the public schools there."
Kibbe noted that his information was "only third hand," but the person in question did make some reference "to guns and to Sandy Hook ... hence the active threat status that they and we have adopted."
The Brattleboro Retreat refused to confirm or deny whether the person in question had been a patient in its facility.
However, said Simpson, if the Retreat was concerned about a person's stability and whether that person was a danger to the community, it would file commitment proceedings in the local court.
"The community at large has a right to be protected from somebody who may be dangerous."
The Reformer did obtain court documents from Jan. 25 that indicated an involuntary commitment of a person identified as "K.G." was held.
When the Reformer requested all documentation related to the hearing, the court refused, noting according to state statutes "the public shall not have access to records of the court in mental health and mental retardation proceedings ..."
The Reformer appealed the court's denial, noting "Involuntary commitment proceedings are not confidential where public interest requires that the proceedings be open to the public.
"It is in the public interest to know the name of the person who made the alleged threats, the nature of the threats and the institution or person who requested the involuntary commitment," noted the Reformer in its letter of appeal. "This information bears on Windham County's ability to protect its children."
The Reformer also noted it's in the court's best interest to be transparent to maintain public confidence in its decision-making process.
"The threat to the safety of children in Windham County and the Court's decision to not institutionalize (the subject) directly affect the public," wrote the Reformer. "Indeed, the Windham County School District's decision to implement enhanced security measures is evidence of the significance of the Court's decision for the Windham County community."
Bob Audette can be reached at [email protected], or at 802-254-2311, ext. 160. Follow Bob on Twitter @audette.reformer. | 法律 |
2016-50/4389/en_head.json.gz/17574 | One of the worst shoplifters in the country is finally jailed - and banned from Bolton town centre
JAILED: Harry Hankinson, one of the UK's most prolific shoplifters
Liam Thorp, chief reporter
/ LiamThorpBN
ONE of the country's most prolific shoplifters has been jailed for 16 months and banned from Bolton town centre after being convicted of his 521st offence.
Harry Hankinson, aged 65, of Kingsley Street, Halliwell, who has now racked up a total of 236 convictions and 521 offences, 426 of which are theft, has also been slapped with an anti-social behaviour order barring him from entering Bolton town centre.
Today's conviction related to seven thefts in February and March this year.
Bolton Crown Court heard that in his latest shoplifting spree he attempted to steal luxury goods, including a designer watch, along with purses and a handbag from Selfridges in Manchester.
He also attempted to take more than £450 of alcohol from supermarkets Aldi and Tesco as well as trying to make off with more than £100 of meat from Sainsbury's.
Magistrates had bailed him on March 6, only for him to be arrested the next day after being caught with £335 of perfume at House of Fraser in Manchester.
Questioning the decision to bail Hankinson, Judge Peter Davies remarked: "What on earth did they think he was going to do when they bailed him?"
Defence barrister Robert Elias told the court that Hankinson's offending started after a head injury in the 1970s and that his client had told him that doctors suggested there may be a link between that injury and his compulsion to steal, but there was nothing concrete.
He informed the court that one previous method used in an attempt to curtail his offending involved magistrates keeping the 65-year old in court during shop opening hours, to which Judge Davies responded: "Well he's not coming in here every day."
Dealing with the terms of the ASBO, which will last for two years, Judge Davies told Hankinson that he was barred from entering Bolton town centre, referring specifically to Morrisons in Mornington Road and the Co-op shops in Brownlow Way and Chorley Old Road.
He added: "You are also barred from entering any retail space in the Greater Manchester area if asked to leave by the manager."
In passing sentence, Judge Davies described Hankinson as "an individual that I have never experienced in all my life, both in the bar and sitting on the bench.
"You have accumulated 426 offences for theft from shops - let's not call this shoplifting - it is theft, it is dishonesty.
"You are a pest and you keep on coming back for more. Everything that has been tried has failed.
"I think there is no other way of protecting traders and the public and of making sure that you don't commit offences than locking you up."
Jailing the pensioner for 16 months, Judge Davies added: "Short-term hasn't worked. This is exceptional, this is your occupation." | 法律 |
2016-50/4389/en_head.json.gz/17627 | New Yorkers Don't Know Their Rights When It Comes to NYPD's Illegal Marijuana Searches
Joe Coscarelli
Wednesday, April 27, 2011 at 1:53 p.m.
By Joe Coscarelli
In a follow-up to yesterday's investigation by WNYC into the often illegal, and more often minority-targeting, rash of arrests for misdemeanor marijuana possession, part two today focuses on New York City citizens' ignorance. As it turns out, we do have rights -- even as brown or black men -- but out of the 50,000 arrests for weed possession last year, almost no one challenged the legality of the manner they were searched. And when the cases are thrown out -- as many as 10 to 15 times everyday in the Bronx alone -- it's usually because cops accidentally admitted they violated the rights of the person they searched.Marijuana possession is a crime in New York, as opposed to a violation, if the drugs are in "public view," although more than a dozen men in WNYC's report claim their substances were found only when police pulled it out of concealment during a "stop and frisk" -- an NYPD action ostensibly about finding illegal firearms.A prosecutor at the Bronx District Attorney's Office says the cases that are thrown out are "because the police paperwork states the marijuana was actually not in public view. These cases she chalks up to honest mistakes." But if a cop lies, then it's up to the arrested to know their rights and pursue "a further investigation." Last year, 1,142 people told the Civilian Complaint Review Board (CCRB) they were improperly searched during a stop-and-frisk. The CCRB is an independent agency that oversees police misconduct. The police department disciplined three percent of the officers involved in those 1,142 cases. According to the CCRB, the punishment most of those officers got was "instructions" on how to perform a proper search. The most severe discipline - doled out to eight officers - was docked vacation days. As for the huge number of arrests of the arrests, police sources told WNYC that "supervisors like to see arrests - it's a sign of productivity." These quota systems -- unofficial, quantified or not -- as well as the stop and frisk policy, have been examined in depth by the Village Voice, especially in Bed-Stuy's 81st precinct, where the questionable practices have been well documented. Upcoming Events
Read more from the second part of the WNYC report here, and additional Voice coverage in our NYPD Tapes series here, here and here.[[email protected] / @joecoscarelli] | 法律 |
2016-50/4389/en_head.json.gz/17637 | Recently, abortion restrictions have accelerated. The past five years have seen the passage of more anti-abortion laws than in any other period since abortion was first made legal. “The last five years are unprecedented,” said Elizabeth Nash, a policy analyst for the Guttmacher Institute, an organization which promotes research and education around reproductive health care.
Now, Roe, which established a women’s right to abortion, did spark an immediate backlash, with 81 abortion restrictions enacted that same year. “Right after the ink was dry on the Roe decision, states began to adopt restrictions on abortion,” said Nash. In addition, there was the passage of the Hyde Amendment in 1976, which restricted the use of federal funds for abortions. But in the decades that followed, things significantly calmed down. “There were many years … when abortion restrictions were not on the forefront in state legislatures,” she said. From 1983 until 2010, there was an average of 14 new restrictions per year, according to Guttmacher.
Planned Parenthood Provides More Breast Exams Than Abortions
All that changed following the 2010 midterm election, which saw Republicans take the House of Representatives. The following year, a record 92 restrictions were enacted, breaking the previous 1973 record. In the past five years, 288 such laws have been enacted, most of them having to do with requirements or restrictions around counseling, insurance coverage, later-term abortions, medication abortion, like Mifeprex, or parental involvement.
Blame it on the conservative shift to power and abortion opponents’ greater organization on the state-level, where these massive changes are taking place, said Nash. “We have a very geographic problem,” she said. “Where you live dictates your access to services, versus after Roe when the laws were a little more uniform.”
She added, “There are states that have very little in the way of restrictions and states that have 10 or more.”
That is why a woman with an unintended pregnancy might realistically have had more options several decades ago than she does today. “In terms of the legal landscape, accessing abortion was easier in the 1970s compared to now, in many places,” said Nash.
That is especially true when you consider new state laws that institute insurance restrictions, expansive waiting periods and require multiple visits to a clinic, which can be prohibitive for women who face difficulties getting childcare or taking time off work. It’s particularly bad in Southern states, including Texas, Alabama and Mississippi, which in recent years have seen restrictive laws that make it extremely difficult, if not impossible, for clinics to stay open.
This makes the celebration of Roe’s 43rd anniversary a mixed bag. “While we will join to commemorate Roe this month, we cannot pretend that the right to abortion is enjoyed equally by all women,” said Marcela Howell of the reproductive rights organization In Our Own Voice: National Black Women’s Reproductive Justice Agenda during a conference call with the media to discuss the Roe anniversary. “A woman’s ability to end her pregnancy too often depends on where she lives, her age and how much money is in her pocket.”
That has been true ever since the Roe-era Hyde Amendment, which had a devastating impact on low-income women’s access to abortion—and “things have only gotten worse” since then, says Howell.
It isn’t just state level attacks, of course. Last year, Congress voted seven times to defund Planned Parenthood. “We saw anti-abortion politicians try to hold up an anti‐human trafficking bill, the Attorney General’s nomination and even threaten to shut down our government over access to basic reproductive healthcare,” said Dana Singiser of Planned Parenthood during the conference call. “This cannot be what it means to be a woman living in 21st century America. Do we really want to be a country in which you have access to safe, legal abortion only if you’re lucky enough to live in the right city or state?”
This all sounds rather bleak, and it is, but Nash does see some potential silver linings. “The thing is, with any law, there is always a possibility that it could be repealed, that it could be amended, that there could be a court that would knock it down,” she said. These state-by-state battles also have the potential to set new constitutional precedents. Take the upcoming Supreme Court case challenge to a Texas law that places such strict limitations on clinics that it’s expected to cut in half the number of abortion facilities in the state. “Everybody is looking to the Texas case … and how that will play into how states restrict or regulate abortion in the future,” said Nash.
No matter the outcome, though, new regulations are inevitable. “We’re in the midst of a wave of abortion restrictions,” said Nash. “We’re not seeing that wave abate. We’re expecting to see more.” | 法律 |
2016-50/4389/en_head.json.gz/17700 | EASTERN DISTRICT OF KENTUCKY
COVINGTON DIVISION
IN RE: JOSEPH S. PADGITT
MELISSA B. ADAMS-PADGITT
a/k/a Melissa B. Delaney
a/k/a Melissa B. Adams
DEBTORS CASE NO. 07-21467
LORI A. SCHLARMAN, TRUSTEE PLAINTIFF
VS. ADV. NO. 07-2063
CHASE HOME FINANCE, LLC, et al. DEFENDANTS
This matter is before the court on cross-Motions for Summary Judgment filed by the
Plaintiff and Defendant Chase Home Finance, LLC (“Chase”). The issue before the court is the
validity of a mortgage in which only Debtor Joseph S. Padgitt is identified as a “Borrower.” The
Plaintiff maintains that she may avoid the mortgage pursuant to the “strong arm” powers
available to her under Bankruptcy Code section 544. This court has jurisdiction of this matter
pursuant to Judicial Code section 1334(b); it is a core proceeding pursuant to Judicial Code
section 157(b)(2)(K).
1. Factual and procedural history
The parties have entered into Joint Stipulations which set forth the following pertinent
A deed of conveyance was executed on August 18, 2006 by Home Loan Mortgage
Corporation as seller to “Joe” Padgitt, a married man (“Debtor husband”), and Melissa Delaney,
an unmarried woman (“Debtor wife”), in regard to the real property located at 488 Frogtown
Road, Walton, Kentucky. On September 18, 2006, Debtor husband executed and delivered a
promissory note to SunTrust Mortgage, Inc. (“SunTrust”) in the amount of $118,000.00. Debtor
husband, still married to Melissa D. Padgitt (“First Wife Melissa” or “FWM”), also executed,
acknowledged and delivered to Mortgage Electronic Registration Systems, Inc. (“MERS”) as
nominee for SunTrust a mortgage on the subject property. The mortgage defines “Borrower”
as “Joseph Padgitt, Married.” Debtor husband and FWM executed the mortgage as husband and wife, but FWM did
so only to release her dower interest. Debtor wife executed and acknowledged the mortgage
as “Melissa Delaney, unmarried.” Debtor husband and Debtor wife initialed every page of the
mortgage. The deed and mortgage were recorded on September 27, 2006. The marriage
between Debtor husband and FWM was dissolved on October 6, 2006. Chase is the successor
in interest to Suntrust and MERS. The record in this case reflects that Debtor husband and
Debtor wife filed their Chapter 7 petition in this court on September 24, 2007.
The Plaintiff maintains that she may avoid Chase’s lien as to Debtor wife’s one-half
interest in the subject property by way of the “strong arm” powers granted to her under Code
section 544. That statute provides in pertinent part as follows:
(a) The trustee shall have, as of the commencement of the case, and without
regard to any knowledge of the trustee or of any creditor, the rights and powers
of, or may avoid the transfer of the property of the debtor or any obligation
incurred by the debtor that is voidable by–-
(1) a creditor that extends credit to the debtor at the time of the commencement
of the case, and that obtains, at such time and with respect to such credit, a
judicial lien on all property on which a creditor with a simple contract could have
obtained such a judicial lien, whether or not such a creditor exists;
(3) A bona fide purchaser of real property, other than fixtures, from the debtor,
against whom applicable law permits such transfers to be perfected, that obtains
the status of a bona fide purchaser and has perfected such transfer at the time
of the commencement of the case, whether or not such a purchaser exists.
11 U.S.C. § 544. The Plaintiff contends that Chase’s mortgage encumbers the Debtor
husband’s one-half interest in the subject, but not the Debtor wife’s, because the body of the
mortgage defines only him as a “Borrower.” The Plaintiff further points out that the granting language of the mortgage uses only the
term “Borrower” as the party granting an interest in the property to the lender, and that no
specific person or persons are named. The Plaintiff goes on to conclude that the Debtor wife
could not have granted anything under the mortgage, as she is not named as a “Borrower,” her
name appears only once on the document, under her signature, and there is no explanation for
the appearance of that signature. The Plaintiff contends that a bare signature at the end of a mortgage, even if
acknowledged, is not sufficient to pass title to real estate unless the party executing the
instrument is identified as a grantor. She cites Rowe v. Bird, 304 S.W.2d 775, 777-78, Ky.
(1957) and Parsons v. Justice, 174 S.W. 725, 740, Ky. (1915), for the proposition that “[a]
conveyance signed and acknowledged by a person, not named in the body of the instrument as
grantor, is ineffectual and passes no title as to that person.” Id. The same rule applies to
mortgages. See Goodrum’s Guardian v. Kelsey, 50 S.W.2d 932, 934, Ky. (1932).
The requirement that a grantor be named in the body of the instrument has been upheld
even in ambiguous circumstances, according to the Plaintiff, where grantors were identified in
the body of the instrument in some other way. She cites Shaver v. Ellis, 11 S.W.2d 949, Ky.
(1928) as an example of such an interpretation. Chase cites the same case for the opposite
proposition, i.e., that if a debtor’s identity and intention to subject his interest are clearly
ascertainable from the “documentation” (Chase’s term), he may not rely on the absence of his
name in the granting clause to void or limit the conveyance of his interest. In Shaver, a widow and six of her nine children executed and acknowledged a deed to
one of the children. The granting clause did not name the children, but referred to them only as
“her heirs.” Her deceased husband had conveyed a life estate to her, as well as a power to
convey fee simple title to any of their children before her death. Later, the children who signed
the deed challenged its validity on the basis of their not having been named in the granting
clause. The court found that “[w]hile appellants are not named in the granting clause of that
deed, they are named in the body of it and referred to therein as grantors, immediately following
the description of the land conveyed[.]” Shaver v. Ellis, 11 S.W.2d at 952. See also Stephens
v. Perkins, 273 S.W. 545, Ky. (1925).
Chase contends that all the documentation surrounding the mortgage (including the
deed to the subject property) identifies Debtor wife sufficiently to satisfy the requirement that
she be named as a grantor under the mortgage. As the Plaintiff points out, however, that there
is nothing in the body of the mortgage to identify Debtor wife, and the mortgage is completely
silent as to the reason she executed it. In Shaver and related cases, while the grantor or
grantors might not have been named in the granting clause of the instrument, they were named
or otherwise sufficiently identified in the body of the instrument to make it clear that they were
grantors.
It appears to the court that Shaver supports the Plaintiff’s position, and that the Plaintiff
is correct in her contention that Chase’s lien only encumbers the interest of Debtor husband
and not that of Debtor wife, that the mortgage is legally insufficient, and that she may therefore
avoid Chase’s lien and preserve it for the benefit of the estate. An order in conformity with this
opinion will be entered separately.
Michael L. Baker, Esq.
Philomena S. Ashdown, Esq.
David A. Kruer, Esq. | 法律 |
2016-50/4389/en_head.json.gz/17808 | Home Debates 1997 March 3rd
Debates of March 3rd, 1997
The word of the day was grain.
VacancyQuebec Contingency ActSocial Assistance For Failed Refugee ClaimantsCanada Labour CodeMontfort HospitalFrancophone CommunitiesTaxationTourismLobbyistsInternational Women's WeekAboriginal AffairsHuman RightsEmploymentMiningMontfort HospitalInternational Women's DayZellersEmploymentBlack CommunityTourismTobacco BillPensionsTobacco LegislationPensionsReference To Supreme CourtSomalia InquiryPulp And Paper CompaniesThe EnvironmentHospitalsCloningCommemorative StampInterprovincial TradeFight Against AidsJusticeRailwaysPresence In GalleryBusiness Of The HouseOrder In Council AppointmentsGovernment Response To PetitionsWays And MeansCommittees Of The HouseReferendum ActSupplentary Estimates (B), 1996-97Committees Of The HousePetitionsHighway SystemQuestions On The Order PaperQuestions Passed As Orders For ReturnsCanada Labour CodeTobacco ActCanada Labour CodeMotion To Extend Hours Of SittingCanada Labour Code
I have the honour to inform the House that I have received a communication notifying me that a vacancy has occurred in the representation, namely, the Hon. Warren Allmand Esq., member for the electoral district of Notre-Dame-de-Grâce, by resignation effective February 24, 1997.
Accordingly, pursuant to paragraph 25(1)( b ) of the Parliament of Canada Act, on Monday, February 24, 1997, I have addressed my warrant to the Chief Electoral Officer for the issue of a new writ of election for the said electoral district.
It being 11 a.m., the House will now proceed to the consideration of Private Members' Business as listed on today's Order Paper.
Quebec Contingency ActPrivate Members' Business
The order for second reading of Bill C-341 standing on the Order Paper in the name of Mr. Harper, the former member for Calgary West, cannot be moved. Unless the House decides otherwise, the motion will be dropped to the bottom of the order of precedence on the Order Paper.
Social Assistance For Failed Refugee ClaimantsPrivate Members' Business
Art Hanger
Calgary Northeast, AB
That, in the opinion of this House, the government should enter into discussions with provincial governments to limit the social assistance available to failed refugee claimants who are remaining in Canada to make appeals to the courts and transfer the onus of providing further assistance to these individuals to immigrant and refugee aid societies and other organizations.
Mr. Speaker, my motion, which calls on the government to reduce the financial burden of failed refugee claimants on Canada's social assistance network, is the result of considerable research and communication with a number of organizations and agencies in this country, in particular in the province of Ontario.
At the outset I wish to say that there is little question that Canadians willingly accept the responsibility of providing safe refugee accommodation to an internationally proportionate number of refugee seekers. In fact, Canadians welcome the opportunity to provide a new home to those who through no fault of their own are persecuted or displaced by political events and turmoil.
To be clear, Canadians do not want to stop accepting refugees. To be equally clear, that is not what this motion is about. What this motion is about is to recognize that failed refugee claimants can represent a tremendous burden to Canadian taxpayers. Consequently, the federal government should limit the opportunity for failed refugee claimants to receive welfare.
In the context of this debate let us define what criteria are used to determine an individual refugee.
The United Nations High Commission for Refugees cares for and repatriates or resettles some five million refugees and displaced persons each year. A distinction must be made between a displaced person and a convention refugee.
A displaced person is one who, as the result of a natural disaster or political turmoil, has been rendered homeless and who is outside his or her own country. A convention refugee is one who, because of membership in a particular political or social group, religion, race or nationality, cannot return to his or her home country for fear of serious persecution. Obviously not all displaced persons are convention refugees. Most can, at one time or another, be repatriated.
According to UN estimates there are approximately 20 million displaced persons or refugees in the world, but only approximately 60,000 of them are genuine convention refugees. This number is particularly important. In 1993, when I acted as the party's immigration critic, the immigration department claimed that Canada had accepted about 25,000 convention refugees. This position was maintained by the immigration department despite the fact that the UN said that only about 25,000 of those 60,000 convention refugees who were in need of immediate resettlement were resettled worldwide. In other words, there were something in the neighbourhood of 35,000 convention refugees who needed a new home who could not be placed anywhere. Yet our country, through our refugee determination process, took in somewhere around
35,000. If we took in 35,000 through our process, why were there still 35,000 genuine refugees not placed? That is the question that begs to be answered. Unfortunately I have received no answer to that dilemma from the Liberal government.
An hon. member
And never will.
And never will, as my colleague points out. The question has been asked numerous times.
In my travels to many of the points of entry in this country, I have determined there is a flow of refugee claimants, tens of thousands a year, coming into the country, and many are determined not to be true refugees.
Consider the border crossing at Fort Erie. In 1993 over 7,000 entered through that port and claimed refugee status. By law, according to the present situation at least, the department of immigration is obliged to give them oral hearings.
Of the 30,000 to 35,000 who claim refugee status every year, slightly under half are really accepted as refugee claimants. That leaves in the neighbourhood of 15,000 to 20,000 who have been rejected as refugee claimants. We can read in the 1994-1995 estimates on immigration the cost that has been initiated by the department of immigration for hearing a claimant, a failed claimant, in our process through our court system once that individual has arrived here.
The figure from those estimates is between $30,000 and $50,000 per claimant. Of course, much of that cost is generated as a result of the state's having to support the claimant. Unfortunately many of the refugees do not speak the language and are not really expected to either. The provisions for refugee claimants will certainly be different than they would be for those who immigrate through normal channels. It is understood that many refugees will not have the skills, which I believe for the most part is acceptable to Canadians.
However, a failed claimant with an estimated cost of $30,000 to $50,000-I have heard that estimate as high as $100,000 per claimant-is a substantial burden to the taxpayer. Those claimants are supported at every turn by the present government. It is tax dollars that support them, although they are not legitimate claimants.
The reasons for this motion is to see that some form of communication be established with the provincial counterparts to curb this excessive cost and to take much swifter action for removal if the claimant is not legitimate.
On the issue of cost, there are 15,000 to 20,000 illegitimate claimants at a cost of between $30,000 and $50,000 per claimant. What does that add up to? We are talking about legal aid, welfare costs, support services right across the board, many of which are downloaded on to the provinces. There is a hit on the three levels of government, federal, provincial and municipal.
The motion I have presented here speaks to that concern. It certainly speaks to the concern of a lot of Canadians who are aware of what is happening. However, many are not aware. It is incumbent on opposition to point these very glaring discrepancies out. Unfortunately the government across the way chooses to ignore much of the concerns expressed. It chooses to ignore what a lot of people have been telling it.
Why is it that the government refuses to deal with an issue that is so clear? From my experience thus far and from those people I have spoken to at this point I have come to one conclusion. The government is not listening to the concerns of the average person. It is listening to a very small group of special interests, many of whom are supported by and receive compensation from federal government grants. Lobbyists, advocates of all sorts, and consultants are seeking to keep the situation as is and for it not to be changed.
The public is growing weary of having to contend not only with the burden of cost but with some of the problems that have resulted because of poor screening processes of those people who are accepted as refugee applicants.
The list of concerns grows. It has become clear through several examples of refugee claimants-and I say claimants and not refugees themselves-being accepted in the country who were not given any status whatsoever and were involved in some very violent crimes. Many of those individuals have a tendency to be protected by the state in spite of the fact that they have been a burden on the state and should be removed immediately.
There have been clear violations of some individuals coming from overseas who have the means. They have the money or the wherewithal to end up in this country. They also have this very questionable chequered past. Mr. Abdirahman is one such individual who has been cited as having been involved in genocide in his own country. The list can be extended beyond what presently exists that may have hit the news. The recommendations and the policies set forth by the Liberal government encourage for some unknown reason selection of people like Mr. Abdirahman and those from questionable organizations in other countries of the world.
To my way of thinking and the thinking of a lot of Canadians these are not acceptable refugees. Certainly they are running from something else, but many of them should be tried in their own countries for some of the things they have done.
Let us get back to the point in question, the support level generated by both the federal and provincial governments because of federal legislation of those who have failed in their claim. When a claimant has failed in his application to be accepted as a refugee it is clear that the government should withdraw services. Why should legal aid continue to be pumped into the inexhaustive appeal process to follow? Why should the people of this country have to pay continually through their tax dollars for the support of such individuals?
It is obvious the average Canadian has not been heard in this debate at all.
When the matter was first raised in the House there was reaction from the other side, from some of the special interest groups and from the immigration bar association trying to squelch debate on the topic. The terms so often used were: "You are discriminatory. Those are racist comments". Is that what government and debate have resorted to, to squelch a legitimate issue? Those comments are wearing rather thin.
The Reform Party has put forward some proposals. In 1994-95 my office printed a document on a proactive approach to the protection of refugees in Canada. It is an alternative and it is important that we look at alternatives.
The Reform Party is suggesting the target number of persons accepted by Canada as convention refugees should stabilize at approximately 10 per cent of the total immigration intake.
We have talked about immigration levels. There has always been a history of fluctuation in the immigration levels in Canada, up until the last few years when it has been extremely high and there has been no adjustment or opportunity for the newcomers to integrate into Canada, into society and into the workforce. As a result other tensions have built up.
We are suggesting that it be 10 per cent of the total intake, in or around 15,000. The target of immigration levels would be 150,000 per year or thereabouts. The number of self-declared refugees arriving at our ports of entry would be sharply reduced if the word was clear out there in the immigration and refugee channels. It is known worldwide that Canada is a soft touch. All they have to do is land on our shores and declare they are refugees. Then they are entitled to all the support the Liberal government liberally generates in that direction.
With this restriction, and making it clear that the level of support on these appeals will not occur, the numbers will drop. The number of persons accepted as convention refugees through the inland determination process would be sharply reduced.
What will that do? It will open up slots for legitimate refugees. On the compassionate side of things that is what we should look at, not what we are experiencing here where legitimate refugees are being shut out because of a process that pays no heed to them. The inland process must be sharply curbed. With this form of communication to provincial governments since many on the provincial side are footing the bill in some respects although there are social transfer payments, it would be more of a legitimate concern expressed to the Canadian people and much more acceptable than what is happening at the present time.
To make sure the balance takes place it is our suggestion that the Government of Canada work in conjunction with the UN first to identify those who are legitimate. Second, it never hurts to have a watchdog over the process and encourage the UN representatives to examine our record of refugee determination.
There is a need for trade-offs. Looking at it from the compassionate side, Canada is doing an injustice to tens of thousands of genuine refugees overseas who are much easier to settle than those involved in the expensive inland determination process, many of whom are actually queue jumpers of the immigration line.
I encourage members across the way to give serious consideration to the motion. We are entering a time of substantial restraint This is one area that can be shored up and supported by the Liberal government.
Essex—Kent
Parliamentary Secretary to Minister of Agriculture and Agri-Food
Mr. Speaker, we on the government side certainly encourage debate on this topic. It is very important to all Canadians.
Over the years our country has developed a reputation as a good international citizen. We take our responsibilities to others very seriously. When we sign a deal or shake hands with a partner we know they are getting a good deal from Canada. They respect our abilities for doing that.
We have always played a role of honest broker. Many times it is a role that suits us very well. This is something of which I know every member of the House is very proud. People know they can count on Canada when the chips are down.
This has shone through our actions over the last 50 years. We can see it in our commitment to United Nations peacekeeping, a Canadian invention. Canadians have worn the blue beret with a great deal of pride in hot spots around the world.
It shows in our commitment to third world development. Organizations like CIDA have allowed disadvantaged areas to gain the skills and expertise they need to promote sustainable growth and development.
We can see it in our support of international organizations like UNICEF and the World Health Organization. We can see it in our commitment to offering protection to refugees and people fleeing misery and death. Our humanitarian record is second to none. It should be a source of pride.
Over the last 50 years we have provided a safe haven in the world of desperation and fear. We have been a symbol of hope to people who have come all but a circle of very difficult times. We have given refuge to those who have been subjected to experiences almost beyond our imagination.
We have been compassionate in both word and deed. We have not allowed our hearts to cloud our heads. At no time have we let our desire to make difference override our common sense.
This is reflected in our refugee determination system. It is a fair system that balances our desire to help others with our clear need to protect Canadians and the integrity of the institutions we value. It is a good system that has been recognized as being one of the world's best.
I understand the hon. member's concern that there are people abusing the system and taking advantage of our generosity. That is clearly unacceptable. The refugee determination system is designed to protect individuals who most need it, individuals who through no fault of their own are in desperate circumstances. It is not a back door for unscrupulous people wanting to circumvent proper immigration channels.
We need to guard against these few criminals because their very presence impacts on the reputation of our system and causes us to lose sight of the plight of genuine refugees. That is why safeguards are in place. We have good screening methods to make sure that people who are not convention refugees are identified and dealt with properly.
I understand there is concern about failed refugee claimants accessing Canada's social assistance programs. I share this concern. However, to suggest that these people simply be cut off betrays a fundamental misunderstanding of the refugee determination system and the plight which many people in the system face.
Implicit in the motion is the idea that all failed refugee claimants are trying to abuse the system. It suggests that because someone in the refugee determination system is not found to be a convention refugee, they must be trying to pull a fast one on the Canadian people and should be punished. This simply is not the case. In fact, it could not be more wrong.
The definition of a refugee was set out in the 1951 United Nations convention relating to the status of refugees. It established that a refugee is someone outside his or her country of origin who could not return home for fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group. Over the last five decades this definition has worked well and has proven to be flexible enough to deal with many different types of persecution.
However, there are exceptional circumstances where it does not necessarily fit. In these cases men and women are declared failed refugee claimants even though they find themselves in desperate situations. Does the hon. member really want to punish these individuals at their time of crisis?
I am happy to say that the system looks out for these cases. Mechanisms have been built into the system to take care of people in exceptional circumstances. There are provisions for judicial review in certain circumstances. There is a built-in risk assessment in the system as well. It ascertains the potential risk that failed refugee claimants may face should they return to their country of origin. This allows us to identify whether or not removing a person from a country of origin will constitute a real threat to the person's life.
Finally, there is also the potential for a humanitarian and compassionate review if a claimant feels that his or her case merits special attention due to extenuating circumstances. These are all means to ensure that people who genuinely need help get it.
Perhaps I should clarify something. These are the exceptions, not the rule. That is why we continue to be vigilant about finding and removing people who do not merit our humanitarian concerns. That is why we are making every effort to ensure that people do not linger in the system for longer periods of time. The key is not to punish people who are in the system. It is to make sure that people get in and out of the system as quickly and efficiently as possible.
The government recently introduced two measures to do just that. The first, Bill C-49, proposes to reduce refugee hearing panels from two members to one, thereby allowing quicker scheduling of hearings and faster decisions.
The Minister of Citizenship and Immigration also introduced proposed regulatory changes to streamline the risk assessment process for failed refugee claimants. Under these proposed changes the risk review will no longer be automatic. Instead failed refugee claimants will have to apply. For some, the review is just a formality and therefore a way to delay the process. The proposed changes will ensure that appropriate risk reviews are done thoroughly and efficiently.
It has been said that a country can be judged by the way it treats the most vulnerable in its society. By this criteria I think Canada has a lot to be proud of. We take care of our people. We feel the
obligation to share our prosperity with others. We have developed humanitarian policies which are fair and compassionate but they also make sense. They recognize that we cannot help everyone and that we must target our resources to helping those who most need our protection.
The motion before the House does not recognize certain realities of the refugee determination process or the situation of individuals using the system. It was developed from a false premise that those who have been found not to be convention refugees are scoundrels and should be punished. That is faulty reasoning which is reflected in a faulty motion the House should not support.
Osvaldo Nunez
Mr. Speaker, I am happy to have this opportunity to speak to Motion M-126, tabled on February 27, 1996 by the member for Calgary Northeast.
With this motion, the Reform member is asking the federal government to enter into discussions with the provinces in order to limit the social assistance available to failed refugee claimants who appeal or challenge the ruling concerning their status. Furthermore, the motion also suggests that immigrant and refugee aid societies be responsible for supporting and helping these individuals.
This motion is typical and representative of Reform values and of its anti-immigrant and anti-refugee policy. That party is hostile to strangers and minorities. It disregards the history of Canada and forgets that it was built on immigration and that it needs immigrants to survive as a prosperous nation. That is the case especially in Alberta, where the member's riding is located, and in the other western provinces.
Is the author of this motion unaware of the fact that social assistance comes under provincial jurisdiction and that the federal government has no jurisdiction whatsoever in that area? Ottawa has no business interfering with the rules governing access to social assistance. Therefore, this motion is unacceptable because it leads to direct federal interference in an area of provincial jurisdiction. Also, this motion transfers the financial onus from governments to immigrant and refugee aid organizations, which is totally unreasonable and unjustified.
We must remember that these not-for-profit organizations lack the necessary funds to take on such financial responsibilities. Since it came to office, the Liberal government has made many cuts to the grants awarded to these organizations. It must be well understood that, according to the motion, only the obligation to provide assistance is transferred to the organizations. Nowhere is a transfer of money mentioned.
The very spirit of this motion is disturbing in that it is aimed at punishing people who are exercising their rights. Indeed, if someone decides to appeal the decision denying him refugee status, his social assistance benefits would be withdrawn or limited. When did our legal system start punishing people for exercising their rights?
The Reform member's motion also goes against the universality principle, which is fundamental to our social security system. Why should a fundamental right be denied to a group of people, in this case refugee claimants? Yet, the Supreme Court of Canada clearly ruled that these people are protected by the Canadian charter of rights.
Refugees do not choose their situation, let alone to live on social assistance. These people are already in an extremely precarious position. Consequently, withdrawing or limiting their only source of income is totally unacceptable. Moreover, we see that social assistance benefits have been reduced throughout Canada, particularly because of Ottawa-imposed cuts in social transfers to the provinces. If an additional reduction is made, we may ask ourselves what tiny amount will ultimately be left. Do we want people to die of hunger in this so-called "best country in the world", as the Prime Minister likes to claim?
Refugee status determination is incumbent upon the federal government, more specifically the immigration and refugee board, whose management and administration leave much to be desired. Time frames and delays in this matter are too long.
I recently questioned the Minister of Citizenship and Immigration about this. Her answer showed very little will to act to ensure that less time was needed to process refugee status claims. At present, it generally takes more than a year, and often as long as two, three, four or more years. That is unacceptable.
Since the Liberal Government was elected in 1993, the refugee claim backlog at the IRB has risen to over 30,000, a 75 per cent increase, and more than half of this number is in Montreal. This is especially unacceptable since the number of claimants has diminished these past few years. The IRB should work on stepping up productivity and enhancing its efficiency. Board members should be required to process a larger number of claims each year.
The 140 or so members currently process 140 claims per year on average. That is not enough. This excessively long turnaround time and the lack of productivity at the IRB and the Department of Citizenship and Immigration are responsible for the skyrocketing cost of refugee status determination.
The minister should also put an end to the patronage system used to appoint IRB members. So far, the best qualification for getting appointed to the board was to be a member of the Liberal Party or a defeated Liberal candidate in the last election, a contributor to the Liberals' campaign fund or a friend of the Liberals.
Meanwhile, many claimants require social assistance from the provinces, which end up footing the bill for the federal government's negligence and neglect, as well as for the unreasonable backlog at the IRB. Citizenship and Immigration Canada is also responsible for issuing work permits to refugee claimants. Often, permits are denied or take forever to be issued.
The vast majority of these individuals want to work. They are prepared to take any job that will earn them a livelihood. Only as a last resort do they apply for social assistance benefits.
It is imperative that a fair, efficient and, more importantly, diligent system for the processing of refugee claims be set up. Those whose claims are legitimate should have their status confirmed within a reasonable length of time, so as to minimize costs and the time these people are held in limbo.
All the federal government has to do is refund the provinces the expenses generated by the arrival of refugee claimants. Ottawa has sole responsibility for determining the rules and outcome of the refugee status determination process as well as for more general issues, such as admission to Canada and the return of refugees.
Why should the provinces, including Quebec, have to pay for providing refugee claimants with reception and support services, including health care? I said, and I repeat, that the refugee status determination process is a federal responsibility.
These people should have access to basic financial support when in need, to legal assistance, temporary housing, elementary and secondary education for children and language training, in French in Quebec and English in the other provinces. Funding for these programs must come from Ottawa.
For all these reasons, we are unable to support either the principle or the letter of Motion M-126.
Ian McClelland
Edmonton Southwest, AB
Mr. Speaker, I want to put this private member's motion in context. It does not bar the door to legitimate refugees. That is the last thing our country should do. As a matter of fact, throughout all of the world Canada stands as a beacon of hope to thousands and thousands of people. That should never change.
However, putting out the welcome mat does not mean that we have to be the doormat. That is what we are talking about.
Most Canadians intuitively understand the difference between welcoming people, in particular refugees, to our shores and being a doormat to anybody who wants to use and abuse the system. That is what we are talking about in this bill. We are talking about sending a message to the world, to people who would misuse our generosity and say to them you have an opportunity to come to our shores and apply for refugee status but if it is determined under a fair system that you are not a genuine refugee, then you cannot use taxpayer money indefinitely to try to work your way around the system. That is all we are talking about here.
We are not talking about barring the doors. We are not talking about being meanspirited. We are talking about using a little common sense.
We need to understand that new Canadians come to our shores through three separate doorways. One is the sponsored immigrant status. A sponsored immigrant is usually when someone has a relative who has come here before and sponsors them. Another is the landed immigrant status whereby someone applies on their own merit under the point system and is able to come to Canada because they have the ability. We also have the category where people are able to buy their way in. The category that we are talking about right now is the refugee status.
Canadians should really think about how we handle refugees and people who come to our country under the refugee status. I ask members to think about this. By definition how is it possible for someone to arrive on our shores from the United States, from England or from another safe country and apply for refugee status? Would it not make more sense if our country were to go to those places in the world where people who are genuine refugees, who do not have the wherewithal or the money to find their way to our shores, and would it not make more sense for us to make the refugee determination on site so that when people come to our shores they do not have to have this sword dangling over their heads of are they going to be granted landed refugee status or not?
That brings to mind the Somalis in Toronto who were invited to our shores by our government, welcomed by our government and then put into this limbo for all of those years where they are not granted landed immigrant status. They are left in this limbo, where they must utilize Canada's social safety net because they cannot work. We cannot assume that refugees coming to our shores do not want to work. Everybody knows that is not true. The vast majority of people who come to our shores are just dying to contribute, just aching to be part of our country. But if we do not allow them to work, then they have to access our social programs.
We need to make sure that our refugee claimant process is swift, accurate, compassionate and once a decision has been made, allow people to get on with their lives. It is this never ending opportunity
for people to appeal and appeal. Meanwhile all the time they are doing so they are accessing the very short funds that all provinces find that they have for social security.
One of the reasons that the provinces have a dramatic shortage of funds for social security is, as we all know, that under the Canada health and social transfer the transfers to the provinces have been reduced by $7 billion by this Liberal government. Therefore the provinces find themselves having to deal with more and more expenses with fewer and fewer resources.
My hon. colleague from the Bloc who spoke earlier mentioned that this motion was out of order because welfare and items of this sort were a provincial responsibility and not the purview of the federal government in any instance.
While it is true that welfare is a responsibility of the provinces, we are in a federal state. This government will be announcing today that the Prime Minister is on the west coast in Vancouver and that he will make a great to-do about making a deal with the government of B.C. for residency requirements for welfare recipients. As long as the federal government has its oar in the water through spending and taxing power, it has a role to play in the purview of the provinces whether the provinces like it or not.
It is interesting to note that on every single bit of legislation that comes before the House, members of the Bloc are very quick to defend the honour and the jurisdiction of their province but they are not so quick to say that they would be quite happy to pay for it themselves. The idea is "send us the money and let us make the decisions on what we are going to do with it".
There is a very genuine role for the federal government to play. The federal government makes the determination for what the international covenants on refugee status and claimants will be. The federal government has a role in the transfer of resources from the provinces to pay for social assistance and the federal government sets the rules by which all members play. The federal government has a very real involvement in this issue.
This is our obligation as a nation. When we open our doors to refugee claimants, we should do so expeditiously. We should make it possible for people to come to our country, to become landed immigrants and eventually citizens, the vast majority of whom will make great contributions to our country. We can see in the mosaic that is Canada there are people of all nations from all parts of the world who are coming together to build the democratic land that is one of the most cherished in the world.
Our doors should always be opened to genuine refugees. But again, we do not need to be a doormat in order to extend the welcome mat to genuine refugees. When people who have come to our shores as refugees have under fair and impartial hearings been determined not to fit the refugee classification, then it makes sense to me and to thousands of other Canadians that the taxpayer not be obligated to foot the bill indefinitely. That is what we are talking about here. It is not meanspirited; it is merely common sense.
Stan Dromisky
Thunder Bay—Atikokan, ON
Mr. Speaker, it is my pleasure to rise today to speak to Motion No. 126 as proposed by the hon. member for Calgary Northeast. This motion advocates that the federal and provincial governments co-operate in order to limit the social assistance available to failed refugee claimants who are remaining in Canada to make appeals to the courts and to transfer the onus of providing further assistance to these individuals to immigrant and refugee aid societies and other organizations.
I understand the hon. member's concerns regarding the strains our social assistance programs are under. In this time of fiscal austerity and deficit reduction it is important to find ways to maintain the institutions which are truly important to our society.
In many respects our social welfare system shows that Canadians care about offering a helping hand to those in need. This commitment is also evident in the way we treat refugees and refugee claimants. For decades Canada has opened is arms to people who have fled from terror and repression around the world. As Canadians we have an obligation to not look away.
As signatories of the Geneva convention on refugees we pledged to do our part as good international citizens. This is a responsibility I am proud to say we continue and we shall continue to meet.
We must be vigilant and not tinker with our refugee system in a needless or careless fashion. To suggest that we should take punitive measures against individuals who are not found to be convention refugees is a little misguided. I agree with the hon. member that we should not tolerate people who would abuse our system, but acting rashly or in a draconian manner is not the way to deal with that problem. There are people who do not fit the strict definition of a refugee but who are nonetheless in need of our assistance.
I think the hon. member is ignoring this group. He is simply implying that all failed refugee claimants are somehow charlatans or criminals seeking to capitalize on our generosity. This simply is not the case. There are some people who do not fit the strict convention refugee definition but who still deserve to have their cases examined as a humanitarian consideration. It would be distinctly un-Canadian to punish these people who have already experienced great suffering.
The definition of a convention refugee is very specific. Some individuals may find themselves in a refugee like situation but will still not qualify to be protected as refugees. As a compassionate country we should keep an eye open for these special cases. While it is important that the refugee determination process be governed by strict rules, it is equally necessary to have some flexibility and room for compassion. I am glad to say that our system allows us this latitude.
We have some mechanisms in place which help ensure that failed refugee claimants who are in genuine trouble do not slip through the cracks. There are instances in which a person, though not technically a refugee, may face torture or violence if they go home. We have a moral obligation to see that does not happen.
Moreover, there is also the potential for humanitarian and compassionate review of a claimant's application should the claimant feel that their case merits special attention due to extenuating circumstances. We should continue to be vigilant about finding and removing people who do not merit our humanitarian consideration. We should not let people linger in the system for long periods of time.
The key is not to punish people for using the system. Instead we need to ensure that the system works effectively and can process refugee claimants rapidly. Yes, there will always be those creative minds who create ways to financially benefit from any rule and regulation established by any level of government. We recognize that.
The Department of Citizenship and Immigration has recently proposed changes that will protect the integrity of the system while at the same time speeding up the rate at which claims are processed. Bill C-49, for instance, proposes to reduce refugee division panels from two members to one. This will allow the IRB to schedule hearings more quickly and will permit it to render faster decisions.
The Minister of Citizenship and Immigration recently introduced proposed regulatory changes intended to streamline the risk assessment process for failed refugee claimants. Currently risk assessments are automatically made to ensure that failed refugee claimants will not be at risk if they return to their home country. Often this assessment is nothing more than a time consuming formality at great expense which is not even requested by the client. We have changed that and under the proposed changes the risk review will no longer be automatic. Instead failed refugee claimants will have to apply. This does not change our humanitarian commitment to people who are genuinely in need. This will simply ensure that appropriate risk reviews are done quickly and efficiently.
These changes will exclude certain groups such as those convicted of serious criminal offences. This will allow the government
to continue helping legitimate refugees and removing people who do not need or deserve our protection.
We must be vigilant to ensure that individuals who are found not to be convention refugees are treated fairly and with compassion. We have programs that do just that. We must continually look for positive ways to improve the good system we already have.
However, the motion before the House simply does not offer a constructive or workable solution. It fails to balance compassion with common sense. It fails to strike that fair and just balance which is a hallmark of our refugee determination system.
The Acting Speaker (Mr. Milliken)
The time provided for the consideration of private members' business has now expired and the order is dropped from the Order Paper.
The House proceeded to consideration of Bill C-66, an act to amend the Canada Labour Code (Part I) and the Corporations and Labour Union Returns Act and to make consequential amendments to other Acts, as reported with amendments from a committee.
Canada Labour CodeGovernment Orders
Réal Ménard
Hochelaga—Maisonneuve, QC
Mr. Speaker, I seek the consent of the House to withdraw Motions Nos. 4, 8 and 10 put forward by the Bloc Quebecois.
What numbers?
Motions Nos. 4, 8 and 10.
Do we have the unanimous consent of the House? | 法律 |
2016-50/4389/en_head.json.gz/17882 | Search Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court Click, Compare & Save >>> Author:
James Macgregor Burns
From renowned political theorist and Pulitzer Prize winner James MacGregor Burns comes an illuminating critique of how an unstable, unaccountable, and frequently partisan Supreme Court has come to wield more power than the Founding Fathers ever intended. The New York Times - Michiko Kakutani Some of Mr. Burns s proposals are bound to be controversial: for instance, he suggests near the end of the book that a president could challenge judicial authority by announcing "flatly that he or she would not accept the Supreme Court s verdicts because the power of judicial emasculation of legislation was not - and never had been - in the Constitution." Happily for the reader, the bulk of this volume is less didactic, charting the fallout that "the passions of the day," in Justice Felix Frankfurter s words, have had on its rulings, while analyzing the role that chance, timing and the mysteries of human personality have played in shaping the institution and its decisions. | 法律 |
2016-50/4389/en_head.json.gz/17926 | Employment Status Manual
ESM7000
Case Law: Lane v The Shire Roofing Company (Oxford) Ltd
[1995] TLR 104
Point at issueWhether Mr Lane was engaged under a contract of service or a contract for services.
FactsMr Lane was a roofer who had been working on a self-employed basis for The Shire Roofing Company (Oxford) Ltd since September 1986 on a particular contract in Marlow. That contract was nearing completion when Mr Lane at the company’s request left that job to do a re-roofing job on a porch at a private dwelling-house for which the company had tendered. The company had agreed to pay Mr Lane £200 for this job.
When carrying out this work, Mr Lane fell off his ladder and suffered head injuries. Mr Lane sued the company in a personal injuries action. In order for the action to succeed he had to prove that he was an employee working under a contract of service.
Decision In the High Court the judge found that Mr Lane was an independent contractor.
In the Court of Appeal, however, it was held that, in relation to the porch job, this was the company’s business and not Mr Lane’s.
CommentarySafety at work was an issue in this case and the Appeal Court considered Mr Lane’s employment status in relation to the single engagement only. Henry L.J. stated
“ When it comes to the question of safety at work, there is a real public interest in recognising the employer/employee relationship when it exists, because of the responsibilities that the common law and statutes …. places on the employer.”Henry L.J. adjudged that the company owed the duties of employers to Mr Lane. The distinction had been made between men on “the lump” doing labouring work and specialist sub-contractors and the judge considered Mr Lane to be closer to the former than the latter.
The case has little precedent value but illustrates the approach adopted by the courts in cases where safety is an issue. | 法律 |
2016-50/4389/en_head.json.gz/17967 | Supreme Court aboutsearch liibulletin subscribe previews NotFound v. NotFound
289 U.S. 444 (53 S.Ct. 682, 77 L.Ed. 1311)
Ex parte LA PRADE.
No. 21, Original.
Decided: May 22, 1933.
opinion, BUTLER
[HTML] Syllabus from pages 444-446 intentionally omitted
Mr. Donald R. Richberg, of Chicago, Ill., for petitioner.
Argument of Counsel from pages 446-448 intentionally omitted
Messrs. Henley C. Booth, of San Francisco, Cal., and Robert Brennan, of Los Angeles, Cal., for respondents.
Arthur T. La Prade, Attorney General of Arizona, applied for leave to file a tendered petition for writ of mandamus requiring Circuit Judge Wilbur and two district judges constituting a United States District Court in that state to dismiss as to petitioner two suits in equity to which the court, against his opposition, had made him a
Argument of Counsel from pages 448-452 intentionally omitted party defendant in substitution for his predecessor in office. We directed the judges to show cause why the leave prayed should not be granted, assigned the case for argument, directed briefs to be filed on or before the day set, stayed proceedings against petitioner, and directed the District Court to continue its term pending the final determination of petitioner's application. The judges made their return to the rule. On the appointed day, there being no material controversy as to controlling facts, we heard oral arguments upon the merits.
The act of the Arizona Legislature approved by the Governor, May 16, 1912, and on referendum by a majority of the voters of the State November 5, 1912 (chapter 43) being section 647, Revised Code 1928, declares that it shall be unlawful for any company operating a railroad in that state to run over its line any train consisting of more than 70 freight or other cars exclusive of caboose, or any passenger train of more than 14 cars and provides that any company that shall willfully violate any of the provisions of the act shall be liable to the state for a penalty of not less than $100 nor more than $1,000 for each offense and that such penalty shall be recovered, and suits therefor brought, by the Attorney General in the name of the state.
July 24, 1929, the Atchison, Topeka & Santa Fe Railway Company and the Southern Pacific Company respectively brought suits in the federal court above referred to against K. Berry Peterson, then Attorney General of the state. By its complaint each of the plaintiffs shows that it operates a line of railroad and trains for interstate transportation in and through Arizona, sets forth facts on which it claims that enforcement of the statute against it would violate the Commerce Clause (Const. art. 1, § 8, cl. 3), the due process clause of the Fourteenth Amendment, various provisions of the Interstate Commerce Act and other laws of the United States regulating interstate transportation by railroad (49 USCA § 1 et seq.), alleges that, if plaintiff shall operate consisting of more than the specified number of cars, the defendant unless enjoined will institute numerous prosecutions for recovery of the prescribed penalties, asserts that the damage and injury which it daily sustains by reason of the statute is great and irreparable and prays that defendant be temporarily and permanently enjoined.
In each case defendant answered and moved to dismiss the bill on the ground that the suit was one against the state prohibited by the Eleventh Amendment. The court consolidated the cases, refused temporary injunctions and denied defendant's motions to dismiss. Southern Pac. Co. v. Peterson, 43 F.(2d) 198. It then appointed a master who heard and reported the evidence together with his findings of fact, conclusions of law and recommendations for decrees in favor of plaintiffs. Defendant filed exceptions to, and moved to suppress, the report. The parties their briefs and the court, in accordance with their stipulation, set down the causes for hearing at San Francisco on February 8, 1933. In the meantime, January 3, 1933, defendant's term of office expired and the petitioner, La Prade, then became the Attorney General of the state. January 30, the plaintiffs delivered to petitioner a copy of an application to the court for an order substituting him as party defendant and gave notice that the application would be presented to the court at the time and place so fixed.
The applications for substitution were made under 28 U.S.C. 780 (28 USCA § 780).
It provides that, where a suit brought by or against a state officer is pending in a federal court at the time of his separation from his office the court may permit the cause to be continued and maintained by or against such officer's successor if within six months it be satisfactorily shown that there is a substantial need for so continuing and maintaining the cause and obtaining an adjudication of the questions involved. The section requires that the officer, unless expressly consenting thereto, be given reasonable notice of the application and an opportunity to present any objection which he may have. As grounds for the substitution plaintiffs' application merely stated that each suit relates to the future discharge of the official duties of the Attorney General of Arizona and, following the language of the statute, that there is a substantial need for continuing and maintaining it and obtaining adjudication of the questions involved.
Plaintiffs, at the appointed time and place, applied to the court for the order of substitution. The petitioner appeared specially and objected. He insisted that, each of the suits being against his predecessor individually, the questions involved became moot upon the expiration of the latter's term of office; that, there being no pleading charging him with having threatened to enforce the state enactment, there was no cause of action against him; that he could not be held for the costs theretofore incurred and that the suits should be dismissed. After hearing the parties the court by an order, merely containing a recital in the general words of the statute as to the need for continuing the suits, made the petitioner defendant in each case.
Promptly, upon somewhat amplified grounds, he filed a motion that the cases be dismissed. The court denied the motion. Petitioner and his counsel declined to participate in further proceedings in the case. The court heard plaintiffs orally and March 8, 1933, filed its opinion, findings of fact and conclusions of law and entered decrees adjudging the statute unconstitutional and enjoining petitioner. It declared that no costs up to and including the entry of the final decree should be assessed against petitioner or his predecessor. The opinion, Atchison, T. & S.F. Ry. Co. v. La Prade, 2 F.Supp. 855, construes the statute to impose the duty of enforcement upon each succeeding Attorney General and declares that, as long as there is an Attorney General in the state the threat of prosecution is always present and the resulting injury, if any, always impends.
The injunctions sought are not aimed at the state or the office of Attorney General or to restrain exertion of any authority that belongs to either. Each complaint charges that, because of a void enactment and the purpose of defendant under color of his office to enforce it by means of suits which it purports to authorize, plaintiff is prevented from operating trains that are of suitable size and necessary for the proper conduct of the transportation business, and so continuously suffers great and irreparable injury. The suits were brought against defendant not as a representative of the state but to restrain him individually from, as it is alleged, wrongfully subjecting plaintiff to such unauthorized prosecutions. In Ex parte Young, 209 U.S. 123, page 159, 28 S.Ct. 441, 454, 52 L.Ed. 714, 13 L.R.A.(N.S.) 932, 14 Ann.Cas. 764, the court said: 'The act to be enforced is alleged to be unconstitutional; and if it be so, the use of the name of the state to enforce an unconstitutional act to the injury of complainants is a proceeding without the authority of, and one which does not affect, the state in its sovereign or governmental capacity. It is simply as illegal act upon the part of a state official in attempting, by the use of the name of the state, to enforce a legislative enactment which is void because unconstitutional. If the act which the state Attorney General seeks to enforce be a violation of the Federa Constitution, the officer, in proceeding under such enactment, comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct.' The principle there stated has since been applied in numerous decisions here. See e.g., Hopkins v. Clemson Agricultural College, 221 U.S. 636, 642 et seq., 31 S.Ct. 654, 55 L.Ed. 890, 35 L.R.A.(N.S.) 243; Truax v. Raich, 239 U.S. 33, 37, 36 S.Ct. 7, 60 L.Ed. 131, L.R.A. 1916D, 545, Ann. Cas. 1917B, 283; Terrace v. Thompson, 263 U.S. 197, 214, 44 S.Ct. 15, 68 L.Ed. 255; Sterling v. Constantin, 287 U.S. 378, 393, 53 S.Ct. 190, 77 L.Ed. 375.
The laws of Arizona do not authorize substitution of petitioner for his predecessor. See Irwin v. Wright, 258 U.S. 219, 222, 42 S.Ct. 293, 66 L.Ed. 573. The suits abated when defendant Peterson ceased to be attorney general. And unless empowered by section 780 the District Court is without jurisdiction to direct that petitioner be substituted and that the suits be continued and maintained against him. United States ex rel. Bernardin v. Butterworth, 169 U.S. 600, 605, 18 S.Ct. 441, 42 L.Ed. 873; Shaffer v. Howard, 249 U.S. 200, 201, 39 S.Ct. 255, 63 L.Ed. 559; Gorham Mfg. Co. v. Wendell, 261 U.S. 1, 43 S.Ct. 313, 67 L.Ed. 505.
Subdivision (a) of section 780 applies only to proceedings brought by or against officers of the United States or those holding office directly or mediately under the authority of Congress. It is derived from the Act of February 13, 1925, c. 229, § 11(a), 43 Stat. 941. It enlarges the Act of February 8, 1899, c. 121, 30 Stat. 822, which was passed after our decision in United States ex rel. Bernardin v. Butterworth, supra. It was there held that a suit to compel the Commissioner of Patents to issue a patent abated by the death of the Commissioner and could not be revived so as to bring in his successor even upon consent of the latter. At the conclusion of its opinion the court said (page 605 of 169 U.S., 18 S.Ct. 441, 443): 'In view of the inconvenience, of which the present case is a striking instance, occasioned by this state of the law, it would seem desirable that congress should provide for the difficulty by enacting that, in the case of suits against the heads of departments abating by death or resignation, it should be lawful for the successor in office to be brought into the case by petition, or some other appropriate method.'
Subdivision (b) applies only to proceedings brought by or against those holding office under state authority. As to such, it authorizes 'similar proceedings' to those specified in subdivision (a). It was passed after our decision in Irwin v. Wright, supra. The opinion shows (page 222 of 258 U.S., 42 S.Ct. 293, 295) that a suit to enjoin a public officer from enforcing a statute is personal and, in the absence of statutory provision for continuing it against his successor, abates upon his death or retirement from office. The court held that the Act of February 8, 1899, did not authorize the substitution of a county treasurer for his predecessor in a suit against the latter to enjoin collection of taxes. We suggested that it would promote justice if Congress were to enlarge the scope of that act so as to authorize substitution in suits by or agaisnt state officers and said: 'Under the present state of the law, an important litigation may be begun and carried through to this court after much effort and expense, only to end in dismissal because, in the necessary time consumed in reaching here, state officials, parties to the action, have retired from office. It is a defect which only legislation can cure.' Subdivision (c) extends to all cases covered by (a) and (b). It merely requires that before substitution a nonconsenting officer shall be given notice and opportunity to object. It does not prescribe the showing of facts necessary to warrant an order that the proceedi g be continued by or against the successor. When construing the section, it is to be borne in mind that Congress has authority to direct the conduct of federal officers in proceedings brought by or against them as such and may ordain that they may sue or be sued as representatives of the United States and stand in judgment on its behalf (Interstate Commerce Commission v. Oregon-Washington R. & Nav. Co., 288 U.S. 14, 27, 53 S.Ct. 266, 77 L.Ed. 588) but that Congress is not so empowered as to state officers. The section is merely permissive; it does not require but merely authorizes the court to order substitution in the cases covered. It extends only to suits 'relating to the present or future discharge of * * * official duties.' At least as to state officers it does not purport to authorize the imposition of liability or restraint upon the successor on account of anything done or threatened by the predecessor individually.
As shown above the purpose of the suits was to prevent a wrong about to be committed by defendant acting outside, and in abuse of the powers of, his office. The wrongs threatened or committed by him constitute no ground for injunction against petitioner. Plaintiffs did not allege that petitioner threatened or intended to do anything for the enforcement of the statute. The mere declaration of the statute that suits for recovery of penalties shall be brought by the Attorney General is not sufficient. Petitioner might hold, as plaintiffs maintain, that the statute is unconstitutional and that, having regard to his official oath, he rightly may refrain from effort to enforce it. United States Constitution, art. 6, cl. 3; Arizona Revised Code 1928, § 63. The statement of Chief Justice Taft writing for the court in Gorham Mfg. Co. v. Wendell, supra, is pertinent. He said (page 4 of 261 U.S., 43 S.Ct. 313, 315): 'The inherent difficulty in all these cases is not in the liability and suability of the successor in a new suit. It is in the shifting from the personal liability of the first officer for threatened wrong or abuse of his office to the personal liability of his successor when there is no privity between them, as there is not if the officer sued is injuring or is threatening to injure the complainant without lawful official authority. There is no legal relation between the wrong committed or about to be committed by the one, and that by the other.'
It follows from what has been said that section 780 has no application to the case as presented and that the District Court had no jurisdiction to substitute petitioner as a party defendant in place of his predecessor or to direct that the suits be continued and maintained against him. We have no occasion to decide whether or in what circumstances a successor in office who adopts the attitude of his predecessor and is proceeding or threatening to proceed to enforce the statute may be substituted in a pending suit. That question is not here and is reserved.
Petitioner's application for leave to file is granted, the case will be docketed and respondents' return filed, and a writ of mandamus will issue commanding the respondents to vacate the decrees against petitioner and to dismiss the suits as to him.
'(a) Where, during the pendency of an action, suit, or other proceeding brought by or against an officer of the United States, or of the District of Columbia, or the Canal Zone, or of a Territory or an insular possession of the United States, or of a county, city, or other governmental agency of such Territory or insular possession, and relating to the present or future discharge of his official duties, such officer dies, resigns, or otherwise ceases to hold such office, it shall be competent for the court wherein the action, suit, or proceeding is pending, whether the court b one of first instance or an appellate tribunal, to permit the cause to be continued and maintained by or against the successor in office of such officer, if within six months after his death of separation from the office it be satisfactorily shown to the court that there is a substantial need for so continuing and maintaining the cause and obtaining an adjudication of the questions involved.
'(b) Similar proceedings may be had and taken where an action, suit, or proceeding brought by or against an officer of a State, or of a county, city, or other governmental agency of a State, is pending in a court of the United States at the time of the officer's death or separation from the office.
'(c) Before a substitution under this section is made, the party or officer to be affected, unless expressly consenting thereto, must be given reasonable notice of the application therefor and accorded an opportunity to present any objection which he may have.' | 法律 |
2016-50/4389/en_head.json.gz/17969 | Download our plug-in for Chrome to get customizable, real-time news alerts Court Limits Evidence In ERISA Suit
By Brendan Pierson Law360, New York (November 30, 2007, 12:00 AM EST) -- An appeals court ruled on Friday that a district court erred in deciding to force the Life Insurance Company of North America to pay a former Sprint employee long-term disability benefits by allowing evidence from outside the benefit plan's administrative record.“I'm disappointed,” said Mark Kane, an attorney for the plaintiff, Lynn Jewell. Kane said that he did not intend to appeal the decision, but that he believes Jewell has a good case to argue on remand based on the administrative record alone.Jewell worked for...
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2016-50/4389/en_head.json.gz/18032 | Scripps Networks Interactive Names Chief Legal Officer
Cynthia L. Gibson, a member of the senior management team at Scripps Networks Interactive Inc.
Cynthia L. Gibson, a member of the senior management team at Scripps Networks Interactive Inc. (NYSE: SNI) and an accomplished media attorney with more than 20 years of experience, has been named as the company’s chief legal officer and corporate secretary. Gibson will succeed A.B. Cruz III, who announced last month that he is leaving the company to allow himself greater flexibility in his role as a rear admiral in the U.S. Navy Reserve. Gibson’s appointment as chief legal officer is effective immediately. Since joining Scripps Networks Interactive in 2009 as a senior vice president, Gibson has provided legal counsel for the company’s media portfolio of leading lifestyle brands, which includes HGTV, Food Network, Travel Channel, DIY Network, Cooking Channel and country music network Great American Country. She subsequently was named an executive vice president of the company. During her tenure at the company, she has provided leadership on a wide range of corporate and business legal issues, including governance, financial reporting, executive compensation, intellectual property, mergers and acquisitions, content distribution and acquisition and new media, including the emerging field of social media law. “Cynthia Gibson is an outstanding attorney who has made a significant contribution to the company’s remarkable growth in a highly competitive and ever-evolving media industry,” said Kenneth W. Lowe, chairman, president and chief executive officer of Scripps Networks Interactive. “The company and all of its stakeholders have benefitted from her extensive knowledge and understanding of media law as well as her common sense, exceptionally strong leadership qualities and her commitment to helping Scripps Networks Interactive achieve its many business objectives.” As chief legal officer and corporate secretary, Gibson will be responsible for coordinating and further developing the company’s legal, business affairs and audit departments as well as providing guidance and oversight for all of the company’s litigation, contractual, governance and regulatory obligations. Based in Knoxville, she will report to Lowe. Prev
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Analysts' Actions -- Quintiles, Royal Caribbean, Western Digital and More
Here are Thursday's top research calls, including an upgrade for Western Digital and downgrades for Quintiles and Royal Caribbean. | 法律 |
2016-50/4389/en_head.json.gz/18059 | Home >Blog>Ireland To Decriminalise Small Amounts Of Drugs Ireland To Decriminalise Small Amounts Of Drugs
Published : November 11th, 2015
• Drug Laws
Big news! It would seem that Ireland is planning to decriminalise small amounts drugs for personal use, ending the persecution of drug users!
It is a monumental shift in drug policy, and could be a gigantic benefit to the entire country. The news was announced by Aodhán Ó Ríordáin, the chief of Ireland’s National Drugs Strategy. Under the new law, drugs would become decriminalised for personal use, ensuring that drug abuse is dealt with as a health issue, not a criminal one.
According to the drug minister, the current model of prohibition just doesn’t work, and a “radical cultural shift” is required for drug abuse to be tackled - we need to move away from shaming drug users, and instead help them reintegrate. He also pointed out that there was a very sharp contrast between decriminalisation and legalisation – illegal drugs would still be illegal to sell, produce, or possess in large quantities. Not only would this help drug users get the potential help they need, but it will also free up a lot of police time to actively pursue dealers, instead of making up their quotas by hunting everyday users.
“I am firmly of the view that there needs to be a cultural shift in how we regard substance misuse if we are to break this cycle and make a serious attempt to tackle drug and alcohol addiction,” said Ó Ríordáin.
Ó Ríordáin went on to further say that there was a “strong consensus that drugs across the board should be decriminalised.”
At the same time, the minister also announced that he plans to open up supervised injection centres, giving addicts a safe, supervised, and hygienic place to shoot-up, with the aim of eventually reducing and eliminating use.
A MAJOR BLOW TO THE UK PSYCHOACTIVE SUBSTANCES BILL
This desire to decriminalise all drugs comes as a major blow to the Conservative government of the UK. Why? Because they are currently trying to push through a Psychoactive Substances Bill that will make any and every psychoactive substance, bar a few approved drugs, illegal. It is a bill based on the Irish Psychoactive Substance Bill, with the UK government claiming it has been a success there. This radical move in the complete opposite direction shows, that if anything, the psychoactive bill has been a complete failure, and will likely be in the UK as well, as critics have warned.
It is not only the UK that will receive a sharp, cold wake-up call, though. The whole of Europe, if not the entire world, will be watching very closely to see how effective this new policy is.
NOTHING IS CERTAIN
It is worth noting, there is no planned date yet, and the law to decriminalise small amounts of drugs has not been hammered ou. It is very much still in the planning phase, and will need to be discussed by parliament at great length. There is a chance that it will be blocked; although, the general feeling seems to be that everyone agrees with the move, so there is a good chance it will come to fruition – especially with the Drugs Minister behind it.
The move would make Ireland the second country in Europe to decriminalise small amounts of all drugs for personal use, behind Portugal. Portugal decriminalised all drugs over a decade ago in response to the unmanageable heroin problem, and since gone from strength to strength, with addiction, use, death and HIV down across the board – there are very few people in any political spectrum within the country that want to go back to the old punitive method.
One thing is for sure, the fact that the Irish government is even considering decriminalisation is massive news, showing that people are becoming tired of the outdated and regressive retributive model of drug policy. This is further shown by the recent UN report calling for all member states to decriminalise drugs – which was quashed by un-named influences before it could be officially released. The world is changing, whether the more conservative elements of our society want it or not. People are growing ever more unrestful with the damning and damaging nature of the War on Drugs. Let’s hope Ireland are successful!
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2016-50/4389/en_head.json.gz/18107 | Section News
Initiatives & Awards About Us
The 'Work for Hire' Doctrine and Start-up Technology Companies
By Elaine D. Ziff
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Two 2010 federal cases, JustMed, Inc. v. Byce, from the Ninth Circuit, and Woods v. Resnick, from the Western District of Wisconsin,
suggest that courts are stretching the "work for hire" doctrine to accommodate the commercial realities of how start-up technology companies operate.
In particular, courts are taking into account that start-ups use creative compensation arrangements, have informal record-keeping, and that software
programmers tend to work independently. As a result, the traditional factors for finding that an author is an "employee" for purposes of vesting
copyright in the hiring party may be less relevant where start-up technology companies are concerned.
Under U.S. copyright law, the author is the initial owner of the copyright in a copyrightable work. Software code has long been recognized as
copyrightable, as a form of literary work. The copyright owner (and only the copyright owner) has the statutory right to reproduce the work, prepare
derivative works of it (i.e., modify or add to it), distribute copies of it to the public, and perform and/or display the work publicly.
If, however, the copyrighted work is created by the author as a "work for hire," then the copyright automatically vests in the hiring party. A work for
hire has obvious advantages for a hiring party, even over obtaining an assignment of the copyright from the author. Authors have the right to terminate
all assignments and licenses of their work during the period between 35-40 years after the grant was made, to give them a second bite at the apple to
exploit the work, should it have become famous. Authors also have remedies under the Visual Artists Rights Act to prevent destruction or distortion of
works of visual art. Neither of these rights applies to works for hire. In addition, the duration of the copyright term for a work for hire is the more
straightforward, based on the number of years from publication or creation of the work rather than from the author's demise.
There are two ways that a work can be classified as a work for hire, set forth in the Copyright Act itself. If there is no written agreement between
the author and the hiring party, then the only way that work for hire status can be obtained is "[a] work prepared by an employee within the scope of
his or her employment." Principals of agency law apply to determine whether an author is an employee for work for hire purposes.
The U.S. Supreme Court in Committee for Creative Non-Violence v. Reid, 109 S. Ct 2166 (1989), set forth a multi-factor rubric for determining
who is an employee under the Copyright Act. Known informally as the "Reid factors," they include the level of skill required for the task; who provides
the tools; where the work is performed; who sets the work schedule; the duration of the relationship; whether the hiring party can assign other tasks
to the hired party; how the hired party is paid; whether employee benefits are provided; and how the arrangement is treated for tax purposes.
Courts have historically relied on the tax and benefits treatment accorded the hired party as an important, if not the determinative, factor. How the
parties themselves treated the arrangement financially was considered a virtual admission of an employment relationship. Further, it would be
inequitable to allow the employer to benefit from independent contractor status for benefits purposes while claiming an employee relationship for
authorship purposes.
Nevertheless, in JustMed, Inc. v. Byce, 600 F. 3d 1118 (9th Cir. 2010), the Ninth Circuit gave the financial factors short shrift in finding
that a computer programmer was an employee; and the code he produced, a work for hire for the hiring party. Byce wrote a program for an artificial
larynx for use by JustMed. On the one hand, Byce was engaged indefinitely, was compensated monthly, and did other work for the company, such as working
on the company website and appearing at trade shows; all factors that would favor an employment relationship. On the other hand, Byce was paid solely
in stock until right before the case was filed, worked from home in another state, received little direct supervision from the company, and,
significantly, did not receive employee benefits or fill out employment tax forms. Byce did, however, replace an employee, Leibler, who worked on the
code but quit after taking a job in a distant state.
The Ninth Circuit applied the Reid factors and held that Byce was an employee. In so holding, it made some sweeping pronouncements regarding start-up
technology companies that may reverberate in future cases, in particular: "JustMed's treatment of Byce with regard to taxes, benefits and employment
forms is more likely attributable to the start-up nature of the business than to Byce's alleged status as an independent contractor." The court also
noted that small start-ups operate more informally and that fact "should not make the company more susceptible to losing control over software integral
to its product." Finally, with regard to programmers, the court concluded that they are expected to work independently and customarily are subject to a
lesser degree of control.
Following on the heels of the JustMed decision, the Western District of Wisconsin, in Woods v. Resnick, 725 F. Supp. 2d 809 (W.D. Wis.
2010), held that Woods, the co-owner of a start-up technology company, F & I Source, LLC, owned the copyright in the code he wrote for an auto
finance product. Indeed, the Reid factors suggested that the programmer was an independent contractor, as Woods wrote the code at home on his own
computer, set his own hours, did not receive employee benefits, and was paid a cash draw against profit distributions, while other employees received a
salary. However, the court did not rest its holding on this. Instead, it found that Woods, a 50 percent owner of F & I Source's equity interests,
was neither an independent contractor nor an employee for work for hire purposes. As a co-owner he had an inherent right to control the business and,
so, was not an agent of it when he wrote the code. By default, Woods owned the copyright as the sole author.
The holdings in JustMed and Woods indicate that courts are looking beyond the strict application of the Reid factors to the gestalt of
the relationship of the author to the hiring party. This approach is particularly meaningful in the context of technology start-ups, where programmers
routinely telecommute and may also be equity holders. However, it may have application to other start-up companies where, in the words of the Ninth
Circuit, business is conducted "more informally than an established enterprise might."
The ambiguity surrounding whether an author is an employee, independent contractor, or neither, may well be resolved by a written agreement. Although
it is not certain that a court would enforce the parties' characterization of their relationship if Reid factors clearly do not favor it, an agreement,
like the tax and benefits treatment in past decisions, would be a useful piece of evidence of the parties' intent.
Elaine D. Ziff is a counsel in the Intellectual Property and Technology Group of Skadden, Arps, Slate, Meagher & Flom LLP.
The views expressed in this article do not necessarily represent the views of Skadden Arps or any one or more of its clients.
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2016-50/4389/en_head.json.gz/18287 | David Sloane DWI
North Richland Hills Woman Convicted in Elderly Death
FORT WORTH — Lowesta Halliburton’s friends described her as a caring woman who would do anything for other people, including her children’s friends and her daughter’s Girl Scout leader.But prosecutors said the North Richland Hills woman didn’t do much to help a bedridden 78-year-man who died last year of malnutrition, dehydration and pneumonia.Halliburton, 44, was sentenced Friday to life in prison for causing the death of Richard Hoye, who died May 20, 2007, in the home he shared with Halliburton. She has been described as either his common-law wife or his adopted daughter.She was convicted Oct. 30 of injury to the elderly in Hoye’s death. Her sentencing was delayed while court officials conducted a pre-sentencing investigation.Visiting Judge Phillip Vick sentenced Halliburton after a 90-minute hearing in Criminal District Court No. 4. He considered the pre-sentencing report and evidence from the hearing.One woman testified that Halliburton cared for her children for seven months while her mother was hospitalized. Other friends testified that Halliburton helped many people, including her daughter’s Girl Scout troop leader and her children’s friends.Her defense attorney said Halliburton, who was neither a nurse nor a social worker, could not be expected to recognize Hoye’s deteriorating condition when Adult Protection Services employees left him in her care after four home visits in the four months before he died.But prosecutors Rebecca McIntire and Jeff Hampton cited Halliburton’s 1986 burglary conviction and 1995 forgery and fraud convictions. She served probation on the 1986 case and two years in prison on the 1995 convictions.McIntire introduced photos of Hoye lying in his own urine- and feces-soaked bed with insects crawling over him. A deputy medical examiner said Hoye was so malnourished that his body had eaten his muscle and was beginning to eat his internal organs for protein.Halliburton must serve 30 years before being eligible for parole.http://www.sloanelaw.com/http://www.dwicriminaldefenselawyer.com/
David Sloane
David Sloane is a premier Criminal Defense Trial Attorney in Fort Worth, Texas. David Sloane defends those accused of crimes ranging from petty misdemeanors to very serious felonies. David Sloane represents those in all State and Federal courts in the North Central Texas area including Tarrant, Parker, Denton and Dallas Counties.
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2016-50/4389/en_head.json.gz/18303 | EUROPAEU law and publicationsEUR-LexEUR-Lex - c10167 - EN
Report on equality between women and men - 2008
Language 1 German (de)
Equality between women and men in Europe is still a two-sided balance. In terms of quantity, there is without a doubt constant progress in the situation of women: their participation in the labour market continues to grow and their qualifications are now higher than those of men. In terms of quality, however, many challenges remain, particularly as regards the pay gap, labour market segregation and the reconciliation of professional and private life. This report looks at the main developments in the past year, identifies future problems and sets guidelines for dealing with them.
Report from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions of 23 January 2008, Equality between women and men - 2008 [COM(2008) 10 - Not published in the Official Journal].
This year, the European Commission is publishing its fifth report on equality between women and men, the first to cover the enlarged European Union (EU) of 27 Member States.
Gender gap: main developments
The figures for recent years show that the situation of women on the labour market in Europe is subject to two-tier development:
major progress in terms of quantity, on the one hand;quality of employment remaining unfavourable in many respects on the other hand.
Female employment is still the driving force behind growth in employment within the European Union (EU):
7.5 of the 12 million new jobs created since 2000 are held by women;the female employment rate is currently 57.2% (+ 3.5 points in comparison to 2000, in contrast to the increase by less than one point for men);the employment rate for women over 55 years has increased more rapidly than that for men in the same age range (it is currently 34.8%, i.e. an increase of 7.4 points in comparison to 2000);a significant narrowing of the employment rate gap between men and women, falling from 17.1 points in 2000 to 14.4 points in 2006.
This point, given the fact that women have better success rates at school and university (59%), generally raises the question of the quality of work for women:
the pay gap has stabilised at 15% since 2003 (it was 16% in 2000);sectoral and occupational segregation by gender is not diminishing and is even increasing in some countries;the proportion of female managers in businesses has stagnated at 33% and there is very little progression in the numbers of female politicians;the balance between professional and private life remains precarious (the employment rate for mothers with young children is only 62.4% compared with 91.4% for fathers);76.5% of part-time workers are women;recourse to temporary work is also more common among women (15.1% compared with approximately 14% for men).
This occupational imbalance is not without effect on the social situation of women:
long-term unemployment is still more common among women (4.5% compared with 3.5% for men);the risk of poverty, particularly among women over the age of 65 (21%, i.e. 5% more than for men), is reinforced by shorter, slower and less well-paid careers.
Policy and legislative developments
The Roadmap for Equality between Women and Men, launched in 2006, has given fresh impetus to Community policy in this area. An annual work programme allows the Commission to ensure follow-up action.
In 2007, the Commission launched the second phase of formal consultation of the social partners at European level on the possible approach of Community action for the reconciliation of professional, private and family life with a view to improving or supplementing the existing framework.
The Commission has also given its support to the European Alliance for Families
Infringement proceedings for failure to transpose Directive 2002/73/EC on equal treatment have practically been wound up. Analysis of the conformity of national implementing measures started in 2007 and will be continued in 2008.
Furthermore, the Commission has demonstrated its full commitment to tackling the pay gap between women and men in its Communication of 18 July 2007.
Progress has also been achieved with the establishment of the European Institute for Gender Equality.
Challenges and policy guidelines
The report stresses the need to significantly improve the quality of employment for women, while confirming the progress achieved in terms of quantity.
With this in mind, and in particular through the new cycle of the European Strategy for Growth and Jobs, it advocates concentrating structural, legislative and financial efforts on:
reducing differences in pay;in-serve training;health and welfare at work;the reconciliation of professional and private life (accessibility of childcare services, the quality of services of general interest, etc.);action to combat stereotypes linked to gender and cultural origin;support for the implementation and follow-up of political commitments.
In addition to the implementation of measures defined in the Roadmap for Equality between Women and Men, 2007 saw a number of major landmarks in connection with:
the contribution of the Commission to the establishment of common flexicurity principles;the celebration of the 50th anniversary of European gender equality policy;the launch of the European Year of Equal Opportunities for All;the 10th anniversary of the signing of the Amsterdam Treaty, the basis for the European Employment Strategy and for gender mainstreaming in Community policies. | 法律 |
2016-50/4389/en_head.json.gz/18414 | NYT Book Review War Issue
The Sunday Book Review section of the New York Times is devoted to books on war, even though the editors note that "no one is quite sure what the meaning of 'war' is anymore." Featured books range from a new translation of The Aneid to Imperial Life in the Emerald City, a celebrated book about Iraq's Green Zone. Legal history is not featured, unfortunately. On law there is a paired review of Ackerman, Before the Next Attack, and John Yoo, War By Other Means, principally raising expected criticism. In defending the Bush Administration's actions, "at the heart of Yoo's argument," writes Fareed Zakaria, "is the notion that we are at war....Everything...follows from this fundamental premise....But are we really at war? And if so, who are we at war against?" The practical difficulties of applying a traditional war model to the "war on terror" seem obvious, but in the face of questions about the outer limits of executive power and discretion, as Zakaria puts it, Yoo's answer is simply "trust us." While he finds more satisfying Ackerman's effort to think through the way the contemporary threat of terrorism affects our political and legal institutions, through an "emergency constitution" model, Zakaria faults both authors for inattention to the broader political context. For him this means in part public diplomacy. We need all the weapons at our disposal in this current conflict, he argues, and "perhaps our most potent weapons are the sense people around the world have had that the United States is an exemplar of rights and liberties and that it lives by those principles even under storm and stress." When we casts aside rights "and trade them for the traditional tools of dictatorships...will this trade really help us prevail?"Other reviews of interest include Mark Attwood Lawrence on Fursenko and Naftali, Khruschchev's Cold War, a book based on new research in Soviet archives painting the Soviet leader not as a "reckless buffoon" threatening the world's safety, e.g. in the Cuban Missle Crisis, but as a leader hoping ultimately to ease tensions to raise his nation's standard of living.Legal historians might benefit from engaging another reviewed book, Max Boot, War Made New, on the history of military technology. The history of technology is not a usual subject in legal history. But surely in the 20th century at least, the history of war, the history of technology and the history of law intersect and develop together. David Kennedy has shown in his new book Of War and Law that law is a technology of war. In Boot's new work are lessons about the role of technology in history that we might bring into the study of law. As Josiah Bunting puts it, Boot argues that "technological innovation has a bleak dialectic: advances in warfare usually require adaptive mechanisms purchased at tactical cost." Bunting's example is the body armor of contemporary American soldiers, protecting them from harm, but leaving them "waddling like armadillos" and easier targets. What does this have to do with law and politics? Changes in war technologies affect not only the way the rules of engagement apply, but also the way war is percieved and viewed at home. Nuclear bombs ushered in a nuclear age, with its anxieties. "Smart bombs" are portrayed as cabining the impact of war to a precise target, making it more palatable. With our traditional focus on civil liberties and executive power, legal historians have largely left the exploration of the fuller implications of American militarization and military engagement to the military historians. But surely there is a larger story about the way the phenomenon of war has seeped into the structure of American governance, and American political culture, well before the terrorist attacks that inform much of the new scholarship. One part of this story is the dark dialectic of the march of technologies of destruction. In Boot's work, and in these other works on the history of war, perhaps there are places of engagement for a fuller legal history of American war.
Shag from BrooklineDecember 17, 2006 at 10:34:00 PM ESTWith respect to technology in war, perhaps a principle of physics applies to Max Boots' thesis: For every action there is an equal and opposite reaction, or something like that, resulting in technology improvement and reaction improvement. And the beat goes on.ReplyDeleteAdd commentLoad more... | 法律 |
2016-50/4389/en_head.json.gz/18526 | Learn More About Asbestos And Mesothelioma Litigation in Beaverton, Michigan Homeasbestos and mesothelioma litigationmichiganbeaverton
Beaverton is a city in Gladwin County in the U.S. state of Michigan. The population was 1,106 at the 2000 census. The city is adjacent to Beaverton Township and incorporates some land formerly in the township. According to Romig's Michigan Place Names, the community was first settled by lumbermen in about 1863 and was first known as Grand Forks, after the confluence of the Tobacco and Cedar rivers. It has been continuously settled since 1875. The town was founded in 1890 by the Donald Gunn Ross & Sons lumber company, from Beaverton, Ontario. Donald Ross became the first postmaster on February 17, 1891. Romig cites the city clerk of Beaverton that it incorporated as a village in 1901. However, Powers gives the date as 1896. It incorporated as a city in 1903, with William Ross as the first mayor. Powers gives the first settler's name as Marvil Secord, originally from Brantford, Ontario, and who is also recognized as the first permanent settler in Gladwin County. It was a station on the Toledo-Ludington line of the Pere Marquette Railroad. Asbestos And Mesothelioma Litigation Lawyers In Beaverton Michigan
Answers to asbestos and mesothelioma litigation issues in Michigan
Federal court opinions concerning asbestos and mesothelioma litigation in Michigan
930 F2d 1132 Wolverine Radio Company Michigan Employment Security Commission v. Wolverine Radio Company Inc
Homeasbestos and mesothelioma litigationmichiganbeaverton | 法律 |
2016-50/4389/en_head.json.gz/18567 | Ligamen
Wikia is a free-to-use site that makes money from advertising. We have a modified experience for viewers using ad blockers Wikia is not accessible if you’ve made further modifications. Remove the custom ad blocker rule(s) and the page will load as expected. Ligamen is, in Roman Catholic canon law, an existing marriage tie, which constitutes an impediment to the contracting of a second marriage. A person, already married, who wishes to marry again, must provide sufficient evidence of the death of the former spouse: an official death certificate, issued by the parish priest or other authorized ecclesiastic, or by the proper civil official, the directors of hospitals, the military commanding officer, or satisfactory evidence from other public records and reports. A putative marriage must be presumed valid, and so constituting the impediment of ligamen, until it is proven invalid.
Should the second marriage have been contracted in good faith, if only by one party, and it subsequently appear that the first spouse still lived, then the second marriage would not only be invalid, but the parties to it must be separated by the ecclesiastical authorities, and the first marriage re-established. However, the second and invalid marriage would enjoy the advantage of being putative marriage. This second marriage, though illegal during the lifetime of the first spouse, may be validly contracted after his or her death; indeed, should the party who acted bona fide demand it, the guilty one is then bound to contract marriage validly with the petitioner.
Since monogamy and the indissolubility of marriage are founded on the natural law, this impediment of ligamen is binding also on non-Catholics and on the unbaptized. If an unbaptized person living in polygamy becomes a Christian, he must keep the wife he had first married and release the second, in case the first wife is converted with him. Otherwise, by virtue of the "Pauline privilege", the converted husband may choose that one of his wives who allows herself to be baptized.
Look up ligamen in Wiktionary, the free dictionary. Catholic Encyclopedia "Ligamen"
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This article incorporates text from the Catholic Encyclopedia of 1913, a publication now in the public domain.
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Articles incorporating text from the 1913 Catholic Encyclopedia | 法律 |
2016-50/4389/en_head.json.gz/18573 | Horsemen appeal to legislature; No race track at the casino?
The horsemen at Monticello Raceway are locked in a battle with management over revenue.
By Fritz Mayer
March 25, 2014 — MONTICELLO, NY — Horsemen and their supporters filled the room at the meeting of the Sullivan County Legislature on March 20 to sound off about their ongoing dispute with management of Monticello Raceway. At issue is the amount of casino revenue, if any, the horsemen will receive if Empire Resorts, which owns the raceway, and its partners receive a license to open a casino at the site of the former Concord Hotel.
Alan Schwartz, president of Monticello Harness Horsemens Association, took to the podium and said, “We believe that Empire Resorts is doing its best to eliminate horse racing in Monticello. We believe they don’t want a racetrack; they don’t want us there.” He noted that there was no racetrack mentioned when plans for the proposed casino resort, called Adelaar, were unveiled at Bethel Woods Center for the Arts on March 13.
At the heart of the dispute is a provision of the Upstate New York Gaming Economic Development Act, which says that purses for racetracks at casinos may not rise beyond the level achieved in 2013, which according to various sources was not a good year.
Schwartz recounted some of the measures that have been taken during the dispute. He said because Empire Management would not negotiate the matter of the horsemen sharing some of the casino revenue, they pulled the plug on the simulcast of the races outside of New York State, which reportedly resulted in a significant drop in revenue for both sides.
Schwartz said, “In retribution, they closed our main track on Friday, Saturdays, and Sundays so we couldn’t train our horses, although we did get that reopened through the racing and wagering board. They closed the track kitchen, they took away our coffee and sandwiches so we have to starve when we’re in the paddock on race days. They took legal action to evict the Horsemens Association Office from the raceway property.”
Two other people associated with the horsemen spoke, and three members of the community spoke in their favor.
Legislator Cindy Geiger said that it was her understanding that the county legislature does not have the ability to negotiate any agreements with the type of non-Indian casinos of the sort that might open at the site of the former Concord Hotel. But she said she would look into it because “if there is a way for the legislature to address some of these issues, I think we should be taking a lead on that.”
Legislator Kitty Vetter said she was surprised to learn that moving the track was no longer part of the plan. She said, “Hopefully, the casino applicant will go back to the drawing board.”
Pitching Adelaar to the public; The favorite in the race for a casino license
BONACIC PLANS HEARINGS ON CASINO DEVELOPMENT AND RACING INDUSTRY
Praise for officials’ support of casino development
Concord Associates announces deal with Mohegan Sun, Empire Resorts vows to fight it | 法律 |
2016-50/4389/en_head.json.gz/18591 | Inmate cannot prove ineffective assistance of coun...
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Supreme Court denies certiorari in Jackler v. Byrne
In July 2011, the Second Circuit held that a police officer could sue his superior officers who retaliated against him for refusing to falsify a police report that implicated a sergeant in police brutality. In distinguishing Garcetti v. Ceballos, 547 U.S. 410 (2006), Jackler v. Byrne is among the few decisions in the Second Circuit that holds that a public employee's workplace speech is protected. On February 27, 2012, the Supreme Court denied certiorari in Jackler.
Jackler received attention because of its dramatic facts and the Second Circuit's holding that this police officer engaged in free speech in refusing to comply with the command that he falsify the police report. Ever since the Supreme Court issued Garcetti, more and more public employee First Amendment retaliation cases have been dismissed on the basis that the speech was pursuant to the employee's official job duties. While Jacker witnessed an act of police misconduct and initially filled out a truthful report pursuant to his official job duties, the Second Circuit held that his refusal to later falsify that report was protected speech because it addressed a matter of public concern (police brutality) and that refusal had a citizen analogue.
What made Jackler potentially certworthy was that the D.C. Court of Appeals in 2011 issued Bowie v. Maddox, which involved a public employee who claimed retaliation after he wanted to submit an affidavit in response to a subordinate's EEOC charge (he refused to sign the affidavit prepared for him by his office, the Office of Inspector General). The D.C. Circuit rejected Bowie's claim at 642 F.3d 1122 (D.C. Cir. 2011), but on Bowie's motion for reargument, the D.C. Circuit addressed Jackler for the first time, at 653 F.3d 45 (D.C. Cir. 2011), and stated that Jackler was wrongly decided and that the Second Circuit had misapplied Garcetti. Hence the cert petitions in both Jackler and Bowie. The law firm of Bergstein & Ullrich, LLP, with assistance from Dupee & Monroe, P.C., filed the op-cert brief in Jackler with the Supreme Court last November. Some Supreme Court watchers thought the Court might grant certiorari in Jackler/Bowie, since Bowie criticizes Jackler and everyone knows that the Court takes cases to iron inter-Circuit conflicts. It was not to be. Everyone also knows that the Court is selective in hearing cases. The Supreme Court denied certiorari in both cases, and the Jackler decision stands. | 法律 |
2016-50/4389/en_head.json.gz/18639 | Home » Actors/Actresses » Odds & Sods » Ministers heed Blackdder's advice, amend law outlawing ‘insulting words or behaviour’ Ministers heed Blackdder's advice, amend law outlawing ‘insulting words or behaviour’
On: January 16, 2013, By: Bill Young, In: Actors/Actresses, Odds & Sods, No Comment Let me just start out by saying admitting for all the world to hear…I LOVE THE CIVILITY OF BRITISH POLITICS!.
You might remember back in November when we reported on the efforts of Rowan Atkinson taking issue with a particular clause in the Public Order Act of 1986 in Britain.
As Section 5 of the Public Order Act 1986 read at the time, Edmund Blackadder would have had somewhat of a difficult time formulating a sentence any time Baldrick enters the room. At the center of the controversy was the provision of the Public Order Act of 1986 which considered it illegal to insult people. When you think back to the early days of Rowan Atkinson in Not the Nine O’Clock News, it does seem that, in 2012, life actually does seem to be imitating art.
As brilliantly reported in the Digital Journal, Atkinson, speaking at a reception in the British Houses of Parliament in front of Members of Parliament and Peers (members of the House of Lords), cautioned that criticism, unfavourable comparison or “merely stating an alternative point of view” could, under Section 5 of the Public Order Act as it presently stood, lead to arrest. The star of Not the Nine O’Clock News, Blackadder and Mr. Bean went on to say, “The clear problem with the outlawing of insult is that too many things can be interpreted as such. Criticism is easily construed as insult. Ridicule is easily construed as insult. Sarcasm, unfavourable comparison, merely stating an alternative point of view can be interpreted as insult.”
http://www.youtube.com/watch?v=gciegyiLYtY&feature=relmfu
Atkinson, the Blackadder and Mr Bean star led a coalition of campaign groups complaining that the legislation has been abused by over-zealous police and prosecutors to arrest Christian preachers, critics of Scientology, gay rights campaigners and even students making jokes. Stephen Fry, often described in Britain as a ‘national treasure’ and Blackadder co-star, had also lent his support to the campaign by tweeting “Insults aren’t nice. But should they be illegal? Support my friends in removing ‘insulting’ from public order act.”
This just in – Ministers uphold concept of ‘free speech’
Ministers agreed to scrap a law outlawing ‘insulting words or behavior’ last night following months of review of the ‘free speech’ campaign led by Atkinson. Home Secretary Theresa May announced yesterday that the government would ditch the contentious words from the Public Order Act amid fears that they are strangling free speech.
Mrs May told the Commons that the word ‘insulting’ would be removed from Section 5 of the Public Order Act, as part of the Crime and Courts Bill. She told MPs: “Looking at past cases, the Director of Public Prosecutions could not identify any where the behaviour leading to a conviction could not be described as “abusive” as well as “insulting”. e has stated that the word “insulting” could safely be removed without the risk of undermining the ability of the CPS to bring prosecutions. We will issue guidance to the police on the range of powers that remain available to them to deploy in the kind of situations I described, but the word “insulting” shall be removed from Section 5.”
Civil liberties campaigners welcomed the decision as expected. Tory MP David Davis said: “I welcome this sensible decision by the Home Secretary. The only effect of this law was to chill public debate and depress freedom of speech.“. Somewhere, Edumund Blackadder is smiling….
Related PostsRowan Atkinson lends support for free speech and the right to insult people The unaired Blackadder pilot episodeEvery Doctor Who villain as of 12:30am Tuesday, 18 SeptMr. Bean retires at 21, etc.Even I can't make this one up….OMG, lost Blackadder Christmas script surfaces… | 法律 |
2016-50/4389/en_head.json.gz/18667 | Finding Wine and Restaurant Services Related, TTAB Affirms 2(d) Refusal of "SEVEN SISTERS NAKED EYE"
In view of the strong and arbitrary nature of the cited, registered mark SEVEN SISTERS & Design (shown immediately below) for restaurant services, and the commercial relationship between restaurant services and wine, the TTAB affirmed a Section 2(d) refusal of the mark SEVEN SISTERS NAKED EYE for wine. In re Hutchinson, Serial No. 7854227 (July 7, 2006) [not citable].Examining Attorney David Yontef relied heavily on In re Opus One Inc., 60 USPQ2d 1812 (TTAB 2001). There, in discussing the relationship between wine and restaurant services, the Board stated that there must be "'something more' than the fact that registrant uses the mark on a food or beverage item (wine) and applicant uses the mark in connection with restaurant services." It found that "something more" in "the nature of the commercial relationship between wine and restaurant services and in the arbitrary, strong nature of the registrant's mark." The Board found those same elements present here.Third-party registrations showed that several entities have registered a single mark for both wine and restaurant services. NEXIS articles referred to "a practice in the restaurant industry to offer private-label wines."The Board noted that Registrant's mark is entitled to a "broader scope of protection" because SEVEN SISTERS is an "arbitrary term for restaurant services, and there is no evidence of third party use. Applicant Hutchinson argued that "Seven Sisters" is not arbitrary, but rather is a reference to the Pleiades of Greek mythology and also a term used to identify a group of women's colleges. The Board responded with this fundamental point:"Applicant has apparently confused 'arbitrary' with 'invented.' It is not required that a term have no meaning whatsoever in order to be considered a strong mark; an arbitrary mark, that is, one having no meaning with respect to the relevant good or services, is also strong."Hutchinson pointed out that in Opus One, the registrant's wine was offered in applicant's restaurant, but the Board observed that although such a situation might increase the chances for confusion, "the relatedness of wine and restaurant services is not dependent on such evidence."Turning to the marks, the Board concluded that "because of the manner [in which] the words are combined, the words NAKED EYE convey a separate thought from SEVEN SISTERS;" consumers "are likely to regard the SEVEN SISTERS portion of the mark in the manner of a house mark, with NAKED EYE being seen in the nature of a product mark." Therefore, consumers are likely to assume that Applicant's wine emanates from, or is sponsored by or affiliated with, the SEVEN SISTERS restaurant.Consequently, the Board found confusion likely and it affirmed the Section 2(d) refusal.Text Copyright John L. Welch 2006. | 法律 |
2016-50/4389/en_head.json.gz/18780 | « Lerner called GOP 'crazies' in email | GAO report: Massive waste and incompetence in Obamacare rollout » Share |
If Obama Tries to Grant Legal Status to Illegal Immigrants, the States Should Say 'I'll See You In Court'
By Allan J. Favish
It has been reported that President Barack Obama is planning to unilaterally attempt to grant legal status to illegal immigrants. There is no legal authority for him to do so. It has been reported that it may not be possible to stop Obama’s action with a lawsuit because nobody would have standing to bring the lawsuit.
Legal experts see any challenge to the expected immigration policy changes headed for the same key roadblock facing House Speaker John Boehner’s planned suit over Obamacare implementation delays: finding a way to show the injury needed to press a case in the federal courts. (snip)
While broad immigration moves clearly have beneficiaries, it’s hard to find a person or entity harmed enough by under-enforcement to have the standing to pursue a case in court.
However, there are a bunch of entities that would have standing to sue the federal government if Obama unilaterally grants legal status to illegal immigrants – the States. Moreover, a suit by a State against the federal government could be filed directly in the United States Supreme Court because the Supreme Court has original jurisdiction over such suits. Article III, Section. 1 of the United States Constitution states, in part: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. Article III, Section 2 states, in part: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . . to Controversies to which the United States shall be a Party . . . .” Article III, Section 2 also states: “In all Cases . . . in which a State shall be Party, the supreme Court shall have original Jurisdiction.” States have standing to sue the federal government to enforce their Tenth Amendment right to exercise police powers, including the administration of state programs. This is explained in great detail by Pacific Legal Foundation attorney Timothy Sandefur, at pages 327-335 of his article entitled State Standing to Challenge Ultra Vires Federal Action: The Health Care Cases and Beyond, published in the University of Florida Journal of Law and Public Policy, Vol. 23, pp. 311-344 (2013).
The United States Supreme Court stated in Plyler v. Doe, 457 U.S. 202 (1982), a case that has been misrepresented by the Obama Administration, that while regulation of immigration is an exclusively federal function, a State is permitted to take action, consistent with federal immigration policy, to protect its economy and ability to provide governmental services from the deleterious effects of a massive influx of illegal immigrants. Plyler stated:
Although the State has no direct interest in controlling entry into this country, that interest being one reserved by the Constitution to the Federal Government, unchecked unlawful migration might impair the State’s economy generally, or the State’s ability to provide some important service. Despite the exclusive federal control of this Nation’s borders, we cannot conclude that the States are without any power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns. (Plyler, at 228 n.23.)
The net fiscal impact on the States is significant. The Federation for American Immigration Reform (FAIR) estimates that the cost to California alone in 2014 is over $25 billion. FAIR states:
Californians bear an enormous fiscal burden as a result of an illegal alien population estimated at almost 3 million residents. The annual expenditure of state and local tax dollars on services for that population is $25.3 billion. That total amounts to a yearly burden of about $2,370 for a household headed by a U.S. citizen.
Nearly half of those expenditures ($12.3 billion) result from the costs of K-12 education for the children of illegal aliens — both those illegally in the country and those born in the United States. Another major outlay ($2.1 billion) results from the need to provide supplemental English language instruction to Limited English Proficient students, many of whom are children of illegal aliens. Together, these educational costs are 57.1 percent of total expenditures.
Other fiscal outlays result from the costs of medical care ($4.0 billion), public assistance services ($800 million), administration of justice functions ($4.4 billion), and general governmental services ($1.6 billion).
Because some tax revenue is collected from the illegal alien population, we include an estimate of this revenue from sales, income, property and "sin" taxes. Yet, it should be kept in mind that the $3.5 billion in tax collections is not truly an offset to the fiscal costs, because similar, and likely greater, tax revenue would be collected if the same jobs were filled by legal workers.
If Obama unilaterally grants legal status to illegal immigrants, the States will have to grant even more benefits to them because of their alleged “legal” status, at enormous cost to the States. The States’ ability to perform most of their basic functions will be detrimentally affected. The States would have standing to sue the federal government if Obama takes this action. They could sue for declaratory and injunctive relief, which means that they would ask the Supreme Court to declare Obama’s action illegal, and order the federal government to do nothing to enforce Obama’s illegal action.
The question becomes whether any States have the commitment to the Constitution, to America, and the courage, to file such a lawsuit.
Allan J. Favish is an attorney in Los Angeles. His website is allanfavish.com. He has co-authored with James Fernald, a book about what might happen if the government ran Disneyland entitled "Fireworks! If the Government Ran the Fairest Kingdom of Them All (A Very Unauthorized Fantasy). | 法律 |
2016-50/4389/en_head.json.gz/19110 | News & Publications Michael Kun Quoted in Article, “Citing Dukes, Court Overturns Class Certification in Wage and Hour Dispute”
Inside Counsel May 1, 2013 Michael Kun, a Member of the Firm in the Labor and Employment practice and national Co-Chairperson of the firm's Wage and Hour, Individual and Collective Actions practice group, in the Los Angeles office, was quoted in an article titled "Citing Dukes, Court Overturns Class Certification in Wage and Hour Dispute." Following is an excerpt:
In Wang v. Chinese Daily News, the 9th Circuit overturned the class certification of a wage and hour dispute. ?...
Michael Kun compares Wang to a pingpong ball, as it has bounced between courts for nearly a decade. ?...
"In remanding Wang, the 9th Circuit essentially said, 'If you are going to certify a class here, it has to be done in a way other than trial by formula,'" Kun says. "In a wage and hour case, it's going to be very difficult for plaintiffs to come up with a trial plan where damages can be calculated in a way other than through some formula." ?...
"My expectation is that the district court will now issue a new opinion, and whether it grants or denies certification, that decision will be taken up to the 9th Circuit. That decision may end up back on the Supreme Court's lap, particularly in light of the fact that there is this other case out there where the court declined to apply Dukes." ?...
"So an argument can be made that there's a split in the circuits as to whether Dukes applies," Kun says. "One way or another, this issue may well end up in front of the Supreme Court."
Associated PeopleMichael S. KunAssociated PracticesClass ActionsWage and Hour | 法律 |
2016-50/4389/en_head.json.gz/19115 | Home / US churches' body reiterates condemnation of Qur'an burning plan
US churches' body reiterates condemnation of Qur'an burning plan
The National Council of Churches USA has reiterated its condemnation of plans by a Florida church to burn the Qur’an on the 11 September anniversary of the attack on the Twin Towers in New York.
On the eve of Ramadan, the NCCUSA and its Interfaith Relations Commission called upon Christians and persons of other faiths to express respect for Muslims and Islam. The original August 11 statement, which expressed dismay over recent outbreaks of Islamophobia and anti-Muslim sentiments, said, in part: “We also decry the anti-Muslim actions and plans of many church leaders and members, such as those of the Dove World Outreach Center in the USA. Misguided or confused about the love of neighbour by which Christ calls us to live, leaders and members of this church and others are engaged in harassment of Muslims, and in the planning of an ‘International Burn the Qur’an Day,’ to be held on September 11th. Such open acts of hatred are not a witness to Christian faith, but a grave trespass against the ninth commandment, a bearing of false witness against our neighbour. They contradict the ministry of Christ and the witness of the church in the world.” It continued: “We ask all Christians to promote respect and love of neighbour, and to speak and work against extremist ideas, working with Muslims as appropriate, in order to live out the commandment to love our neighbour, and to promote peace.”
The Rev Dr Michael Kinnamon, General Secretary of the National Council of Churches, said the council had chosen to repeat its statement in response to “many requests from persons of good will who wish to make it abundantly clear to the international community that millions of Americans reject the anti-Muslim expressions of some communities who seem to be reacting out of fear and a misunderstanding of the true nature of Islam.”
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Keywords:Qur'an | NCCUSA | National Council of Churches USA | Koran | 法律 |
2016-50/4389/en_head.json.gz/19279 | The Offshore Drain: Who Makes the Money Disappear?
Chris Morgan Jones
Novelist and business intelligence consultant
A week ago a German-born, British-educated lawyer called Michael Little was arrested at Kennedy Airport as he flew into New York. Mr Little is 61, once served in the Royal Marines, and lives in the English countryside with his wife, who was with him on the flight and would have watched him being led away. Bail was set at $2 million.
Little sounds like an unusual man. He qualified as a lawyer only in 2005, after a career as a trader and a financier in London and New York and at an age when most people have one eye on retirement. His wife runs a company that uses horses and riding to treat disabilities of various kinds. And amongst his interests, listed on the website of the Bournemouth chambers where he practises, are sailing, chess and eschatology (the study of death, judgement and the afterlife - with an accent, for the time being perhaps, on the judgement part). According to charges brought by the IRS and the US Attorney for the Southern District of New York, however, his most significant professional contribution has allegedly been to help the heirs of a wealthy fund manager hide $10 million in Swiss bank accounts that he nominally controlled. $10 million isn't, sadly, a lot of money, and the tax due on it was certainly not newsworthy. What did merit a handful of reports in the business pages and the offshore journals was that people who do what Little is alleged to have done tend not to get arrested, and certainly not for such modest sums. The Wall Street Journal described the event as "a fresh warning to U.S. taxpayers who haven't confessed secret offshore accounts", and very probably the IRS was hoping that it would be exactly that. Little wasn't arrested because his alleged crime was egregious; he was arrested as an example. Hiding money offshore
You can understand why the IRS might be keen on discouraging les autres. The hiding business is in glowing health. If you're rich, and irresponsible, and don't feel like paying tax, you'll need people to tell you how to hide your money; and chances are if you're rich enough someone will actually do the hiding for you. The same is true if you're a corrupt politician or some other breed of well-to-do criminal. Most of it heads offshore, of course, into that dark archipelago of tiny islands and pretend nation states, and like all strange destinations, it's a place that requires a guide: a qualified professional who can show you around. Estimates are difficult to make, because it's hard to count what you can't see, but the United Nations reckons that between $800 billion and $2 trillion are laundered each year. (My own view is that this fails to take into account the full extent of political theft in developing economies, and that the real amount is much, much higher). That figure won't include tax evasion, which for some reason is still seen as a lesser crime, but some estimate that every year $3 trillion of taxes go unpaid, and the more conservative put it at around $1 trillion. Precise numbers aren't important, provided they indicate the scale of the hiding being done. Let's say that altogether the money being washed and stashed is somewhere between $2 and $5 trillion, or 3% to 8% of global GDP. Enough to pay off Greece's national debt a dozen times over. It's one of the charming quirks of the system that you probably need to be a lawyer or an accountant - someone who has trained in a professional discipline, cemented his respectability, sworn oaths - to know how to move this money around: to establish the companies, open the bank accounts, keep track of the fees and the transfers and the documents. This is rougher still, but if only $1 trillion heads illegally into offshore accounts, and if the average account is worth $10 million a year, and your average frontman has two such accounts at any one time, you would need 50,000 frontmen to handle it all. (That may seem like a very large number, but there are a great many lawyers in the world - around a million in the US, a million in Europe, over a million in India - and almost as many accountants.)
An unprosecuted crime
That's a lot of potential prosecutions, and a lot of potential good if they were made. But if these people were being held to account in anything like the numbers they ought to be, we'd hear about them; and eventually, instead of scuttling around unseen, they'd be forced out into the light. As it is, very few get to court, let alone to prison. Unless the country where the original crime has been committed really cares, investigations tend to collapse for want of evidence and international cooperation. A month ago, German prosecutors who had worked for six years on a prominent Russian corruption matter abruptly dropped all charges, an action so routine that only the Wall Street Journal saw fit to report it. So whether guilty or not, Michael Little can count himself unlucky. The reason he came to the attention of the IRS was that his clients were American (and one of them, according to a special agent involved, prepared to cooperate as witness in an ongoing investigation). Had they been from Russia, or China, or most of Europe, or Latin America - almost anywhere else, in fact - he'd no doubt be at liberty right now.
Follow Chris Morgan Jones on Twitter:
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Corruption Financial Crisis Money Laundering Offshore Tax Havens Financial Crimes | 法律 |
2016-50/4389/en_head.json.gz/19318 | Copyright/Trademarks
Driving Ahead
By Staff WriterNovember 1, 2007
Recreational golf tends to be a very gentle game. You wake up early on a Sunday morning, mosey over to the local course with a buddy or two and spend the next few hours knocking a small white dimpled ball around a lush green landscape. You end up competing more with yourself than your golfing partners.
On the business side, golf is a blood sport. The companies that produce the clubs and balls stored in your car's trunk spend a lot of time at each others' throats--mostly over claims of patent and trademark infringement.
Litigation between companies in this industry is par for the course. What fuels these suits is an ber-competitive market in which consumers are constantly in search of a ball or a club that will help them hit farther and more accurately. Companies invest millions of dollars in R&D and marketing to help consumers achieve those objectives with their products. It's up to the legal departments of these companies to protect that investment.
For Callaway Golf Co., one of the most recognized brands in the industry, that job falls on the shoulders of Texas-born Michael Rider, the company's general counsel. Rider joined the San Diego-based company in 1996 as associate general counsel after managing antitrust litigation for a number of years as a senior attorney for American Airlines. Before that he was an associate at Gibson, Dunn & Crutcher.
Q:I understand that you initially wanted to be a pharmacist.
A:I did. When I was in high school I worked for a small independent pharmacy as a delivery boy. And being exposed to that area, I thought it was a really good career. Pharmacists were entrepreneurs, they got to make their own hours and they made a pretty good living. Those were all things that appealed to me. I actually earned my undergraduate degree in pharmacy from the University of Arizona.
Q:How did you end up in law?
A:By my fourth year in college I realized I wasn't that interested in owning an independent pharmacy or working for a chain. My best friend always had planned to go to law school, and we shared a lot of the same traits in terms of being outgoing and analytical and being comfortable on our feet. So I took the LSAT and went to law school at the University of San Diego.
Q:How did you end up at Callaway?
A:I was very happy at American Airlines, but Callaway was a great opportunity for a number of reasons. First of all, it was a smaller company, so the opportunity to have a bigger impact was obvious. And I got to work again with Steve McCracken [a former partner at Gibson Dunn who was GC of Callaway when Rider joined]. It was an opportunity to get back to San Diego, where my wife and I had met in law school. But probably most important, it was Callaway--a small company with a big brand.
Q:Are you a good golfer?
A:I'm OK. When I was hired at Callaway Golf, I had never picked up a golf club in my life. Thankfully, Callaway didn't hire me to be a golfer. They hired me because I knew how to manage litigation.
Q:Tell me about your role as GC.
A:Well, I really have three main responsibilities. The first one is to direct the company's litigation, and right now we have a very full plate. We're dealing with a lot of litigation and a lot of IP disputes. My second job is to serve as the company's primary antitrust lawyer. My third job is to manage the department.
Q:There seem to be a lot of patent infringement suits being filed in the golf industry.
A:It is a very, very competitive business. If you think about it, we're competing against much bigger companies [such as Acushnet, the company that owns the Titleist brand; Adidas; Nike; etc.] for a share of the market. One of the areas in which we compete is obtaining and enforcing our IP rights.
Q:On average, how many patents are associated with a modern-day ball or club?
A:You know, a club or a ball could be protected by several different kinds of intellectual property, including patents. So you could have utility patents, design patents and trademarks that help protect a product. We have used copyrights in the past to protect features of our golf clubs. You could be talking about patents based on materials, based on form and based on performance and function.
Q:You're pretty aggressive on the IP front.
A:We are aggressive in the sense that we do file for and obtain a lot of patents, both in the U.S. and worldwide, to protect ventures that we've created. It is our job to protect the company's interests with respect to that IP.
Q:How do you decide what to patent?
A:We have a group whose job it is to innovate. We've got a product development group whose job it is to turn those innovations into products. I have a pretty darn good legal staff that can recognize what's patentable among those innovations and among those products.
Q:Is counterfeiting a big problem in your industry?
A:Absolutely. Knockoffs used to be the only problem. Now counterfeiting is the big issue. It's also moved from Taiwan to China. And really the vast majority of the counterfeiting today occurs in China, and in fact most of it occurs online through some of the more popular auction sites.
Q:How involved is your team in working on the endorsement deals with the pros?
A:Our department supports the Pro Tour department, which is the frontline negotiator of those deals. They identify pros with whom we seek endorsement relationships and manage those relationships. We're in a support role. That support role can range from simply writing the contract--if it is a relatively straightforward deal--to sitting next to the vice president of Pro Tour if the negotiation is more difficult.
Q:Jack Nicklaus recently said that some of the technological innovations that allow players to hit farther are hurting the game. What's your response?
A:Our goal is to help every golfer have more fun, and we've been able to do so with a lot of the innovation that we've brought to the table in terms of drivers and golf balls.
Q:What do you think of Callaway's new square-head driver? Does it really help you hit a straighter shot?
A:The FT-i is a terrific club. It has helped my game remarkably.
Q:What is the most memorable course you have ever played?
A:The old course at St. Andrews in Scotland. It was the most amazing experience. It started at about 2:30 in the afternoon, which meant we finished the round at about 7 p.m., when the sun was low in the sky. There is really no experience quite like walking down the 18th at St. Andrews.
Q:How did you do?
A:I bogeyed the 18th hole. I was pretty darn happy about it. I drove it right down the middle. It was only a three-putt that kept me from parring it.
Department Operations 2086 Careers 1976 Patents 1498 Copyright/Trademarks 1258 Join the Conversation | 法律 |
2016-50/4389/en_head.json.gz/19355 | Judicial Watch • Judicial Watch v. Department of Justice – Pardongate Judicial Watch v. Department of Justice – Pardongate
Judicial Watch v. Department of Justice – Pardongate
PARDONGATE
In the last day of his presidency, Bill Clinton granted 140 pardons and commuted 36 sentences (a scandal that came to be known as Pardongate), many of them to convicted felons who had paid large fees to Clinton associates. Like many of Clinton’s actions, these pardons raised ethical concerns and added to the controversies surrounding the Clinton Presidency and Hillary Clinton’s senate campaign.While this case began as an investigation into corruption, it has also become a fight against government secrecy. Judicial Watch litigated for four years in an effort to force the Bush Department of Justice to release the thousands of pardon documents. To date, the Department of Justice, despite a court order, has released only a mere fraction of the documents and those released have been completely redacted.This fight for information began on January 29, 2001 when Judicial Watch filed a Freedom of Information Act (“FOIA”) request for the Clinton pardon documents. When the DOJ failed to deliver the documents, Judicial Watch filed suit.The Bush Administration, not interested in pursuing an investigation of the Clinton pardons, asserted executive privilege.
The U.S. District Court for the District of Columbia granted a motion for summary judgment to the Department of Justice and Judicial Watch appealed. On January 21, 2004, just short of three years since the original FOIA filing, Judicial Watch argued before the U.S. Court of Appeals for the District of Columbia Circuit. In May 2004, the U.S. Court of Appeals for the District of Columbia Circuit ruled the Bush Administration’s claim of presidential communications privileges regarding the Justice Department documents “…would be both contrary to executive privilege precedent and considerably undermine the purposes or FOIA to foster openness and accountability in government.” Furthermore, the Court added that such an extension “…would have far-reaching implications for the entire executive branch that would seriously impede the operation and scope of FOIA.” (View the Court’s decision).
In May 2005, in a move contemptuous of the Court’s order, the U.S. Department of Justice defied the ruling and produced 915 blacked-out pages citing the “deliberative process” and other exemptions.
CASE STATUS In 2006, Judicial Watch filed a Motion for Award for Attorneys Fees and Expenses. In September, a stipulation agreeing to $25,000 was filed and Judicial Watch withdrew the Motion. Judicial Watch recieved payment on November 21, 2006.
Official Legal Documents
CASE DOCUMENTS
Judicial Watch's motion for attorney's fees and costs
View Department of Justice's production of 915 completely blacked out pages.
May 2004 Appellate Court Decision
List of Clinton Pardons and Commutations
U.S. Pardon Attorney – Rules for Governing Petitions for Executive Clemency
Judicial Watch 2002 State of the Union Report – Bush Administration Ethics Enforcement
RELATED INVESTIGATIONS AND LAWSUITS
For further information about this investigation and related cases, use these links:
JW Calls on Justice Department to Investigate Hillary Clinton's Brother - Judicial Watch called for a criminal investigation into the reported activities of Hillary Clinton and her brother, Anthony D. Rodham, former President Clinton, and Vonna Jo Gregory, former owner of the carnival company United Shows International. The October 6, 2006 letter also seeks an investigation into President and Senator Clinton over any involvement they had in the alleged scheme.
JUDICIAL WATCH v. DEPARTMENT OF JUSTICE & FBI – Judicial Watch filed suits against the Department of Justice and the FBI when they failed to turn over documents concerning President Clinton's decision to grant clemency to several members of the FALN, a Puerto Rican terrorist organization.
Federal Election Commission complaint against Hillary Clinton over her role in Pardongate. The complaint alleges that Hillary Clinton illegally took cash, gifts and other benefits from Denise Rich and other supports in exchange for help in obtaining the pardons of Marc Rich and others. Mrs. Clinton had received campaign contributions and gifts of furniture from Rich's ex-wife in the weeks and months leading up to Rich's pardon. The gifts of furniture are campaign gifts under the law, but were never reported as such by Mrs. Clinton.
Press RoomU.S. Court Of Appeals Rules Against Bush Administration On Clinton Pardon Documents - May 07, 2004Justice Deptmartment defies Appellate Court Ruling on Clinton Pardon Documents - March 18, 2005 Sign Up for Updates!
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2016-50/4389/en_head.json.gz/19399 | Home Page for Walter J. Wadlington
[email protected]
Room SL308A
Walter J. Wadlington
James Madison Professor Emeritus
LL.B., Tulane University School of Law, 1954
A.B., Duke University, 1951
Walter J. Wadlington retired as James Madison Professor of Law in 2003, after a 40-year career at the Law School. His main research and teaching interests are in family law and law and medicine, and he served as Professor of Legal Medicine at the Medical School from 1979 to 2003. He co-teaches Medical Care for Children: Law, Economics, and Health Policy.
As a law student, Wadlington was editor-in-chief of the Tulane Law Review and a member of the Order of the Coif. He then practiced law in New Orleans, served in the Army Judge Advocate General Corps, and spent a year as a Fulbright scholar and tutor at the University of Edinburgh. Before coming to Virginia, he taught for two years at Tulane Law School. He has been a visiting professor at Osgoode Hall Law School of York University in Toronto, and at Louisiana State University, University of North Carolina, and Southern Methodist University law schools. He also has been a visiting fellow at the Australian National University, and the visiting Tazewell Taylor Professor at the College of William & Mary. Wadlington is a member of the Institute of Medicine of the National Academy of Sciences, and of the American Law Institute. Between 1985 and 1991 he directed the Robert Wood Johnson Foundation's Medical Malpractice Program. He served on the national advisory committee of that Foundation's Clinical Scholars Program from 1988-97 and chaired the advisory board of its program on Improving Malpractice Prevention and Compensation Systems, from 1994-98. He was a trustee-at-large of the Educational Commission for Foreign Medical Graduates from 1996-2003. From 1991-95 Wadlington served on the National Advisory Board on Ethics in Reproduction. He has chaired the Virginia State Bar Association Committee on Domestic Relations and was co-chair of the National Task Force on Day-Care Licensing. He was a member of the IOM study committees on Legal and Ethical Issues Relating to Inclusion of Women in Clinical Studies; Effects of Medical Professional Liability on Delivery of Maternal and Child Health Care; Availability of Improved Diagnostic Tests for Evaluation of Social Security Disability; and Environmental Justice. He has served on the board of the American Society of Law and Medicine and the editorial board of the Preservation Law Reporter. In 1988 he was awarded the Distinguished Health Law Teacher Award of the Health Law Teachers Section of the American Society of Law and Medicine.
Family Law Law and Medicine Children in the Legal System Medical Care for Children Torts Jurisprudence International Law Insurance Civil Law Obligations. | 法律 |
2016-50/4389/en_head.json.gz/19401 | Download our plug-in for Chrome to get customizable, real-time news alerts Mike Tyson Must Arbitrate $5M Fraud Suit Against Adviser
By Matthew Heller Law360, Los Angeles (June 14, 2013, 4:24 PM EDT) -- Former heavyweight boxing champ Mike Tyson took a legal punch Friday when a California judge ruled a contract clause was so “all-encompassing” that it required him to arbitrate his claims that a financial advisory firm caused him and his wife more than $5 million in damages through embezzlement and false advice.Los Angeles Superior Court Judge Michael M. Johnson rejected Tyson's argument that the arbitration clause did not apply to the case because the alleged theft from his bank accounts by Brian Ourand, a senior executive...
Geragos & Geragos | 法律 |
2016-50/4389/en_head.json.gz/19466 | « CITY BEAT | CITY BEAT »
Judge fires back at Sheriff Luttrell, who says bailiffs' time report was flawed.
on Fri, Aug 12, 2005 at 4:00 AM
A report on the amount of time that bailiffs spend in courtrooms produced by Sheriff Mark Luttrell and published in last week's Flyer was flawed, Luttrell said this week. "I have called in my audit team to come back and look at the data one more time," he said. "We have got a data entry problem. To what extent, we don't know."
Luttrell said several judges complained about the data. He said he has been compiling the data for three years, audits it internally, and then makes it available to Shelby County Commission members and judges, although there is disagreement between him and some judges about the availability of the data as well as its accuracy. "This is the first time it has been brought to my attention that we have an error," he said. "It wasn't as solid as I have been told."
The report showed the number of hours sheriff's deputies working as bailiffs spent in 38 courtrooms for the first six months of 2005 for court, court preparation, non-sequestered juries, and standby/recess. Luttrell said the error was discovered in the data for some of the General Sessions Criminal courts for June and in Judge Louis Montesi's courtroom in particular.
On Monday, Luttrell said he notified all judges by letter that "inaccuracies have been discovered regarding data input" and that a review was under way.
"Just as soon as I have a full report about this matter, I will again be contacting you and The Memphis Flyer as well to clarify the story," he said in the letter. Luttrell said in an interview Tuesday that the errors were in reports for March and June and were caused by "a management problem" and court officers not keeping accurate time reports or not submitting them at all. In Montesi's courtroom, corrected figures showed deputies were on duty 6.27 hours a day on average this year, compared to 4.8 hours in the original report, and 6.03 hours in June as opposed to 1.66 hours in the original report. Luttrell said corrected reports for six months should be finished for all courtrooms this week.
The Flyer published the survey as a broad measurement of judicial accountability and courtroom usage, noting seasonal fluctuations in the hours worked by deputies in the summer and between different courtrooms in the same division of courts over a six-month period. Circuit Court judge Rita Stotts, who is presiding judge for the Chancery, Circuit, and Criminal Court judges, said that bailiff time reports are both an inaccurate and unfair measurement of a judge's work habits.
"Just because a judge is not on the bench does not mean the judge is not working," she said. "It is so unfair to us."
Luttrell said he makes the reports available to judges and meets periodically with Stotts on a court security committee for which they are co-chairmen. "We have on several occasions referenced these reports to them and periodically released them to them," he said. "I think last year we had a lengthy discussion about court security. We shared the format with them that we follow to account for our officers."
Stotts said judges only see the reports if they ask for them, and they have no input into them and do not verify their accuracy. In any case, she said, they reflect only the time that deputies say they spend in courtrooms, not the time that judges work both on and off the bench. In an interview in her chambers this week, Stotts said she is "inundated" with memos that she must read each week to prepare. "So much of what we do, particularly on the civil side if we are successful, is perhaps not spending a lot of time on the bench," she said. "There is so much paper generated in civil courts. On Fridays, here in Circuit Court we hear motions. Like a teacher or professor, I've got to spend the time to get ready for that motion, looking at those papers."
After hearing Stotts' criticisms, Luttrell said there is "overlap" between the time that judges work and the deputy time sheets, "but we are not monitoring the judges' workload. I fully understand they have things they deal with in chambers and in meetings with attorneys."
Stotts said she could not say whether all judges are equally industrious.
"There is no way for me to know that because this job is pretty isolated," she said. "I don't know what is going on in any other courtroom for the most part. Due to the nature of the business, you are here and you have no clue what another judge is doing."
Like most professionals, judges do not keep time sheets. The various court clerks' offices provide monthly data about filings and dispositions, but they are not summarized into a single measurement. "Dispositioned cases," for example, are broken down into nine different codes, each with a detailed explanation. A judge who makes it a policy not to continue cases will get high numbers, Stotts said, but she added that there are sometimes good reasons to continue a case. She herself was hearing a case this week that began in 1988 and has been through the Circuit Court of Appeals and federal court. "It sounds horrific, but there are legitimate reasons why the case has not been resolved before now," she said. Records compiled by the Circuit Court clerk's office show that there were 10,166 pending cases in Circuit Court alone at the end of 2004.
Stotts said she would be wary of a performance measurement such as a letter grade, standardized test score summary, or "failing" designation that is applied to Tennessee public school systems and individual schools and their students. "I would hate to see the day when justice becomes a number," she said. Further complicating accountability measurements is the fact that deputies are sheriff's employees, judges' clerks work for the Circuit Court clerk, law clerks are funded by Shelby County, and Chancery, Circuit, and Criminal Court judges are state employees. The repository of courtroom data is the Administrative Office of the Courts in Nashville, but it will prepare a case management report on a particular judge or class of judges only if someone specifically asks for it and pays the costs of producing it.
"Everybody is basically marching to somebody else's drumbeat," Stotts said. All elected judges will run for reelection in 2006, and, if form holds, most will have at least one opponent. Judges in the state courts and General Sessions courts serve eight-year terms and are currently paid $118,548 a year. Stotts said she will rely on word of mouth, civic activities, speeches, and endorsements to make her own case to voters but will probably not use data from the Circuit clerk's office or the results of the upcoming judicial survey by the Memphis Bar Association, which polls approximately 600 attorneys who practice in the courts. She believes the survey sample can be skewed. "We don't sit here as judges and have some kind of check mark for lawyers," she said. "I don't have a list of lawyers, where every time they come in I am keeping up with whether he was late or unprepared. Everything is on a case-by-case basis, but apparently we are not being given that same kind of leeway."
She said litigants and their families should have input on judicial ratings. "Is anybody capturing the opinion of the people who've been in the courtroom?" she asked. No one has found a way to systematically survey those people. "The sheriff has a publicist," Stotts said. "If he goes to a nursing home or something, he has paid people to make him look good. We don't have that luxury."
The sheriff's department, with a budget of $130 million and 2,035 employees, has a public-affairs spokesman. Luttrell declined comment on the charge. Luttrell, who will also be on the ballot in 2006 if he seeks reelection, said the time reports help him deploy deputies to courtrooms efficiently. He has unsuccessfully lobbied the Shelby County Commission to allow him to use part-time retired deputies as bailiffs. Some judges, citing attacks in courtrooms in other cities, think that would compromise safety. "I don't think this issue has been a problem for other sheriffs," said Stotts. "It seems to be an issue of priorities. Apparently, other sheriffs have felt that their statutory duty to provide security in court was a high priority."
Luttrell said budget tightening has forced him to address "a number of issues that were not issues with previous sheriffs."
Stotts said performance measurements and numerical ratings which are now used for schools, colleges, and even "livable cities" may be "the wave of the future," but she still thinks they have problems for judges whose approach is "one litigant at a time." Tweet | 法律 |
2016-50/4389/en_head.json.gz/19537 | Camp Lejeune Man Accused of Insurance Fraud
RALEIGH -- Insurance Commissioner Wayne Goodwin today announced the arrest of Dustin Allen Hollis, 21, of 130 Wallace Creek, Camp Lejeune; he was charged with one count each of insurance fraud, attempting to obtain property by false pretense and filing a false police report.
After a joint investigation by the N.C. Department of Insurance and the Onslow County Sheriff's Office, criminal investigators allege that Hollis falsely reported his 1997 Jeep Cherokee stolen from his residence on May 20, 2014, and provided false and misleading information to USAA Insurance in an attempt to claim insurance funds.
Hollis was arrested by the Onslow County Sheriff's Office on July 29 and placed under a $10,000 bond.
The Department of Insurance employs 20 sworn state law enforcement officers dedicated to investigating and prosecuting claims of insurance and bail bonding fraud. Since Insurance Commissioner Wayne Goodwin took office in 2009, criminal investigators have made more than 1,000 arrests, resulting in more than 500 criminal convictions with more than 200 cases currently pending court. These efforts have delivered more than $61 million in restitution and recoveries for victims.
An estimated 10 cents of every dollar paid in premiums goes toward the payment of fraudulent claims. To report suspected fraud, contact the Department of Insurance Criminal Investigations Division at 919-807-6840. Callers may remain anonymous. Information is also available at www.ncdoi.com.
--NCDOI-- | 法律 |
2016-50/4389/en_head.json.gz/19599 | ‘Law of the gun' rules in Boomtown Dunnellon in 1900
In his book, “Gaters, Skeeters & Malary,” E.C. May tells how he attempted to bring law and order to the wild boomtown of Dunnellon in about 1900 — and failed miserably in the face of extreme violence.
By David CookColumnist
In his book, “Gaters, Skeeters & Malary,” E.C. May tells how he attempted to bring law and order to the wild boomtown of Dunnellon in about 1900 — and failed miserably in the face of extreme violence.May, a native of South Georgia, had come to Dunnellon in the 1890s to operate a store he called the New York Racket Store, and it was quite successful despite the fact May had to overcome opposition from the “local business establishment” and the fact his store at first was located in a section where women did not venture.Through shrewd business ability and plain old stubbornness, May was able to face down his enemies and succeed to the point where he was elected mayor of Dunnellon and actually get a few civic improvements made.Newspaper accounts of the period make it clear Dunnellon was a wild, lawless town despite the fact a deputy sheriff and a town marshal allegedly enforced the law there. The stories May tells in his book confirm that opinion and elaborate on just how lawless the town was.May already had gone through the fear and agony of a face-down with the town’s reputed boss, a man who openly boasted about the number of men he had killed (until he stopped counting). After an argument, May was supposed to meet the man, identified as “Bill,” in the street, but in the end, after hours of waiting by May, gun in hand, the confrontation never took place.Later, Bill told May, “I thought you knew I was drunk.”Bill, the deputy sheriff for the Dunnellon area, also was described as a saloon keeper and uncrowned king of the town. “He ruled with the traditional iron hand,” May wrote, “and enforced his laws with a Colt and Winchester.”Dunnellon was a hard town, May admitted. “The leaders seemed well entrenched and safe enough, but a stranger sometimes found the going a bit rough,” he said.As a deputy sheriff, Bill sometimes acted as the town marshal “or someone played marshal under his direction and control.” May and other members of the city council wanted law enforcement, but they could find nobody to defy Bill and accept the job of marshal.May thought of a tough man he knew in South Georgia who was the kind of man to bring law and order to Dunnellon. He was John Harrell of Cecil, Ga., “a brave man who could put us in the class of nice towns.”After being warned about how rough the job would be, Harrell accepted May’s offer and agreed to come to Marion County for $200 a month, a high price that seemed worth the cost at the time. As it happened, May was returning from a New York buying trip the day Harrell stepped off the train, “a well-dressed stranger of good appearance.”Harrell was met by a reception committee headed by Bill, who identified himself as a deputy sheriff. It seems that most people in town knew the new marshal would be on that train and wanted to see what he looked like.Without warning, according to witnesses, Bill struck Harrell across the face with his Colt 45, knocking him backward. Before Harrell could recover, Bill hit him again. Bill pulled him to his feet and continued battering his head with his gun.With Harrell lying in the street, unable to get up, Bill kicked him repeatedly. Bill pulled him to his feet and continued kicking Harrell until they reached the drug store, where Bill left him unconscious on the floor. Bill told the druggist to get a doctor to patch up the man and send him the bill.May got back into town just in time to see Harrell leave by train for a return trip home. Harrell’s head was covered with bandages, and he was limping badly. One eye was useless, and he was finding his way with a cane. “His mouth was a bloody slit,” May wrote.When May tried to persuade him to stay, Harrell said he was not looking for a job in Florida at any price.Well aware of the situation he was in, May said he knew any further effort to find a marshal was useless. And again, he said, Colt, Smith and Wesson and Winchester “were all the law we knew.”May wrote that Dunnellon had little civic pride in those days “and little else that helped to make the place fit to live in.” He could leave knowing he had never killed anyone. His guns, however, saw a great deal of use and may have prevented killing.In April 1901, he sold his Dunnellon store and moved to California. Although he was making money in his store, he knew he had gone about as far as he could go in Dunnellon and survive the wild west atmosphere that had been brought about by the phosphate mining boom.May would operate several stores in California for several years, but after viewing the devastation of the San Francisco earthquake, he decided to return to Florida. He did not return to Dunnellon. Instead, he settled in Citrus County, studied and became a lawyer at middle age and served several terms as county judge. He was a remarkable man who overcame a minimal formal education, studying by mail to pass the Florida bar exam with distinctionHe was in his 80s when he died in the 1950s.An avid Marion County historian, David Cook is a retired editor of the Star-Banner. He may be contacted at 237-2535. | 法律 |
2016-50/4389/en_head.json.gz/19603 | Mario Alberto Rodriguez Faces Trial Today for Fatal Stabbing of Paul Anthony Garcia
Thursday, July 21, 2016 at 6:15 a.m.
Mario Alberto Rodriguez (left) could get life in prison for the stabbing murder of Paul Anthony Garcia (center). An image taken from surveillance video shows Pablo Sanchez and Rigoberto Rodriguez.
Santa Ana Police Department (left and right photos); DMV
Bystanders were mortified on March 9, 2013, when in broad daylight they watched a man chase, catch, punch and stab another fellow in the chest on busy South Main Street in Santa Ana, where the victim darted across the street, collapsed and died.Trial is scheduled to begin this morning in Fullerton for Mario Alberto Rodriguez, who is accused of being the attacker who stalked, chased and ultimately killed 26-year-old acquaintance Paul Anthony Garcia of Irvine before fleeing to Mexico.Related Stories[UPDATED with 1 Arrest, 2 Fugitives:] Paul Anthony Garcia Dies in Santa Ana StabbingMario Alberto Rodriguez Guilty of Horrific Main Street Murder of Paul A. GarciaRodriguez, his father Rigoberto Rodriguez and then-18-year-old Pablo Sanchez followed Garcia for a few blocks until he entered El Chile Picante restaurant, 1904 S. Main St., where the defendant is accused of trying to grab the victim and lead him outside, according to the Orange County District Attorney's office.Informing Rodriguez the restaurant had video surveillance, employees asked him to leave the building, which he did. But Rodriguez waited near the exit for Garcia to leave and later chased him through the parking lot, across Main Street and to his death, the OCDA claims.Rodriguez subsequently fled to Mexico and returned several days later, but when the Santa Ana Police Department released the El Chile Picante's surveillance footage so the public could help identify Garcia's killer, Rodriguez is accused of ducking back into Mexico again.He was arrested June 19, 2013, by the Michoacán State Police in La Estanzuela, Michoacán, Mexico, and then extradited back to Orange County to face trial. Senior Deputy District Attorney Jim Mendelson of the Homicide Unit is making the case to jurors that 26-year-old Rodriguez should be found guilty of one felony count of murder with a sentencing enhancement for the personal use of a knife. If the jury agrees with the prosecutor, Rodriguez could be sentenced to life in state prison, according to the OCDA. | 法律 |
2016-50/4389/en_head.json.gz/19664 | Randy Sutton
Randy Sutton is a 33-year law enforcement veteran, a trainer, and the national spokesman for The American Council on Public Safety. He served 10 years with the Princeton (N.J.) Police Department and 23 years with the Las Vegas Metropolitan Police Department, retiring at the rank of lieutenant. He is an author who has published multiple books on law enforcement.
Stacking the Jury
If you’re going to waste my time, at least let me hear the case and render a verdict.
| by Dean Scoville
I’d like to sit on a jury. But then, my tastes skew toward Ed Wood movies, Yoko Ono’s music, and Janeane Garofalo’s comedy (all right, not Garofalo’s comedy so much as her political commentary—that makes me laugh).
So I admit that the things I find interesting and fun are outside the norm.Also, some gullible part of me believes that if I am qualified to have to spend a day sitting in the jury pool, which I recently was required to do, then I deserve the illusion of one day actually serving on a jury.
The possibility of serving on a jury weighs heavily on the minds of my 50 some-odd brethren who’ve likewise been summoned to Pomona Superior Court to become the jury pool from which a lucky 14 (12 jurors plus two alternates) will be chosen.
Inside a room where we’ve been told to appear, a female employee of the court takes roll by calling out the names of the presumed assembled. An old man answers, “Here!” to three different names.
We’re told to sit tight until we hear further.
Two hours later, half of our pool is told to report to a courtroom. The rest of us are again told to wait and so we sit, legs crossed, braving phlebitis, pulmonary embolisms, and cobwebs.
Mid-afternoon, I notice that the walls are adorned with a sort of hall of fame showcase of others who’ve served bravely on behalf of the Los Angeles County judicial system: Harrison Ford, Catherine Mannheim, Edward James Olmos, and Jamie Lee Curtis. Shortly thereafter, we the remaining jury prospects are told to go down to fifth floor where we, too, might serve valiantly in the cause of justice.
Again roll is taken. This time the girl dispenses with any names and relies on the last four digits of our juror ID numbers.
“8611” is called, but no one answers. The person calling numbers asks if anyone’s number has not been called. “1198” speaks up. He’s been reading his card upside down and relying on the old man with three names for confirmation.
Inside the courtroom, the judge has us recite something that sounds like the scouting oath then goes over jury instructions. The only other voice in the chamber is that of a woman translating for the benefit of the freshly scrubbed defendant who—an extra chromosome or two withstanding—looks downright like an upright in his newly pressed JC Penney long sleeve.
The assembled are then told what the defendant has been charged with: assault with a deadly weapon, namely a knife. At least it’s not the guy who groped Minnie Mouse.
Each prospective juror has to answer seven standard questions: name, marital status, etc. The only two that strike me as concerns for exclusion are type of work and whether or not we’ve been a victim of a crime.
Although I am a retired sworn employee from a the Los Angeles County Sheriff’s Department, when asked on the work thing I plan to say, “associate editor.” That is my current employment. If asked who I work for, even though my political inclinations are just left of Attila the Hun, my initial inclination is to say “Amnesty International.” But I remember I’m under oath.
The whole victim of a crime thing has me worried, too. But as neither Jamie Lee Curtis’ victimization at the hands of Michael Myers nor her employ as a cop in “Blue Steel” precluded her joining the jury duty hall of fame, I rationalize that my chances may not be so bad after all.
In anticipation of possibly making the next round of interrogations, I mentally prepare a list of crimes I’ve been a victim of, keeping it down to various assaults and batteries, one attempted mayhem, and two attempted murders.
The judge introduces those destined to spar throughout the proceedings: Denny Crane and Vincent Bugliosi.
Denny Crane- Guns @ Yahoo! Video
OK, no. But I can wish, can’t I?.
The defense attorney actually seems a nice enough guy as far as the species goes. He tells the jury that unlike on “48 Hours” or “C.S.I.”, the wheels of justice turn slower in real life. It’s a redundant point, and the reason so many of my brethren are scared shitless at being seated.
He reminds them that the burden of proof in a criminal case is higher in a criminal case than a civil one. He doesn’t define what a civil case is, and this lack of clarification is evident in the confused facial expressions of some of our would-be jurors.
The defense attorney also contrasts the relative weights of direct evidence (as in the case of an eye witness) and circumstantial evidence (that which is inferred, as when Thoreau noted, "Some circumstantial evidence is very strong, as when you find a trout in the milk.").
Eighteen people are called and to the sounds of squeaking chairs and rustling corduroy, a United Nations of men and women of various ages occupy the jury box and the six seats in front of it. I am not among them.
Juror number four finds himself seated directly below the clock and cranes his head to check out the time. I can only hope he has better luck discriminating numbers than juror “8611” at that angle.
As each prospective juror answers the seven questions, we get a clearer picture of who they are. There’s a widow, a secretary, a construction worker, a shipper, a professor, a psychology major, and a couple of pre-law dudes—one of whom is a cadet with a local PD—and an exotic dancer, I think. Concerns as to what impact their personal history will have on their votes occupy the minds of both attorneys, and some of responses prompt clarifying follow-ups like: “Since your husband beat you, do you feel any particular bias against abusive spouses?” “Why, heavens no.”
As a retired cop, I realize that mine is a presumed vote for guilty.
But I want to go against type. In the world of “Twelve Angry Men (and Pissed Off Women)”, I don’t wanna play Lee J. Cobb’s role, I want Henry Fonda’s. I want to be the guy who convinces everybody—against all odds—that the defendant is innocent.
What can be more invigorating than to surmount my considerable prejudices: Knowing how difficult it can be to get a case filed; aware that the prosecution has announced a litany of witnesses to be called and the defense only one (a doctor, no doubt on a consultant’s commission); realizing that the defense attorney wants to make sure that the prospective jurors aren’t prejudiced against drunks because his defendant apparently was during the time of the incident; speculating that said defendant probably made incriminating statements that could only be mitigated away with a “he didn’t know what he was saying” defense; knowing that there is a woman who has been stabbed and slashed and who better to know who tried to make a jigsaw puzzle of her than she?
Contemplating the defendant’s prospective innocence is something I’d really enjoy doing, and I have no doubt that the ability to suspend belief that came in so handy when I watched “Star Wars,” “Alien,” and “JFK” could likewise prove of benefit here.
As it stands, several of the jurors apparently have other bias issues to contend with. One says that he’s continually harassed by cops and doesn’t trust them. Another says that he’d be too distracted worrying about his job to do justice to the proceedings.
The vetting continues and the widow admits to having been arrested, explaining that her husband had forgotten to pay for her ticket. At least it explains her husband’s fate.
At 4:30—right after the guy who says he was racially profiled admits to having two brothers in prison—we’re excused for the day.
Before I leave, I ask for the court deputy’s business card, knowing full well that he is required by LASD policy to present one upon request. He says he doesn’t have one. Normally, I’d appreciate the nonconformity. Today, it just pisses me off.
The next morning we’re back and everyone takes their seat. Juror number four looks at the clock.
Addressing the jury box, the defense attorney asks, “How many of you right now, not having heard one word of testimony, would vote my client guilty right now?”
Five hands shoot into the air. I think the defendant just crapped his pants.
Juror number four steals another glance at the clock.
After the first round of questions are concluded, a sidebar is requested.While the judge and the two attorneys are out of the room, I motion for the court deputy’s attention, holding up my index finger to indicate it’ll only take a minute. He shoots me down. I make a mental note to use a different finger next time.
They come back in and several jurors are immediately dismissed, including juror number two, the clean-cut police cadet. He looks disappointed.With each exclusion, another prospective juror takes a seat. The ensuing musical chairs rotation of those in and about the jury box gives new meaning to kangaroo court as the summoned hop from seat to seat.
More sidebars follow.
A pattern emerges: Those who obviously want to serve are exempted while those who want to get the hell out are seated. The judge reminds one of the latter how much money she’ll save foregoing her planned vacation.
Just when I think things are not looking good for juror number four, he’s excused. The defendant couldn’t look more relieved.
Finally, 26 hours after we’ve first reported for duty, 14 jurors have made the cut.
Reminding us not to gloat, the judge thanks us for our patience (he has NO idea) and excuses the rest of us for the day.
But not before reminding us that we’re the reason the system works the way it does.
When I think of how many people have been imposed upon by the defendant’s idiocy and the county court system’s intractable policy of having people show up for court who will never be seated, thereby wasting county time and money–not to mention impositions to the employers of those so summoned-I can only ask myself one question:
Why aren’t we allowed to hold the court in contempt?
Tags: Courtroom Outbursts
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al-bored @ 8/16/2009 3:50 AM
Having recently sat in the jury pool, I too looked aroung the room and thought "we let these people vote".
mtarte @ 8/19/2009 7:08 AM
Dean, are you sure you weren't in the jury pool in downtown Oakland this past May? You just described my jury pool experience, right down to the old man who couldn't hear, the various original reasons people couldn't serve, including the many medical reasons people needed to be excused, including the heartbreak of psoriasis. Personally, since I teach criminal justice these days, I wanted to serve. However, since it was a murder trial, they were very careful who they selected and after 4 days of traveling to the courthouse on that efficient mode of transportation known as BART, they finally seated a jury. My time was wasted, since they never called me and the same deputy was working as the bailiff in my courtroom too. Afterwards, I felt rejected and I was amazed at the inefficiency of it all. I mean, there's youtube, and just show a live feed of the trial. Let the viewers vote for innocence or guilt and if the guy gets more votes one way than the other, viola! Trial's over. No jury fees, certainly no mileage reimbursements and I could sit at my laptop in my jammies drinking my coffee and watch ESPN when the trial got too boring. Anyway, glad to see someone else was as enthralled as I was at the process. Loading... | 法律 |
2016-50/4389/en_head.json.gz/19773 | http://www.sfgate.com/bayarea/article/Court-lets-Point-Reyes-oyster-farm-stay-open-5180269.php
Court lets Point Reyes oyster farm stay open during appeal
Updated 5:01 pm, Tuesday, January 28, 2014
Sean Lunny, a son of the owner of Drakes Bay Oyster Co., works on the farm in 2012. A federal appeals court has put a closure order on hold so the company can seek a hearing by the U.S. Supreme Court.
Ramiro Cardozo bends the wire end of a string of oysters preparing them to be set out for maturation at Drakes Bay Oyster Company in Inverness, California on August 30, 2012.
Photo: Alvin Jornada, Special To The Chronicle
Sean Lunny (left) and Jorge Mata hammer away at oyster clusters to remove them from strands the oysters initially grow on at Drakes Bay Oyster Company in Inverness, California on August 30, 2012.
Francisco Manzo returns to work after a brief break from harvesting oysters at Drakes Bay Oyster Company in Inverness, California on August 30, 2012.
Farm workers toss net bags full of oysters into shallow area where the oyster mature to full size at Drakes Bay Oyster Company in Inverness, California on August 30, 2012.
An oyster farm at Point Reyes National Seashore can stay open while its owner makes a last-ditch attempt to get the U.S. Supreme Court to extend its lease in waters that Congress has designated as a marine wilderness.
The Ninth U.S. Circuit Court of Appeals has upheld the federal government's refusal to renew the lease of Drakes Bay Oyster Co., but on Monday it granted the company a 90-day stay to allow time for a Supreme Court appeal. The high court could grant further extensions while it decides whether to take up the case.
Drakes Bay operates California's only oyster cannery. Its owner, Kevin Lunny, bought the company in 2005, seven years before the scheduled expiration of a 40-year lease in federal waters.
A 1976 federal law set aside 2,500 acres of offshore land, including the oyster farm, as a wilderness area free of commercial activity once the lease expired.
Lunny, who describes the farm as an environmentally friendly operation important to the local economy, has lined up strong support in his campaign to renew the lease. Sen. Dianne Feinstein, D-Calif., steered a bill through Congress in 2009 that authorized the Interior Department to extend the lease for 10 years.
But then-Interior Secretary Ken Salazar denied a renewal in November 2012, saying the oyster harvesting didn't fit Congress' plan for a wilderness area. Most environmental groups have agreed with him, and two federal courts have ruled that the 2009 law made Salazar's "informed decision" immune from judicial review.
The appeals court did not explain its order Monday, but under legal standards, it had to find at least a "reasonable probability" that the Supreme Court would accept the case for review.
"We are grateful for the opportunity to continue serving our community while the high court considers our case," Lunny said in a statement.
Bob Egelko is a San Francisco Chronicle staff writer. E-mail [email protected] | 法律 |
2016-50/4389/en_head.json.gz/19939 | XI'AN, China - Clutching a grimy tote bag filled with legal documents and photos of her executed son, Meng Zhaoping is trying to argue her way past a security guard at the provincial high court for the second day in a row.
All she wants is an audience with a court officer, she says, her voice echoing down the building's empty hallways. All she has are two questions: Why was her son put to death? What happened to his body?
The answer to the first question is in the charge sheet: He knifed a man to death in a brawl. The second answer, she is convinced, lies in a much-criticized Chinese practice - taking organs taken from executed prisoners for transplant surgery.
"Let me talk to someone! Give me justice!" Meng shouts as the guard blocks her way.
Ever since her son was convicted and executed in January 2005, Meng has been searching for an explanation. She never saw his body. His corpse, tagged No. 207, was put in a hospital van and taken to a crematorium.
By then, Meng believes, the body had been stripped of its organs.
"It would be unbelievably cruel to take his organs. It's the final insult," Meng says later, riding a public bus to yet another government office, lines of fatigue etched around her eyes.
She has no direct evidence to back up her belief, but the secrecy in which China has shrouded the whole issue has long bred suspicions, with foreign medical and human rights groups saying it is opaque, profit-driven, and indifferent to medical ethics.
What's new is that these critics are being joined by ordinary Chinese such as Meng, a 53-year-old apple farmer from the fringe of the Gobi Desert.
Over more than two years, Meng has made a dozen trips to this city in north-central China, borrowing money for the 46-hour train trip from the family farm. She has journeyed even farther, to Beijing, seeking central government intervention.
Each time she has been shunted among government agencies. In March, she said, officials in her hometown of Kuitun prevented her from leaving. "Ordinary people like us are like ants. The system just steps on them and destroys them," says Meng.
Much of the furor surrounds the use of organs - mostly kidneys, livers and corneas - from executed prisoners who may not have given their permission. Critics argue that death-row prisoners are not truly free to consent and may feel compelled to become donors, violating personal, religious or cultural beliefs.
In the United States, federal prisons ban inmates from donating organs except to a close relative. States ban the transplanting of organs from death row prisoners, and occasional moves by some states to ease the ban have failed.
Though few involved in China's transplant trade, from doctors to government ministers, talk openly about it, Beijing has begun to respond to criticisms.
Twice in the past two years, Vice Health Minister Huang Jiefu has publicly acknowledged that China routinely removes organs from executed prisoners for transplants - but only with prior consent.
This month the State Council, China's cabinet, formalized Health Ministry rules issued last year that ban the sale of organs and require donors to supply written permission.
But the regulations do not mention prisoners.
Outside the prison population, voluntary organ donations are rare. China's Confucian heritage holds that the body be kept intact out of respect for parents and ancestors.
Health officials say the country faces a severe organ shortage, estimating that 1.5 million people need transplants in China each year, and that only about 10,000 operations are carried out.
But China's high number of executions - at least 1,770 people in 2005, according to Amnesty International - means organs could be readily available.
Wealthy Chinese and foreigners are willing to pay hundreds of thousands of dollars. Brokers stand ready to arrange transplants in weeks rather than the months or years it often takes in the West. It raises a question: Might China be executing prisoners to stock the organ market?
"There's a very clear demand, and where there's a demand, there's a market," says Henk Bekedam, head of the World Health Organization's China office. "This is a market that needs to be very strongly regulated in order to guide it properly."
Earlier this year, Chinese Foreign Ministry spokeswoman Jiang Yu said that "the use of organs from executed people is done very prudently."
"We have relevant rules and regulations requiring the written consent of the individual donor and the ratification of relevant health departments and courts," Jiang said. "The policy of the Chinese government is very strict."
In the case of Meng's son, city and court officials in Xi'an did not respond to repeated fax and telephone requests for details. The Health Ministry refused to answer a faxed inquiry, referring all questions to its Web site, which only provides general health information and never goes into specific cases.
Meng says her son, Wu Zhenjiang, did not mention donating his organs in his five-page handwritten will, handed to her by court officials after he was executed by gunshot (the most common method in China although lethal injection is gaining ground).
"It's part of his body. It's something he definitely would have written in his will if he wanted to do it," she said.
One family from a village outside the northern port city of Qinhuangdao detailed the horror of seeing their executed son's mutilated corpse.
"His right eye was gone and there was a two-centimeter (0.8-inch) cut on the eye socket. They say it was a gunshot," wrote Ri Chunfen and Ma Yujun in a letter to The Associated Press. "We also found a long cut on his stomach which was sewn up. The court official finally admitted that a liver and two kidneys had been taken away."
The account appears consistent with a report by Human Rights Watch, which quoted an unnamed former Shanghai police official as saying he witnessed the execution of a prisoner whose corneas were needed for a transplant.
"In order to preserve the eyes, the prisoner was shot in the heart," the New York-based rights group quoted the official as saying. "This is what happens. If they need the heart, the prisoner would be shot in the head instead."
Foreigners who have had transplants in China have become part of an uncomfortable debate.
Eric De Leon, a 51-year-old construction superintendent from San Mateo, Calif., received a liver transplant in Shanghai last year. He then found himself criticized by readers of his Web log and by a columnist for Real Clear Politics, a political Web site, for supporting China's organ trade.
De Leon defended his actions, saying that he was unaware of any controversy before his surgery. He said doctors told him the liver was from a 20-year-old heroin dealer killed in a border skirmish.
"I don't think I did anything wrong, to be honest," De Leon said in a telephone interview.
"If a person died just for me, I'd feel bad. But if a guy was a murderer or died in a motorcycle accident or a car accident and a liver came open, so be it." For Meng, the issue also breaks down clearly. "All I want to know is what happened to my son," she says. "I gave birth to him, I raised him. Why didn't they let me see him one last time? Why didn't they let me say just one word to him?" Athletic and with a thick head of dark hair, Wu was a blood donor and a member of the youth league in Kuitun. He came to Xi'an in 2003 to study when he was 24, and worked part-time in an Internet cafe to support himself and send money home. One spring night in 2004, Wu refused entry to a group of men who didn't want to pay for using the computers. The next day, they came back. A fight ensued, spilling onto the street, according to court documents Meng read. Wu, his face bloodied and his fingers broken, pulled a fruit knife - a gift from his mother - and stabbed wildly at his attackers. One man died and another three were injured. Except for a brief court appearance in 2004, Meng never saw or spoke to her son again. Court documents show he was convicted of causing intentional harm and executed Jan. 13, 2005. She began her quest shortly after, and in August that year, she says she got to talking to an elderly man outside a Xi'an government building who told her he was a retired judge and offered to help. He said her son's body had likely been taken to a hospital for his organs. For 600 yuan ($77), he would help get her an audience with a court officer. Meng handed over half the amount - and never saw him again. But the seeds of doubt had been sown. Her suspicions hardened last year while in Beijing where she met a human rights activist. On their January trip to Xi'an, Meng and her 26-year-old daughter, Wu Junjie, rented a cramped, unheated room in a boarding house for $2.50 a day. They can barely afford bus fare and live on noodles and apples from their orchard. Bundled against the winter cold in layers of wool and bounced between city and provincial courts and lawyers' offices, their frustration grows. "They've been kicking responsibility around like a ball. They've been kicking me from one department to another," Meng says. At the Shaanxi Provincial High Court, Meng and Wu are asked to wait in the parking lot. Zhang Wei, a court official Meng has met before, eventually comes out to talk to them. He listens to Meng, who grows agitated and starts shouting and crying as she tries to explain her son's case. They are sent away after 20 minutes with Zhang's office number and a promise that he will "look into it." Three days after they arrive, Meng and her daughter go to one of the city's main crematoriums. There workers tell them that Wu Zhenjiang's body was brought in by a van from Xi'an Jiaotong University's School of Medicine. It was tagged No. 207. At the kidney transplantation center at a hospital affiliated with the school, Meng and Wu meet an unidentified man puffing on a cigarette, who says he had a kidney transplanted there seven years ago from an executed prisoner. "How do I know? It's an unspoken truth here," he says. "If you have money, anything is possible." A hospital official who would give only his family name, Huang, insisted that all organs came from family members. "We never did any organ transplant where organs came from other sources. We never did a transplant where organs came from executed persons," Huang says. "We have never heard of the case of Wu Zhenjiang." | 法律 |
2016-50/4389/en_head.json.gz/19962 | 1999A/2160 Court:
Hof van Beroep, Gent Parties:
Hoechst Trevira GmbH & Co KG v. N.V. Recospin
A Belgian buyer bought textiles from a German seller, which were delivered in successive instalments. The seller sued the buyer for payment of the price. The buyer counter-claimed for damages alleging of non-conformity of the goods. The first instance court with an interim decision appointed an expert to investigate the quality of the goods. The seller appealed that decision, claiming that the buyer could no longer rely on the lack of conformity since it did not give timely notice thereof within the reasonable time set forth in Art. 39 CISG, and that too much time had passed for an expert investigation on the existence of the alleged defects.
The Court applied CISG since the relevant conflict of law rules (i.e. the 1955 Hague Convention on the law applicable to international sales of goods) referred to the law of Germany, a contracting State (Art. 1(1)(a) CISG).
According to the Court, with respect to two deliveries, though the buyer did give notice to the seller within a reasonable time after discovery of the defects (Art. 39 (1) CISG), it could nevertheless no longer rely on the lack of conformity since it did not react to the seller's disclaimer of liability nor did it seek to appoint an expert investigation concerning the alleged lack of conformity. The buyer did so only several years later, which was considered to be too late since it is up to the buyer to prove the lack of conformity. The first instance decision appointing an expert was therefore not upheld.
had to be applied to find the applicable law. According to Article 3, the law of the seller had to be applied, thus German law. As Germany was party to CISG, CISG had to be applied. Notice of non-conformity had been given too late and the fact that the seller had delivered fibre to the buyer two years earlier did not mean that the buyer should have known the seller's production methods. The buyer did nothing for three years and then formulated a big counter-claim. This did not seem reasonable. The court granted the seller’s claim. The parties did not agree on an interest rate and the Belgian legal rate was applied. | 法律 |
2016-50/4389/en_head.json.gz/20171 | › Texas & Pacific Ry. Co. v. Marcus
Texas & Pacific Ry. Co. v. Marcus 237 U.S. 215 (1915)
U.S. Supreme CourtTexas & Pacific Ry. Co. v. Marcus, 237 U.S. 215 (1915)Texas & Pacific Railway Company v. MarcusNo. 790Submitted March 1, 1915Decided April 12, 1915237 U.S. 215ERROR TO THE CIRCUIT COURT OF APPEALS
FOR THE FIFTH CIRCUIT
A corporation created by an act of Congress has an inherent right to invoke the jurisdiction of this Court to review a judgment of the circuit court of appeals.
On the record in this case, this Court sees no reversible error, and affirms the judgment. Page 237 U. S. 216
The facts, which involve the validity of a judgment for damages for personal injuries, are stated in the opinion. Page 237 U. S. 217
Memorandum opinion by MR. CHIEF JUSTICE WHITE, by direction of the Court:
The Texas & Pacific Railway Company, a corporation created by an act of Congress, prosecutes this writ of error to reverse a judgment of the court below affirming one of the trial court entered on the verdict of a jury in favor of the defendant in error, awarding damages alleged to have been by her suffered through the negligence of the railway company. We pass from the motion to Page 237 U. S. 218 dismiss, as there is jurisdiction. Texas & Pacific Ry. Co. v. Hill, ante, p. 237 U. S. 208.
To understand the controversy, a statement of the circumstances from which it arose is essential. Immediately north of the depot of the railway company at Marshall, Texas, two tracks run east and west. At the time here in question, on the track farthest from the depot, the more northern of the two, there stood a train scheduled shortly to depart east for Shreveport, Louisiana. A party, including the defendant in error, accompanying a friend, who was leaving on such train, came to the depot and crossed over to the waiting train. While they were there, a train bound west for Texarkana, which was behind time, came in and was stopped on the track immediately north of the depot, and therefore stood between the track on which the Shreveport train was standing and the platform of the depot. When the party, after bidding goodbye to their friend, started to return to the depot, they found the Texarkana train barring their passage. The vestibules, however, between some or all of the cars of this train were open, and most of the party crossed through an open vestibule to the depot platform. When, however, the defendant in error was doing so, by a sudden jerking movement of the train, made without any notice or warning, as she alleged, she was thrown down and received the injury for which she sued. It is not traversed that usually persons wishing to go from the depot platform to a train standing on the northern track crossed the open vestibules on trains standing on the track nearest the depot. It was disputed, however, whether, on coming from a train standing on the farthest track, it was usual to cross an open vestibule of an intervening train for the purpose of reaching the depot. There was dispute as to whether notice was given of the movement of the Texarkana train.
The trial court gave to the jury full instructions concerning every aspect of the case, some of which were Page 237 U. S. 219 objected to on the ground that the tendency of the proof was not such as to justify the instructions. The court also refused to give certain instructions asked by the railway company, which either depended upon assumptions as to the condition of the proof or were equivalent only to an expression in different form of the contention concerning the tendency of the proof which formed the basis of the exception to the charges which were given.
Examining the whole record and considering all the propositions and arguments deemed as sustaining them pressed at bar, we are of opinion that all the contentions urged to show that reversible error exists, in ultimate analysis, rest upon assertions as to the existence or nonexistence of tendencies of the proof; in other words, in substance but assert that there was nothing in the case to justify its going to the jury for decision. When the case is thus resolved, we are clearly of the opinion that the propositions relied upon are without merit, and therefore that no reversible error exists, and the judgment below should be affirmed. As the grounds upon which this conclusion rests involve only a consideration of the evidence and the tendencies of the proof resulting from it, matters of no doctrinal concern, we again say that we see no necessity of doing more than announce our conclusion. Seaboard Air Line Ry. Co. v. Padgett, 236 U. S. 668; Texas & Pacific Ry. Co. v. Hill, supra. | 法律 |
2016-50/4389/en_head.json.gz/20172 | › Doremus v. Board of Education
Doremus v. Board of Education 342 U.S. 429 (1952)
U.S. Supreme CourtDoremus v. Board of Education, 342 U.S. 429 (1952)Doremus v. Board of Education of Borough of HawthorneNo. 9Argued January 31, 1952Decided March 3, 1952342 U.S. 429APPEAL FROM THE SUPREME COURT OF NEW JERSEY
A statute of New Jersey provides for the reading, without comment, of five verses of the Old Testament at the opening of each public school day. In a declaratory judgment action instituted by the two appellants, the State Supreme Court held that the statute did not violate the Federal Constitution. Appellants appealed to this Court. One of the appellants had sued as the parent of a public school child, and each had sued as a taxpayer.
Held: the appeal is dismissed for want of jurisdiction. Pp. 342 U. S. 430-435.
1. The cause is moot so far as it relates to the rights of the child in question, since she graduated from the public schools before the appeal was taken to this Court. Pp. 342 U. S. 432-433.
2. The facts stated by appellants as taxpayers were not sufficient to constitute a justiciable case or controversy within the jurisdiction of this Court, because they do not show such direct and particular financial interest as is necessary to maintain a taxpayer's case or controversy. Pp. 342 U. S. 433-435.
5 N.J. 435, 75 A.2d 880, appeal dismissed.
In a declaratory judgment action instituted by appellants in a New Jersey court to test the constitutionality of a statute of that State, the State Supreme Court held that the statute did not violate the Federal Constitution. 5 N.J. 435, 75 A.2d 880. An appeal to this Court is dismissed, p. 342 U. S. 435. Page 342 U. S. 430
This action for a declaratory judgment on a question of federal constitutional law was prosecuted in the state courts of New Jersey. It sought to declare invalid a statute of that State which provides for the reading, without comment, of five verses of the Old Testament at the opening of each public school day. N.J.Rev.Stat., 1937, 18:14-77. No issue was raised under the State Constitution, but the Act was claimed to violate the clause of the First Amendment to the Federal Constitution prohibiting establishment of religion.
No trial was held, and we have no findings of fact, but the trial court denied relief on the merits on the basis of the pleadings and a pretrial conference, of which the record contains meager notes. The Supreme Court of New Jersey, on appeal, rendered its opinion that the Act does not violate the Federal Constitution, in spite of jurisdictional Page 342 U. S. 431 doubts which it pointed out, but condoned as follows:
"No one is before us asserting that his religious practices have been interfered with or that his right to worship in accordance with the dictates of his conscience has been suppressed. No religious sect is a party to the cause. No representative of, or spokesman for, a religious body has attacked the statute here or below. One of the plaintiffs is 'a citizen and taxpayer;' the only interest he asserts is just that, and in those words, set forth in the complaint and not followed by specification or proof. It is conceded that he is a citizen and a taxpayer, but it is not charged, and it is neither conceded nor proved that the brief interruption in the day's schooling caused by compliance with the statute adds cost to the school expenses or varies by more than an incomputable scintilla the economy of the day's work. The other plaintiff, in addition to being a citizen and a taxpayer, has a daughter, aged seventeen, who is a student of the school. Those facts are asserted, but, as in the case of the co-plaintiff, no violated rights are urged. It is not charged that the practice required by the statute conflicts with the convictions of either mother or daughter. Apparently the sole purpose and the only function of plaintiffs is that they shall assume the role of actors so that there may be a suit which will invoke a court ruling upon the constitutionality of the statute. Respondents urge that, under the circumstances the question is moot as to the plaintiffs appellants, and that our declaratory judgment statute may not properly be used in justification of such a proceeding. Cf. New Jersey Turnpike Authority v. Parsons, 3 N.J. 235, 69 A.2d 875; Massachusetts v. Mellon, 262 U. S. 447, at 262 U. S. 488 (1923). The point has substance, but we have nevertheless concluded to dispose of the appeal Page 342 U. S. 432 on its merits."
5 N.J. 435, 439, 75 A.2d 880, 881-882 (1950).
Upon appeal to this Court, we considered appellants' jurisdictional statement, but, instead of noting probable jurisdiction, ordered that
"Further consideration of the question of the jurisdiction of this Court in this case and of the motion to dismiss or affirm is postponed to the hearing of the case on the merits."
On further study, the doubts thus indicated ripen into a conviction that we should dismiss the appeal without reaching the constitutional question.
The view of the facts taken by the court below, though it is entitled to respect, does not bind us, and we may make an independent examination of the record. Doing so, we find nothing more substantial in support of jurisdiction than did the court below. Appellants, apparently seeking to bring themselves within Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203, assert a challenge to the Act in two capacities -- one as parent of a child subject to it, and both as taxpayers burdened because of its requirements.
In support of the "parent and school-child" relationship, the complaint alleged that appellant Klein was parent of a seventeen-year-old pupil in Hawthorne High School, where Bible reading was practiced pursuant to the Act. That is all. There is no assertion that she was injured, or even offended thereby, or that she was compelled to accept, approve, or confess agreement with any dogma or creed, or even to listen when the Scriptures were read. On the contrary, there was a pretrial stipulation that any student, at his own or his parents' request, could be excused during Bible reading, and that, in this case, no such excuse was asked. However, it was agreed upon argument here that this child had graduated from the public schools before this appeal was taken to this Court. Obviously Page 342 U. S. 433 no decision we could render now would protect any rights she may once have had, and this Court does not sit to decide arguments after events have put them to rest. United States v. Alaska Steamship Co., 253 U. S. 113, 253 U. S. 116.
The complaint is similarly niggardly of facts to support a taxpayer's grievance. Doremus is alleged to be a citizen and taxpayer of the New Jersey and of the Township of Rutherford, but any relation of that Township to the litigation is not disclosed to one not familiar with local geography. Klein is set out as a citizen and taxpayer of the Borough of Hawthorne in the New Jersey, and it is alleged that Hawthorne has a high school supported by public funds. In this school, the Bible is read, according to statute. There is no allegation that this activity is supported by any separate tax, or paid for from any particular appropriation, or that it adds any sum whatever to the cost of conducting the school. No information is given as to what kind of taxes are paid by appellants, and there is no averment that the Bible reading increases any tax they do pay, or that, as taxpayers, they are, will, or possibly can be, out of pocket because of it.
The State raised the defense that appellants showed no standing to maintain the action, but, on pretrial conference, perhaps with premonitions of success, waived it and acquiesced in a determination of the federal constitutional question. Whether such facts amount to a justifiable case or controversy is decisive of our jurisdiction.
This Court has held that the interests of a taxpayer in the moneys of the federal treasury are too indeterminable, remote, uncertain, and indirect to furnish a basis for an appeal to the preventive powers of the Court over their manner of expenditure. Alabama Power Co. v. Ickes, 302 U. S. 464, 302 U. S. 478-479; Massachusetts v. Mellon, 262 U. S. 447, 262 U. S. 486 et seq. The latter case recognized, however, that
"The interest of a taxpayer of a municipality in Page 342 U. S. 434 the application of its moneys is direct and immediate, and the remedy by injunction to prevent their misuse is not inappropriate."
262 U.S. at 262 U. S. 486. Indeed, a number of states provide for it by statute or decisional law and such causes have been entertained in federal courts. Crampton v. Zabriskie, 101 U. S. 601, 101 U. S. 609. See Massachusetts v. Mellon, supra, at 262 U. S. 486. Without disparaging the availability of the remedy by taxpayer's action to restrain unconstitutional acts which result in direct pecuniary injury, we reiterate what the Court said of a federal statute as equally true when a state Act is assailed:
"The party who invokes the power must be able to show not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers in come indefinite way in common with people generally."
Massachusetts v. Mellon, supra, at 262 U. S. 488.
It is true that this Court found a justiciable controversy in Everson v. Board of Education, 330 U. S. 1. But Everson showed a measurable appropriation or disbursement of school district funds occasioned solely by the activities complained of. This complaint does not.
We do not undertake to say that a state court may not render an opinion on a federal constitutional question even under such circumstances that it can be regarded only as advisory. But, because our own jurisdiction is cast in terms of "case or controversy," we cannot accept as the basis for review, nor as the basis for conclusive disposition of an issue of federal law without review, any procedure which does not constitute such.
The taxpayer's action can meet this test, but only when it is a good faith pocketbook action. It is apparent that the grievance which it is sought to litigate here is not a direct dollars and cents injury, but is a religious difference. If appellants established the requisite special injury necessary to a taxpayer's case or controversy, it would Page 342 U. S. 435 not matter that their dominant inducement to action was more religious than mercenary. It is not a question of motivation, but of possession of the requisite financial interest that is, or is threatened to be, injured by the unconstitutional conduct. We find no such direct and particular financial interest here. If the Act may give rise to a legal case or controversy on some behalf, the appellants cannot obtain a decision from this Court by a feigned issue of taxation.
The motion to dismiss the appeal is granted.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE REED and MR. JUSTICE BURTON concur, dissenting.
I think this case deserves a decision on the merits. There is no group more interested in the operation and management of the public schools than the taxpayers who support them and the parents whose children attend them. Certainly a suit by all the taxpayers to enjoin a practice authorized by the school board would be a suit by vital parties in interest. They would not be able to show, any more than the two present taxpayers have done, that the reading of the Bible adds to the taxes they pay. But if they were right in their contentions on the merits, they would establish that their public schools were being deflected from the educational program for which the taxes were raised. That seems to me to be an adequate interest for the maintenance of this suit by all the taxpayers. If all can do it, there is no apparent reason why less than all may not, the interest being the same. In the present case, the issues are not feigned; the suit is not collusive; the mismanagement of the school system that is alleged is clear and plain.
If this were a suit to enjoin a federal law, it could not be maintained, by reason of Massachusetts v. Mellon, 262 U. S. 447, 262 U. S. 486. But New Jersey can fashion her own Page 342 U. S. 436 rules governing the institution of suits in her courts. If she wants to give these taxpayers the status to sue (by analogy to the right of shareholders to enjoin ultra vires acts of their corporation), I see nothing in the Constitution to prevent it. And where the clash of interests is as real and as strong as it is here, it is odd indeed to hold there is no case or controversy within the meaning of art. III, § 2 of the Constitution. | 法律 |
2016-50/4389/en_head.json.gz/20187 | Home» About » Careers, Internships and Volunteer Opportunities » Transgender Law Center Hires Deputy Director & Staff Attorney
Transgender Law Center Hires Deputy Director & Staff Attorney
Transgender Law Center is thrilled to welcome Kris Hayashi, Deputy Director, and Sasha Buchert, Staff Attorney, to our growing team. Kris and Sasha both have extensive experience in LGBT and social justice movements, and we look forward to working together to create a world in which everyone can live free from discrimination based on their gender identity or expression.
Kris Hayashi has been active in social, racial and economic justice organizing for over 20 years. For the last ten years Kris served as the Executive Director/Co-Director of the Audre Lorde Project, a Lesbian, Gay, Bisexual, Two Spirit, Trans and Gender Non Conforming People of Color organizing center based in New York City. Previously he served as a Trainer/Organizer at Western States Center in Portland, Oregon and as Executive Director of Youth United for Community Action – a youth organizing group in California, led by young people of color organizing for social and environmental justice.
Sasha Buchert is joining us from Basic Rights Oregon, the state’s chief LGBT advocacy organization where she was the Communications Manager, and most recently the Transgender Policy Organizer. She is a member of Basic Rights Oregon’s legal advisory group where she has worked on a wide range of transgender policy issues, and is a member of the Transgender Justice Working Group, a group of community members driving transgender justice forward in the state. She is a board member of the LGBT Bar Association of Oregon, and is the current chair of the Oregon State Hospital Advisory Board and is the first openly transgender person to be appointed to an Oregon State Board. Sasha often presents “Know Your Rights” talks addressing LGBT legal rights and has hosts a community radio program focused on queer culture. She received her J.D. from Willamette University. | 法律 |
2016-50/4389/en_head.json.gz/20211 | Spindelegger: "Great success for judge Renate Winter"
Vice-Chancellor congratulates the successful Austrian candidate on her appointment to the UN Committee on the Rights of the ChildVienna, 19 December 2012 – "I am delighted for Renate Winter and congratulate her most warmly on her appointment to the UN Committee on the Rights of the Child. She is the first Austrian to become a member of this important body. As a former juvenile court judge, international judge and as an expert in children's rights, Mag. Winter has gained decades of experience in the juvenile justice system and in implementing the UN Convention on the Rights of the Child in national law. Her election is both a token of appreciation for her impressive professional career and a confirmation of her outstanding qualification for this task", Vice-Chancellor and Foreign Minister Michael Spindelegger said in his first reaction to Winter's appointment. "With her experience and her unrelenting commitment and dedication to the rights of children and young people, judge Winter will certainly contribute a most important input to the work in the UN Committe on the Rights of the Child. I wish her every success for this important task."Mag. Renate Winter was elected in New York on 18 December. She had already been elected in the first round of voting and with 153 votes she achieved the second highest number of votes of approval of all candidates. 15 candidates from all regional groups of the United Nations had been up for election for 9 vacant seats.The UN Committee on the Rights of the Child monitors the implementation of the UN Convention on the Rights of the Child by the 193 states that have so far joined the Convention. The Committee also regularly publishes general comments on the interpretation of the individual provisions of the convention, thus contributing to the further development of children's rights. The Committee is composed of 18 independent experts who are elected by the member states for a period of four years. The membership of the nine newly appointed experts starts on 1 March 2013.Contact:Federal Ministry for European and International AffairsPress Department Tel.: ++43 (0) 50 1150-3320Fax: ++43 (0) 50 1159-213 e-mail: abti3(at)bmeia.gv.at You are here:
StartpageThe MinistryPressAnnouncements2012Spindelegger: "Great success for judge Renate... | 法律 |
2016-50/4389/en_head.json.gz/20278 | Hornblower
Organizations & Affiliations
[email protected]
LOCAL ATTORNEY APPOINTED GENERAL COUNSEL TO LEADING SF BUSINESS February 12, 2008
San Francisco, CA – Hornblower Cruises & Events has appointed Richard C. Jacobs as Vice President and General Counsel for the organization. In this newly created position, Jacobs will provide legal advice to Hornblower ports in the Bay Area, Los Angeles, Orange County and San Diego, as well as National Park Service concessions Alcatraz Cruises and Statue Cruises.
Jacobs has represented clients in both the United States Supreme Court and the California Supreme Court. He has been named one of Northern California’s “Super Lawyers” by Law and Politics for the last three years. His cases have included such issues as: toxics, land use regulation, the California Environmental Quality Act, general plan and zoning, Coastal Act regulation, initiative and referendum law, the federal and state Endangered Species Acts, water quality, and water rights, among other significant environmental issues.
Jacobs has practiced law for over 30 years, most recently as Head of Environmental and Land Use Law with the San Francisco-based firm of Howard, Rice, Nemerovski, Canady, Falk & Rabkin. Prior to that he was a Deputy Attorney General and Special Assistant Attorney General for the State of California.
“We are pleased to have Rich join our crew at Hornblower. His expertise will help this company significantly as we continue to grow. His knowledge and past experience will serve to strengthen our relationships in the communities where we do business,” said Hornblower CEO Terry MacRae.
“Rich’s expertise will also further demonstrate Hornblower’s commitment to protecting the environment. His knowledge will lead to even more advancements within this company, and we hope our environmentally friendly practices will be adopted by both our guests and our partners in the community,” added MacRae. Jacobs has served as the Principal Attorney to the California Coastal Commission, has served on a number of task forces and committees for the State of California, has authored legal papers and has been an instructor and panelist for the Judicial Council’s Center for Judicial Education and Research.
He received an A.B. from the University of California at Riverside and a J.D. from the University of California at Berkeley. He resides in Piedmont with his family.
Hornblower Cruises & Events has been the leading charter yacht and dining cruise company in California for over 28 years. Hornblower has a total of 35 vessels in use in San Francisco, Berkeley, Long Beach, Newport Beach, Marina del Rey and San Diego. Subsidiary companies, Alcatraz Cruises and Statue Cruises, both National Park Service concessioners, provide water transportation services to Alcatraz Island, the Statue of Liberty National Monument and Ellis Island Immigration Museum. Quick Links | 法律 |
2016-50/4389/en_head.json.gz/20301 | Download our plug-in for Chrome to get customizable, real-time news alerts Prodigal Son Returns To Weil Gotshal
By Anne Urda Law360, New York (March 8, 2007, 12:00 AM EST) -- One of the most renowned bankruptcy experts in the country has returned home to Weil, Gotshal & Manges and the widely respected practice he founded decades ago, but the question of whether both will be able to recapture past glory still remains.Harvey Miller left Weil, Gotshal in 2002 after 32 years at the firm to join investment bank Greenhill & Co. amid rumors he was upset over the New York powerhouse’s retirement package.Despite the alleged rancor, Miller’s once and future firm has welcomed him...
Akin Gump
American International Group Inc.
Intelsat SA
Principal Financial Group, Inc.
Silver Point Capital LP | 法律 |
2016-50/4389/en_head.json.gz/20378 | More Pro Tennis Referee Lois Goodman Sues
LOS ANGELES (AP) — A professional tennis referee who was charged, then cleared of bludgeoning her husband to death with a coffee cup has sued the Los Angeles Police Department, the county coroner's department, and others for false arrest and malicious prosecution.
Lois Ann Goodman alleged in a federal lawsuit released by her attorney Friday that she suffered humiliation, damage to her career and physical pain from her confinement in jail when first arrested in August 2012.
Goodman, then 70, was accused of killing her 80-year-old husband to death with a coffee cup and using its broken handle to stab him. She said she was innocent, and her lawyers suggested Alan Goodman died in an accidental fall.
Prosecutors dismissed charges four months later, saying they had received new information and had insufficient evidence to charge her.
But before that, Goodman's suit says she was subjected to emotional distress when police waited until she had traveled to New York to referee the U.S. Open and conducted her arrest in front of media at a New York hotel.
She accused a police officer of trying to pressure her to confess and said the coroner's finding of homicide was wrong.
Defense attorneys later revealed that her DNA wasn't found on the coffee mug.
Goodman said she spent over $100,000 on her defense, borrowing and selling assets to cover costs.
She hired a renowned medical examiner and a polygraph expert to help show her innocence.
After the dismissal she was reinstated as a referee but said she drew less important assignments than before.
"To this day, Mrs. Goodman suffers on a daily basis," said the lawsuit. "The public humiliation is unending. There are whispers and pointed fingers wherever she goes."
Although the suit said her reputation has suffered, the attorney who won her dismissal, Alison Triessl, said Goodman will be working in referee duties at the upcoming U.S. Open.
A call to the City Attorney's office to seek comment on the lawsuit was not immediately returned. | 法律 |
2016-50/4389/en_head.json.gz/20385 | Action Alert from the National Anti-Vivisection Society May 29, 2014
Legal Issues, Posts
Each week the National Anti-Vivisection Society (NAVS) sends out an e-mail alert called Take Action Thursday, which tells subscribers about current actions they can take to help animals. NAVS is a national, not-for-profit educational organization incorporated in the State of Illinois. NAVS promotes greater compassion, respect, and justice for animals through educational programs based on respected ethical and scientific theory and supported by extensive documentation of the cruelty and waste of vivisection. You can register to receive these action alerts and more at the NAVS Web site.
This week’s Take Action Thursday urges action against federal bills that would give a preference to hunters in the use of public land. It also celebrates initiatives in New York and other states to pass animal abuser registries, and updates the unfortunate progress of a bill in Louisiana that will keep Tony the Truck Stop Tiger in his solitary cage.
Last week, the Senate introduced another version of the Bipartisan Sportsmen’s Act of 2014, S 2363. The Senate has by-passed referral to a committee and has put this bill directly on the Senate calendar. This is particularly troubling because the House already passed a very similar bill, HR 3590, the Sportsmen’s Heritage and Recreational Enhancement Act, or SHARE Act, in February.
Proponents of these bills have been aggressive in pushing them forward. The Senate bill has 37 sponsors, more than one third of the chamber. Both chambers have been considering multiple versions of the same legislation this session and for the past several years. In the Senate, S 1335 and S 1996 are virtually identical bills. In the House, HR 2799 and HR 3197 were introduced in 2013, while HR 3590 was given full consideration.
While these bills differ slightly from one another, they all propose specific changes in policy that are harmful to animals, animal habitats, and human health. They would:
increase the allowed share of federal money used to build or expand firearms or bow and arrow target practice ranges under the Pittman-Robertson Wildlife Restoration Act to 90 percent of the budget;
require federal land management decisions to include consideration to hunters and fishermen in granting access to public lands, potentially opening up tens of thousands of acres of federal parks and recreation land to hunting and trapping;
ensure that hunting and fishing would be a cornerstone in “conservation” plans for wildlife, despite the fact that many federal park lands were intended to be sanctuaries for wildlife;
allow for the importation of polar bear trophies from Canada if it can be proven the kill occurred prior to May 15, 2008. Such an action promotes the “glory” of big-game hunting that exacerbates the challenge of protecting such animals, while causing enforcement problems in verifying the date of the kill for any such trophy;
exclude “shot, bullets and other projectiles, propellants, and primers” from the protections of the Toxic Substances Control Act (a law that regulates the use of harmful chemicals and metals), even though lead and propellants have been found to be toxic to our environment and animals; and
exclude any and all sport fishing equipment—which has harmful components and lures that end up abandoned in waterways—from the Toxic Substances Control Act.
It is critical that you contact your U.S. Senators and tell them that the provisions of these bills are unacceptable to the American people. These bills are driven by a powerful pro-hunting minority, but their passage will have a negative impact on everyone, not just because it may limit access to some national parks but because it would allow toxic lead shot and fishing ballast to poison animals and our waterways.
Please contact your U.S. Senators TODAY and ask that they OPPOSE these bills. State Legislation
The fight against animal abuse has taken another step forward in New York this week as the Nassau County legislators unanimously adopted an ordinance creating the Nassau County Animal Abuser Registry. Anyone convicted of animal abuse after May 2014 is required to register. Abusers will be prohibited from buying or adopting animals, and sellers and adopters will have an obligation to check the registry before making any transaction. The registry will be posted online through the Nassau County Police Department and the Nassau County Society for the Prevention of Cruelty to Animals. The purpose of this—as with all animal abuser registries—is to provide a resource for police, shelters and adoption centers to help identify convicted animal abusers who are involved in new allegations of abuse or who are trying to adopt an animal who may be put in harm’s way. There are several states still considering the adoption of an animal abuser registry this session, including New York, which is proposing several different versions of a state-wide registry.
New York: A 6951, A 7363, S 1594, S 2305, and S 5036
Illinois: HB 4188, HB 5978
Massachusetts: S 807, S 1914
Michigan: SB 377, SB 378
New Jersey: S 466, A 1613
Vermont: S 9
Virginia: SB 32
If you live in any of these states, please call your state legislators and ask them to SUPPORT the creation of a state animal abuser registry. Legislative Update
In Louisiana, SB 250 passed the Senate after a second vote on reconsideration. The bill has been sent to the House for its consideration. The bill would exempt certain persons from the requirements for possessing big exotic cats. This amendment would redefine what is considered “previous ownership” to include anyone who can show that they lawfully obtained their animal before August 15, 2006. This legislation would specifically benefit Michael Sandlin, owner of Tony the Truck Stop Tiger, because he has owned Tony since 2000, despite successful litigation that held that Sandlin was ineligible for an ownership license. Don’t sentence Tony to a life as a truck stop spectacle. Please ensure that the House rejects this bill and allows Tony to be moved to live the remainder of his life in a more humane environment.
If you live in Louisiana, please call your state Representative TODAY and ask him/her to OPPOSE this bill. Don’t wait to make your voice heard! For a weekly update on legal news stories, visit the Animal Law Resource Center.
"Hunting heritage" lawsAnimal abuser registriesBipartisan Sportsmen’s Act of 2014HuntingIllinoisLouisianaMassachusettsMichiganNew JerseyNew YorkPublic landSportsmen's Heritage and Recreational Enhancement ActTigersToxic Substances Control ActVermontVirginia PreviousSpeciesism: If You Aren’t Angry, You Aren’t Paying Attention
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2016-50/4389/en_head.json.gz/20400 | California To Appeal Prison Ruling to U.S. Supreme Court
California Governor Arnold Schwarzenegger plans to take the state’s prison overcrowding problem to the U.S. Supreme Court this week.
Last month, a panel of federal judges ordered California to cut more than 40-thousand inmates over two years. The judges gave the state until September 18th to come up with a plan. Now the Schwarzenegger Administration is asking the panel to stay that order while it appeals to the U.S. Supreme Court. Aaron McLear is Schwarzenegger’s Press Secretary:
“We believe that the state can better manage its prison population. We don’t nee the federal government to do that for us. That’s why we’re seeking an appeal. That’s why we’re seeking a stay.”
In the court documents, California’s Attorney General argues that a big reduction in the inmate population would increase crime in the state. There are currently about 150-thousand inmates in prison – close to double the intended capacity. Legislative efforts to reduce that have stalled. | 法律 |
2016-50/4389/en_head.json.gz/20442 | Mark Prothero Article, in Washington Super Lawyers Magazine, Wins SPJ's Excellence in Journalism Prize
By Erik Lundegaard of Super Lawyers on Tuesday, May 24, 2011. We're pleased to announce that "The Green River Killer's Lawyer," a profile of Mark Prothero, a criminal defense attorney with Hanis Irvine Prothero in Kent, Wash., which appeared in the July 2010 issue of Washington Super Lawyers magazine, was honored last weekend in the Excellence in Journalism Contest sponsored by the Northwest chapter of the Society of Professional Journalists. It took second place in the category of Magazine Personalities.Congratulations to Harris Meyer, the writer, and Beth Taylor, the editor. The competition considered articles submitted from Alaska, Washington, Oregon, Idaho and Montana publications.Prothero co-led an eight-lawyer team that negotiated a plea deal for Gary Ridgway, known as Seattle's Green River Killer, sparing his life in the slayings of nearly 50 women over a 20-year span. Prothero spent hours, days, weeks with Ridgway, gathering details about the murders and locations of the bodies. As the only member of the defense team allowed to know such facts-in case a plea deal couldn't be reached-Prothero harbored his thoughts alone. "It weighed on me," he said in the article. "I had to consciously put that out of mind or I couldn't sleep."In April 2003, King County Prosecuting Attorney Norm Maleng agreed to consider a plea deal. Prothero said it was "a huge relief in terms of what I knew about where the bodies were."Ridgway is serving 48 consecutive life sentences in a Washington state prison. King County Superior Court Judge Brian Gain, who initially oversaw the case, told us, "Mark and the other attorneys serve as an example of how dedicated, professional attorneys should work."In 2006, Prothero published Defending Gary: Unraveling the Mind of the Green River Killer. Writing the book and giving presentations on the case, he says, "have been my catharsis."--Adrienne Schofhauser Tags: Green River Killer, Hanis Irvine Prothero, Mark Prothero, Washington Super Lawyers Tweet Get Updates About New Blog Posts | 法律 |
2016-50/4389/en_head.json.gz/20551 | Jon Tatting Community & People
NB man, 21, pleads guilty to arson fire
Published March 13, 2013 at 9:34 am The 21-year-old North Branch man who was charged in connection with the Nov. 4 arson fire at the North Branch Veterinary Hospital has been sentenced following his guilty plea to second degree arson in Chisago County District Court.
Ryan K. Ortlepp
Ryan Keith Ortlepp pleaded guilty to the top count, while a second charge, deemed a gross misdemeanor, was dismissed. His sentencing Feb. 27 was amended March 11 by Judge Schoffelman. An 18-month prison sentence was stayed for 10 years on the condition that he comply with the terms of his sentence, according to Chisago County Attorney Janet Reiter.
Ortlepp will serve 120 days in the local jail, with credit for time already served. He will be required to remain law abiding, abstain from alcohol and all non-prescribed controlled substances and submit to random testing. He also is required to comply with the recommendations from his evaluation and attend cognitive skills training and pay a fine of $70, Reiter said.
Further, he will be required to make payments toward restitution (to be determined) to the victim, which is the veterinary hospital. Ortlepp is prohibited from carrying firearms, will be required to submit a DNA sample to the Bureau of Criminal Apprehension and stay 75 yards away from the North Branch Veterinary Hospital.
City police and multiple fire departments responded to the veterinary hospital fire around 3:29 a.m. Sunday, Nov. 4, 2012. Five dogs and a cat were rescued, and there were no injuries.
Confirming it an act of arson, the State Fire Marshal initially assessed the blaze started when someone used a lighter to ignite items contained within the recycling cans outside the building’s southeast area. The damage to the building was estimated to be at least $20,000.
A reward of up to $2,500 had been offered for information leading to an arrest, while a string of similar fires and arson attempts — including a dumpster fire around the same time as and near the vet hospital and a Nov. 2 dumpster fire at the Pizza Pub — had been done in the city’s central business district since earlier that spring.
Dr. Al Kemplin, owner of the veterinary hospital at 38875 12th Ave. since 1999, said he was initially “stunned with disbelief” when authorities alerted him of the early morning fire by phone call. His dog, Tria, was one of the animals rescued by responding authorities who either heard the dogs barking or thought to check inside due to the nature of the business.
By the time Kemplin arrived, the fire was out but not before it caused extensive roof and utility damage on the southeast corner of the building. Still, the business remained open in the days following, with staff taking phone calls and walk-in inquiries from pet owners.
The hospital then was temporarily relocated to a space behind AmericInn, next to Perkins, in North Branch where staff was back to serving clients Nov. 12. Meantime, work continues on the hospital building that was set ablaze.
Filed Under: arson, must read, North Branch Veterinary Hospital, Ryan Ortlepp Post navigation | 法律 |
2016-50/4389/en_head.json.gz/20569 | 1) REFERENCES
Commission Opinion [COM(97) 2001 final - Not published in the Official Journal]
Commission Report [COM(98) 700 final - Not published in the Official Journal]
Commission Report [COM(2000) 705 final - Not published in the Official Journal]
Commission Report [COM(2001) 700 final - SEC(2001) 1748 final - Not published in the Official Journal]
Commission follow-up Report [COM(2003) 675 final - SEC(2003) 1205 - Not published in the Official Journal].
Treaty of Accession to the European Union [Official Journal L 236 of 23.09.2003]
In its July 1997 Opinion the European Commission considered that, in view of the continuing progress towards legislative alignment, and provided that this was accompanied by the necessary structural adjustment of the industry, Hungary should be able to meet European Community requirements in the audiovisual sector in the next few years.
The November 1998 Report noted that progress had been made in some areas, in particular through the transposal of the Television Without Frontiers Directive, but it also stressed the need to make a special effort to bring national legislation into line with the Community acquis.
The October 1999 Report noted that Hungarian legislation was to a large extent aligned with the acquis. No significant progress had been made in this area since the November 1998 report, however.
The November 2000 Report indicated that little progress had been made in the audiovisual sector in 2000.
In its November 2001 Report, the European Commission showed that no progress had been made in the audiovisual sector, while in the cultural sector preparatory measures had continued with a view to allowing participation in Community activities.
The October 2002 Report emphasised the considerable progress made in the alignment of Hungary's legislation with the acquis in the audiovisual sector.
The November 2003 Report indicates that Hungry partly meets the audiovisual requirements for accession.
The Treaty of Accession was signed on 16 April 2003 and accession took place on 1 May 2004.
COMMUNITY ACQUIS
In the context of the internal market, the audiovisual acquis is intended to ensure the provision and free movement of audiovisual services within the EU as well as the promotion of the European programme industry. The acquis is contained in the Television Without Frontiers Directive, which is applicable to all broadcasters regardless of mode of transmission (terrestrial, satellite, cable) or whether private or public, and lays down basic rules on transfrontier broadcasting. The main points are:
to ensure the free movement of television broadcasts throughout Member States;to promote the production and distribution of European audiovisual products (by laying down a minimum quota of broadcasting time for European products and those by independent producers);to set basic standards for television advertising;to provide for the protection of minors and allow the right of reply.
The European Association Agreement provides for cooperation in the promotion and modernisation of the audiovisual industry, and the harmonisation of regulatory aspects of audiovisual policy.
The Television Without Frontiers Directive is one of the measures to be adopted by the CEECs under Stage I of the White Paper on the countries of Central and Eastern Europe and the internal market of the Union (1995).
The legal framework for the audiovisual sector is determined by the 1996 Act on Radio and Television Services. This Act led to the dismantling of the State's information monopoly and established the National Radio and Television Board, which is responsible for working out ratings, supervising the media, monitoring programmes, and controlling services.
In October 1998, Hungary enacted legislation implementing the Council of Europe Convention on Transfrontier Television. It also transposes the Community Television without Frontiers Directive. Efforts must be continued to ensure effective application of the provisions of the Convention, especially as regards satellite broadcasting.
In July 2002 the Hungarian Parliament finally approved the new Media Act. Once this is fully in force, the Commission feels that the audiovisual acquis will essentially have been transposed into Hungarian law. Certain provisions, including on European works, will enter into force from the date of accession. Provisions on discrimination based on nationality will be abrogated at the same time. The rules on exclusive broadcasting rights will enter into force after a certain delay, but before the date of accession.
The Ministry of National Cultural Heritage and the Ministry of Justice are responsible for broadcasting legislation. The National Radio and Television Board is the Hungarian regulatory and monitoring body with monitoring and sanctioning powers. It is an independent legal entity reporting directly to Parliament. With the adoption of the new law, further strengthening of the National Radio and Television Board may be required. The Commission feels that transparency should be further increased, in particular concerning frequency allocation and the distribution of funds. Efforts should also be made to improve reporting capacities on broadcasting activities.
In 2003, the Commission Report emphasises that Hungry still needs to adapt its national provisions in the field of language policy. The Commission considers the administrative capacity needed to implement the audiovisual acquis to be satisfactory.
In the field of culture, Hungary has been participating in the Culture 2000 framework programme since 2001 and is continuing to adapt its structures in order to take part in Community activities. | 法律 |
2016-50/4389/en_head.json.gz/20641 | IPBiz
Intellectual property news affecting business and everyday life
The Supreme Court will visit an 1887 statute on damages for infringement of design patents in Samsung v. Apple
The Supreme Court has granted cert on the design patent damages question presented in Samsung v. Apple:
Where a design patent is applied to only a component of a product, should an award of infringer’s profits be limited to those profits attributable to the component?
See the 2015 IPBiz post: Design patent damages stuck in the year 1887? , including the text
The no apportionment language (i.e. disgorgement of infringer’s ‘total profits’) was placed in the Patent Act in 1887 in response to a 1886 U.S. Supreme Court case regarding infringement of a design patent on a carpet design, whereby the Court said the design patentee was only entitled to 6 cents in damages Recall, as to patent history, the light bulb wars were going on in the 1880s. To get a flavor of sentiment in the year 1886,
one has a statement by E. H. Johnson, President of the Edison Electric Light Company:
"The fact that Mr. Edison invented the incandescent lamp in the form in which it is now presented by all electric light companies was so widely proclaimed by the publication thereof in every class of literature at the time of the invention, that it would seem very like an insult to the intelligence of the community to recall it. Indeed, a retrospective view of the history of the great invention is rendered unnecessary by the fact that even the infringing companies themselves do not dwell upon their claim to the ownership of original patents, but fortify their position by the assertion that Edison's patents are invalid and open to the public, and offer in corroboration of their statement the apparent apathy of the Edison Company in the matter of defending them." Also, Edison's first design patent titled --Design for an incandescent electric lamp -- was to a light bulb design:
Publication number USD12631 S Publication type Grant Publication date Dec 27, 1881 Filing date Nov 30, 1880 Heretofore the glass globes used to inclose the carbons of incandescent lamps have been made either of a spherical shape or in the form, when viewed in section, of an ellipse elongated at the ends. The leading feature of my design consists of having the upper portion of the globe of the form (when viewed in section) of a semicircle and the lower part gradually tapering down to the bottom, where it is set into a socket. The widest portion of the globe is from A to A, and the form of the globe above these points is a half-sphere, except when it is broken by the projection a, which is occasioned by the breaking olf of the stem of glass remaining after blowing the globe. Below the points A A the diameter of the globe becomes smaller until at the points B B. When it is set into the socket it is less than one-halfthe diameter A A. It will be seen that the globe is thus approximately pear-shaped. What I claim is- The design for incandescent electric lamps herein described and shown. Edison's key light bulb patent (223,898) was filed Nov. 4, 1879, a few weeks before the filing of the design patent.
**For a popular account of the cert decision, see USAToday:
http://www.usatoday.com/story/money/2016/03/21/supreme-court-weigh-samsung-apple-patent-battle/82070316/
** FossPatents had previously noted as to the Samsung getting cert:
The fact that Samsung's petition is certworthy has been confirmed by two recent posts on key IP blogs:
•The SCOTUSblog's Relist Watch:
"The big new relist this week is Samsung Electronics Co. v. Apple, 15-777, which we're guessing is being closely watched by the IP crowd."
That's a verys safe guess. Not sure this can even be described as a guess.
•Wegner's Writings on the Los Angeles Intellectual Property Law Association's (LAIPLA) blog:
"The petition has a higher than usual chance for success."
See also http://www.fosspatents.com/2016/03/supreme-court-grants-samsungs-petition.html
**And, from Blawgsearch on 21 March 2016:
posted by Lawrence B. Ebert at 8:08 AM
Name: Lawrence B. Ebert I'm a patent lawyer located in central New Jersey. I have a J.D. from the University of Chicago and a Ph.D. from Stanford University, where I studied graphite intercalation compounds at the Center for Materials Research. I worked at Exxon Corporate Research in areas ranging from engine deposits through coal and petroleum to fullerenes. An article that I wrote in The Trademark Reporter, 1994, 84, 379-407 on color trademarks was cited by Supreme Court in Qualitex v. Jacobson, 514 US 159 (1995) and the methodology was adopted
in the Capri case in N.D. Ill. An article that I wrote on DNA profiling was cited by the Colorado Supreme Court (Shreck case) and a Florida appellate court (Brim case). I was interviewed by NHK-TV about the Jan-Hendrik Schon affair. I am developing ipABC, an entity that combines rigorous IP analytics with study of business models, to optimize utilization of intellectual property. I can be reached at C8AsF5 at yahoo.com.
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2016-50/4389/en_head.json.gz/20677 | House Committee Cites Attorney General Holder For Contempt By Mark Memmott
Jun 20, 2012 TweetShareGoogle+Email Attorney General Eric Holder during congressional testimony in 2011.
Originally published on June 20, 2012 3:46 pm Acting along partisan lines, with a vote of 23 to 17, the House Oversight and Government Reform Committee voted this afternoon to hold Attorney General Eric Holder in contempt. Republicans, who control the committee, say Holder's Justice Department has not turned over all the documents that the committee needs to see as it probes the so-called Fast and Furious gun-trafficking operation. And they want to know more about why the Justice Department initially told a senator that it had not pursued such an operation. Now, The Associated Press writes, the contempt citation will go to the full House for a vote — "although House leaders are not required to call it up for a vote. They could instead use the threat of that to pressure for renewed negotiations. Historically, at some point Congress and president negotiate agreements, because both sides want to avoid a court battle that could narrow either the reach of executive privilege or Congress' subpoena power." Update at 4:35 p.m. ET.: House Speaker John Boehner, a Republican from Ohio, and Majority Leader Eric Cantor, a Republican from Virginia, said the House will schedule a vote on the matter next week. "Fast and Furious was a reckless operation that led to the death of an American border agent, and the American people deserve to know the facts to ensure that nothing like this ever happens again," Boehner and Cantor said in a statement. In a statement, Holder said his department had made "unprecedented accommodations." He called the vote, "an election-year tactic intended to distract attention..." This morning, as we reported, the White House exerted executive privilege as it informed the committee that it would not be delivering all the documents. That led to questions from Republicans about whether the White House is trying to withhold information about its own involvement in discussions concerning Fast and Furious. During today's committee meeting, Republicans made the case that the Obama administration has resisted efforts to investigate Fast and Furious and may have deliberately misled Congress. Democrats made the case that the GOP majority has gotten more than enough information and is largely ignoring a similar gun operation carried out during the Bush administration. As for the program at the center of the story, the AP writes: "In Fast and Furious, federal agents from the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives in Arizona abandoned the agency's usual practice of intercepting all weapons they believed to be illicitly purchased. Instead, the goal of gun-walking was to track such weapons to high-level arms traffickers, who had long eluded prosecution, and to dismantle their networks. ... "The agents in Arizona lost track of many of the weapons in Operation Fast and Furious. Two of the guns that 'walked' in the operation were found at the scene of the slaying of U.S. border agent Brian Terry." Copyright 2014 NPR. To see more, visit http://www.npr.org/. TweetShareGoogle+EmailView the discussion thread. © 2016 88.9 KETR | 法律 |
2016-50/4389/en_head.json.gz/20694 | More Local Benefits Attorney: Employees Will See 'Good Things' From Obamacare
posted by Jim Forsyth, photo credit Shutterstock Images
Local business law attorney Brad Oxford has spent the last several months up to his elbows in the Affordable Care Act, trying to advise employers large and small about their legal responsibilities under Obamacare, and Oxford says he thinks in balance, Obamacare will help more companies and employees than it hurts, 1200 WOAI news reports.
"They're going to find health coverage to be more affordable," said Oxford, who is 'of counsel' with the local firm of Strasburger & Price LLC. "I think we will see an increase in the number of people around the country who will have health insurance."
Oxford says the fact that many of the penalties larger employers would have faced for failing to participate in the Affordable Care Act have been delayed for a year, means many employees of those firms will see little or no changes in their health plans.
"The employer penalties do not apply until January 1 of 2015, so there is nothing employers need to worry about in way of penalties until 2015," he said. "But employers need to make plans and provisions for a lot of things that take effect January 1, 2014."
He says those include a maximum of 90 days waiting period to get onto a health insurance policy, and policies can no longer exclude customers who have pre existing conditions. Annual and lifetime benefit limits also are outlawed, so employer plans will have to comply.
For smaller companies, defined as under 50 employees, which have been unable to offer health insurance to their handful of employees due to the costs, Oxford says tax benefits and other incentives may allow them to offer coverage for the first time. That is something which will allow the smallest firms to compete with larger companies for top employees.
"Smaller businesses may find getting a health plan to be more affordable through the exchange," he said.
Oxford points out that one benefit to Obamacare that a lot of people may not realize is that employees of companies which do offer health coverage are no longer tied to accepting that plan only. He says employees with certain lifestyle requirements, say, women who are actively trying to get pregnant, may be able to find an insurance policy which more suits their needs on the exchange, rather than dealing with a 'one size fits all' policy offered to all employees.
"The individual employees can go to the exchanges and get health plan coverage, and if their income is at a certain level, the individual will be able to receive a premium tax credit," he said. Of course, check with your employer to see if any payments that the company may make toward your health coverage will still apply if you purchase insurance other than the policy the company officers, and many may not.
He says employer penalties and liability are the biggest questions that many employers have been asking him about.
"Even though those have been delayed until 2015, that is something employers need to be planning for now," Oxford said.
"I think smaller businesses may find getting coverage to be more affordable, especially with the small business tax credits," he said.
Oxford says none of his clients has indicated that they plan to drop employee or spouse coverage, or cut back hours of employees due to the Affordable Care Act.
"From what we have seen so far, and we are early into this process, but I think employees are going to see good things," he said. | 法律 |
2016-50/4389/en_head.json.gz/20779 | | Kelley v. Morris County Board of Construction Appeals
Kelley v. Morris County Board of Construction Appeals
TUCKER M. KELLEY, PLAINTIFF-APPELLANT,v.MORRIS COUNTY BOARD OF CONSTRUCTION APPEALS, AND THE TOWNSHIP OF ROCKAWAY UNIFORM CONSTRUCTION CODE OFFICIAL, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1110-07.
Argued July 8, 2008
Before Judges Parker and Gilroy.
Plaintiff Tucker M. Kelley appeals from the December 3, 2007 order of the Law Division, which affirmed the March 22, 2007 decision of the Morris County Board of Construction Appeals (Board), "uphold[ing] the Notice of Violation and Order to Terminate and the Notice and Order of Penalty" issued by the Township of Rockaway Construction Official on September 28, 2006. We affirm in part; reverse in part; and remand to the Board for further proceedings consistent with this opinion.
Plaintiff is the owner of property known and designated as Block 30503, Lot 12 in the Township of Rockaway (the Property). Under the existing zoning regulations, only one principal use is permitted on the Property. Contrary to the zoning regulations, the Property contains two residential structures: a single-family dwelling and a carriage house. The carriage house formerly contained a garage and a one-bedroom apartment and is the subject of this action.
On November 30, 1999, plaintiff filed an application with the Rockaway Township Building Department (Building Department) for a construction permit to renovate the carriage house. In conjunction with the application, plaintiff submitted construction plans dated November 16, 1999. The first page depicts proposed architectural drawings of each of the four sides of the carriage house. The drawing designated "rear elevation" depicts an overhead garage door on the right side of the rear portion of the carriage house with a pedestrian doorway located immediately to its left.*fn1
The second page contains construction plans for the first and second floors. The diagram designated "first floor" shows a proposed garage eighteen-foot-ten-inch long by ten-foot wide, with an overhead garage door located at the rear of the structure. The drawing also depicts a proposed dining room and kitchen on the first floor. The second floor diagram depicts a bedroom, living room, bathroom, and an outside deck. The plans do not reference the installation of central air conditioning. In addition to the construction permit, various sub-code permits were issued as required by the State Uniform Construction Code Act (UCC).*fn2
Plaintiff applied to the Building Department for a certificate of occupancy (C/O), describing the work performed as: "rebuild second story of dwelling."*fn3 The printed application form for the C/O contains the following provision above plaintiff's signature: "A set of 'As Built' or amended drawings is required if the building or structure deviates from the approved plans filed with the construction permit. Use space below to describe any deviations from approved plans[.]" A second provision immediately above the signature line provides in pertinent part: "I hereby attest that to the best of my knowledge, all work has been completed in accordance with the approved plans, permit and Regulations." On November 16, 2000, a C/O was issued for the carriage house signed by Andrew Sanfillippo as Construction Official.
On September 26, 2006, Dennis Creran, a Township building inspector and zoning officer, made an inspection of the exterior of the carriage house. Creran's inspection disclosed that the structure had not been remodeled in accordance with the building plans submitted by plaintiff at the time the construction permit was issued. The overhead garage door had not been installed on the rear of the premises and the pedestrian doorway was more centrally located than depicted on the plans.
On September 28, 2006, Sanfillippo issued plaintiff a Notice of Violation and Order to Terminate (NOV), stating in pertinent part that plaintiff was in violation of the UCC and the regulations promulgated thereunder: "[N.J.A.C.] 5:23-2.14 converted garage to living space/air conditioning unit done without a permit." The NOV directed plaintiff to terminate the violations on or before October 13, 2006. On the same day that Sanfillippo issued the NOV, he also issued plaintiff a Notice of Penalty (NOP), which stated in relevant part: "On 09/26/06, you were found to be in violation of the [UCC] and Regulations promulgated thereunder, in that you . . . failed to obtain a construction permit . . . ." The NOP also directed plaintiff to pay a penalty in the amount of $500 for each violation, for a total penalty for $1,000, and informed plaintiff that for each week that any violations remained outstanding after October 13, 2006, he would be subject to an additional penalty of $500 per week until the violations were corrected.
On October 2, 2006, plaintiff filed an appeal from the two notices with the Board. The Board conducted a hearing on the appeal on January 25, 2007, and February 22, 2007. Testifying on behalf of the Township were Sanfillippo and Creran. Testifying on behalf of plaintiff were Raymond Witwick, a former sub-code inspector of the Township, and plaintiff.
Creran testified as follows. Creran made a visual inspection of the outside of the carriage house on September 26, 2006. After his inspection, he reviewed the building plans on file with the Building Department and confirmed that the carriage house had not been remodeled in accordance with the plans, as the overhead garage door had not been installed and the pedestrian doorway was more centrally located than depicted on the plans. He also observed a central air conditioning compressor on the Property, although the plans did not indicate that central air conditioning was to be installed in the carriage house, and no permit had been issued by the Building Department for the installation of the compressor. Moreover, his review of the Township's files failed to disclose that plaintiff had filed an amended set of plans depicting the carriage house as built.
Lastly, Creran testified that he had made an interior inspection of the premises on November 16, 2007. His inspection disclosed that the living room area on the second floor had been converted into a second bedroom, and that the garage area on the first floor had been converted into "living quarters" with a throw rug or mat on the floor, and contained a couch, television, and clothes closet.
Sanfillippo testified that he has been employed with the Township since 1987, first as a building inspector and zoning officer, then as the Acting Construction Official, and since 1999, as the Construction Official. Sanfillippo had accompanied Creran on the September 26, 2006 inspection of the outside of the carriage house, and confirmed Creran's testimony that the Township's file disclosed that the building had not been constructed in conformance with the original building plans. Sanfillippo stated that to have installed the central air conditioning compressor, plaintiff was required to have obtained an electrical permit, but none was issued. Based on his review of the Township's files, he issued the NOV and NOP.
After the Township rested, plaintiff called Witwick as his witness. Witwick was employed by the Township as a plumbing and electrical sub-code official from December 30, 1999, through October 16, 2000. He was also licensed by the State as a construction official and authorized to perform building and fire inspections. Pursuant to an understanding with Hartman, the then Construction Official, Witwick also performed minor building inspections.
Witwick performed all the required inspections of the carriage house. Witwick confirmed that he had inspected the air conditioning for the carriage house and found that it was properly installed, but without the required permit. He told plaintiff to obtain the necessary permit and pay the required ten dollar fee. Witwick stated that it was typical for his department to find minor deficiencies on inspection and still approve the construction, subject to the owner or contractor following up on the paperwork after the inspection.
As to the garage door, Witwick stated that he was aware that the garage door had not been installed and that Gerald Hartman, the construction official at the time of inspection, had authorized the change during a three-person conference among Hartman, plaintiff, and himself on an unspecified date. Lastly, Witwick testified that on plaintiff's request he had inspected the carriage house on November 12, 2006, and did not find any structural changes since the issuance of the C/O on November 16, 2000.
Plaintiff testified next,*fn4 and confirmed that the building plans submitted to the Building Department in support of his application for the construction permit required the installation of the overhead garage door, and the installation of the pedestrian doorway at a different location, and did not include central air conditioning. He confirmed that the air conditioning compressor had been installed without a permit and that he had been instructed by Witwick to file an application with the appropriate fee, and to obtain the necessary permit, but never did.
As to the omission of the garage door, plaintiff stated that he had received verbal permission from Hartman not to install the door. Plaintiff acknowledged, however, that he was instructed by Hartman that the area designated as a garage on the plans could only be used for storage, not as living space.
Plaintiff denied that any changes were made without the knowledge of the Building Department, and that the omission of the garage door was plainly visible to the traveling public and to the local building inspectors when they inspected the improvements at the carriage house as well as improvements on the main house in 2002. Moreover, on October 6, 2001, the Township issued him a permit to reconstruct a driveway at the carriage house, and no one raised any questions concerning the omission of the garage door. When asked why he never filed "as built" plans to show the structure as completed, plaintiff replied that he had received verbal permission from Hartman to omit the garage door and he was never requested to file any revised plans before receiving the C/O from Sanfillippo on November 16, 2000.
Concerning the area designated on the plans as the garage, plaintiff testified that the area described by Creran as living quarters was only a storage area of approximately eight feet by nine feet. The balance of the area is divided from the storage room and used only for placement of the structure's furnace, washer, dryer, and hot water heater.
On March 22, 2007, the Board issued its written decision affirming the NOP and NOV issued to plaintiff, concluding that "[t]he changes made to the building during the course of the construction project were not reflected in the permit application or made known by application for certificate of occupancy contrary to the provisions of N.J.A.C. 5:23-2.24 et seq." In reaching its decision, the Board found, among other facts, that: 1) "[t]he Owner acknowledges that substantive deviations were made during the construction in that an opening and door were not installed so as to create a garage, and that a central air conditioning unit was installed"; 2) "[t]he Municipal Inspector approved the construction"; 3) "[t]he Municipal Inspector requested that the electrical section of the permit be updated to include the air conditioning compressor"; 4) "[t]he electrical section of the permit was not updated to reflect the air conditioning compressor as requested"; 5) "[n]either the Owner nor the Municipal Inspector identified the deviations made during the construction to the Construction Official prior to the issuance of the Certificate of Occupancy verbally or by submission of the Application or for [the] Certificate"; and 6) "[t]he use of the building reflects finished living space on the first floor where the plans specify a one[-]car garage to have been provided."
On April 20, 2007, plaintiff filed his complaint in lieu of prerogative writs, seeking a reversal of the Board's decision, contending that the Board had "acted arbitrarily and capriciously in the conduct of [its] hearing and in the reaching of [its] decision in this matter," asserting that the Board's decision "was contrary to the evidence presented." Following a trial de novo on the record, the judge issued an oral decision on November 16, 2007, dismissing plaintiff's complaint, concluding that the Board had not acted arbitrarily, capriciously, or unreasonably, finding the Board's decision was based on credible evidence in the record. A confirming order was entered on December 3, 2007. On January 18, 2008, an order was entered staying the order of December 3, 2007, pending appeal.
On appeal, plaintiff argues:
POINT ONE
THE TOWNSHIP SHOULD BE ESTOPPED [FROM ENFORCING THE NOTICE OF VIOLATION] AND LATCHES SHOULD OPERATE IN FAVOR OF THE PLAINTIFF.
POINT TWO
THE DECISION OF THE CONSTRUCTION BOARD WAS AGAINST THE WEIGHT OF THE EVIDENCE.
POINT THREE
THE CONSTRUCTION BOARD'S ADVERSE RULINGS ON PLAINTIFF'S SUBMISSION OF EVIDENCE WERE IN ERROR AND UNFAIRLY PREJUDICIAL TO PLAINTIFF.
POINT FOUR
IT WAS REVERSIBLE ERROR TO INSINUATE A MONETARY OBLIGATION BETWEEN PLAINTIFF AND TOWNSHIP INSPECTOR.
Any party to an action before a construction board of appeals may appeal the board's decision to the Law Division via complaint in lieu of prerogative writs because the board, although a State agency established and organized under the Department of Community Affairs, only possesses county-wide jurisdiction. N.J.A.C. 5:23A-2(b); Bell v. Twp. of Bass River, 196 N.J. Super. 304, 310 (Law Div. 1984); see also Walsh Trucking Co. v. Hackensack Meadowlands Dist. Constr., 240 N.J. Super. 525, 528 (App. Div. 1990). A trial court's standard of review on an appeal from a decision of a construction board of appeals is limited. Bell, supra, 196 N.J. Super. at 312. A "[c]court ordinarily should not disturb an administrative agency's determinations or findings unless there is a clear finding that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious or unreasonable; or (3) the decision was not supported by substantial evidence." In re Virtua-West Jersey Hosp. Voorhees, 194 N.J. 413, 422 (2008).
Accordingly, the court's function is not "'to weigh the evidence, to determine the credibility of witnesses, to draw inferences and conclusions from the evidence and to resolve conflicts therein.'" Bell, supra, 196 N.J. Super. at 312 (quoting Mead Johnson & Co. v. S. Plainfield, 95 N.J. Super. 455, 466-67 (App. Div. 1967)). Simply stated, a court's review of a final agency decision and of an appeal in a non-jury case is the same, that is, "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Close v. Kordulak Bros, 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Our review of an appeal from a decision of the trial court is the same.
In Points I and II, plaintiff challenges the adequacy of the proceedings before the Board. Plaintiff argues that the Township is estopped from instituting enforcement actions against him six years post-inspection of the Property and the issuance of the C/O. Plaintiff contends that Witwick and Hartman had authorized the construction changes pertaining to his omission to install the overhead garage door, and to relocate the pedestrian doorway so as to be more centrally located on the rear of the building. However, plaintiff acknowledges that he was instructed: 1) that the area designated on the original building plans as a garage could only be used for storage, not living quarters; and 2) to file for and pay the appropriate fee for an electrical permit required for the installation of the central air conditioning compressor.
Plaintiff asserts that the Board improperly prohibited him from introducing evidence of Hartman's verbal permission to remodel the carriage house at variance with the building plans on the grounds that Hartman's statements violated the "hearsay rule" because the Board's proceedings are not subject to the Rules of Evidence. Under the limited facts of this matter, we agree.
Equitable estoppel has been defined as "the effect of the voluntary conduct of a party whereby he is absolutely precluded, both . . . from asserting rights which might perhaps have otherwise existed . . . as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worst . . . ." Heuer v. Heuer, 152 N.J. 226, 227 (1998) (citation and internal quotation omitted). "The doctrine is 'designed to prevent a party's disavowal of previous conduct if such repudiation' would not be responsive to the demands of 'justice and good conscience.'" Ibid. (quoting Carlsen v. Masters, Mates & Pilots Pension Plan Trust, 80 N.J. 334, 339 (1979)). Accordingly, without a plaintiff's good faith reliance on a defendant's actions or omissions, the doctrine will not apply. Grasso v. Borough of Spring Lake Heights, 375 N.J. Super. 41, 47 (App. Div. 2004).
The doctrine is "rarely invoked against [] municipalit[ies]." Ibid. However, the doctrine will be applied against a governmental agency when appropriate, unless to do so would "'prejudice essential governmental function.'" Wood v. Borough of Wildwood Crest, 319 N.J. Super. 650, 656 (App. Div. 1999) (quoting Vogt v. Borough of Belmar, 14 N.J. 195, 205 (1954)).
In support of his contention that the Township is estopped, plaintiff attempted to introduce statements that Hartman made to himself and Witwick, on which Witwick had relied before signing off on the final inspection without the installation of the garage door. The Board Chairman prohibited plaintiff from eliciting Hartman's statements through plaintiff's examination of Witwick on the basis that the statements constituted hearsay. Although some evidence concerning Hartman's instructions to Witwick were introduced later on in the proceedings, either in answering questions of the Township's counsel or the Board, it is clear that plaintiff did not fully pursue his questioning of Witwick, thereby preventing the Board from ascertaining the full content of the statements made by Hartman and the reasons why he gave permission to omit the overhead garage door.
[U]nfortunately, Mr. Spillane [a Board member], the Hearsay Rule . . . doesn't come into effect here based on conversations that were between Mr. Witwick, the construction official at the time, and myself, that would . . . alleviate a lot of this. So, because I can't state any of those facts, I can't ask the questions. I can't do anything concerning that. I can't make anybody aware as to what transpired concerning the construction of this home.
Rules of Evidence do not apply to administrative hearings. Weston v. State, 60 N.J. 36, 50, 51 (1972). Accordingly, administrative agencies frequently admit hearsay evidence at their hearings. In re Toth, 175 N.J. Super. 254, 262 (App. Div. 1980). Moreover, even if the Rules of Evidence applied to the proceeding before the Board, the statements should have been admitted as an exception to the hearsay rule pursuant to N.J.R.E. 803(b)(4), that is, "a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship."
It is undisputed that the "incidents of fairness which underlie procedural due process" applies to administrative proceedings. Bechler v. Parsekian, 36 N.J. 242, 256 (1961). "Administrative due process is generally satisfied if 'the parties had adequate notice, a chance to know opposing evidence, and the opportunity to present evidence and argument in response . . . ."
Moore v. Dep't of Corr., 335 N.J. Super. 103, 108 (App. Div. 2000) (quoting In re Dep't of Ins.'s Order Nos. A-89-119 & A-90-125, 129 N.J. 365, 382 (1992)). Accordingly, the Board was required to hold a hearing "which conformed with the procedural requirements which govern quasi-judicial proceedings." In re Walsh Trucking Occupancy & Sprinkler Sys., 215 N.J. Super. 222, 230-31 (App. Div. 1987). "These requirements include an opportunity to challenge the evidence supporting" the Township's action. Id. at 231.
We are satisfied from a review of the record that several Board members may have voted differently had they been permitted to consider Hartman's statements. However, they were instructed that Hartman's statements could not be considered during their deliberative process, thereby limiting their decision only to whether the carriage house in its finished state conformed with the building plans. The Board members did not weigh plaintiff's and Witwick's testimonies that Hartman had granted plaintiff verbal permission to alter the building plans. This appears also to be what the trial judge referenced when he concluded:
First, it's uncontroverted that . . . Mr. Kelley and the municipal inspector did not make any written notification of any deviations of the construction prior to the issuance of the Certificate of Occupancy. The Board heard testimony and determined that that didn't happen verbally either in consideration of the evidence that they had before it. I cannot find that their decision was arbitrary in that regard.
. . . If Mr. Kelley had some evidence in writing, either in the application or subsequently, with respect to these particular issues, as to the modification and clearly in the application, and the town issued the C/O, the Board, I'm sure, would have had a totally different view of this particular case in this regard.
But we cannot lose sight of the fact that I'm reviewing the Board's decision I cannot substitute my judgment for theirs, and the Board, in their decision, indicates that "neither the owner nor the municipal inspector identified the deviations made during the construction to the construction official prior to the issuance of the Certificate of Occupancy verbally or by submission of the application for certificate, and that the building plans deviate from what was allowed."
There's evidence in the record to support that decision. [(Emphasis added).]
We conclude that plaintiff was denied the right to fully contest the violations asserted by the Township in the hearing before the Board because of the Board's action prohibiting plaintiff from introducing evidence of statements made by the Township's former construction official, granting him permission to alter the building plans. We do not express any opinion on whether such evidence would form a basis to apply equitable estoppel against the Township. We only determine that plaintiff was entitled, as a matter of administrative due process, to present evidence of Hartman's statements. Nor do we express any opinion on whether the present use of the premises as determined by the Board constitutes an unlawful expansion of a non-conforming use.
Accordingly, we reverse that part of the order of the Law Division, which affirmed the decision of the Board determining that plaintiff had not constructed the carriage house in conformance with the building plans by failing to install the garage door. We remand that issue to the Board to reconsider plaintiff's appeal from the NOV and NOP charging him with the aforesaid violation of the UCC.
On remand, the Board may rely on the transcripts of the testimony of the witnesses from the prior hearing. The Board shall permit the parties to supplement the evidence, concerning the statements allegedly made by Hartman, on which plaintiff purportedly relied when he failed to install the overhead door. Plaintiff shall be permitted to testify as to the circumstances that surrounded the conversation during which Hartman's statements were made, including whether the statements were made before or after plaintiff finished remodeling the carriage house without the garage door.
On remand, even if the Board determines that the Township was not estopped from enforcing the UCC for the violations concerning the overhead garage door and the pedestrian door, if the Board concludes that Hartman did, in fact, make the statements as asserted by plaintiff, the Board may consider those statements in determining a fair and appropriate penalty.
We affirm that part of the order of the Law Division, which affirmed the Board's decision determining that plaintiff had violated the UCC by failing to obtain a permit for the installation of the central air conditioning. The facts are undisputed that no permit was obtained by the Township for the air conditioning; the air conditioning was installed; the inspector found the air conditioning to be properly installed but directed plaintiff to obtain the permit and pay the required fee; and plaintiff failed to do so.
Affirmed in part; reversed in part; and remanded to the Morris County Board of Construction Appeals for further proceedings in accordance with this opinion. | 法律 |
2016-50/4389/en_head.json.gz/20894 | « OH Death Penalty Commission Meets to Examine Racial Issues |
| An Update on Warren Hill From Georgia »
News Coverage of Ohio Task Force Meeting
"State panel won’t collect race data on death penalty," is Andrew Welsh-Huggins' updated AP filing, via the Columbus Dispatch. Here are extended excerpts:
An Ohio Supreme Court committee studying the state’s capital punishment law yesterday rejected a recommendation to collect past data to detect racial bias in death-penalty cases.
The committee also postponed votes on a recommendation to collect information in the future on all homicides that might be eligible for capital punishment as another way of detecting racial bias. The committee tabled a proposal to analyze existing death-penalty data collected by the state public defender’s office.
Those two proposals are likely to pass in the future when the committee gets more details about the recommendations, said James Brogan, a former state appeals court judge who is chairman of the committee.
Brogan said everyone agrees race shouldn’t play a role in the death penalty, but a number of studies nationally have already shown that is the case.
“We don’t know exactly the role in Ohio, although it does appear that in a number of cases, it seems more likely when a black defendant kills a white victim, that they’re more likely to receive the death penalty, than if a black kills a black, which is disconcerting,” Brogan said after the task force’s meeting.
Among precedents cited in the Race and Ethnicity subcommittee recommendations is a 2005 Associated Press study that found that Ohio offenders who killed white victims were more likely to face a death sentence than those whose victims were black.
The committee approved three recommendations to:
• Require prosecutors, lawyers and judges involved in death-penalty cases to be trained to protect against racial bias.
• Allow lawyers to seek the removal of judges in cases where there is “a reasonable basis for concluding that the judge’s decision-making could be affected by racially discriminatory factors."
• Require defense attorneys to receive training in how best to proceed when they believe a potential juror is removed for possibly discriminatory reasons.
Another version of Welsh-Huggins' report is, "Ohio death penalty committee looks at racial bias," via the Marietta Times.
The committee rejected the creation of jury instructions involving race in death penalty cases that would also require jurors to report racial discrimination voiced by other jurors during deliberations.
Ohio Supreme Court Chief Justice Maureen O'Connor convened the task force while making it clear it won't debate whether the state should have the death penalty.
The committee of prosecutors, defense attorneys, judges and death penalty experts is looking at a variety of issues, from how the law affects minorities to the role of clemency.
The committee is also studying whether Ohio's death sentences are proportional, meaning that the nature of a crime committed by one condemned inmate is similar to the crimes committed by others.
O'Connor says the committee's goal is to produce a fair, impartial and balanced analysis of the state's 30-year-old law.
City Beat Cincinnati reports, "Racial Bias in Death Penalty Cases Gets Ohio Supreme Court's Attention." It's written by Hannah McCartney.
Ohio’s death penalty came under scrutiny again today, when the Ohio Supreme Court's Joint Task Force to Review the Administration of Ohio’s Death Penalty heard presentations from three different subcommittees on strategies to make sure the process in administering a death penalty sentence in Ohio is transparent and fair.The task force heard presentations from the Law Enforcement Subcommittee, Race and Ethnicity Subcommittee and Clemency Subcommittee; the Clemency Subcommittee's recommendation was passed, while the Law Enforcement Subcommittee's recommendations were tabled for the next task force meeting, pending further review.The Race and Ethnicity Subcommittee presented recommendations for dealing with evidence of longstanding racial bias in Ohio death penalty cases.A 2005 Associated Press study concluded that offenders who killed white victims were significantly more likely to receive the death penalty than when victims were black, regardless of the race of the defendant. See the below chart, courtesy of the Associated Press, which charts the rate of death sentencing for defendants charged with killing white versus black victims during the course of the study, which was conducted from Oct. 1981-2002. The Supreme Court’s Race and Ethnicity subcommittee made seven recommendations, three of which passed.
The Joint Task Force to Review the Administration of Ohio's Death Penalty website has additional information, including future meeting dates.
Earlier coverage of the Task Force begins at the link. Related posts are in the race and study commission category indexes.
Friday, 20 July 2012 at 03:13 PM in Capital Punishment, Indigent Defense, Judiciary, Race, Study Commission | Permalink
Chief Justice Maureen O'Connor, geographic disparity, Joint Task Force to Study Administration of the Death Penalty, judiciary, Ohio, Ohio Assessment, Ohio Joint Task Force to Study Administration of the Death Penalty, Ohio Supreme Court, race, sentencing, study commission | 法律 |
2016-50/4389/en_head.json.gz/20931 | It's Not Just In The Courts Then
There May Be Trouble Ahead........
Fixed Penalty News
Suppressio Veri, Suggestio Falsi?
From Bad to Erse
Uncle Sam's Need To Know
Pro-Police? Anti-Police?
I did a bit of traffic the other day. Most of the work was for the usual trinity of No Insurance No Licence and No MoT, and there were some speeding cases where the speed was too high for a fixed penalty, as well as a sprinkling of Without Due Care and Attention cases.All of the speeders were over 100 mph, and we disqualified in every case, from 14 to 56 days depending on the circumstances. All but one were in a 70 limit, but the odd one out was doing 74 in a 30! Inevitably he was on a motorbike, but he won’t be riding it for the next six months. Where people were driving uninsured and the offence was aggravated by their having no driving licence, we disqualified for about two or three months, except in the several cases where it was a second offence, which pushed them over the 12 points that earn you a six-month ban.London being the city that it is, a good proportion of the uninsured were recent immigrants. Some just did not know (or claimed not to know) that a foreign licence can only be used in the UK for a finite time before taking a test, so an Afghan licence that has been relied upon for six years won’t do. There is a particular problem with asylum seekers, because they do not have the ID documents that DVLA requires before issuing a licence. Those who work often do dirty jobs at unsocial hours and inevitably want to drive in order to get to work. Human nature being what it is, and with old bangers available for a small fistful of readies, many of them take a chance and drive. Since it has to be in the public interest to see that drivers are properly licensed and insured there really ought to be some kind of interim licence available to those whose immigration status is still being considered. The Daily Mail wouldn’t like it though.
posted by Bystander Team | 11:04 am | 法律 |
2016-50/4389/en_head.json.gz/21010 | Judge Rader on Judicial Confirmation Hearings
With the nominations of Judge Kathleen O’Malley and Edward DuMont to the Federal Circuit as well as Solicitor General Elena Kagan to the United States Supreme Court, I thought that this C-Span video from way back in 1994 of Judge Randall Rader discussing confirmation hearings before the Senate Judiciary Committee might be of interest:
Riding Circuit
Chief Judge Michel reported in his State of the Court address on May 20, 2010 that the Federal Circuit will be sitting in Atlanta, Georgia this November. The Federal Circuit usually makes at least one visit outside of D.C. each year. If you are curious when the last time was that the Federal Circuit sat in your city, you can view the list here: [Link].
Court of Errors
I thought this was a humorous comment by Judge Plager during the oral argument of Orion IP, LLC v. Hyundai Motor America, 2009-1130 (Fed. Cir. May 17, 2010), : “We’re a court of errors. We don’t make ‘em –we correct ‘em.” [Listen].
Does Wall Street Follow Oral Arguments?
Sunday, May 23rd, 2010
Tivo 5-Year Stock Price
I’ve been curious whether there is any indication that institutional investors follow the oral arguments of patent cases at the Federal Circuit. The litigation between Tivo and Echostar finally presented an opportunity to explore this further.
As you can see from the chart above and the following court events in the Tivo/Echostar litigation, the price of Tivo’s stock has reacted quite significantly to the Tivo/Echostar litigation:
A: August 17, 2006, Judge Folsom issues an injunction against Echostar.
B: October 4, 2007, the Federal Circuit hears oral argument in the appeal of the injunction.
C: January 31, 2008, the Federal Circuit reverses-in-part (hardware infringement) and affirms-in-part (software infringement, damages, injunction) Judge Folsom’s decision.
D: June 2, 2009, Judge Folsom issues a contempt ruling in regard to Echostar’s design around design.
E: November 2, 2009, the Federal Circuit hears oral argument in the appeal of the contempt ruling.
F: March 4, 2010, a three member panel affirms the contempt ruling.
G: May 14, 2010, the Federal Circuit grants en banc review of contempt ruling.
A better graphic would show that Tivo’s stock price reacted significantly following events A, C, D, F, and G. It did not appear to react significantly in response to the oral arguments. Obviously, this offers just a couple of data points; but, it may indicate that institutional investors are not taking full advantage of their opportunities to evaluate patent litigation.
Regardless of the outcome of the Tivo/Echostar litigation, Tivo’s stock performance is a strong reminder that some investors value the power of patents.
(For the record, none of the above should be considered investment advice.)
In re Zurko re-emphasized
With the CAFC’s decision in Perfect Web Technologies, Inc. v. InfoUSA, Inc., 2009-1105 (Fed. Cir. Dec. 2, 2009), it struck me that the court was easing away from its precedent in In re Zurko, 258 F.3d1379 (Fed. Cir. 2001) that required some factual underpinning for an assertion of “common sense.” Indeed, in the oral argument of Perfect Web, the panel (Judges Linn, Dyk, and Prost) seemed curious about the applicability of In re Zurko in light of the Supreme Court’s KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398 (2007) decision: [Listen].
Yesterday, a panel of the court in In re Ravi Vaidyanathan, 2009-1404 (Fed. Cir. 2010) re-emphasized the principles of In re Zurko. Judge Newman writing for herself and Chief Judge Michel wrote:
We agree with the Solicitor that an explicit statement of the level of ordinary skill is not always necessary in evaluating the obviousness of a new technologic advance. But whether or not stated explicitly, the perspective of a person of ordinary skill must frame the obviousness inquiry, and assertions of what such a person of ordinary skill would have found to be obvious require sufficient explanation to permit meaningful appellate review. In this case, not only the Board but also the examiner announced their conclusions of obviousness without providing any evidentiary support or reasoning for why a person of ordinary skill in the field of the invention would have deemed it obvious to select and combine various steps from different references, in the manner of the applicant. This court explained in In re Zurko, 258 F.3d 1379 (Fed. Cir. 2001), that the entry of the PTO into the deferential review of the Administrative Procedure Act requires the agency to provide support for its findings: With respect to core factual findings in a determination of patentability, . . . the Board cannot simply reach conclusions based on its own understanding or experience—or on its assessment of what would be basic knowledge or common sense. Rather, the Board must point to some concrete evidence in the record in support of these findings. To hold otherwise would render the process of appellate review for substantial evidence on the record a meaningless exercise. Id. at 1386. The PTO Solicitor argues that the Court in KSR held that a combination of elements from different prior art references is likely to be unpatentable if it would involve nothing more than “the predictable use of prior art elements according to their established functions,” KSR, 550 U.S. at 417, and that the Board applied this reasoning to the combination of Biggers and Johnson. KSR also clarified that recourse to “common sense,” viewed through the perspective of a person of ordinary skill, is not barred in the obviousness inquiry. As the applicant states, while KSR relaxed some of the formalism of earlier decisions requiring a “teaching, suggestion, or motivation” to combine prior art references, it did not remove the need to anchor the analysis in explanation of how a person of ordinary skill would select and apply the teachings of the references. See, e.g., id. at 417 (“If a person of ordinary skill can implement a predictable variation, §103 likely bars its patentability. For the same reason, if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill.”). The applicant complains that the Board simply reasoned from the hindsight knowledge of his successful invention; he stresses that, unlike the facts in KSR, the various steps that he combined were not known to be combinable, and the result of increased precision in missile guidance to the target was not previously known or predictable. Obviousness is determined as a matter of foresight, not hindsight. See id. at 421 (citing Graham, 383 U.S. at 36). KSR did not free the PTO’s examination process from explaining its reasoning. In making an obviousness rejection, the examiner should not rely on conclusory statements that a particular feature of the invention would have been obvious or was well known. Instead, the examiner should elaborate, discussing the evidence or reasoning that leads the examiner to such a conclusion. Generally, the examiner cites prior art references to demonstrate the state of knowledge. See 37 C.F.R. §1.104(c)(2) (“In rejecting claims for want of novelty or obviousness, the examiner must cite the best references at his or her command.”); Manual of Patent Examining Procedure (MPEP) §706.02 (8th ed., rev. July 2008) (“Prior art rejections should ordinarily be confined strictly to the best available art. [citing exceptions] Such rejec-tions should be backed up by the best other art rejections available.”). If it is not possible for the examiner to provide this type of information, the examiner might choose instead to provide an affidavit detailing the examiner’s own personal knowledge (as a person approximating one of ordinary skill in the art) of the technology in question. See 37 C.F.R. §1.104(d)(2) (“When a rejection in an application is based on facts within the personal knowledge of an employee of the Office, the data shall be as specific as possible, and the reference must be supported, when called for by the applicant, by the affidavit of such employee, and such affidavit shall be subject to contradiction or explanation by the affidavits of the applicant and other persons.”). Where, as here, prior art references are cited to support an obviousness rejection, the references themselves need not in every case provide a “specific hint or suggestion” of the alteration needed to arrive at the claimed invention; the examiner’s analysis “may include recourse to logic, judgment, and common sense available to a person of ordinary skill that do not necessarily require explication in any reference or expert opinion.” Perfect Web Techs. v. InfoUSA, Inc., 587 F.3d 1324, 1329 (Fed. Cir. 2009). In these cases the examiner should at least explain the logic or common sense that leads the examiner to believe the claim would have been obvious. Anything less than this results in a record that is insulated from meaningful appellate review. Zurko, 258 F.3d at 1386. If the examiner is able to render a claim obvious simply by saying it is so, neither the Board nor this court is capable of reviewing that determination. See KSR, 550 U.S. at 418, citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (“[R]ejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.”).
It is interesting to note that Judge Dyk, who seemed somewhat concerned about the viability of In re Zurko after KSR during the oral argument of Perfect Web, merely concurred in the judgment of the panel in In re Vaidyanathan rather than joining in the opinion. I wonder if that signals that there is more to come in regard to the viability of In re Zurko. My two cents: In re Zurko is the public’s best defense against the arbitrary use of a “common sense” analysis under KSR.
You can read the court’s decision in In re Vaidyanathan here: [Read].
You can read the court’s decision in Perfect Web Technologies, Inc. v. InfoUSA, Inc. here: [Read].
You can read the court’s decision in In re Zurko here: [Read].
The First Patent Related to Software
I’ve been reading the new book “Patent Law for Computer Scientists: Steps to Protect Computer Implemented Inventions” (Springer publishing 2010) which was written by European Patent Examiners Daniel Closa, Alex Gardiner, Falk Giemsa, and Jörg Machek. One of the interesting observations that they make in the book is that the first patent ever granted that related to software is GB1039141 granted in 1966 and titled “A Computer Arranged for the Automatic Solution of Linear Programming Problems.” The assignee — British Petroleum Company.
Details of AIPLA Electronics and Computer Law Road Show
The AIPLA has posted its list of speakers for the Electronics and Computer Law Road Show in Denver, CO on June 24th. Judge Linn will be speaking along with some of my favorite speakers in Steve Kunin, Tom Irving, David Hricik, Carl Moy, and others.
Details of the program are available here: [Brochure].
Federal Circuit Nominees’ Public Questionnaires
As part of the confirmation process, judicial nominees submit a public questionnaire to the Senate Judiciary Committee. This is a link to the public questionnaire for Judge Kathleen O’Malley’s nomination to the Federal Circuit: [Link].
This is a link to the public questionnaire for Edward C. DuMont’s nomination to the Federal Circuit: [Link].
No dates have been set yet for Judge O’Malley’s or Mr. DuMont’s hearings before the Senate Judiciary Committee.
Wikipedia and the Federal Circuit
The magnetic field around an infinite Halbach array of cube magnets
The Law.com website recently ran an article about the case of United States v. Bari, 09-1074-cr (2d. Cir March 22, 2010) in which the defendant in a criminal case challenged the district court judge’s decision as being in violation of Rule 605 of the Federal Rules of Evidence. The district court judge had apparently conducted a Google search to confirm his intuition on a “matter of common knowledge” (i.e., how many rain hats were available in the marketplace).
The judges of the Federal Circuit have been known to remark on the use of the internet. For example, some have been heard to reference Google searches, Dictionary.com, and Wikipedia. In Intamin Ltd. v. Magnetar Technologies, Inc., 483 F.3d 1328 (2007), Judge Rader references Wikipedia as teaching the basic operation of a Halbach array. [Listen]
You can read the Intamin decision from 2007 and learn more about Halbach arrays here: [Read].
You can read the U.S. v. Bari decision here: [Read].
Benefits of a Broad Interpretation of 35 U.S.C. §101
As the nation begins to appreciate the impact of the oil spill in the Gulf of Mexico and the Supreme Court prepares to wade in on the issue of patentable subject matter in Bilski v. Kappos, one can’t help but be reminded of the Diamond v. Chakrabarty, 447 U.S. 303 (1980) case. In that case the Supreme Court dealt with the scope of section 101 and whether a living organism constituted patentable subject matter. Dr. Chakrabarty’s invention dealt with an oil digesting bacteria that could digest about two-thirds of the hydrocarbons found in a typical oil spill. With its landmark decision, the Supreme Court declared Dr. Chakrabarty’s invention patentable. That bacteria would later be used to remediate the oil spill from the Exxon Valdez and presumably will be used on the oil spill in the Gulf, as well.
Dr. Chakrabarty’s invention and the Diamond v. Chakarabarty decision underscore the benefits of an expansive interpretation of 35 U.S.C. §101 – an interpretation that encourages innovation and promotes the disclosure of new ideas. You can listen to the oral argument in Diamond v. Chakrabarty here: [Listen].
for May, 2010. | 法律 |
2016-50/4389/en_head.json.gz/21290 | William DeJong
William (Bill) DeJong, Q.C.CounselWilliam (Bill) DeJong, Q.C.CounselCalgaryD+1 403 268 6827M+1 403 680 2201Local time Email Me Download vCard Connect on LinkedIn William (Bill) DeJong, Q.C.CounselD +1 403 268 6827M +1 403 680 2201 Email Me Connect on LinkedInDownload vCardAboutExperienceRecognitionInsightsNews and EventsActivities and Affiliations
More information...RecognitionActivities and AffiliationsAreas of focusEducationAdmissions and qualificationsLanguages
Bill has over 20 years of practice experience in the areas of securities/corporate finance and corporate/commercial matters. Business Experience
Bill has been the Director and Officer, and in many instances a founding shareholder of a number of public companies traded on various stock exchanges during his career, including: The American Stock Exchange (AMEX);
Toronto Stock Exchange (TSX); and
TSX Venture Exchange (TSX-V).
These public companies have been active in such diverse industries as oil and gas exploration (domestic and international), hearing healthcare, learning and performance enhancement software solutions, mineral exploration and residential and commercial security alarm systems. In addition to sitting as a Director and/or Officer of such public companies, Bill was also appointed to, and in some instances chaired a number of audit committees, compensation committees, executive committees, strategic planning committees and independent board committees. Bill is also a Trustee and founder of a mutual fund trust involved in the acquisition of real estate in the U.S. Executive/Legislative assistant to Member of Parliament, which duties included preparation of speeches, preparing Private Member’s Legislation, briefing various political issues and legislative research. Areas of focus:
Securities/Corporate finance
Corporate/Commercial matters
Reverse take-overs of public companies
Private placements (public and private)
Going private transactions
Take-over bids
Exempt take-over bids
Public company asset purchase/sale transactions
Corporate governance matters
RecognitionReceived the Queen Elizabeth II Diamond Jubilee Medal for a distinguished record of volunteering and public service (this medal was presented by Prime Minister Stephen Harper and the Lieutenant-Governor of Alberta, Donald Ethell) to honour significant contributions and achievements by Canadians (October 2012)Received the well-regarded distinction and recognition as Queen's Counsel - December 2009Awarded the Alberta Centennial Medal in 2005 for community leadership (this medal was conferred by the Lieutenant-Governor of Alberta “upon individuals who have made significant contributions to the community and society through leadership, volunteerism and community involvement”).In the Media
Rocky Mountain Dealerships Inc. (TSX: RME, OTCQX: RCKXF) Announces Director Appointments and Date for 2015 Third Quarter Conference Call and Webcast, Canada NewsWire (Toronto, ON), October 5, 2015
Activities and AffiliationsMember of the Law Society of AlbertaMember of the Canadian Bar AssociationCommunity Involvement and Pro Bono
Currently the Budget Director and member of the PC Fund for the Progressive Conservative Association of Alberta
Former Member of the Finance Committee for a Candidate for the Alberta Progressive Conservative Party Leadership (2011)
Former Co-Chair of Finance Committee for a Mayoralty Candidate for the City of Calgary (2010)
Former Member of the Gold Medal Plates Advisory Board for four years with net proceeds benefiting Canada's Olympic and Paralympic athletes
Former Chair of the Finance Committee for a Candidate who successfully became an elected nominee for the Canadian Senate (2012)
Member of the Glenbow Museum Board of Governors
Former Director and Chair of the Finance Committee of the Calgary Winter Club
Former member of the Alberta Advisory Committee to the Canadian Securities Administrators Proportionate Regulation Committee
Former member of the Finance Committee for the One World Development Centre (a project of the Calgary Urban Projects Society)
Former member of Provincial Government Steering Committee relating to the establishment of a Foreign Qualifications Information and Assessment Centre in Alberta
Former and current Member of various provincial and federal political association board of directors, executive committees, advisory committees, and finance committees
Member of Finance Committees for provincial and federal political campaigns
Teaching Roles
Former Guest Lecturer at the University of Calgary, Faculty of Law Contact information CalgaryLocal time D+1 403 268 6827M+1 403 680 2201
Email Me Connect on LinkedIn Download vCard Areas of focusCorporateEnergyEquity Capital MarketsInitial Public OfferingsInvestment Banks and Broker DealersIPOs and Public OfferingsPrivate EquitySecurities and Corporate FinanceVenture Capital
EducationInternational University of Monaco, 2001, MBAUniversity of Calgary, 1980, BAUniversity of Victoria LL.B., 1983
Admissions and qualificationsAlberta, 1984
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2016-50/4389/en_head.json.gz/21564 | Industrial Disease Experts Help 76-Year-Old’s Family In Battle For Justice
Daughter Of Hospital Technician Who Died From Mesothelioma Appeals For His Ex Colleagues To Help Investigation
By Suzanne Rutter
The devastated daughter of a former hospital technician and youth club worker who died from the asbestos-related illness mesothelioma has joined forces with specialist industrial disease lawyers to appeal for his former colleagues to help an investigation.
Donald Scott Henderson, of Ashington in Northumberland, believed he was exposed to asbestos while working in the pathology laboratory at Newcastle General Hospital between 1953 and 1957 and again in 1959. He also believed he was exposed to the deadly dust while working at the Coquetdale Outdoor Pursuits training, holiday and conference centre, owned by the Northumberland Association of Youth Clubs.
Following his death aged 76 in January, Donald’s daughter Kay Henderson is carrying on his battle for justice alongside expert industrial disease lawyers at Irwin Mitchell, instructed by her father before the debilitating illness took hold. Kay is appealing for her dad’s ex colleagues to come forward with information about the working conditions he endured and why more wasn’t done to protect him from the dangers of asbestos.
Isobel Lovett, from Irwin Mitchell’s Newcastle office, said: “Asbestos-related diseases are the biggest occupational killer of all time and it can take decades for victims like Donald to develop terrible symptoms which can really impact on their quality of life.
“Donald’s family are heartbroken at losing him to such a terrible illness simply because he went to work every day almost 60 years ago. It’s important that we speak to Donald’s ex colleagues who may be able to shed light on the working conditions he endured at Newcastle General Hospital and while employed by the Northumberland Association of Youth Clubs so that we can help his family get the justice they deserve in his memory.”
Donald worked at Newcastle General Hospital, initially as a trainee technician in the haematology and biochemistry divisions of the department of pathology from 1953 to 1957. After being called up to serve in the RAF he then returned to the hospital in 1959 for a further six months.
Before his death he told his family he regularly worked with Bunsen burner mats, which were often frayed and damaged due to wear and tear.
After his first six months he moved into a new hospital building working in the histological laboratory, where he was responsible for preparing tissue and cell samples taken during biopsies. He also recalled being exposed to asbestos when he made plastic display boxes for specimens to be stored in. The process involved using Bunsen burners to mould plastic into shape and asbestos-coated tiles were needed to protect the worktops.
Donald also believed he was exposed to asbestos while working for the Northumberland Association of Youth Clubs between 1973/74 and 1976, where he was a warden at the outdoor pursuits centre at Whitton Farm in Rothbury. His role involved checking the centre’s asbestos-lagged boiler on a regular basis. Donald first started to suffer from chest pains in June 2012 and had fluid drained from his lungs. In October 2012, he was formally diagnosed with mesothelioma and he died in January 2013.
His daughter Kay, of Ashington in Northumberland, said: “The disease had such a terrible impact on my dad’s health. He suffered from terrible bouts of pain between his shoulders, which meant he couldn’t sleep properly, his appetite was non-existent and he felt constantly tired and dizzy. “He used to love fly fishing and volunteered for different charities – he always seemed so strong so it was awful to see him deteriorate so quickly. I hope his ex colleagues from the hospital and his friends at the youth club he worked with can help me get dad the justice he deserves by coming forward with information about his exposure to asbestos.”
Anyone with information about the working conditions at Newcastle General Hospital between 1953 and 1957 and again in 1959 or the Coquetdale Outdoor Pursuits Centre between 1973/74 and 1976 should contact Isobel Lovett of Irwin Mitchell on 0191 2790104 or email [email protected]. Read more about Irwin Mitchell’s expertise related to
Mesothelioma Compensation Claims
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Mesothelioma Claims
Isobel Lovett | 法律 |
2016-50/4389/en_head.json.gz/21801 | May 28, 2014: State Bar President Urges Legislators To Approve New Family Court Judgeships
New York State Bar Association President David M. Schraver today called on the Legislature to promptly authorize 20 new Family Court judgeships to give potential judicial candidates adequate time to gather designating petitions.While the approved state budget includes money for the additional judgeships, the Legislature still must enact a bill authorizing them. In New York City, Family Court judges are appointed by the mayor. Elsewhere in the state, they are elected by voters. In a letter to the legislative leaders, Schraver of Rochester (Nixon Peabody) noted that candidates seeking to run in the November election must circulate and file designating petitions between May 29 and July 10. However, Family Court candidates cannot begin to circulate petitions until the Legislature passes a bill authorizing the new judgeships."In order to have those offices filled by January 2015, candidates must file their petitions by July 10. Therefore, with each passing day, there is less time for qualified candidates to obtain a position on the ballot," Schraver wrote in a May 27 letter to Assembly Speaker Sheldon Silver and Senate Co-Leaders Dean Skelos and Jeffrey Klein. Schraver noted that authorizing the Family Court judgeships is the State Bar Association's "highest priority for the remainder of the legislative session." The current shortage of judges contributes to delays in resolving cases that affect the well-being of children. Such delays often leave children in limbo while their cases drag on. For example, delays affecting custody and visitation rights need to be resolved quickly to provide children with greater stability in their lives.Family Court also handles adoptions, cases of child abuse, neglect and family violence, and other legal matters involving children.
In 2013, the State Bar Association’s Task Force on Family Court issued a report. It cited numerous reasons for the extensive delays in Family Court proceedings and identified the inadequate number of judges as the first and most important problem that needs to be addressed. The report is available at www.nysba.org/familycourtreport.In his letter, Schraver wrote legislative leaders, "You and your colleagues have exhibited strong commitment to addressing the conditions in Family Court. I urge you to take necessary steps to pass authorization legislation promptly." A copy of the letter is available here.The 75,000-member New York State Bar Association is the largest voluntary state bar association in the nation. It was founded in 1876.-30-Contact: Lise Bang-JensenDirector of Media Services & Public [email protected]/487-5530 | 法律 |
2016-50/4389/en_head.json.gz/21903 | Judge deals setback to plan for shoreline retaining wall in Matunuck
SOUTH KINGSTOWN, R.I. — A Superior Court judge has interrupted plans to erect a steel retaining wall along Matunuck Beach Road, ruling that questions about the potential environmental impacts had not been adequately addressed.
Richard Salit Journal Staff Writer richsalit
SOUTH KINGSTOWN, R.I. — Two years ago — after spending a series of long meetings taking testimony, deliberating, voting and then reversing course — the state Coastal Resources Management Council finally approved a controversial proposal to erect a steel wall to protect a shoreline road from erosion.But now the dispute is back in the hands of the council after a Superior Court judge, hearing an appeal from the neighboring Ocean Mist tavern, ruled that questions about the potential environmental impacts of building the retaining wall along Matunuck Beach Road had not been adequately addressed.The case, which highlighted the growing problem of erosion along the state’s southern shore, aroused opposition from environmentalists and surfers. They argued that hardened structures, while offering protection to property, are likely to exacerbate erosion and restrict public access to the beach.The Ocean Mist worried that the town’s plan to build a 202-foot-long wall would worsen erosion of the beach and the seaside building’s foundation.Judge Stephen P. Nugent concluded that those concerns weren’t properly addressed in a mixed decision that also supported the town’s need to protect its infrastructure.The town had proposed erecting the sheet-metal wall to protect Matunuck Beach Road, which officials said was at imminent risk of being damaged by a major storm. The road provides the only access to 240 houses east of its vulnerable seaside stretch, and a pipe beneath it provides water for drinking and firefighting for 1,666 customers.Nugent found that the project served a “compelling public purpose,” and he rejected the Ocean Mist’s argument that the town had failed to consider “reasonable alternatives.” He noted that the town had looked at relocating or elevating sections of the road but that all of the options had been dismissed as impractical and not timely enough.The judge, however, reversed CRMC’s finding that the town “took all reasonable steps to minimize environmental impacts and use conflicts.” Contradictory evidence was presented during the hearing, yet CRMC failed to explain how it resolved them, Nugent concluded.It’s that part of the case that Nugent sent back to the council to “clarify and complete its decision.”“We’re talking about how exactly to handle it,” said Brian Goldman, a lawyer for the CRMC. “What probably happens is that the town needs to present a stronger case. It probably means another hearing.”Goldman also noted that all or parts of the judge’s decision could be appealed by either side.Stephen Alfred, South Kingstown’s town manager, said he was pleased that the judge had concluded that the project merited a “special exception” to rules that would have otherwise prohibited construction of the retaining wall.“At this point, the coastal staff, hopefully in consultation with the town, will prepare documentation and forward it to the council in hopes of addressing the deficiencies the court has identified,” Alfred said.William Landry, lawyer for the Ocean Mist, sees the decision as a victory and has no plans to appeal any part of it.The town’s solution, he said, would be destructive to surrounding properties and to the beach, which is exactly what opponents said during their testimony at the well-attended hearings. He’s hoping that, with the decision, talks will gain momentum on a plan supported by property owners.It would involve repairing and restoring a historic seawall made of boulders that runs along the shore from Mary Carpenter Beach toward the Ocean Mist. And with CRMC approval, it could possibly be done by the end of summer.“Our proposed solution all along has been a privately financed solution by the owners,” he said. “It would intercept the water further out into the surf. It would not cause any erosion beyond what has occurred historically.” About Us | 法律 |
2016-50/4389/en_head.json.gz/21935 | Supreme Court considers corporate religious objections to health law’s birth control coverage
WASHINGTON (AP) -- The Obama administration and its opponents are renewing the Supreme Court battle over President Barack Obama’s health care law in a case that pits the religious rights of employers against the rights of women to the birth control of their choice.
Two years after the entire law survived the justices’ review by a single vote, the court is hearing arguments Tuesday in a religion-based challenge from family-owned companies that object to covering certain contraceptives in their health plans as part of the law’s preventive care requirement.
Health plans must offer a range of services at no extra charge, including all forms of birth control for women that have been approved by federal regulators.
Some of the nearly 50 businesses that have sued over covering contraceptives object to paying for all forms of birth control. But the companies involved in the high court case are willing to cover most methods of contraception, as long as they can exclude drugs or devices that the government says may work after an egg has been fertilized.
The largest company among them, Hobby Lobby Stores Inc., and the Green family that owns it, say their "religious beliefs prohibit them from providing health coverage for contraceptive drugs and devices that end human life after conception."
New satellite data show possible Malaysian jet debris in southern Indian Ocean
PERTH, Australia (AP) -- France provided new satellite data Sunday showing possible debris from the missing Malaysia Airlines jet, as searchers combing a remote part of the southern Indian Ocean tried without success to locate a wooden pallet that could yield clues to one of the world’s most baffling aviation mysteries.
The new data consists of "radar echoes" in the same part of the ocean where satellite images previously released by Australia and China showed what might be debris from the plane, French authorities said.
Flight 370 vanished March 8 with 239 people aboard while en route from Kuala Lumpur, Malaysia, to Beijing, setting off a multinational search that has turned up no confirmed pieces and nothing conclusive on what happened to the jet.
The latest satellite data came to light as Australian authorities coordinating the search, conducted about 2,500 kilometers (1,550 miles) southwest of Perth, sent planes and a ship to try to "re-find" a wooden pallet that appeared to be surrounded by straps of different lengths and colors.
The pallet was spotted on Saturday from a search plane, but the spotters were unable to take photos of it, and a PC Orion military plane dispatched to locate it could not find it.
Disappearance of Malaysian jet stirs concern about screening for pilots’ mental health
DALLAS (AP) -- Reinforced doors with keypad entries. Body scanners and pat-downs. Elaborate crew maneuvers when a pilot has to use the restroom. All those tactics are designed to keep dangerous people out of the cockpit. But what if the pilot is the problem?
With no answers yet in the disappearance of Malaysia Airlines Flight 370; investigators have said they’re considering many options: hijacking, sabotage, terrorism or catastrophic equipment failure. Nobody knows if the pilots are heroes who tried to save a crippled airliner or if one collaborated with hijackers or was on a suicide mission.
Whatever the outcome, the mystery has raised concerns about whether airlines and governments do enough to make sure that pilots are mentally fit to fly.
"One of the most dangerous things that can happen is the rogue captain," said John Gadzinski, a Boeing 737 captain and aviation-safety consultant. "If you get somebody who -- for whatever reason -- turns cancerous and starts going on their own agenda, it can be a really bad situation."
Malaysia Airlines said this week that its pilots take psychological tests during the hiring process.
Ukraine says air force commander held after base in Crimea stormed
KIEV, Ukraine (AP) -- A Ukrainian air force commander is being held after his base in Crimea was stormed by pro-Russian forces, and the acting president called for his release Sunday.
Col. Yuliy Mamchur is the commander of the Belbek Air Force base near Sevastopol, which was taken over Saturday by forces who sent armored personnel carriers smashing through the base’s walls and fired shots and stun grenades. One Ukrainian serviceman was reported wounded in the clash.
It was unclear if the forces, who didn’t bear insignia, were Russian military or local pro-Russia militia.
Ukraine President Oleksandr Turchynov, in a statement, said Mamchur was "abducted" by the forces. He didn’t specify where Mamchur is believed to be held.
However, prominent politician Vitali Klitschko said Sunday that Mamchur is being held by the Russian military in a jail in Sevastopol, the Crimean city that is the base of Russia’s Black Sea Fleet.
Oil spill cleanup blocks traffic to Texas ship channel; residue 12 miles out in Gulf of Mexico
TEXAS CITY, Texas (AP) -- A barge that once carried some 900,000 gallons of heavy tar-like oil was cleared Sunday of its remaining contents, a day after the vessel collided with a ship in the busy Houston Ship Channel and leaked as much as a quarter of its cargo into the waterway.
Coast Guard officials said that up to 168,000 gallons were dumped and that oil from the ruptured barge had been detected 12 miles offshore in the Gulf of Mexico as of Sunday afternoon.
"This is a significant spill," Capt. Brian Penoyer, commander of the Coast Guard at Houston-Galveston, said.
But he said the emptying of the barge Sunday, a process known as lightering as contents are transferred to other vessels, was equally significant.
"The remaining risk of pollution, we’ve removed that," he said.
Washington governor calls mudslide a square mile of ‘total devastation’
ARLINGTON, Wash. (AP) -- Eighteen people were unaccounted for a day after a terrifying wall of mud, trees and debris destroyed as many as 30 houses in rural northwestern Washington state and killed at least three people, authorities said Sunday.
Because of the quicksand-like mud, authorities said it was too dangerous to send rescuers into the stricken area. Searchers instead flew over the one-square-mile mudslide in helicopters, looking for signs of life.
Some of the missing may have been able to get out on their own, authorities said.
Authorities were also trying to determine how to get responders on the ground safely, Snohomish County Fire District 21 Chief Travis Hots said.
Officials described the mudslide as "a big wall of mud and debris" that blocked about one mile of State Route 530 near the town of Oso, about 55 miles north of Seattle. It was reported about 60 feet deep in some areas.
James Rebhorn, character actor who appeared in ‘My Cousin Vinny,’ dies at 65
NEW YORK (AP) -- James Rebhorn, the prolific character actor whose credits included "Homeland," "Scent of a Woman" and "My Cousin Vinny," has died. He was 65.
Rebhorn’s agent, Dianne Busch, said Sunday that the actor died Friday at his home in South Orange, N.J, after a long battle with skin cancer.
Busch said Rebhorn was diagnosed with melanoma in 1992 but managed to work until the last month.
In five decades of television and film work, Rebhorn amassed more than 100 credits, ranging from a shipping magnate in "The Talented Mr. Ripley" to the prosecutor in the series finale of "Seinfeld," in which he famously sent the group to jail.
The lanky but piercing Rebhorn, raised a Lutheran in Indiana, often played astringent authorities, like the headmaster in "Scent of a Woman" or the Secretary of Defense in "Independence Day." | 法律 |
2016-50/4389/en_head.json.gz/22051 | ADVERTISEMENT Mankato woman pleads guilty to forced labor trafficking Article by: RANDY FURST
March 27, 2014 - 9:45 PM
A 59-year-old Mankato woman has pleaded guilty to one count of forced-labor trafficking in federal court in St. Paul for luring a woman from Vietnam under false promises, and compelling her to work long hours without pay in a Mankato restaurant.
According to a Justice Department news release, Tieu Tran recruited the woman from Vietnam to travel to the United States, falsely promising her legal immigration status and a high-paying job.
“In reality,” the department said, “Tran smuggled the victim and two other Vietnamese nationals across the southern U.S.-Mexico border, imposed a significant debt upon the victim and forced the victim to pay down the smuggling debt at Tran’s son’s Vietnamese restaurant, Pho Saigon, in Mankato.”
The Justice Department said that during plea proceedings, Tran admitted to compelling the victim to work long hours without paying her as promised.
The department said that “this included manipulation of debts, isolation and verbal intimidation to hold the victim in fear, knowing that the victim was without legal status and money, did not have the ability to speak English, feared losing her family home in Vietnam to creditors and had nowhere else to turn for subsistence.”
Tran faces a maximum prison sentence of 20 years and a $250,00 fine. She agreed to nullify all debts imposed on the victim as well as similar debts imposed on seven others believed to be under similar circumstances, the Justice Department said.
Randy Furst | 法律 |
2016-50/4389/en_head.json.gz/22081 | Home TPT Commentary A Dictionary, the Second Amendment and the Unconstitutional Flycatcher
TPT Commentary
A Dictionary, the Second Amendment and the Unconstitutional Flycatcher
Friday, the Community-Organizer-in-Chief, who taught Constitutional Law at Harvard, got a lesson in the true meaning of the document from the U.S. Court of Appeals for the D.C., Circuit. Here’s an opening phrase from the court’s opinion declaring as unconstitutional President Obama’s recess appointments to the National Labor Relations Board while Congress was still in session: “When interpreting a constitutional provision,” said the court, “we must look to the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution.” The appellate court cited the U.S. Supreme Court’s 2008 District of Columbia v. Heller ruling as precedent.
I could not help but notice the mainstream media missed that little tidbit in their recounting of the appellate court’s declaring their Oval Office pal an enemy of the Constitution. You see, the Heller decision was a Second Amendment case in which the high court affirmed the “right to bear arms” as an unalienable, individual right.
First, let’s read the Second Amendment as written: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” It’s the Amendment’s “well-regulated Militia” portion Progressive gun-grabbers have always seized upon. They insist the Second Amendment concerns the right of military personnel (state and federal) to possess arms … not free individuals.
Writing for the majority, Antonin Scalia’s brilliant Heller opinion goes for the throat of Progressive jurisprudential skulduggery, which attempts to amend the Constitution by redefining words, a trick that goes by the name “deconstructionism.”
Scalia disposed of that nonsense quickly: “Three provisions of the Constitution refer to ‘the people’ in a context other than ‘rights’ – the famous preamble (“We the people”), Article I (providing that ‘the people’ will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with ‘the States’ or ‘the people’). Those provisions arguably refer to ‘the people’ acting collectively – but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a ‘right’ attributed to ‘the people’ refer to anything other than an individual right.”
To back up his claim, as the circuit court did in its Friday ruling, Scalia sought the source or “natural meaning of the text” by using … what else … dictionaries.
“The 1773 edition of Samuel Johnson’s dictionary defined ‘arms’ as ‘weapons of offence, or armor of defense’ … Timothy Cunningham’s important 1771 legal dictionary defined ‘arms’ as ‘anything that a man wears for his defense, or takes into his hands, or useth in wrath to cast at or strike another’ … Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”
In other words, we have dictionaries because words have meaning. Without a clear definition of terms, written contracts would be worthless and impossible to enforce. And that’s the point. The U.S. Constitution is a written contract between a free people and its representative government. That government cannot lawfully expand its power beyond the written words of the contract. That would require amending the Constitution and submitting that amendment for the states to ratify or reject.
Progressive jurists do an end-run around that burdensome process by redefining words. That is how the “right” to abortion was miraculously discovered lurking between the lines of the Constitution, even though the subject of abortion is a topic never mentioned in the Federalist Papers. The high court amended the Constitution in Roe v. Wade without asking a single state to ratify. That is how deconstructionism works. If words have no meaning, neither does the Constitution, and our government can do as it pleases. Under this legal anarchy, no man’s liberty is secure.
And no one is more aware of this than the nation’s community organizer. He thought he could do and end-run around the Constitution’s “separation of powers” and appoint whomever he pleased to the Labor Relations Board without the consent of the Senate.
However, the man who believes he is a law unto himself was confronted by a fading but occasionally functioning expression of man’s yearning to live free. “Don’t interfere with anything in the Constitution,” said Abraham Lincoln, “That must be maintained, for it is the only safeguard of our liberties.”
It is surely a sign of divine providence that Obama’s Constitutional shellacking on Friday came about thanks to a Supreme Court ruling affirming the individual’s Second Amendment right to bear arms.
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tweet Previous articleThe Bill of Rights and Constitutional InterpretationNext articleBring the Monster Out mrcurmudgeonhttp://www.morethanright.comOriginally, from Los Angeles, I eventually made my way around the country: Arizona, the Bay Area and now South Florida.
Announcements JILL STEIN CANNOT ACCEPT DEFEAT: HEADS TO FEDERAL COURT Announcements Jill Stein Drops Pennsylvania State Wide Recount Suit, But it is Not Over! Announcements Liberals Agree To Waste Taxpayers’ Money On Michigan Recount! Elections Donald Trump awakens Johnny Freedom; leads freedom-lovers to victory Headlines I Crappith Thee Not! Headlines The Army of the Dead 5 COMMENTS
Wm Mahan
While we may consider this a victory for the Constitution, it is but a small batter in a very large ongoing war. Judges die and new ones are appointed – this all too often affects the outcome of future rulings and the over turning of old rulings… Reply Rick Carr
Where in that dictionary was ‘natural born citizen’ defined? Reply derekwilson62
According to the report "Qualifications for President and the 'Natural Born' Citizenship Eligibility Requirement" by Congressional Research Service. Federation of American Scientists. November 14, 2011. p. 2.
The weight of legal and historical authority indicates that the term "natural born" citizen would mean a person who is entitled to U.S. citizenship "by birth" or "at birth", either by being born "in" the United States and under its jurisdiction, even those born to alien parents; by being born abroad to U.S. citizen-parents; or by being born in other situations meeting legal requirements for U.S. citizenship "at birth". Such term, however, would not include a person who was not a U.S. citizen by birth or at birth, and who was thus born an "alien" required to go through the legal process of "naturalization" to become a U.S. citizen. Reply John W Bletsch
Natural Born Citizen is defined in Vatell's "Law of Nations". Natural Born Citizen is defined in Law of Nations as one born of two citizen parents in the country of citizenship. Law of Nations was the reference text for our Founders writing the Constitution for the many and varied sections. When examining the correspondence amongst the authors is found constant reference to Law of Nations. Ben Franklin had checked out one of two copies in the Library in Philladelphia and never bothered to return it, since it was his constant companion during the writing of the Constitution. Many others laws and duties of the government written were authored from influence of various portions of Law of Nations. Reply Jeffrey
He was a student at Harvard Law School, taught con law at U. Chicago Reply Leave a Reply Cancel reply | 法律 |
2016-50/4389/en_head.json.gz/22158 | EEOC calls it 'discrimination,' in some cases, not to hire convicts | Times Free Press Local
EEOC calls it 'discrimination,' in some cases, not to hire convicts
in Opinion Free Press
Pepsi Beverages Co. is having to pay $3.1 million to settle federal charges of "race discrimination."
But what exactly does the federal Equal Employment Opportunity Commission claim that Pepsi Beverages did to "discriminate"?
It says the company improperly used arrest records and criminal background checks to screen out job applicants. The EEOC said barring job-seekers with convictions or arrests in their past disproportionately affected black applicants.
Under the EEOC's rules, it can be illegal for an employer to deny a job to someone based on arrest and conviction records if those records are considered "irrelevant" to the job, The Associated Press noted.
But wait a minute! Pepsi wasn't concerning itself with the race of job applicants but with their arrests and convictions. That's not racist.
Moreover, it is absurd to expect employers to be able to predict whether a particular criminal conviction will be "relevant" to whether a job applicant would perform his duties honestly and legally. A person who breaks the law in one area may be prone to breaking it in others, possibly exposing an employer to liability if the company hires him with the knowledge that he has a criminal past.
It is commendable and even noble if a business is willing to take a chance on hiring someone who has a criminal history but who is trying to work his way back into society. But that should be a voluntary decision by the employer.
It is grossly unfair for the federal government to say just how much weight companies may give to criminal convictions when they are considering hiring someone.
GOP presidential hopefuls offer mix of strengths and weaknesses
Rick Santorum's belated Iowa win shakes up GOP contest | 法律 |
2016-50/4389/en_head.json.gz/22176 | Resource Center Current & Past Issues eNewsletters This copy is for your personal, non-commercial use only. To order presentation-ready copies for distribution to your colleagues, clients or customers, click the "Reprints" link at the top of any article. States’ Rejection of Medicaid Growth May Cost Companies
Employers could pay up to $1.3 billion in fines if uncovered workers can't qualify for Medicaid.
By Alex Wayne, Bloomberg March 14, 2013
Governors who refuse to expand their Medicaid programs for the poor may cost employers in their states as much as $1.3 billion in federal fines, a study found.
A clause in the 2010 health-care overhaul penalizes some employers when their workers aren’t able to obtain affordable medical coverage through the company. Employers can avoid those fees if their workers qualify for Medicaid as part of an expansion that as many as 22 states have rejected, according to a report today by Jackson Hewitt Tax Service Inc.
Without Medicaid, a “shared responsibility” payment of as much as $3,000 may be triggered for each employee who can’t get insurance through their company. In Texas, the largest state to refuse to increase Medicaid, employers may be liable for as much as $448 million in fines, the study found. In Florida, where the legislature has refused an expansion supported by Governor Rick Scott, employers may pay as much as $219 million.
“A lot of businesses have taken the position that they oppose a Medicaid expansion because it would increase their taxes,” Brian Haile, senior vice president for health policy at Jackson Hewitt in Parsippany, New Jersey, said in an interview. “The irony of this, or the paradox, is that the opposite may be true, at least for some businesses in some states.”
Under the Affordable Care Act, states are expected to expand Medicaid, the joint federal-state health plan for the poor, to cover every person earning wages close to the poverty level. Medicaid’s expansion is one of two core provisions in the law’s mission of extending health coverage to about 27 million uninsured people. The Supreme Court said in June the federal government can’t force states to expand the program.
With as many as 22 states potentially opting out, more workers will have to rely on the other core provision of the law, subsidized insurance sold through health exchanges. That would trigger the shared responsibility payment for each employee who can’t get insured through their company and in turn qualifies to use the exchanges.
Employers wouldn’t have to pay the penalties if their workers enroll in Medicaid. Under the law, a family of four making about $32,500 this year would be eligible for the program.
The shared responsibility clause applies to companies that offer health insurance and have at least 50 employees.
Merkel Jumps on Pro-Growth Bandwagon
BNY Mellon Contests Chesapeake’s Early Redemption of Notes
federal government 140
health insurance 54
Supreme Court 43
Rick Scott 6 | 法律 |
2016-50/4389/en_head.json.gz/22339 | The Principles of Masonic Law/Chapter XV
< The Principles of Masonic Law
←Book Third, Chapter IV
The Principles of Masonic Law by Albert Mackey
Book Third, Chapter V
Book Third, Chapter VI→
Of the Rights of Past Masters.
124242The Principles of Masonic Law — Book Third, Chapter VAlbert Mackey
I have already discussed the right of Past Masters to become members of a Grand Lodge, in a preceding part of this work,[1] and have there arrived at the conclusion that no such inherent right exists, and that a Grand Lodge may or may not admit them to membership, according to its own notion of expediency. Still the fact, that they are competent by their masonic rank of accepting such a courtesy when extended, in itself constitutes a prerogative; for none but Masters, Wardens, or Past Masters, can under any circumstances become members of a Grand Lodge.
Past Masters possess a few other positive rights.
In the first place they have a right to install their successors, and at all times subsequent to their installation to be present at the ceremony of installing Masters of lodges. I should scarcely have deemed it necessary to dwell upon so self-evident a proposition, were it not that it involves the discussion of a question which has of late years been warmly mooted in some jurisdictions, namely, whether this right of being present at an installation should, or should not, be extended to Past Masters, made in Royal Arch Chapters.
In view of the fact, that there are two very different kinds of possessors of the same degree, the Grand Lodge of England has long since distinguished them as "virtual" and as "actual" Past Masters. The terms are sufficiently explicit, and have the advantage of enabling us to avoid circumlocution, and I shall, therefore, adopt them.
An actual Past Master is one who has been regularly installed to preside over a symbolic lodge under the jurisdiction of a Grand Lodge. A virtual Past Master is one who has received the degree in a chapter, for the purpose of qualifying him for exaltation to the Royal Arch.
Now the question to be considered is this. Can a virtual Past Master be permitted to be present at the installation of an actual Past Master?
The Committee of Correspondence of New York, in 1851, announced the doctrine, that a Chapter, or virtual Past Master, cannot legally install the Master of a Symbolic Lodge; but that there is no rule forbidding his being present at the ceremony. This doctrine has been accepted by several Grand Lodges, while others again refuse to admit the presence of a virtual Past Master at the installation-service.
In South Carolina, for instance, by uninterrupted usage, virtual Past Masters are excluded from the ceremony of installation.
In Louisiana, under the high authority of the late Brother Gedge, it is asserted, that "it is the bounden duty of all Grand Lodges to prevent the possessors of the (chapter) degree from the exercise of any function appertaining to the office and attributes of an installed Master of a lodge of Symbolic Masonry, and refuse to recognize them as belonging to the order of Past Masters."[2]
Brother Albert Pike, whose opinion on masonic jurisprudence is entitled to the most respectful consideration, has announced a similar doctrine in one of his elaborate reports to the Grand Chapter of Arkansas. He does not consider "that the Past Master's degree, conferred in a chapter, invests the recipient with any rank or authority, except within the chapter itself; that it no ways qualifies or authorizes him to preside in the chair of a lodge: that a lodge has no legal means of knowing that he has received the degree in a chapter: for it is not supposed to know anything that takes place there any more than it knows what takes place in a Lodge of Perfection, or a Chapter of Knights of the Rose Croix;" and, of course, if the Past Masters of a lodge have no such "legal means" of recognition of Chapter Masters, they cannot permit them to be present at an installation.
This is, in fact, no new doctrine. Preston, in his description of the installation ceremony, says: "The new Master is then conducted to an adjacent room, where he is regularly installed, and bound to his trust in ancient form, in the presence of at least three installed Masters."[3] And Dr. Oliver, in commenting on this passage, says, "this part of the ceremony can only be orally communicated, nor can any but installed Masters be present."[4]
And this rule appears to be founded on the principles of reason. There can be no doubt, if we carefully examine the history of Masonry in this country and in England, that the degree of Past Master was originally conferred by Symbolic Lodges as an honorarium or reward bestowed upon those Brethren who had been found worthy to occupy the Oriental Chair. In so far it was only a degree of office, and could be obtained only from the Lodge in which the office had been conferred. At a later period it was deemed an essential prerequisite to exaltation in the degree of Royal Arch, and was, for that purpose, conferred on candidates for that position, while the Royal Arch degree was under the control of the symbolic Lodges, but still only conferred by the Past Masters of the Lodge. But subsequently, when the system of Royal Arch Masonry was greatly enlarged and extended in this country, and chapters were organized independent of the Grand and symbolic Lodges, these Chapters took with them the Past Master's degree, and assumed the right of conferring it on their candidates. Hence arose the anomaly which now exists in American Masonry, of two degrees bearing the same name, and said to be almost identical in character, conferred by two different bodies under entirely different qualifications and for totally different purposes. As was to be expected, when time had in some degree obliterated the details of history, each party began to claim for itself the sovereign virtue of legitimacy. The Past Masters of the Chapters denied the right of the Symbolic Lodges to confer the degree, and the latter, in their turn, asserted that the degree, as conferred in the Chapter, was an innovation.
The prevalence of the former doctrine would, of course, tend to deprive the Symbolic Lodges of a vested right held by them from the most ancient times--that, namely, of conferring an honorarium on their Masters elect.
On the whole, then, from this view of the surreptitious character of the Chapter Degree, and supported by the high authority whom I have cited, as well as by the best usage, I am constrained to believe that the true rule is, to deny the Chapter, or Virtual Past Masters, the right to install, or to be present at the installation of the Master of a Symbolic Lodge. A Past Master may preside over a lodge in the absence of the Master, provided he is invited to do so by the Senior Warden present. The Second General Regulation gave the power of presiding, during the absence of the Master, to the last Past Master present, after the lodge had been congregated by the Senior Warden; but two years afterwards, the rule was repealed, and the power of presiding in such cases was vested in the Senior Warden. And accordingly, in this country, it has always been held, that in the absence of the Master, his authority descends to the Senior Warden, who may, however, by courtesy, offer the chair to a Past Master present, after the lodge has been congregated. Some jurisdictions have permitted a Past Master to preside in the absence of the Master and both Wardens, provided he was a member of that lodge. But I confess that I can find no warrant for this rule in any portion of our fundamental laws. The power of congregating the lodge in the absence of the Master has always been confined to the Wardens; and it therefore seems to me, that when both the Master and Wardens are absent, although a Past Master may be present, the lodge cannot be opened.
A Past Master is eligible for election to the chair, without again passing through the office of a Warden.
He is also entitled to a seat in the East, and to wear a jewel and collar peculiar to his dignity.
By an ancient regulation, contained in the Old Charges, Past Masters alone were eligible to the office of Grand Warden. The Deputy Grand Master was also to be selected from among the Masters, or Past Masters of Lodges. No such regulation was in existence as to the office of Grand Master, who might be selected from the mass of the fraternity. At the present time, in this country, it is usual to select the Grand officers from among the Past Masters of the jurisdiction, though I know of no ancient law making such a regulation obligatory, except in respect to the affairs of Grand Wardens and Deputy Grand Master.
↑ Book I., chap. iii.
↑ Proceedings of Louisiana, an. 1852.
↑ Preston, Oliver's Edit., p. 76 (U.M.L., vol. iii, p. 62).
↑ Ibid.
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2016-50/4389/en_head.json.gz/22414 | › Cordova v. Hood
Cordova v. Hood 84 U.S. 1 (1872)
U.S. Supreme CourtCordova v. Hood, 84 U.S. 17 Wall. 1 1 (1872)Cordova v. Hood84 U.S. (17 Wall.) 1APPEAL FROM THE CIRCUIT COURT FOR
THE WESTERN DISTRICT OF TEXAS
1. Where a deed of land shows on its face that the consideration is yet "to be paid," a second purchaser (that is to say, a purchaser from the vendee) who has notice of the deed takes the land is those states (of which Texas is one) where the English chancery doctrine of a vendor's lien prevails, subject to the vendor's lien, unless such lien has been in some way waived.
2. In the case of such a deed, it is the duty of the new purchaser to inquire, and where inquiry is a duty, the party bound to make inquiry is affected with all the knowledge which he would have got had he inquired.
3. Though it is true that taking a note with a surety from the vendee is generally evidence of an intention to rely exclusively upon the personal security taken, and therefore, presumptively, is an abandonment or waiver of a lien, yet this raises only a presumption, and as a presumption only, it may be rebutted by evidence that such was not the intention of the parties.
4. The testimony of the vendor received to rebut, and being positive, held sufficient to do so.
5. Where a vendor already has a lien evidenced by a note for the payment of all and every part of the purchase money so long as it remains unpaid, the lien for any purchase money afterwards still unpaid is not lost by the fact of his receiving part payment of the note before its maturity, taking a new note payable at the same time and in the same way and place as the original note, and a destruction of such original one.
6. By the laws of Texas (which in a matter connected with real estate was respected by this Court in a suit coming from Texas) an assignment of a note given for the purchase money of real estate carries the vendor's lien.
On the 4th of March, 1859, B. G. Shields, by instrument of Page 84 U. S. 2 writing, "bargained and sold to G. M. Hood" (both parties being of Texas) a tract of land in that state, described, "for the sum of $27,000, to be paid by the said Hood as follows." Certain drafts and notes to be given by Hood were then specified, among the notes, one for $9,000, payable at the Union Bank, New Orleans, April 9, 1862. The deed ended with a covenant that "on the completion of the payments before mentioned," Shields would warrant and defend the premises to Hood, his heirs and assigns, against all persons lawfully claiming or to claim them. In point of fact, when the papers came to be executed, the notes were signed not only by Hood, the purchaser, but also by his son, G. M. Hood, Jr. On the 1st of April, 1862, before the note that became due on the 9th matured, Hood, Sr., called on Shields and stated to him that he had some surplus cash with which he desired to pay a part of it off. Shields accordingly took his money and a new note was executed for the balance, the old note being given up. The new note, like the old one had been, was made payable April 9, 1862, and at the Union Bank, New Orleans. This new note Shields afterwards (in the autumn of 1862) assigned to one Bartlett.
In May, 1863, Hood sold the land to two persons named Scroggin and Hanna, and, Bartlett having become bankrupt, his assignee in bankruptcy, one Cordova, now filed a bill in the court below against both the Hoods, Scroggin, and Hanna, to enforce the lien. The bill did not allege that the complainant had exhausted his remedy at law against Hood, the vendee of the land, who, or whose estate in point of fact, appeared to be solvent.
The Hoods let a decree pass pro confesso. Scroggin and Hanna set up in answer or in argument that all vendor's lien had been waived by taking Hood, Jr., as a party, who, not being interested, was a surety on the notes; that even if any lien had existed under or by virtue of the note of $9,000, such lien was waived when that note was paid, as in law it was completely when it was surrendered, the transaction having been not a credit on an old debt, of so much cash paid, but an acceptance of cash and of a new Page 84 U. S. 3 debt, accompanied by an annihilation and extinction of the old one; that, at any rate, however all this might be as between Shields and Hood, they, Scroggin and Hanna, were purchasers, bona fide and without notice of any lien; that further, if Shields, the vendor, might himself have enforced a lien against the land had he continued to hold the note and debt, the right of enforcement was a right personal to him, and that it did not pass to Bartlett, his assignee, and as little certainly to Cordova, assignee in a second remove.
Shields, who was examined, thus testified:
"The recital in the instrument executed to G. M. Hood, Sr., on the 4th of March, 1850, corresponds with the facts, except that the name of G. M. Hood, Jr., was also signed to the notes. The land was sold to Mr. Hood, Sr., and his responsibility, coupled with a vendor's lien, secured by the regular form and terms of the instrument, was deemed by me a sufficient security. Mr. Hood, Jr., accompanied his father to my house, and was represented by his father to be his agent. I do not remember why it was that Mr. Hood, Jr.'s name was signed to the notes. The deed or instrument was prepared, to the best of my recollection, before the notes and in the absence of Mr. Hood, the notes after the arrival of Mr. Hood and son. Their joint signatures was probably a suggestion of the moment, and did not alter or take from the facts recited in the instrument. Mr. Hood, Sr., did execute the notes to secure the payment of the amounts, and at the time and for the considerations mentioned in the deed. The additional signature of Hood, Jr., was simply that much more -- a gratuity not called for by nor altering the contract. Mr. Hood, Sr., was represented, by those who knew him in Eastern Texas, to be a wealthy man. His son was considered responsible and trustworthy as far as I know. The reason for not taking a mortgage is shown by the terms of the instrument, by which the vendor's lien is plainly retained and held. I have no recollection of who was present when the terms of the instrument securing the vendor's lien were discussed, if discussed at all. There never was any question between us on that point, it being considered, of course, that my obligation of warranty in the instrument would only be made perfect or complete upon the payment of the whole amount of the purchase money. "Page 84 U. S. 4
"The payment of a portion of the note of $9,000 in advance and taking another note was simply a matter of convenience, and not intended in any manner or to any extent whatever to impair or affect the lien retained by the terms of the instrument to secure the payment of the whole amount of the purchase money. It was positively and unequivocally so stipulated and agreed between us at the time of the execution of the said note of $5,015, so stated and understood, without question, between us."
"The note was traded to Bartlett with the statement from me that it was secured by a vendor's lien on the land sold to Hood, Sr. I will further state that I believed at the time that Mr. Bartlett had special reference to that fact in the transaction, and that he felt that the note of G. M. Hood, Sr., to secure the remainder of the last payment for the land, with the right of the vendor's lien upon said land, was safer for him (Bartlett) than cotton, which he gave me for it, then liable at any moment to impressment."
"Both Hanna and Scroggin spoke to me sometime since -- perhaps 1868 or 1869 -- in reference to the terms of sale by me to Hood. I gave them such information as my recollection of the facts warranted. One of them and perhaps both stated that they had been informed by Mr. Hood that he had paid the whole amount of the purchase money, in reply to which I gave them true information as nearly as I could. At the time, there was more than $9,000 due."
Bartlett was also examined. He said:
"When Shields sold the note to me, he told me distinctly and positively that it was secured by a lien on the land. This was perfectly understood between us. I relied on this lien when I purchased it."
Scroggin and Hanna were also both examined. They testified that Hood, Sr., was one of the wealthy men in Texas; that they supposed that the land had been sold to him on his personal responsibility; that with his own lips he declared to them that every dollar was paid on the land; that they had never heard of any lien. It appeared, however, on cross-examination that they had seen the record of the deed of March 4, 1859, from Shields to Hood, before purchasing Page 84 U. S. 5 from Hood, and had had it examined by their professional adviser for their own "protection."
The court below confirmed the decree so far as the bill was confessed, but dismissed it as against Scroggin and Hanna. From that decree Cordova took this appeal.
MR. JUSTICE STRONG delivered the opinion of the Court.
The appellees must be held to have had notice of whatever equities were revealed in the line of their title. They claim through a conveyance from Hood, Sr., who had purchased from Shields in 1859, and the deed from Shields plainly exhibited the fact that the purchase money remained to be paid. It contained not even a receipt for the consideration of the sale. In form, it was a deed of bargain and sale, but there was not enough in it to show that the use was executed in the vendee. On the contrary, it recites a consideration "to be paid" in installments at subsequent dates, for which a draft and notes were given. That the vendor, by such a deed, had a lien for the unpaid purchase money, as against the vendee and those holding under him with notice, unless the lien was waived, is the recognized doctrine of English chancery, and Texas is one of the states in which the doctrine has been adopted. [Footnote 1] It is a general principle that a vendor of land, though he has made an absolute conveyance by deed, and though the consideration is in the instrument expressed to be paid, has an equitable lien for the unpaid purchase money unless there has been an express or an implied waiver of it. And this lien will be enforced in equity against the vendee and all persons holding under him except bona fide purchasers without notice. [Footnote 2] With greater reason, it would seem, should such a lien exist and be enforced when, as in this case, the deed, Page 84 U. S. 6 instead of containing a receipt for the purchase money, expressly states that it remains unpaid.
The important question to be considered, therefore, is whether the lien has been waived. That there was no express waiver by Shields at the time when his deed to Hood was made and delivered, or at any subsequent time, is not only not proved but is plainly disproved. Shields himself has testified that the lien was never released by him, and that when the note of his vendee for $5,015 was taken for the unpaid portion of the larger note given at the time of the sale, it was with the distinct understanding between him and Hood that the payment then made, and the execution of the note for the balance, made no difference whatever respecting the vendor's lien to secure the balance, but "that the land should continue just as liable to secure payment of said balance as before."
It remains then to inquire whether there was any implied waiver of a lien. When the deed was made, the vendor took for the purchase money promissory notes signed not only by Hood, the vendee, but by Hood, Jr., his son. Had the notes been signed by the vendee alone, no implication of an intent to waive a vendor's lien could have arisen. It is everywhere ruled that where such a lien is recognized at all, it is not affected by the vendor's taking the bond or bill single of the vendee, or his negotiable promissory note, or his check, if not presented or if unpaid, or any instrument involving merely his personal liability. [Footnote 3] It is true that taking a note or a bond from the vendee with a surety has generally been held evidence of an intention to rely exclusively upon the personal security taken, and therefore, presumptively, to be an abandonment or waiver of a lien. But this raises only a presumption, open to rebuttal by evidence that such was not the intention of the parties. [Footnote 4] And we Page 84 U. S. 7 think the evidence in this case clearly shows that neither party to the deed understood that the vendor intended to take the note of Hood, Sr., and Hood, Jr., as a substitute for the lien. The only evidence we have bearing directly upon the subject is in the testimony of Shields. To some extent, he does undoubtedly confound his own impressions with what occurred when the notes were given. But we think it may fairly be deduced from his statements that there was no intention then to waive the lien, which the law implied from the terms of the deed. He is unable to state why the son's name was signed in conjunction with the father's, but he is positive that the additional signature was simply a gratuity not called for by the contract nor altering it. He states also there never was any question between himself and his vendee respecting a vendor's lien, adding, it being considered, of course, that his obligation of warranty in the deed would only be made perfect or complete upon the payment of the whole amount of the purchase money. And that taking the notes as they were taken was not intended as a waiver of a vendor's lien, or at least that it was not understood by the vendee to be such a waiver, is placed beyond doubt by what took place afterwards, on the 1st of April, 1860. There the renewed note was given for a part of the original purchase money, and it "was positively and unequivocally stipulated and agreed by the vendor and vendee" that the original lien was retained, that the land should continue liable as before. How could this be if the lien had been waived? Waiver is a thing of intention as well as of action, and it is impossible to believe, in view of this testimony, there was an intention to give up the security of the land. Were this a bill to enforce the lien against the lands in the hands of Hood, the purchaser, it would not be permitted to him to assert that the vendor had, from the first, relied only upon the personal security taken.
And Scroggin and Hanna, the purchasers from Hood, are in no better position. They are not bona fide purchasers without notice. As we have seen, the lien for the purchase Page 84 U. S. 8 money was apparent in the line of their title. The deed from Shields to Hood informed them that the consideration was unpaid. It imposed upon them the duty of inquiring whether it remained unpaid when they were about to make their purchase. [Footnote 5] Wherever inquiry is a duty, the party bound to make it is affected with knowledge of all which he would have discovered had he performed the duty. Means of knowledge with the duty of using them are, in equity, equivalent to knowledge itself. Had inquiry been made of the vendor, it would easily have been ascertained that a portion of the purchase money remained unpaid. Inquiry of Hood, the debtor, if any such inquiry was made, was an idle ceremony. The deed pointed to the person from whom purchasers from Hood were bound to seek information.
It has been suggested in the argument on behalf of the appellees that taking up the original note, and giving another note for an unpaid balance of the first, may have terminated the lien if any existed. Undoubtedly no agreement made in 1860, when the new note was given, created a vendor's lien for its security. But the original lien was for all the purchase money, and for every part of it so long as it remained unpaid. It was not merely security for the notes first given; it was for the debt of which the notes were evidence. Giving the new note was not payment of the debt, it was only a change of the evidence, and therefore the fact that it was given did not affect the lien. In Mims v. Lockett, [Footnote 6] it was held that if a vendor of land takes a note for the price and subsequently renews it, adding in the new note a sum of money due him by the vendee on a different account, his vendor's lien will not be invalidated thereby.
It has been further argued that even if Shields, the vendor, might have enforced a lien against the land had he continued to hold the note, Bartlett, his assignee, cannot. It is contended that a vendor's lien is a personal right of the vendor himself, not assignable. And hence that the assignee of a note given for the purchase money cannot resort in equity Page 84 U. S. 9 to the land sold. It must be admitted that such is the doctrine of very many cases, perhaps of those which have been best considered, though there are many well reasoned judgments to the contrary. But we think, for the purposes of the present case, the law, as held by the Supreme Court of Texas, must furnish the rule of decision. And the decisions of that court appear to be that an assignment of the notes given for purchase money carries with it the lien to the assignee. [Footnote 7]
It has been held that in order to enforce a vendor's lien, the bill must show that the complainant has exhausted his remedy at law against the personal estate of the vendee, or must show that he cannot have an adequate remedy at law. And this bill makes no such showing. But in Texas, as in some other states, the creditor may proceed in the first instance to enforce the lien in equity. [Footnote 8]
Upon the whole, then, we think the circuit court erred in dismissing the complainant's bill. He was entitled to a decree.
Decree reversed and the case remitted with instructions to enter a decree for the complainant against Scroggin and Hanna, the appellees and defendants below.
Osborn v. Cummings, 4 Tex. 13; Neel v. Prickett, 12 id. 138; Briscoe v. Bronaugh, 1 id 326.
Mackreth v. Symmons, 15 Vesey 329.
See numerous cases collected in note 1, Leading Cases in Equity, Hare & Wallace 235, under the case of Mackreth v. Symmons.
Campbell v. Baldwin, 2 Humphreys 248, 258; Marshall v. Christmas, 3 id. 616; Mims v. Railroad Co., 3 Kelley 333; Griffin v. Blanchar, 17 Cal. 70; Parker v. Sewell, 24 Tex. 238; Dibblee v. Mitchell, 15 Ind. 435.
McAlpine v. Burnett, 23 Tex. 649.
23 Ga. 237.
Moore v. Raymond, 15 Tex. 554; Watt v. White, 33 id. 425. | 法律 |