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Beijing Academy of Artificial Intelligence 709

2016-50/4390/en_head.json.gz/6503

The Hillmon Case The Hillmon Story The Supreme Court Decision The Hearsay Rule & the Hillmon Exception State of Mind: The Hillmon Case, the McGuffin, and the Supreme Court The Exhumation The Karass Forensic Results Marianne Wesson A DEATH AT CROOKED CREEK by Marianne Wesson A Digital Photographic Solution to the Question of Who Lies Buried in Oak Hill Cemetery By Dennis Van Gerven, Professor of Anthropology, University of Colorado “Photographic superimposition is useful when the remains are likely to belong to a particular missing person, and photographs are available. Generally, this technique is best used for exclusion, but a positive identification is possible if the morphological features are unique.” (A. H. Ross, 2004). The present investigation is based on aspects of Ross’ observations of both the value as well as the limitations of photographic superimposition. Our analysis is also supported by other forensic investigations based on photographic and imaging technology (Ubelaker, 2000; Ubelaker et. al., 1992; Matsui, 2001). Our analysis differs in one important aspect. Where identification is typically based on the superimposition of skeletal remains (a skull or skull fragment) onto a life photograph, our investigation superimposes the photograph of a cadaver onto the life photographs of two potential candidates whose identity as the cadaver is in dispute. There are commonalities, however, between the present analysis and those of the past. First, our case is limited to two specific candidates – one of whom can be excluded, and secondly, our comparison relies on the observation of unique morphological features. In the spring of 2005 Professor Mimi Wesson approached the senior investigator (DVG) with a story and a question. The story was this. A man reputed to be John Hillmon was shot to death at Crooked Creek campground near Medicine Lodge, Kansas, March 17th, 1879. According to the initial report the shooting resulted accidentally when his traveling companion, a man named John Brown, was removing a loaded rifle from their wagon. Brown reported the accident immediately and a coroner’s jury supported Mr. Brown’s story. Soon, however, the identity of the corpse became the focus of debate. As it turns out, two insurance companies had insured Hillmon’s life, and they disputed his widow’s claim. They responded that another person was shot at the campsite and substituted for Hillmon in an effort to swindle them out of the proceeds. In pursuit of their investigation the companies had the body exhumed from its grave in Medicine Lodge and brought to Lawrence. The body was photographed and various individuals, including Hillmon’s wife, were brought to the corpse for identification. Some confirmed the identification as Hillmon while others disputed it. Sallie Hillmon filed a lawsuit against the companies in 1882. In the course of their investigation agents for the companies identified a candidate for the substitute – a man by the name of Frederick Adolph Walters. Thus the debate began. Was the corpse now buried at Oak Hill Cemetery in Lawrence, Kansas, that of John Hillmon, the victim of a tragic accident? Or was the corpse that of Alfred Adolph Walters – a victim duped, shot, and substituted for Hillmon? The debate would rage for 25 years. There would be six trials, and two referrals to the Supreme Court. And while Sallie Hillmon’s claim was ultimately settled, it was never determined with certainty who was buried in the grave at Oak Hill Cemetery. Was it John Hillmon or Frederick Adolph Walters? This was the story my friend Mimi told me during our first meeting in the spring of 2005. In the course of her investigation she had discovered six photographs two of the corpse, and two each of John Hillmon and Frederick Walters. As I examined them, she posed the question. Could we discover, once and for all, who died at the Crooked Creek campground? I was hooked and our quest began. The case began for me with the photographs (Figures 1-6). They are standard for the period. One distinctive feature of the corpse as well as Hillmon and Walters struck me immediately – the shape of the bridge of their noses – particularly the bony bridge of their noses. The bridge of Hillmon’s nose is “hooked” with a strong curvature and a deep saddle between the eyes. The bridge of Walters nose, on the other hand, is far straighter with no particular curvature and no depression between the eyes. The difference is particularly clear when Walters and Hillmon are compared side-by-side (Figure 7). This kind of difference is important to any hope of an identification because it involves body structure with little in the way of overlying soft tissue. The feature was particularly intriguing when the life photos are compared to the corpse. The profile view of the corpse (Figure 2)) appears to show a strongly arched nose with a deep depression or saddle. Exhumation: Given the likelihood that the remains in Oak Hill Cemetery are one of two candidates combined with at least one striking and bony anatomical feature (bridge of the nose) an exhumation of the remains with the goal of photographic superimposition seemed the best approach. An application to the Court in Lawrence was subsequently filed and permission to exhume the remains was granted in 2006.Exhumation began at 7:00 am May 18th, 2006. The grave was unmarked on the eastern slope of the cemetery some 75 feet from the apex of the hill. The slope was approximately 25 degrees. The grave was oriented east-west with the head to the west.Excavation began with the removal of approximately 2 feet of grave surface using a backhoe provided by Mitch Young, manager of the cemetery. Following removal of the grave surface, the remainder of the grave was excavated using hand tools. At a depth of approximately 50 inches a natural spring was encountered making further excavation with tools impossible.Continued exploration of the grave preceded by hand-probing the spring and surrounding silt deposit. The first bone fragment was discovered approximately 2 feet from the west end and 12 inches from the north side of the grave in approximately 6 inches of water. The fragment was that of the left scapula preserving the posterior half of the glenoid process (4 cms.) and 3 cms.) of the inferior margin of the scapular body. Subsequent probing produced numerous fragments of skull including the right ascending ramus of the mandible and five tooth crowns. Fragments of the posterior skeleton were also recovered. In all some 28 identifiable bone fragments and the crowns of 5 molar teeth were recovered. In addition, 8 coffin nails and one shirt button were removed with the remains (Figure 8). The remains are consistent with those of a single adult individual. The presence of wear facets of all molars suggests that the teeth were in occlusion for at five years. Wear on M1 with slight dentin exposure on the protoconid would suggest an age range between 25 and 40 years. It was clear, however, that the kind of identification envisioned at the outset of the project was impossible.An alternative approach, however, had emerged. In the course of a genealogical search for living descendants of both Walters and Hillmon (required by the Court) a grandson of Adolph Walters brother was identified. Mr. Dan Davis agreed to provide a DNA sample. A grandson of John Hillmon’s half brother also came forward (Leray Hillmon) and provided a DNA sample. Given the potential for a positive identification based on DNA, a small sample of bone was returned to Boulder for genetic analysis. The DNA analysis has been a resounding failure. Over a century of submersion has washed all traces of human DNA from the bone. Such DNA as has been found has turned out again and again to be bacterial contamination. With the possibility of either a skeletal or genetic analysis gone, only one solution remained – the old photographs. While far from ideal, they contain more information that was originally realized. We decided to employ the same Adobe Photoshop software used in the superimposition of cranial remains on life photographs (Ross, 2004) to the superimposition of the life photos of Hillmon and Walters on the corpse. This required a number of steps. First images of Hillmon and Walters were selected to provide the clearest view of the nasal profile (Figures 9 and 10). The profile image of the corpse was then digitally rotated into a vertical axis matching the life photographs (Figure 11). The corpse and life photos were then matched to two standard anatomical points in order to control for differences in scale. The points (indicated by yellow lines) are gnathion (the lower margin of the chin) and nasion (a point at the top of the nasal bones between the eyes). The match between for life photo of Hillmon and the corpse is striking when the images are superimposed (Figure 12). The nasal profile of the two is a virtual mirror image. In addition, other features such as the hairline, position of the eyebrow, base of the nose, and lips also match precisely. This is illustrated further by a side-by-side comparison (Figure 13). Figure 12 Figure 13 In contrast, Walters and the corpse are substantially less similar. Once again, scaled to match at nasion and mention, the nasal profile and the base of the nose are substantially different (Figure 14). The points of difference are clarified in a side-by-side comparison (Figure 15). The red lines indicate the anatomical projection while the blue indicate the most likely anatomical position of the actual landmark. Given the two candidates, the match to Hillmon is clearly the most compelling and indeed, we conclude that of the two, Walters can be excluded. Interpretive Conclusion This comparison is not ideal, and certainly would not be advocated in place of a skeletal or genetic approach. Obviously, none of the photographs were produced under controlled conditions, and certain assumptions had to be made. Nevertheless some things could be controlled. For example, expanding the images proportionately to match at nasion and gnathion effectively controlled for scale. The corpse profile was also rotated into an anatomically correct upright position based on a vertical alignment of the forehead and chin. The vertical (upright) orientation of the life photos, on the other hand, had to be assumed. While this assumption appears reasonable based on the visual evidence, some slight divergence of the images toward or away from the plain of view (caused by the subject leaning backward or forward or inclining the head at the time of the photo) is likely. The result would be some degree of distortion of all comparisons in the vertical plain. Also, the anatomical points chosen for comparison were not equally apparent on the life photos. Due to the striking architecture of their nasal profiles, nasion is clearly identifiable on the Hillmon photo as well as on that of the corpse. This landmark is less apparent on the Walters image. Identifying the position of nathion was complicated by a slight skin fold beneath both Walters’ and Hillmon’s chins. Gnation is readily apparent on the corpse image. These limitations notwithstanding, the multiple similarities between the corpse and John Hillmon are striking. The similarity is particularly striking along the nasal bridge – a distinctive feature, near to the bone, and least likely to be distorted by photographic technique or decomposition. Ann Moss’ observations are worth repeating at this juncture: Photographic superimposition is useful when the remains are likely to belong to a particular missing person, … a positive identification is possible if the morphological features are unique. (Moss. 2004). In the present case the corpse is likely to be one of two persons one of whom, like the corpse, possesses a striking if not unique morphological feature. This leads us to conclude, we feel to a reasonable professional certainty, that the corpse interred in Oak Hill Cemetery was that of John Hillmon. REFERENCES CITED: Matsui, K. Digital imaging in forensic medicine. In: Digital Color Imaging in Biomedicine. ID Corporation, Tokyo, 2001, pp. 73-76. Ross, A.H. Use of Digital Imaging in the Identification of Fragmentary Human Skeletal Remains: A Case from the Republic of Panama. Forensic Science Communications [Online]. (October 2004). Ubelaker, D.H. History of Smithsonian-FBI collaboration in forensic anthropology, especially in regard to facial imagery, Forensic Science Communications [Online]. (October 2000). Ubelaker, D.H., Bubniak, E., and O’Donnell, G.E. Computer-assisted photographic superimposition, Journal of Forensic Sciences (1992) 37(3):750-762.

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2016-50/4390/en_head.json.gz/6525

HomeMediaPress ReleasesHorne Joins Lawsuit Claiming S&P Greed Helped Cause Mortgage Meltdown Horne Joins Lawsuit Claiming S&P Greed Helped Cause Mortgage Meltdown PHOENIX (Tuesday, February 05, 2013) -- The mortgage crisis that devastated the Arizona economy was made far worse because of misleading financial claims made by Standard & Poor’s, according to a lawsuit filed today, Attorney General Tom Horne said. “Arizona is one of the states that was hit hardest in the mortgage crisis, and this lawsuit alleges that Standard & Poor’s played a key role in making that crisis even worse,” Horne said. “Countless investors, state regulators and other stakeholders were misled by S&P, which did immeasurable harm to Arizona consumers and the economy in general. With their irresponsible actions, S&P helped create the mortgage bubble that burst with tremendous destructive force. The losses to the Arizona economy are unknown at this time but could be in the hundreds of millions of dollars.” Horne joined federal and state enforcers in filing actions against Standard and Poor’s for alleged misconduct involving structured finance securities backed by subprime mortgages that were at the heart of the nation’s financial crisis. Arizona is suing under the Arizona Consumer Fraud Act. He added, “S&P put ‘AAA’ and other favorable ratings on what in many cases were worthless securities, and I sued them for misrepresenting their independence and objectivity rating investors bonds. The evidence will show that S&P issued inflated ratings they knew were false and as a result, Arizona’s economy was substantially harmed.” The complaint alleges that despite S&P’s repeated statements emphasizing its independence and objectivity, S&P allowed its analysis to be influenced by its desire to earn lucrative fees from its investment bank clients, and knowingly assigned inflated credit ratings to toxic assets packaged and sold by the Wall Street investment banks. This alleged misconduct began as early as 2001, became particularly acute between 2004 and 2007, and continued as recently as 2011. Structured finance securities backed by subprime mortgages were at the center of the financial crisis. These financial products, including residential mortgage-backed securities (RMBS) and collateral debt obligations (CDOs), derive their value from the monthly payments consumers make on their mortgages. The enforcement action seeks a court order to stop S&P from making misrepresentations to the public; to change the way the company does business, and to obtain awards for civil penalties, as well as attorneys’ fees and costs. The complaint filed in Maricopa County Superior Court, alleges that investors and other market participants, such as state regulators, relied on S&P to fulfill its promise of independence and objectivity. Instead, S&P adjusted its analytical models for rating residential mortgage-backed securities and collateral debt obligations to allow it to assign as many “AAA” ratings as possible, allowing it to earn additional revenue from its investment banking clients. . Further, the complaint alleges that S&P’s monitoring, or surveillance, of previously rated RMBS and CDOs, was also affected by revenue considerations. In particular, the complaint alleges, S&P delayed taking rating actions on impaired RMBS and continued rating new CDOs even after it determined that the security’s underlying collateral was impaired, because it wanted to continue to earn lucrative fees. The congressionally appointed bipartisan Financial Crisis Inquiry Commission concluded in its final report that the financial crisis “could not have happened” without ratings agencies such as S&P. Other states taking action today are: Arkansas, California, Delaware, the District of Columbia, Idaho, Iowa, North Carolina, Maine, Missouri, Pennsylvania, Tennessee, and Washington. This case is being handled by Assistant Attorney General Nancy Bonnell. ComplaintRelated Terms: Enforcement Action Press Release Archive Pages« first‹ prev123456789…next ›last » Arizona Attorney General

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2016-50/4390/en_head.json.gz/6539

Was Failure to Inform of New Separation Program a Breach? From Compensation and Benefits Library Library™ gives you accurate answers and practical guidance to help you design, analyze, compare, administer, and communicate compensation and benefits... “You didn't tell me about the retirement incentive program before I retired,” Bill, a college professor told Michelle, the school's chief academic officer. “The program wasn't finalized, and it was not available until more than a year after you retired,” Michelle said. “We didn't do anything wrong by not letting you know about it.” FACTS: A professor worked for a university for more than 30 years. When he began considering retirement, he consulted with the department chair. The department chair sent the professor an individual separation agreement which outlined the terms of his retirement, and the university's chief academic officer approved the plan. The professor finished out one year, took administrative leave with pay the next year and was then given emeritus status. The professor claimed that while making plans for his retirement, the academic officer and the department chair were participating in a committee of administrators charged with creating solutions to improve academic and financial issues. Eighteen months after the professor's separation, the academic officer told staff that the school would provide a voluntary separation incentive plan for full-time staff employed for at least 15 years. The professor wrote to the academic officer and claimed that he was eligible for this particular plan. The academic officer notified the professor that he was not eligible for the plan because his full-time, active status ended before the academic officer had introduced the plan to the other faculty members. Ignoring the academic officer's determination, the professor applied for the voluntary separation incentive program. His original claim and appeal were denied. The professor sued the employer for breach of fiduciary duties under the Employee Retirement Income Security Act and claimed he was owed benefits under the new separation incentive program. He claimed that the university was obligated to disclose information regarding the upcoming separation incentive program and that the program was in development when he was negotiating the terms of his retirement agreement, causing him to choose a less favorable retirement plan. The university disagreed that the plan was in development during the professor's retirement negotiation. ISSUE: Did the university breach its fiduciary duty? The university did not breach its fiduciary duty regarding the retirement plan that was implemented 18 months after the professor's retirement, a federal district court ruled The court ruled in favor of the university, finding that the school was not in a fiduciary relationship with the professor when his retirement plan was created and even if they were, the professor did not show sufficient evidence to prove that the university misrepresented the existence of the program. The professor failed to prove that the university owed fiduciary duties to him under ERISA, that it misstated any information or triggered disclosure duty and that any misstatement was instrumental in his decision to retire, the court said. The court determined that no statement made by the university was misleading or false and the professor did not specifically inquire about any upcoming retirement plan options when considering his retirement but only expressed a general interest in retiring. The court found that the incentive program was too new when the professor negotiated his contract for a fiduciary breach to have taken place. The university's plan was in preliminary stages and the professor's evidence did not prove that the university was moving towards a specific proposal while he was negotiating his own separation agreement, the court said. There was no evidence proving that the plan was even in place while the professor was considering retirement, nor that the university misrepresented whether or not it planned to offer a separation incentive plan, it said Soland v. George Washington University, 2014 BL 206283, D.D.C., 1:10-cv-02034-CRC, 7/25/14). POINTERS: Two standards have been developed by the courts to determine whether a fiduciary breach has occurred: the serious consideration standard and the materiality standard. The serious consideration standard has been used by courts to determine when an employer-fiduciary has a duty to inform plan participants when it is considering a proposal to amend the plan. Serious consideration occurs when a specific proposal is being discussed for purposes of implementation by senior management with the authority to implement change. Therefore, a potential change in plan benefits becomes likely when the employer-fiduciary seriously considers a proposal to change those benefits, thus triggering fiduciary duties. Under the materiality standard, courts consider whether a fiduciary has provided misleading facts to a participant upon which the participant would rely in making decisions. Courts look at whether an ERISA fiduciary makes guarantees to a plan participant misrepresenting future benefits. For more information, see Compensation and Benefits Library's “Fiduciary Standards” chapter. To contact the reporter on this story: K. W. Mitchell in Washington at [email protected] To contact the editor on this story: Michael Baer at [email protected] This analysis illustrates how courts resolve pay-related disputes. The names and dialogue are fictitious. Try Compensation and Benefits Library now

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2016-50/4390/en_head.json.gz/6580

Deeplinks Blog posts about File Sharing November 15, 2012 - 10:54am | By Mitch Stoltz U.S. Copyright Surveillance Machine About To Be Switched On, Promises of Transparency Already Broken Fair Use and Intellectual Property: Defending the Balance File Sharing The "Copyright Alert System" – an elaborate combination of surveillance, warnings, punishments, and "education" directed at customers of most major U.S. Internet service providers – is poised to launch in the next few weeks, as has been widely reported. The problems with it are legion. Big media companies are launching a massive peer-to-peer surveillance scheme to snoop on subscribers. Based on the results of that snooping, ISPs will be serving as Hollywood’s private enforcement arm, without the checks and balances public enforcement requires. Once a subscriber is accused, she must prove her innocence, without many of the legal defenses she’d have in a courtroom. Read full post September 13, 2012 - 11:33am | By Michael Barclay and Mitch Stoltz Appeals Court Upholds $9,250 Per Song Penalty in Filesharing Case, Says Constitution Doesn't Limit Penalties File Sharing The damages provisions of copyright law - up to $150,000 per infringed work without any proof of harm - are crazy. And according to the federal appeals court in Minnesota, the Constitution does not restore sanity. This week, the U.S. Court of Appeals for the Eighth Circuit upheld the original jury verdict against Jammie Thomas-Rasset: a $222,000 penalty for sharing 24 songs on a peer-to-peer network. That's $9,250 per song (for songs that sell for about a dollar at retail). Frighteningly, the court suggested that statutory damages awarded by a judge or jury don't need to have ANY connection to the harm actually suffered by a copyright owner. Read full post May 4, 2012 - 4:08pm | By Julie Samuels RIP MCA: A Tribute To Paul’s Boutique and Music Sampling Fair Use and Intellectual Property: Defending the Balance File Sharing Today’s sad news of the passing of Adam Yauch, the Beastie Boy’s MCA, caused us to take a moment to reflect on the impact that the Beastie Boys, and their seminal record Paul’s Boutique, had on remix culture. Read full post April 16, 2012 - 4:20pm | By Julie Samuels Court Orders Megaupload Parties to Come Up with a Plan Fair Use and Intellectual Property: Defending the Balance Innovation File Sharing On Friday, EFF went to court to argue that innocent Megaupload customers like Kyle Goodwin should be able to get their lost files back. We were particularly concerned because the government, which had originally seized the files and still apparently holds all of Megaupload's financial assets, had argued that it had no obligation to make sure the files of innocent Megaupload users were returned and, in fact, believed that they could be destroyed. Read full post April 4, 2012 - 11:15am | By Julie Samuels Megaupload Goes to Court: A Primer Fair Use and Intellectual Property: Defending the Balance DMCA File Sharing Does the government have a responsibility to protect innocent third parties from collateral damage when it seizes their property in the course of prosecuting alleged copyright infringement? That is the question a federal district court will consider next week in the latest skirmish in the legal battle between the U.S. government and Megaupload. Read full post Pages« first

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2016-50/4390/en_head.json.gz/6619

Friday, February 12, 2010 Justice Department Unveils Plan of Action for Consultation and Coordination with Tribes Responds to Presidential Memorandum The Justice Department today made public its plan of action, submitted to the Office of Management and Budget (OMB), to improve consultation and coordination between the Justice Department and tribal nations, as directed by President Barack Obama’s Memorandum on Tribal Consultation. The Presidential Memorandum, signed on Nov. 5, 2009, at the White House Tribal Nations Conference, directed each federal agency to submit to OMB within 90 days a plan of action to implement President Clinton’s Executive Order 13175 on Consultation and Coordination with Tribal Governments. The Justice Department’s plan was submitted to OMB on January 27, 2010. The Justice Department’s plan, which is available at: http://justice.gov/opa/documents/exec13175-consultation-policy.pdf, identifies the steps it will take to develop a comprehensive consultation and coordination policy with tribal nations, after robust tribal input. In addition, the department’s submission makes a commitment to: expand the role of the Office of Tribal Justice; create a Tribal Nations Leadership Council to ensure ongoing communication and collaboration with tribal governments; convene consultations between tribal leadership and U.S. Attorneys whose jurisdictions include federally-recognized Indian tribes; mandate annual meetings between the department’s grants offices and tribal leadership to discuss grants policies, concerns or funding priorities; create a new federal-tribal taskforce to develop strategies and guidance for federal and tribal prosecutions of crimes of violence against women in tribal communities; and publish a progress report within 270 days of the Presidential Memorandum evaluating the implementation of these reforms. The Justice Department’s plan of action was driven largely by input gathered from the department’s own Tribal Nations Listening Session in late October 2009 and from the department’s annual tribal consultation on violence against women, as well as from written comments submitted by tribal governments, groups and organizations to the Justice Department and tribal consultation conference calls conducted by the Office of Tribal Justice. The department’s plan to improve consultation and coordination with tribal governments comes a month after Attorney General Eric Holder announced sweeping reforms within the department to improve safety on tribal land. The Attorney General also announced that the Justice Department’s FY 2010 appropriation included an additional $6 million for Indian Country prosecution efforts, enabling the department to bring the federal justice system closer to Indian Country. For more information, go to: http://www.justice.gov/opa/pr/2010/January/10-ag-019.html.10-138Office of Public Affairs Updated September 15, 2014

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2016-50/4390/en_head.json.gz/6639

Supreme Court aboutsearch liibulletin subscribe previews UNITED STATES v. GILES. 300 U.S. 41 (57 S.Ct. 340, 81 L.Ed. 493) UNITED STATES v. GILES.* Argued: Jan. 13, 1937. Decided: Feb. 1, 1937. opinion, McREYNOLDS [HTML] Messrs. Homer S. Cummings, Atty. Gen., and Brien McMahon, Asst. Atty. Gen., for the United States. Mr. Will A. Morriss, of San Antonio, Tex., for respondent. Mr. Justice McREYNOLDS delivered the opinion of the Court. Section 5209, R.S., as amended by Act Sept. 26, 1918, c. 177, § 7, 40 Stat. 967, 972 (U.S.C., title 12, § 592 (12 U.S.C.A. § 592 and note)) provides: 'Any officer, director, agent, or employee of any Federal reserve bank, or of any member bank * * * who makes any false entry in any book, report, or statement of such Federal reserve bank or member bank, with intent in any case to injure or defraud such Federal reserve bank or member bank, or any other company, body politic or corporate, or any individual person, or to deceive any officer of such Federal reserve bank or member bank, or the Comptroller of the Currency, or any agent or examiner appointed to examine the affairs of such Federal reserve bank or member bank, or the Federal Reserve Board * * * shall be deemed guilty of a misdemeanor, and upon conviction thereof in any district court of the United States shall be fined not more than $5,000 or shall be imprisoned for not more than five years, or both, in the discretion of the court.' Count 3 of an indictment in the United States District Court, Western District of Texas, charged that respondent, Giles, while employed as teller by the Commercial National Bank of San Antonio, Tex., a member of the Federal Reserve National Bank of Dallas, did 'unlawfully, knowingly, wilfully, fraudulently, and feloniously make and cause to be made in a book of the said The Commercial National Bank of San Antonio, Texas, known as the Individual Ledger, in the account designated 'S.A. Public Service Company,' under date of 'Jul 25 '33' in the column bearing the printed heading 'Balance,' being the fifth entry from the top of the column aforesaid, and directly opposite the machine printed date thereon 'July 25 33,' a certain false entry in the following figures, to wit, '7,874.07,' which said entry so made as aforesaid, purports to show and does in substance and effect indicate and declare that The Commercial National Bank of San Antonio, Texas, was indebted and liable to the San Antonio Public Service Company in the amount of Seven Thousand Eight Hundred Seventy-Four Dollars and Seven Cents ($7,874.07) on July 25, 1933, whereas in truth and in fact said indebtedness and liability on said date was a different and much larger amount.' Count 4 made a like charge relative to the account of the National Life & Accident Insurance Company. He was tried, found guilty, and sentenced under both counts. The point for our decision is whether the trial court erred in refusing to direct a verdict of not guilty. The essential facts are not in dispute. From the evidence it appears— Giles, once bookkeeper for the Commercial National Bank, became first paying and receiving teller with custody each day of some $35,000 cash. His duty was to receive deposits and place accompanying slips or tickets where they would reach the bookkeepers for entry. Eighteen months prior to the alleged offense, he discovered shortage in his cash but made no report to his superiors. To cover up the shortage he resorted to the practice of withholding selected deposit slips for three or four days before permitting them to reach the bookkeeping department. This caused the ledger to show false balances. Other shortages occurred; July 25, 1933, the total stood at $2,650. On that day he accepted deposits with proper tickets from San Antonio Public Service Company and National Life & Accident Insurance Company for $1,985.79 and $663.27, respectively, accompanied by cash and checks. Together these approximated his shortage. He withheld both tickets from the place where they should have gone and secreted them. If placed as usual and as his duty required, they would have reached the bookkeeper during the day. Entries on the ledger would have shown the depositors' true balances. The Bank closed July 29th. The slips never reached the bookkeeper. The individual ledger accounts at the end of the 25th and thereafter understated the liability of the Bank to the depositors. The respondent acknowledged his purpose in withholding the deposit tickets was to prevent officers and examiners from discovering his shortage. Some excerpts from his testimony are in the margin. At the conclusion of the evidence counsel moved for a directed verdict of not guilty. This was denied. The jury found guilt under both counts; an appeal, with many assignments of error, went to the Circuit Court of Appeals. That court declared: 'The serious question presented for decision is whether the law will support a conviction on an indictment charging that defendant caused the false entries to be made.' 'Of course, in a sense, one who makes a false entry causes it to be made. If he makes an entry himself or directs another to make it, an allegation in the indictment that he caused it to be made may be treated as surplusage and harmless, but where the defendant has neither made a false entry nor directed another to do so, the same allegation is material and injurious. A charge that one has caused a false entry to be made is very much broader than the charge that he made it.' 'We consider the allegation of the indictment, that defendant did 'cause to be made a certain false entry in a book of the bank,' charged a degree and classification of the offense not within the letter or intent of the law.' 'The evidence in the record conclusively shows that defendant neither made the false entries nor did anything that could be considered as a direction to the bookkeeper to make them. Without the charge that he caused the entries to be made he could not have been convicted. It follows that it was prejudicial error to overrule the motion for a directed verdict of acquittal.' Dissenting, one judge said: 'This statute plainly intends to punish the falsification of bank records with intent to deceive or defraud. If false entries are deliberately produced, although through an ignorantly innocent agent, the bank employee who concocts the plan and achieves the result is, in my opinion, guilty. This innocent bookkeeper was the teller's real though unconscious agent in making the entries; as truly so as if the false entries had been requested in words.' 'The present case is not one of a mere failure to prevent a consequence, but is one of contriving that consequence and so fathering it as to make it wholly the contriver's own. The bookkeeper in making these false entries was doing the will of the teller, though he did not know it. The false entries are in law the acts of the teller who planned them and did all he needed to do to produce them.' Counsel for the respondent now affirm: 'There is no dispute as to the facts.' 'The act committed by the defendant was the withholding by him and the failure by him to turn over to the Bookkeeping Department in the usual course of the bank's business a deposit slip.' He did not cause any false entry to be made. Personally he made no such entry; he did not affirmatively direct one. By withholding the ticket he prevented an entry; he caused none. The rule, often announced, that criminal statutes must be strictly construed does not require that the words of an enactment be given their narrowest meaning or that the lawmaker's evident intent be disregarded. United States v. Corbett, 215 U.S. 233, 242, 30 S.Ct. 81, 54 L.Ed. 173. Here the purpose to insure the correctness of bank records by prescribing punishment for any employee who, with intent to deceive, etc., deliberately brings about their falsification is plain enough. The statute denounces as criminal one who with intent, etc., 'makes any false entry.' The word 'make' has many meanings, among them 'To cause to exist, appear or occur,' Webster's International Dictionary, (2d Ed.). To hold the statute broad enough to include deliberate action from which a false entry by an innocent intermediary necessarily follows gives to the words employed their fair meaning and is in accord with the evident intent of Congress. To hold that it applies only when the accused personally writes the false entry or affirmatively directs another so to do would emasculate the statute—defeat the very end in view. Morse v. United States, 174 F. 539, 547, 553, 20 Ann.Cas. 938 Circuit Court of Appeals, Second Circuit—gave much consideration to an indictment and conviction under R.S. § 5209. The court said: 'It is true that the defendant did not make any of the entries in the books or reports with his own pen. All of them were made by the employees of the bank as part of their routine work. If it were necessary to prove against a director that he actually made the entry charged to be false, conviction under the statute would be impossible, as these entries are invariably made by subordinates in the executive department. Congress was not seeking to punish the ignorant bookkeeper who copies items into the books as part of his daily task, but the officers who conceived and carried out the fraudulent scheme which the false entry was designed to conceal. It is wholly immaterial whether such officer acts through a pen or a clerk controlled by him.' It seems to us that defendant is as fully responsible for any false entries which necessarily result from the presentation of these pieces of paper which he caused to be prepared as he would if he had given oral instructions in reference to them or had written them himself.' We agree with the view so expressed in that opinion. United States v. McClarty (D.C.) 191 F. 518 and 523, apparently is in conflict with our conclusion. The record leaves us in no doubt that the false entries on the ledger were the intended and necessary result of respondent's deliberate action in withholding the deposit tickets. Within the statute he made them. The judgment of the Circuit Court of Appeals must be reversed. The District Court will be affirmed. Rehearing denied 300 U.S. 687, 57 S.Ct. 505, 81 L.Ed. —-. Section 5209, R.S., title LXII, National Banks, c. 3: 'Every president, director, cashier, teller, clerk, or agent of any association, who embezzles, abstracts, or willfully misapplies any of the moneys, funds, or credits of the association; or who, without authority from the directors, issues or puts in circulation any of the notes of the association; or who, without such authority, issues or puts forth any certificate of deposit, draws any order or bill of exchange, makes any acceptance, assigns any note, bond, draft, bill of exchange, mortgage, judgment, or decree; or who makes any false entry in any book, report, or statement of the association, with intent, in either case, to injure or defraud the association or any other company, body politic or corporate, or any individual person, or to deceive any officer of the association, or any agent appointed to examine the affairs of any such association; and every person who with like intent aids or abets any officer, clerk, or agent in any violation of this section, shall be deemed guilty of a misdemeanor, and shall be imprisoned not less than five years nor more than ten.' 'My actual shortage was $2,650.00 that had shown up without my having any responsibility for it. The only way it could be carried was holding out deposit tickets to offset the shortage in the cash, and on the 25th of July withholding these two deposits, the San Antonio Public Service and the National Life & Accident, and depositing the two tickets that had been held over from the 21st. 'Asked if I selected those two deposit slips that day to withhold them because they, together, made up the amount of the shortage, that was the reason I selected those two, because it covered the amount of the shortage. 'The bank got the money for both of those deposits. I did not make any false entries with reference to those items. It is true that all I did was simply put the deposit slips in the cigar box and withheld them for the time being, until I could recover the shortage. I did not make any report to any bookkeeper. As to how the bookkeeping department received its information on which they keep their books, the bookkeepers came in three or four times a day and lots of days oftener, and took the deposit tickets and checks out of the drawers. The business of the day was represented by the tickets and checks. I would put those in the drawers; I had a special drawer for them, divided into sections. As to whether I took them to the bookkeepers or they came to the drawers whenever they wanted to and get them—they came and got them whether I was there or not. I had no control or direction whatever over the bookkeeping department or any bookkeeper. Mr. Crowther had control and direction over the bookkeepers; really, Mr. Roberts handled them, but Mr. Crowther was over the bookkeepers. If the entries were made on any given date showing the balance of any depositors, etc., I did not have anything whatever to do with making the entries or causing them to be made. They simply came to the drawers and got the checks and deposit slips, and from that made up their entries. These two deposit slips that were withheld and stuck in the cigar box that day would have gone right on into the books in time if the bank had not closed. They were simply withheld that way to make my cash balance; that was the only way I had of doing that. I withheld deposit tickets from time to time in order that my cash shortage would not be discovered. 'With regard to the two deposits that are directly in question in this case, one to the National Life & Accident Company and one to the San Antonio Public Service Company, each on the 25th of July, 1933, I withheld those two deposit tickets from the bookkeepers. Asked if instead of putting them in the drawer with the balance of the deposit tickets for that day, I put them in a different place where I knew the bookkeepers would not look for them, yes, sir, I put them in the cigar box. The bookkeepers had nothing to do with the cigar box. The bookkeepers would go to the regular place where the deposit slips were kept to get them. The reason I put the two deposit tickets in the cigar box was for the sole and only purpose of keeping them from the bookkeepers to keep them from going through, to keep them from going on the account of the depositors. 'Asked if by putting deposit slips in a place where he would not get them and I knew he would not get them, I had that much control over the bookkeepers, yes, sir, by holding them out, of course, he would not get them. 'Q. Now, I show you one of the Government's Exhibits, which is the individual ledger account of the San Antonio Public Service Company in the right hand column, the 5th line from the top of the page, an entry under date of July 25th, 1933, under the column head 'new balance' which is the last balance of that account shown for July 25th, 1933, of $7,874.07; was that the true balance of that account on that date? A. That was the true balance of everything that went through to the account. Q. That is right, but was that a true balance on the account; do the figures, 7,874.07, represent the liability of the Commercial National Bank to the San Antonio Public Service Company at the close of business on July 25th, 1933? A. No, sir; the deposit slip was in my cage of $1,985.79. 'Q. And then this entry of $7,874.07 is not correct, because you did not let the bookkeepers have the deposit ticket? A. We often held deposit tickets over. Q. But you withheld it for a purpose, didn't you? A. Yes, sir. Q. Your intention in withholding it was so that it would not go on the ledger sheet, wasn't it? A. Yes, sir; I put it in the cigar box. 'I did not make any entries or figures of any sort from which the bookkeepers might have got it off the entries. The only entry I ever made was in the depositor's pass book. I therefore made no other entries.'

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Home | Previous Page Speech by SEC Commissioner: Remarks Before the SEC Speaks Conference: The Light at the End of the Tunnel – What's Next? Commissioner Cynthia A. Glassman Thank you, Linda, for your introduction. It is a pleasure to be speaking to this group once again. And—with 15 minutes allotted— I have 50% more time than in previous years! To keep our new general counsel happy, let me begin by reciting the Commission's standard disclaimer that the views I express today are my own, and do not necessarily reflect the views of the Commission or its staff. My theme for this year is "what's next?" - as we are finally, I hope, seeing the light at the end of the tunnel. As we emerge from a period in which our rulemaking agenda had to be reactive to external events, notably the corporate accounting scandals and the mutual fund market timing and late trading abuses, we now have the opportunity to step back, take a deep breath, and think about what proactive steps we can take to carry out our mission. One major category that we can now focus on is new and/or improved disclosures. We need to make sure our disclosures are clear, timely, and getting the message across. I'd like to discuss a few of our initiatives in this area that are already underway at various stages. We have proposed changes to our rules on executive and director compensation disclosure, which would revise the current tabular disclosure and require a new, plain English, Compensation Discussion and Analysis. Significantly, the proposed rules would require disclosure of total compensation for each of the named executive officers and directors, and possibly three other highly compensated non-executives (who would not have to be named). As part of total compensation, options and pension benefits would be valued. The comment period is open, and I invite public input to help us evaluate whether our proposed rules require some modification or fine tuning, including whether all of the components of the total are valued appropriately. In January 2004, the Commission proposed the use of a point of sale disclosure form and an updated confirmation form to enhance the information that broker-dealers give their customers when selling mutual funds, college savings plans and variable annuities. In my view, before they make a purchase, investors deserve full and clear disclosure of all the fees and costs that come out of their pockets, either directly or indirectly, to pay for all the activities related to the operation and sale of these products, including whether a broker's recommendation benefits the broker. I strongly encouraged our use of investor focus groups to obtain a better sense of the information that would be most helpful to investors, a step that has resulted in much improved forms. Now the challenge is to achieve a final rule that is cost effective in accomplishing its objective. I would like to see us go back out for comment soon in order to inform our judgment on how best to balance the costs and benefits. An even more far-reaching initiative is mutual fund prospectus reform. As I have said before, I believe we need to conduct a top-to-bottom, full scale review of the mutual fund disclosure regime. We require that investors receive a mutual fund's statutory prospectus but, given its format and the sheer volume of information, I question whether the prospectus is helpful for many individuals. Starting with a blank sheet of paper, we should identify the most meaningful and helpful disclosures to investors and the best method for making these disclosure available. I am pleased that such an initiative is underway, and I hope we will obtain actual investor input through focus groups and other means in crafting an updated mutual fund disclosure regime. Another promising Commission initiative is our voluntary pilot program for submission of filings in Extensible Business Reporting Language, or XBRL. XBRL is an interactive data format that enables filers to "tag" items in their submissions so investors can more easily extract and analyze the underlying tagged data. Investors can use the tagged data like Lego building blocks – they can construct meaningful financial ratios and comparable company data just as Lego blocks can be used to build different structures. As a result, the information disclosed in required financial reporting would be more useful for analytical and comparative purposes. I enthusiastically encourage participation in the pilot program and commend Chairman Cox for this cutting-edge initiative. In addition to re-thinking disclosures, we should review our existing rules – old and new – to see if they are accomplishing their objectives, doing so efficiently and effectively, and without serious unintended consequences. For old rules, this is particularly important in light of the major demographic shifts, product developments, and technological changes that have taken place since many rules were promulgated. For newer rules, I believe we should always monitor their implementation within a reasonable time period to learn whether they are working as expected or need to be refined or revised. We need to make sure that our rules provide real solutions to real problems. This means good ex ante and ex post analysis. For you non-economists in the audience, this means we should take a more formalized analytical and empirical approach both before proposing a rule and after implementing it. This was an initiative that I discussed with then-Chairman Harvey Pitt and that I had hoped to undertake on a broad scale when I joined the Commission, but was preempted by other priorities. Three Chairmen later (including my own stint as Acting Chairman), I am still hopeful that this initiative will be undertaken. I'll point out just three of the older requirements that could use a fresh look, although I have no doubt there are many more. First are the rules pertaining to private offerings. Among other questions, I think we need to ask if the current thresholds, definitions, restrictions and rules make sense given the attributes of today's capital markets. For example, offerings and sales of securities to "accredited investors" in certain types of offerings are exempted from Securities Act registration. Natural persons with a net worth (either individually or jointly with a spouse) in excess of $1 million (including equity in their home), or persons with an individual income in excess of $200,000 or a joint income in excess of $300,000 for the past two years are included as accredited investors. The only unaccredited investors in this audience are probably people who work at the SEC. The Commission has not changed the definition since the 1980s. Should the accredited investor thresholds be higher? Indeed, this was an issue that Commissioner Atkins and I discussed in our dissent to the Commission's rule requiring hedge fund advisers to register with the Commission. Second, we may want to consider whether the number of record holders should be the main criterion that determines whether or not a company is public. The current registration and deregistration statutes and rules are premised on the number of record holders rather than total shareholders. For shares held in street name, the record holder is the broker, not the beneficial shareholder. Forty years ago, when the current rules were adopted, less than 25% of public company shares were held in street name. Now, 85% of public company shares are held in street name. Thus, a company with many total shareholders, but few holders of record may not have to report, whereas another company with fewer total shareholders, but more record holders may have to report. This anomaly suggests to me that we need to consider whether these requirements should be premised on different criteria. I know that the Advisory Committee on Smaller Public Companies is looking at these and other issues, and I await its final report. The third area involves investment advisers and broker-dealers. When we adopted the IA/BD rule last year, permitting fee-based brokerage accounts without requiring investment adviser registration, there was consensus on the Commission on the need for additional attention to some of the broader issues that had come up during the rulemaking. Specifically, we called for a study to focus on the extent of customer confusion and how best to deal with its impact. Therefore, I am very pleased with the Chairman's announcement this morning that we will be going forward with the study. We need to look at ways to address potential investor confusion and to consider whether it any longer makes sense to have two different regulatory regimes for investment professionals who offer similar services. Some of the newer rules that I think we need to reassess, especially from the perspective of unintended consequences, include Sarbanes-Oxley 404, the mutual fund proxy vote, and hedge fund adviser registration. Regarding SOX Section 404, criticism persists regarding the high costs and burdens of complying with Section 404 and the PCAOB's Auditing Standard No. 2. Despite the issuance of additional guidance and extension of the compliance deadline, it does not appear to me that effective and efficient implementation of 404 is on track. As I have said numerous times, my concern is that the implementation has been misfocused, shifting what was meant to be a risk-based management focus to a check-the-box audit exercise. I am pleased, however, that we and the PCAOB are continuing to evaluate implementation and in fact will conduct another Roundtable in May, this time to discuss and evaluate year two of Section 404 compliance. I look forward to recommendations to get 404 implementation on track to achieve its purpose of making sure management has its arms around its internal controls to provide accurate financial reports. In 2003, we adopted two proxy voting rules. The first addressed an investment adviser's fiduciary obligations to clients when the adviser has authority to vote their proxies. The second obligated mutual funds to disclose how they voted proxies for portfolio securities. Regarding the latter, our release specifically stated, at my request, that the Commission expected the staff to monitor the effects of disclosure and report back on the operation of the rules and whether there have been unintended consequences as a result of disclosure. I have been working closely with our staff on framing this review. One issue I have been particularly concerned about is whether one unintended consequence has been that funds are delegating to a third party not only the mechanical voting of their proxies, but the substantive determination as well. I welcome your comments on this issue and on any other effects of public disclosure of funds' proxy voting. Some of the unintended consequences of our hedge fund adviser registration rule were apparent to me even before it was adopted, including some longer lockups, decreased liquidity, fewer investment choices for U.S. investors and more retailization. Further, as I said at the time, the rule may not be a particularly effective way to combat fraud at hedge funds and their advisors. Throughout this process, I have consistently noted that we need to better understand the hedge-fund world. The silver lining of having adopted this rule is that now we are working to identify what information would be useful to better understand hedge fund issues and see red flags – a step I had urged early on in the rule proposal process. Finally, we cannot let up on our efforts to educate investors. Given that the fundamental principle underpinning all of our securities laws is disclosure, it is imperative that we do all that we can to make sure that investors have the information they need to make informed investment decisions. In previous years, I have discussed a number of investor education initiatives. This year, I would like to update the list. In the aftermath of our enforcement action against First Command for selling unsuitable products to military personnel, we have targeted additional resources towards investor education for the military. Our Office of Investor Education and Assistance has published articles on investing wisely and avoiding scams in Military Money magazine, has coordinated with librarians on military installations to distribute our educational pamphlets, and has participated in investing workshops on military bases across the country. Two weeks ago, we joined forces with the NASD Investor Education Foundation in the launch of a major financial education campaign that provides information and tools to help service members and their families make wise investment choices. In addition, we recently launched a special page for military personnel and their families in the Investor Information section of the SEC's website. Operating on the theory that financial fraud all too often follows natural disasters, we launched a Katrina-related "fake scam site" at GrowthVenture.com. Like our other fake scam sites, Growth Venture purports to be a "can't miss" investment, but if you click to invest, you'll get a stern warning from us, the FBI, U.S. Postal Service, and NASD. Our new "Just for Teachers" page on our website – which we unveiled at the beginning of the school year – has been a great success. Tens of thousands of teachers have requested our "Teacher Care Package," a collection of materials on 403(b) plans, asset allocation and diversification, and investing wisely. We have undertaken a host of other initiatives as well. In particular, at a time when concern about identity theft is on the rise, we have issued an investor alert on protecting online brokerage accounts and have partnered with the federal agencies that operate the new OnGuardOnline.gov website. We are also working on several new Investor Alerts that range from "auto-surfing" – which purports to pay money for nothing – to ultra-short term bond funds that, in many cases, have been marketed as being as "safe as a CD," but are not. Lastly, I continue to try to interest producers to use our story lines in mainstream television. I have actually had some conversations with producers. As they say in the T.V. business – stay tuned. Thank you. http://www.sec.gov/news/speech/spch030306cg.htm

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ApostophonyWatch Apostate: a pejorative term for someone who no longer believes in the religion of their birth Phonoi: male spirits of murder, killing and massacre The Abrahamic religions have all at one time or another sentenced apostates to death. Today, the death penalty is enshrined in Islamic jurisprudence, and is on the statute books of several nation states. This site documents material in the public domain which advocates hatred and killing of people who reject religious beliefs. Death penalty for apostates passes unopposed in Pakistan 7.Punishment for apostasy:- (1) If a male person makes the commission of apostasy offence, he shall be awarded death sentence.An Apostasy Act has been sent by Pakistan's National Assembly to a Standing Committee for approval. Proposed by Muttahida Majlis-e-Amal (the MMA is a coalition of Islamist groups, including the Jamaat-e-Islami, whose representatives serve on the Muslim Council of Britain via the Islamic Mission and the Islamic Foundation). The Apostasy Act 2006 proposes the death penalty for apostates, who may be offered up to the gallows by observant Muslims: "The saying of the Holy Prophet (S.A.W.) is that he who leaves Islam and converts into another must be killed." See full text of Apostasy Act 2006.Pakistan's penal code already imposes the death penalty for defiling "the sacred name of the holy Prophet Mohammed" - ordinary christians and muslims have already been murdered by the state for petty thought crimes. Posted by death-penalty, JI, DoctorCopeland The MCB links are interesting. When are they going to stop passing themselves off as moderate representatives of ordinary Muslims? Sir Iqbal described himself as "inspired" by Maududi, and Inayat Bunglawala said it was Maududi that brought him to practice Islam (although born Muslim, he had to be born again to be a proper Muslim). Maududi, BTW, was also keen on declaring spiritual Muslims (rather than ultra-right political-opportunist 'Muslims') like the Ahmadis as kafir and apostates. Testify here! "Ayaan Hirsi Ali will not escape her punishment: d... Death penalty for apostates passes unopposed in Pa... Burn apostate 'scum'

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Conservationsist Oppose Lawsuit to Build Road into Absaroka-Beartooth Wilderness Earthjustice lawyers filed court papers against a landowner's lawsuit to require nearly nine miles of new road construction to reach a private parcel deep within Montana's Absaroka-Beartooth Wilderness Area. January 23, 2001 BILLINGS, MT — Earthjustice Legal Defense Fund lawyers today filed court papers on behalf of The Wilderness Society, Montana Wilderness Association, Greater Yellowstone Coalition, Park County Environmental Council, and Wilderness Watch, against a landowner's lawsuit to require nearly nine miles of new road construction to reach a private parcel deep within Montana's Absaroka-Beartooth Wilderness Area. "Building a road into the Absaroka-Beartooth wilderness is like throwing a brick through a church window – it is an assault on one of Montana's treasures, and we will oppose it," said Earthjustice attorney Tim Preso, who is representing conservationists in the case. The court filing was in response to a lawsuit filed by the Absaroka Trust, a trust established by Livingston resident James Sievers. The Trust seeks to overturn a decision by the U.S. Forest Service denying the Trust's request to build a 20-foot-wide gravel road through the Absaroka-Beartooth Wilderness Area to access a 120-acre private inholding. The Forest Service has estimated that 8.6 miles of new road would be required to reach the property. The wilderness, which adjoins the northern boundary of Yellowstone National Park, is a 943,626-acre expanse of alpine lakes, sweeping tundra, steep canyons and dense forests. Elk, moose, and grizzly bears find refuge within its boundaries, and its 700 miles of trails provide outstanding opportunities for hiking, backpacking, horseback riding, and hunting. The proposed road would be used to log and mine the inholding property, and to construct and operate a hunting and fishing lodge, according to court documents. The Forest Service denied the Absaroka Trust's request to build the road in November, and the Trust sued the Forest Service in Montana's federal district court late last year. "The Forest Service was right to deny the request to build a road into the Wilderness," said Bob Ekey, Northern Rockies Regional Director for The Wilderness Society. "When you buy property in the heart of a Wilderness area, you shouldn't expect to drive to it. Access by trails in the area is adequate." "What makes this road-building proposal even more offensive is that the landowner wants the taxpayers to finance it," added Bob Decker, Executive Director of the Montana Wilderness Association. He noted that among the lawsuit's demands is that the Forest Service pay for all costs and expenses incurred in constructing the road – a sum that has been estimated at well over $1 million. "Not only should this road never be built, but it is adding insult to injury to insist that Americans pay for the destruction of their own wilderness." Several of the conservation groups involved in today's court filing played critical roles in obtaining protection for the Absaroka and Beartooth Moutain ranges as federal wilderness. Conservationists waged a long campaign in support of Absaroka-Beartooth wilderness legislation in the late 1970s. The legislation was introduced by the late Montana Sen. Lee Metcalf and finally was enacted in 1978, shortly after Sen. Metcalf's death. "The Absaroka-Beartooth Wilderness Area is a critical piece of Montana's conservation legacy," said Tim Stevens of the Greater Yellowstone Coalition. "We will not stand by while that legacy is destroyed to advance the private interests of a single landowner." George Nickas, Executive Director of Wilderness Watch, noted that the Absaroka Trust's lawsuit represents just one of many controversies that have arisen recently over motorized access to private lands within wilderness areas: "This case will have a profound impact on the entire National Wilderness Preservation System. With literally thousands of individual parcels of private lands scattered throughout the system, a ruling in the Trust's favor threatens to eviscerate millions of acres of Wilderness designated to date." "Wilderness areas are Americans' loftiest expression of respect for our natural world, and a vast majority of Americans do not want that expression to be trampled," added Jim Barrett, Executive Director of the Park County Environmental Council. "Attempting to build a road through our Wilderness area is a blatantly arrogant violation of Americans' desire to respect the sanctity of these rare landscapes." Tim Preso, Earthjustice Legal Defense Fund, (406) 586-9699 Bob Ekey, The Wilderness Society, (406) 586-1600 George Nickas, Wilderness Watch, (406) 542-2048 Tim Stevens, Greater Yellowstone Coalition, (406) 586-1593

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Mary Ann McMorrow CHICAGO (AP) - On the day she was sworn in as the first female chief justice of the Illinois Supreme Court, Mary Ann McMorrow acknowledged her pioneering achievement with the same grace and good humor her colleagues say was customary. "I am the 115th Chief Justice of the Supreme Court of Illinois," she said, according to a spokesman for the Illinois Supreme Court. "You will notice after I take off my robe that I am the only one of the 114 chief justices who preceded me that wears a skirt." McMorrow died Saturday at a Chicago hospital following a brief illness, said court spokesman Joseph Tybor, who was authorized to speak on her family's behalf. She was 83. Her five-decade career was marked by numerous precedents. She was the only woman in her 1953 class at Loyola University Chicago School of Law and was the first woman to prosecute major felony cases as an assistant Cook County state's attorney. Once told by a supervisor she couldn't argue a case before the Supreme Court because of her gender, she went on to became the first woman on the state's highest court with her 1992 election. Her term as chief justice - from 2002 to 2005 - made her the first woman to head any branch of Illinois government. In a statement Sunday, Chief Justice Thomas Kilbride said McMorrow's legacy looms large over Illinois' high court - the first to include three female justices. "Being the first woman on the court and to serve as chief justice, she was an inspiration to all women in the law in Illinois. But through her courage, perseverance, wisdom, and character, she was a role model for all lawyers, regardless of gender," Kilbride said. "Justice McMorrow was top-tier. She was devoted to the law and justice; but was always collegial and good-humored. We will all miss her grace, elegance and style. Most of all, we shall miss her." The Supreme Court said McMorrow wrote 225 majority opinions and an additional 85 se parate concurring and dissenting opinions. She wrote a 1997 opinion holding that limits on non-economic lawsuit damages for people injured through negligence were unconstitutional. McMorrow cited the case as an example of her desire to promote "the common good" as a judge. She also used frequent speaking appearances to encourage lawyers to serve the poor. During her tenure as chief justice, the court raised the fee attorneys pay for licensure, Tybor said. Those funds - more than $2 million per year - help legal aid organizations serve low-income residents. And although McMorrow said at the time of her 2006 retirement that she was proud of her accomplishments, she also told The Associated Press she never was trying to be "a first." "I was just trying to do the best I could," she said. "I just thought this was my duty." McMorrow is survived by her daughter, Mary Ann, and her sister, Frances. Arrangements were pending Sunday. SARA BURNETT, Associated Press Copyright © 2013 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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Archived Headlines Attorney General Stumbo Announces Arrest of Four Employees at Oakwood for Abuse Press Release Date: Tuesday, June 27, 2006 Contact Information: Vicki Glass, 502-696-5643 Office Attorney General Greg Stumbo announced today the arrest of four individuals in connection with two assaults committed on a resident of The Communities at Oakwood in Somerset, Kentucky. On May 9, 2006, Casey Coffey and Christy Mercer, both Direct Support Professionals, allegedly assaulted the patient with a broomstick inside the patient’s bedroom at the facility. The second offense occurred on June 6, 2006 and was committed by Direct Support Professionals Sharon Young, Stephanie Sue Colyer and Casey Coffey. This alleged assault also involved the patient being beaten with a broomstick inside his bedroom at the facility. “Residents at Oakwood put their trust in their caretakers,” said Attorney General Stumbo. “It is absolutely appalling when that trust is violated and individuals are senselessly harmed. Those arrested today will be prosecuted to the fullest extent of the law.” Casey Coffeydob 6/26/85Stearns, Ky NOT PICTURED Christy Mercerdob 2/10/1986Eubank, Ky Stephanie Sue Colyerdob 6/4/1967Bronston, Ky Sharon Youngdob 5/14/1973Somerset, Ky Agents William Stewart and Paul Underwood of the Kentucky Bureau of Investigation (KBI) initiated the investigation into these incidents immediately upon receipt of a complaint from an unnamed source on June 1, 2006. The four individuals were taken into custody following arrest warrants issued by the Pulaski District Court. All were charged with one count each of Knowing Abuse of an Adult, a Class C Felony punishable by 5-10 years in jail. The four were transported to the Pulaski County Detention Center where they remain incarcerated. The Attorney General’s investigation of allegations pertaining to the abuse and/or neglect of residents at the Oakwood facility is being conducted by the Medicaid Fraud and Abuse Control Division. Today’s arrests bring the total number arrested for abuse or neglect of patients at the Oakwood facility to fifteen. Four other caretakers were arrested last week in connection with the May 9, 2006 alleged assault of an individual during a group fishing trip to a remote section of Wayne County Kentucky. The assault occurred as the group was preparing to return to the facility. The victim, who did not want to return to the facility, sustained multiple cuts and bruises in addition to a fractured nose. Seven others have been arrested and indicted by the Pulaski County Grand Jury. Agents of the Kentucky Bureau of Investigation continue to investigate other allegations of abuse and neglect at the facility. Suspected Medicaid fraud or patient abuse can be reported by calling the Attorney General’s tip line at 1-877-ABUSE TIP (1-877-228-7384).

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| Papp v. Grand Lodge of Ancient Order of United Workmen Papp v. Grand Lodge of Ancient Order of United Workmen MARY PAPP, PLAINTIFF-RESPONDENT,v.THE GRAND LODGE OF THE ANCIENT ORDER OF UNITED WORKMEN, A CORPORATION, DEFENDANT-APPELLANT For the appellant, John C. Stockel and Edward I. Gaulkin. For the respondent, David T. Wilentz. Hetfield HETFIELD, J. This is an appeal by the defendant below from a judgment rendered in the Supreme Court, Middlesex [116 NJL Page 157] Circuit, on a jury verdict for $1,100. Plaintiff was the beneficiary designated in an insurance policy dated July 28th, 1932, on the life of one Menyhert Battyanyi, issued by the defendant which was a fraternal beneficiary association. The insurance contract was solicited by Eugene Toffler and Louis B. Nagy, the former being the district agent for the defendant, and the latter president of the local lodge. The application for insurance was prepared in the presence of the insured, the beneficiary, Toffler and Nagy, at the home of the beneficiary, where the insured lived at the time, and all answers to the questions contained therein were inserted by Toffler. The insured signed the application by making his mark, and it provided that in the event of death, the insurance be paid to "Mary Papp," setting forth that her relationship to the insured was that of "cousin." It is admitted that the beneficiary was in no way related to the insured. After the death of the insured, which occurred April 21st, 1933, the beneficiary filed a proof of claim, which the insurer refused to honor by reason of the fraudulent misrepresentations made in the application, and it forwarded a check for $40 to the beneficiary, representing premiums paid on the policy during the insured's lifetime, which she refused to accept. It appears that section 173 of the general laws of the order provided, in substance, that the person designated as the beneficiary in any insurance policy shall in every instance be one or more members of the family of the insured, or some person or persons related to or dependent upon such insured, or be an affianced wife or husband. It is not contended that the beneficiary came within any of these classifications. The main issue litigated in the trial was the question of fraudulent misrepresentation made by the insured with respect to his relationship to the beneficiary. The plaintiff testified that when the application was being prepared, the question of relationship was not mentioned; that the word "cousin" was inserted without the knowledge of either the insured or herself; that when the policy was delivered they noticed, for the first time, that she was referred to as a cousin of the insured, and Toffler and Nagy were then informed that no such relationship existed. She further testified: "Mr. Toffler and Mr. Nagy said we shouldn't worry about it. That is nothing. They could put that in there." Toffler and Nagy both testified that all information contained in the application was supplied by the insured, in the presence of the beneficiary, and that neither of them was ever informed that the relationship, as set forth in the application and policy, was not the fact. It appears, however, that within a few days after the policy had been delivered, the insured executed a will, which was prepared in Nagy's office, and witnessed by him and Toffler, wherein he bequeathed to the plaintiff the entire proceeds of the policy now involved. When the motion of the defendant to direct a verdict in its favor was denied, the trial court stated, in part: "I think a fact question has been raised as to whether or not such representations were made, or whether or not there was knowledge on behalf of the agents of the defendant of the conditions, as far as the relationship is concerned, existed, and I think that under Howard v. Commonwealth Beneficial Association, 98 N.J.L. 267, raises a fact question for the jury, as to whether or not this is so. For that reason, believing that a fact question exists, the motion to direct a verdict will be denied, with an exception to the defendant upon all of the reasons advanced by the defendant's counsel." An examination of the insurance contract leads us to conclude that the defendant was entitled to a direction of a verdict, irrespective of the fact that there might have been sufficient evidence to warrant a finding that Toffler and Nagy had knowledge of the misrepresentation respecting the relationship. The application provides, among other things, that it shall be a basis and part of the proposed contract for insurance, and that the contract of insurance shall not be in force until the applicant receives the Workman Degree. It also states: "I further agree that this application, my application for membership, and the Medical Examination, together with the Articles of Incorporation, Constitution, General Laws and Rules of Order of the Grand Lodge now in effect or which may hereafter be enacted, shall be and form a part of my contract with the Grand Lodge and the delivery to and acceptance [116 NJL Page 159] by me of the Contract of Insurance issued hereon shall be subject thereto." The policy in question states, in part: "This Contract of Insurance is issued and accepted upon the express condition that the said Insured Member shall in every particular comply with the Articles of Incorporation, Constitution, and General Laws of the Order as they now exist or may be hereafter modified or enacted; and upon the representations made in the application therefor, and the statements certified therein to the Medical Examiner; all of which are made a part of this Contract and shall together constitute the Contract between the Order and the Insured member, and shall bind the Beneficiary or Beneficiaries," and also that: "No agent or representative of the Order can make, alter or discharge this Contract or extend the time for paying a premium due hereunder; nor can the Contract be varied or its conditions waived, altered or extended in any respect, except by the written agreement of the Order signed by its Grand Master Workman and Grand Recorder." Section 6 of Article 9 of the Constitution reads as follows: "No agent or representative of the Grand Lodge or other person is authorized to alter or change any of the provisions or conditions in the certificate or contract or this Constitution and Laws, or to waive any of the stipulations or conditions thereof." There can be no question but that the insurance contract consisted of and included all the conditions and terms contained in the application, constitution, general laws and rules of the order, and the policy itself. This being so, the insured, who knew immediately upon delivery of the policy, that there had been a misrepresentation, should have known that the beneficiary was not eligible to receive any benefits from the policy, and that Toffler and Nagy, as representatives of the order, had no power or authority to waive, alter or change any of the provisions of the contract. The statute relating to beneficial societies and associations (Comp. Stat., p. 196, § 7) provides: "Said constitution and by-laws and all amendments thereto shall be binding upon all beneficiaries, and all persons claiming [116 NJL Page 160] any rights or duties from said associations by reason of the sickness or death of any member or any other person whether said beneficiary of claimant be a member of said association or not." Section 1, of an act relating to fraternal beneficiary associations, as amended by chapter 9, page 21, of the laws of 1932, provides: "Any beneficiary member may direct any benefit to be paid to his estate, or to such person or persons, entity or interests, as may be permitted by the laws of the society, order or association governing beneficiaries." The decided weight of authority is to the effect that persons entering mutual insurance companies are presumed to know the terms of the charter and by-laws under which they are organized and a condition contained in the insurance contract cannot be altered or waived by an agent unless he has express authority so to do and then only in the mode prescribed in the contract. Belleville Mutual Insurance Co. v. Van Winkle, 12 N.J. Eq. 333; Kocher v. Supreme Council, 65 N.J.L. 649. Chief Justice Magie, speaking for this court, in Golden Star Fraternity v. Martin, 59 Id. 207, stated: "The contract between the association and its beneficiary members is to be discovered in such a case from the beneficiary certificate to be issued to the member, read with the rules and by-laws of the association and the statute from which it obtained its corporate powers. The contract, when discovered, is to be construed and given force and effect as other contracts upon a similar subject." The case of Howard v. Commonwealth Beneficial Association, 98 N.J.L. 267, cited by the trial court, and relied upon by the beneficiary to support her contention that knowledge on the part of the agents constituted a waiver by the insurer, can be clearly distinguished from the present situation. In that case, the by-law read: "No application will be received for membership herein when said applicant shall name as recipient of the funeral benefit applied for in such application any person other than a member of his or her family, or one who is dependent upon him or her." The application designated the beneficiary as "dependent friend" and the [116 NJL Page 161] insurer refused to pay the benefit because such was not the fact. This court adopted a per curiam opinion of the Supreme Court which construed the by-law to mean that an application would not be received where the beneficiary was not a dependent, and held, in effect, that where the application had been received and accepted, the association waived the by-law, and was estopped from setting it up as a defense to the payment of the policy. The present insurance contract contained no such provision, but does provide, in definite terms, that no member has the power to appoint a beneficiary outside of the classes fixed by the laws of the order, and expressly contains a restriction to the effect that no representative can change, alter or waive any of the terms of the contract. Payment of benefits to persons not within the classifications fixed by the insurance contract would be contrary to the objects for which the order was formed, and not within its agreements to pay benefits, as one of its expressly declared objects, as indicated by the record, reads: "To pledge the members to a payment of a stipulated sum to such beneficiaries as a deceased member may have designated, while living, under such restrictions and upon such conditions as the laws of the order may prescribe." Therefore, an attempt to designate a person who was outside of the fixed classifications, has no validity; and where the contract expressly contains restrictions as to the authority of representatives of the order, to permit the provisions of the contract to be ignored and over-ridden by the unauthorized acts of a subordinate agent, would in effect deny to the insurer the right to contract upon terms of its own selection. Shyowitz v. Union Indemnity Co., 104 N.J.L. 339. The judgment under review will be reversed. For affirmance -- HEHER, PERSKIE, WELLS, WOLFSKEIL, RAFFERTY, JJ. 5. For reversal -- THE CHANCELLOR, CHIEF JUSTICE, LLOYD, CASE, BODINE, DONGES, HETFIELD, DEAR, JJ. 8.

法律

2016-50/4390/en_head.json.gz/7136

| State v. Green State v. Green STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,v.ROBERT DWAYNE GREEN, DEFENDANT-APPELLANT. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-01-0015. The opinion of the court was delivered by: Reisner, J.A.D. Before Judges Lisa, Reisner and Sapp-Peterson. Defendant Robert Dwayne Green pled guilty to third-degree distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5b(3), and was sentenced to two years probation. He appeals from the October 23, 2007 final judgment of conviction, contending that he was improperly excluded from the pre-trial intervention program (PTI). See R. 3:28(g). Following his indictment for three related third-degree CDS offenses, based on his alleged sale of $150 worth of cocaine to an undercover detective, defendant attempted to apply to the Monmouth County Vicinage Criminal Division for admission to PTI. However, he received a Notice of PTI Ineligibility dated January 23, 2007 from the Criminal Division Manager. The notice advised that his case had "been pre-screened by the Monmouth County Criminal Division" and that defendant would not be permitted to apply for PTI without the prosecutor's written consent "in accordance with the guidelines for PTI outlined in" Rule 3:28. The pre-printed notice checked off as the reasons for rejection: that defendant was charged with selling Schedule II narcotic drugs, an offense carrying a presumption of imprisonment; that the prosecutor had not joined in his application; and that defendant had not shown "compelling reasons justifying [his] admission and establishing that a decision against enrollment would be arbitrary and unreasonable" (citing Rule 3:28, Guidelines 2, 3i and 3e). However, it appears from the record that the Criminal Division never actually permitted defendant to apply and therefore never considered the possible merits of such an application. Thereafter, defendant corresponded with the prosecutor's office, providing significant evidence of his rehabilitation during the period between the October 2005 incident on which the charges were based, and the January 2007 indictment. Stating that there was nothing "extraordinary" or "idiosyncratic" about defendant's situation, the prosecutor declined to join in a PTI application. Thereafter, it appears undisputed that the Criminal Division never actually considered an application from defendant, but instead precluded him from applying at all without the prosecutor's consent. On July 12, 2007, defendant filed a "Notice of Appeal from Pretrial Intervention (PTI) Rejection." From the transcript of the oral argument of defendant's eventual PTI appeal, we discern that the Criminal Division's practice had been to preclude a defendant charged with certain crimes from applying for PTI without a letter of agreement from the prosecutor's office. While the judge indicated on the record that the system had been revised, because it allowed the prosecutor to, in essence, "short-circuit" a defendant's right to even apply for PTI, it does not appear that Green had the benefit of any such change. In response to defense counsel's inquiry, the judge responded that defendant was "arguing for the ability to apply" to PTI. The judge confirmed that "if I grant the ability to apply, I'm not putting the defendant into the PTI Program. I'm then allowing the director [of the Criminal Division] to do a full evaluation" and make a recommendation. While acknowledging that defendant had not even been allowed to apply for PTI, the judge nonetheless rejected the appeal on the grounds that the prosecutor's refusal to join in the application was not a gross and patent abuse of discretion. We conclude this was error. We do not reach defendant's appellate contentions concerning whether he should have been admitted to PTI. Instead, we reverse and remand this matter on procedural grounds, because we conclude that defendant was mistakenly deprived of the opportunity to apply for PTI. It is clear from Rule 3:28 that the Criminal Division must at least allow a defendant to submit an application to PTI, and must evaluate the application: Application for pretrial intervention shall be made at the earliest possible opportunity, including before indictment, but in any event no later than twenty-eight days after indictment. The criminal division manager shall complete the evaluation and make a recommendation within twenty-five days of the filing of the application. The prosecutor shall complete a review of the application and inform the court and defendant within fourteen days of the receipt of the criminal division manager's recommendation. [R. 3:28(h).] See State v. Brooks, 175 N.J. 215, 223-24 (2002). The PTI Guidelines explicitly provide that all defendants must be permitted to apply, and the Criminal Division Manager must consider the merits of the application: Any defendant accused of crime shall be eligible for admission into a PTI program. When the application indicates factors which would ordinarily lead to exclusion under the guidelines . . . the applicant nevertheless shall have the opportunity to present to the criminal division manager, and through the criminal division manager to the prosecutor, any facts or materials demonstrating the defendant's amenability to the rehabilitative process, showing compelling reasons justifying the defendant's admission, and establishing that a decision against enrollment would be arbitrary and unreasonable. [R. 3:28, Guideline 2 (emphasis added).] Guideline 3(i) does provide that defendants charged with the sale of Schedule I or II narcotic drugs "should ordinarily not be considered for enrollment" in PTI unless the prosecutor joins in the application. However, this does not mean that such defendants can be denied the opportunity to apply in the first place. Guideline 3(i) further provides that even "in such cases, the applicant shall have the opportunity to present to the criminal division manager, and through the criminal division manager to the prosecutor, any facts or materials demonstrating the applicant's amenability to the rehabilitation process . . ." Ibid. (emphasis added). See also Pressler, Current N.J. Court Rules, Official Comment on Guideline 3(i) to R. 3:28 (2009). While the prosecutor has enormous influence over a defendant's admission to PTI, the Criminal Division Manager cannot short-circuit a defendant's statutory right to apply for PTI, even if the application is unlikely to receive a favorable recommendation.*fn1 We gather from the record that the Monmouth Criminal Division changed its procedures to recognize these principles, but this defendant did not have the benefit of the new procedures. Because defendant was not given the opportunity to make his application to the Criminal Division Manager, we reverse the order on appeal and remand to permit defendant to submit his PTI application to the Criminal Division Manager, who shall consider the application on its merits.

法律

2016-50/4390/en_head.json.gz/7143

| LEVI v. NICKERSON LEVI v. NICKERSON Leslie LEVI, Plaintiff, Howard C. NICKERSON, Defendant The opinion of the court was delivered by: DAWSON The facts as developed at the trial show that the plaintiff had been acquainted with boats and small yachts for many years. In the spring of 1957, while he was in Florida, he began negotiations for the purchase of a twenty year old motor-sailing boat named the Waterloo (now called the Water Lilly). After looking at the boat he gave a written order to purchase her for $ 25,000, subject to inspection, and put down $ 2,500 as a deposit. The agreement for purchase stated that it was 'subject to inspection and survey.' The plaintiff thereupon investigated several marine surveyors recommended to him and finally retained the defendant, Howard C. Nickerson, to make a survey of the boat. Plaintiff sought a very prompt report on the survey. The defendant explained to the plaintiff that there are two types of marine surveys, one a regular survey, which consisted of a close scrutiny of all the surfaces he could reach, sounding with a wooden hammer or mallet and picking with an ice-pick, or, two, an intensive survey which would include making a very thorough boring of the hull surfaces, taking soundings, and the removal of parts of the yacht's mast, machinery and rigging. The latter type of survey would require, of course, the consent of the owner, would take additional time and would make it necessary on completion of the survey to restore the boat to its original condition by replacing any parts removed and filling, caulking and painting over any surfaces which had been disturbed. Plaintiff was not the owner of the yacht and did not give any instructions to make borings or removals in the course of the survey. He seemed to be in a hurry to have the survey completed. Defendant made the survey of the boat. He retained the services of a Mr. McIlanney, a boat builder with many years of experience, to survey the yacht hull. Defendant not only went over the ship and inspected the various parts, and got the benefit of Mr. McIlanney's services, but he also made a trial run of the yacht. He testified that he called the attention of the plaintiff to some bad wood in the timber heads and suggested borings to discover the extent of the condition, but the plaintiff said he did not wish to bother with that. The defendant made an oral report on the condition of the boat to the plaintiff and told him that it would be necessary to make certain repairs in order to put the boat in good condition. Plaintiff, as a result of this report, reduced his offer to $ 23,000, which was accepted by the seller of the boat. Plaintiff then completed the purchase of the boat, without waiting for the written survey and returned to New York. When he returned to New York he received the written survey report of the defendant, which was received in evidence as Plaintiff's Exhibit 3. This written survey, dated April 23, 1957, described the boat and its various appurtenances and concluded: 'All other items appear to be in good condition unless otherwise mentioned in survey report. 'This survey was made without making any removals and/or borings of structural members. 'The main engines and auxiliaries were surveyed while in operation and without making any removals of internal parts and/or external accessories.' The survey concluded with a page of recommendations. It was pointed out in the recommendations that with respect to the bottom four butts were found to be leaking; with reference to the decks it was reported that the bottom of the inboard door post in the aft companionway was rotted at the sill, and that various deck seams needed to be recaulked. It was reported with respect to the bulwarks that four timber heads on the port side and eight on the starboard side would have to be removed and replaced where they were found to be deteriorated from dry rot. It was reported that the standing rigging was found to be rusted and in poor condition; that the sail seams had deteriorated and that certain repairs would have to be made to the electronic equipment, the bilge pumps and the firefighting equipment. At the conclusion of these recommendations the surveyor reported: 'The captioned vessel is well constructed, with proper care and recommendations complied with, should give many years of service as a pleasure craft.' The plaintiff took title to the boat, paid the $ 23,000 purchase price and sailed the boat to New York, where it arrived without serious incident. While at City Island, New York, the boat suffered some damage due to a hurricane. Plaintiff made a demand upon his insurance company for reimbursement for the hurricane damage. The boat was surveyed at this time to ascertain the amount of the damage by a surveyor named Louis W. Teller. The plaintiff had known this surveyor for some years. In fact, Teller had asked the plaintiff to send him to Florida to survey the boat before he bought it, but plaintiff had not done this. Mr. Teller, while surveying the boat for the purpose of giving a report to the insurance company, and while in this capacity of a representative of the insurance company, then undertook for a fee of $ 500 from the plaintiff, to make a survey for the plaintiff on the condition of the boat. He rendered a report dated July 20, 1957, which was received in evidence as Plaintiff's Exhibit 4. Mr. Teller, who testified at length at the trial, was a self-assured, rather aggressive gentleman who gave the impression to the Court that he was more interested in establishing, for the benefit of Mr. Levi, that he should have been retained to make the original survey than he was in giving an objective report on the condition of the boat. His survey was an argumentative report relating to conditions which he claimed 'should have been discovered and reported to you before the purchase of this yacht.' He listed some twenty-three items which he said would have to be repaired or corrected. He estimated the cost of such repairs and corrections would be in excess of $ 21,000. He ended his report by stating that 'I would have advised you to refrain from the purchase of this yacht, due to her poor condition throughout. In the event that you would have insisted on purchasing this boat with all the defects and damage present, I would have suggested a top figure not to exceed $ 7,500.00, in my opinion.' Plaintiff's case regarding the condition of the boat was based solely upon the findings and testimony of Mr. Teller. Since the purchase of the boat, Mr. Levi has sailed it to and from Florida. He has chartered it to other persons. He has had certain repairs made upon it, but not the elaborate repairs recommended by Mr. Teller. Defendant called two disinterested expert witnesses, both of whom were acquainted with the boat. One was a Mr. Freund, a naval architect and boat builder of long experience. He was acquainted with the boat and stated that the yacht was sound and seaworthy. The other witness was a Mr. Ebright, a yacht broker who knew the boat and testified that it was sound and seaworthy. Both witnesses testified that the boat was well worth the $ 23,000 the plaintiff had paid for it. It must be kept in mind that the plaintiff realized he was buying a second-hand boat, 20 years old. He realized from the report of the defendant that there were certain defects in the boat and that certain repairs would have to be made. The report of the defendant showed that there was dry rot in certain places on the boat. With knowledge of these facts the plaintiff purchased the boat at a price which was obviously the price of a second-hand, aged boat, rather than a new yacht. Plaintiff has not shown that the boat, in actual operation by him since the time he bought it, has been unsafe or unseaworthy. He offered testimony of certain repairs made by him but none of them were beyond the type or repairs that would be made in the course of the ordinary ownership and operation of a second-hand yacht. Having heard the witnesses and observed their demeanor on the stand the Court is convinced that the defendant and his assistant, Mr. McIlanney, made a careful survey of the boat within the limits which they were hired and permitted to make, and which they described; that the survey report submitted by the defendant was a fair and accurate summary of the condition of the boat and that the plaintiff was not injured as a result of any negligence on the part of the defendant. The report of Mr. Teller indicated the repairs which would have to be made to put the boat in the equivalent of new condition, but this was not the type of survey which was required by the plaintiff or which could have been expected by him for the fee of $ 100 which he paid to the surveyor. Nor, apparently, did plaintiff require a boat in this condition, because he has not put out the amounts to put the boat in the condition which Mr. Teller recommended. The Court finds that the plaintiff has failed to prove by a fair preponderance of the evidence that the defendant was negligent in the job which he undertook and also finds that the plaintiff has suffered no damages by any of the actions or report of the defendant. The complaint is dismissed, with costs. This opinion shall constitute the findings of fact and conclusions of law of the Court. Submit judgment in accordance herewith. 19590511

法律

2016-50/4390/en_head.json.gz/7236

How We Became Torturers Cruelty, humiliation, and the use of torture on detainees have long been prohibited by international law, including the Geneva Conventions and their Common Article 3. This total ban was reinforced in 1984 with the adoption of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which criminalizes torture and complicity in torture... The definition of torture, as set out in the 1984 Convention, ... is binding on 145 countries, including the United States. Torture includes “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.”Finally, FINALLY, with the release of the John Yoo torture memo (see A Gulag By Any Other Name), the mainstream press has begun to explore the idea that the ludicrous "just a few bad apples in the enlisted ranks" explanation for the disgraces of Abu Ghraib, Bagram Air Force Base and Guantanamo Bay might not be plausible. ABC News ran a piece on Wednesday that directly ties the National Security Council Principals Committee, a group of the president's senior advisers made up at that time of Vice President Cheney, former National Security Advisor Condoleezza Rice, former Defense Secretary Donald Rumsfeld, former Secretary of State Colin Powell, former C.I.A. Director George Tenet and former Attorney General John Ashcroft, to interrogation of prisoners in American captivity using methods legally defined as torture. According to the report, interrogators appear to have known they were skating on the thinnest ice, repeatedly asking for explicit approval from the Principals for the use of torture in an effort to ensure their protection from later prosecution. Tellingly, members of the Committee - or at least Mr. Ashcroft - also seemed aware that they had crossed the line, with the one-time A.G. asking, "Why are we talking about this [approval of torture during interrogation] in the White House? History will not judge this kindly." I don't agree with John Ashcroft on much, but he unquestionably nailed that one. While the ABC story is upsetting enough, Philippe Sands' examination in Vanity Fair of the manner in which torture came to be United States policy is downright chilling and profoundly disturbing in its detailed and damning presentation of the machinations involved. Because it is somewhat lengthy - at least in internet terms - I am providing key excerpts below (which are still lengthy, but at least less so). In my opinion, however, this is must-read material, and I urge you in the strongest possible terms to take in every word of the original story. Mr. Sands concludes his article by positing that, for all their apparent invulnerability within the borders of the United States, the authors and perpetrators of American torture policy and the Bush Administration's institutionalized disregard for global standards of human rights, may one day be pursued by international investigators and prosecuted for the war crimes they have committed. One can only hope. Excerpted from "The Green Light" by Philippe Sands (Vanity Fair, May 2008) The abuse, rising to the level of torture, of those captured and detained in the war on terror is a defining feature of the presidency of George W. Bush. Its military beginnings, however, lie not in Abu Ghraib, as is commonly thought, or in the “rendition” of prisoners to other countries for questioning, but in the treatment of the very first prisoners at Guantanamo. Starting in late 2002 a detainee bearing the number 063 was tortured over a period of more than seven weeks. In his story lies the answer to a crucial question: How was the decision made to let the U.S. military start using coercive interrogations at Guantanamo? The Bush administration has always taken refuge behind a “trickle up” explanation: that is, the decision was generated by military commanders and interrogators on the ground. This explanation is false. The origins lie in actions taken at the very highest levels of the administration - by some of the most senior personal advisers to the president, the vice president, and the secretary of defense. At the heart of the matter stand several political appointees - lawyers - who, it can be argued, broke their ethical codes of conduct and took themselves into a zone of international criminality, where formal investigation is now a very real option. This is the story of how the torture at Guantanamo began, and how it spread. The authorized version [of the Bush Administration justification for torture] had four basic parts... First, the administration had moved reasonably - with care and deliberation, and always within the limits of the law. In February 2002 the president had determined, in accordance with established legal principles, that none of the detainees at Guantanamo could rely on any of the protections granted by Geneva, even Common Article 3... The second element of the administration’s narrative dealt with the specific source of the new interrogation techniques... The administration pointed to the military commander at Guantanamo, Major General Michael E. Dunlavey... The third element of the administration’s account concerned the legal justification for the new interrogation techniques. This, too, the administration said, had originated in Guantanamo... The fourth and final element of the administration’s official narrative was to make clear that decisions relating to Guantanamo had no bearing on events at Abu Ghraib and elsewhere. Gonzales [former White House Counsel and Attorney General Alberto Gonzales] wanted to “set the record straight” about this. The administration’s actions were inconsistent with torture. The abuses at Abu Ghraib were unauthorized and unconnected to the administration’s policies. The real story, pieced together from many hours of interviews with most of the people involved in the decisions about interrogation, goes something like this: The Geneva decision was not a case of following the logic of the law but rather was designed to give effect to a prior decision to take the gloves off and allow coercive interrogation; it deliberately created a legal black hole into which the detainees were meant to fall. The new interrogation techniques did not arise spontaneously from the field but came about as a direct result of intense pressure and input from Rumsfeld’s office. The Yoo-Bybee Memo was not simply some theoretical document, an academic exercise in blue-sky hypothesizing, but rather played a crucial role in giving those at the top the confidence to put pressure on those at the bottom. And the practices employed at Guantanamo led to abuses at Abu Ghraib. [Former Under Secretary of Defense for Policy] Douglas Feith had a long-standing intellectual interest in Geneva, and for many years had opposed legal protections for terrorists under international law... Those who chose not to follow the rules, he argued, shouldn’t be allowed to rely on them, or else the whole Geneva structure would collapse...To uphold Geneva’s protections, [he posited,] you might have to cast them aside. But that way of thinking didn’t square with the Geneva system itself, which was based on two principles: combatants who behaved according to its standards received P.O.W. status and special protections, and everyone else received the more limited but still significant protections of Common Article 3. ... How had the administration gone from a commitment to Geneva... to the president’s declaration that none of the detainees had any rights under Geneva? It all turns on what you mean by “promoting respect” for Geneva, Feith explained. Geneva didn’t apply at all to al-Qaeda fighters, because they weren’t part of a state and therefore couldn’t claim rights under a treaty that was binding only on states. Geneva did apply to the Taliban, but by Geneva’s own terms Taliban fighters weren’t entitled to P.O.W. status, because they hadn’t worn uniforms or insignia. That would still leave the safety net provided by the rules reflected in Common Article 3 - but detainees could not rely on this either, on the theory that its provisions applied only to “armed conflict not of an international character,” which the administration interpreted to mean civil war. This was new. In reaching this conclusion, the Bush administration simply abandoned all legal and customary precedent that regards Common Article 3 as a minimal bill of rights for everyone. ... The principled legal arguments were a fig leaf. The real reason for the Geneva decision, as Feith now made explicit, was the desire to interrogate these detainees with as few constraints as possible. Feith thought he’d found a clever way to do this, which on the one hand upheld Geneva as a matter of law... and on the other pulled the rug out from under it as a matter of reality. Feith’s argument was so clever that Myers [then-Chairman of the Joint Chiefs of Staff General Richard Myers] continued to believe Geneva’s protections remained in force - he was “well and truly hoodwinked,” one seasoned observer of military affairs later told me. “This year I was really a player,” Feith said, thinking back on 2002 and relishing the memory. I asked him whether, in the end, he was at all concerned that the Geneva decision might have diminished America’s moral authority. He was not. “The problem with moral authority,” he said, was “people who should know better, like yourself, siding with the assholes, to put it crudely.” Feith, for his part, had told me that he knew nothing about any specific interrogation issues until the Haynes Memo [a document written by William J. (Jim) Haynes II, the general counsel of the U.S. Department of Defense at the time, authorizing specific "enhanced interrogation techniques"] suddenly landed on his desk. But that couldn’t be right - in the memo itself Haynes had written, “I have discussed this with the Deputy, Doug Feith and General Myers.” I read the sentence aloud. Feith looked at me. His only response was to tell me that I had mispronounced his name. “It’s Fythe,” he said. “Not Faith.” The lawyers in Washington were playing a double game. They wanted maximum pressure applied during interrogations, but didn’t want to be seen as the ones applying it - they wanted distance and deniability. They also wanted legal cover for themselves. A key question is whether Haynes and Rumsfeld had knowledge of the content of these memos before they approved the new interrogation techniques for al-Qahtani. [Mohammed al-Qahtani, allegedly a member of the 9/11 conspiracy and the so-called 20th hijacker.] If they did, then the administration’s official narrative - that the pressure for new techniques, and the legal support for them, originated on the ground at Guantanamo, from the “aggressive major general” and his staff lawyer - becomes difficult to sustain. More crucially, that knowledge is a link in the causal chain that connects the keyboards of Feith and Yoo to the interrogations of Guantanamo. Not everyone at Guantanamo was enthusiastic. The F.B.I. and the Naval Criminal Investigative Service (N.C.I.S.) refused to be associated with aggressive interrogation. They opposed the techniques. One of the N.C.I.S. psychologists, Mike Gelles, knew about the brainstorming sessions but stayed away. He was dismissive of the administration’s contention that the techniques trickled up on their own from Guantanamo. “That’s not accurate,” he said flatly. “This was not done by a bunch of people down in Gitmo - no way.” That view is buttressed by a key event that has received virtually no attention. On September 25 [2002], as the process of elaborating new interrogation techniques reached a critical point, a delegation of the administration’s most senior lawyers arrived at Guantanamo. The group included the president’s lawyer, Alberto Gonzales, who had by then received the Yoo-Bybee Memo; Vice President Cheney’s lawyer, David Addington, who had contributed to the writing of that memo; the C.I.A.’s John Rizzo, who had asked for a Justice Department sign-off on individual techniques, including waterboarding, and received the second (and still secret) Yoo-Bybee Memo; and Jim Haynes, Rumsfeld’s counsel. They were all well aware of al-Qahtani. “They wanted to know what we were doing to get to this guy,” Dunlavey told me, “and Addington was interested in how we were managing it.” I asked what they had to say. “They brought ideas with them which had been given from sources in D.C.,” Dunlavey said. “They came down to observe and talk.” Throughout this whole period, Dunlavey went on, Rumsfeld was “directly and regularly involved.” ... Do “whatever needed to be done.” That was a green light from the very top - the lawyers for Bush, Cheney, Rumsfeld, and the C.I.A. The administration’s version of events - that it became involved in the Guantanamo interrogations only in November, after receiving a list of techniques out of the blue from the “aggressive major general” - was demonstrably false... The common theme was that the techniques were fine “so long as the force used could plausibly have been thought necessary in a particular situation to achieve a legitimate government objective, and it was applied in a good faith effort and not maliciously or sadistically for the very purpose of causing harm.” That is to say, the techniques are legal if the motivation is pure. National security justifies anything. When we spoke, Myers confessed to being troubled that normal procedures had been circumvented. He held the Haynes Memo in his hands, looking carefully at the sheet of paper as if seeing it clearly for the first time. He pointed: “You don’t see my initials on this.” Normally he would have initialed a memo to indicate approval, but there was no confirmation that Myers had seen the memo or formally signed off on it before it went to Rumsfeld. “You just see I’ve ‘discussed’ it,” he said, noting a sentence to that effect in the memo itself. “This was not the way this should have come about.” Thinking back, he recalled the “intrigue” that was going on, intrigue “that I wasn’t aware of, and Jane [Jane Dalton, counsel to General Myers] wasn’t aware of, that was probably occurring between Jim Haynes, White House general counsel, and Justice.” Further confirmation that the Haynes Memo got special handling comes from a former Pentagon official, who told me that Lieutenant General Bantz Craddock, Rumsfeld’s senior military assistant, noticed that it was missing a buck slip, an essential component that shows a document’s circulation path, and which everyone was supposed to initial. The Haynes Memo had no “legal chop,” or signature, from the general counsel’s office. It went back to Haynes, who later signed off with a note that said simply, “Good to go.” Mike Gelles, of the N.C.I.S., had shared with me his fear that the al-Qahtani techniques would not simply fade into history - that they would turn out to have been horribly contagious. This “migration” theory was controversial, because it potentially extended the responsibility of those who authorized the Guantanamo techniques to abusive practices elsewhere. John Yoo has described the migration theory as “an exercise in hyperbole and partisan smear.” ... [However] three different official investigations in the space of three years have confirmed the migration theory. The August 2006 report of the Pentagon’s inspector general concluded unequivocally that techniques from Guantanamo had indeed found their way to Iraq. An investigation overseen by former Secretary of Defense James R. Schlesinger determined that “augmented techniques for Guantanamo migrated to Afghanistan and Iraq where they were neither limited nor safeguarded.” As the consequences of Hamdan [Hamdan v. Rumsfeld, a U.S. Supreme Court decision overturning the military commissions system implemented by the Bush Administration to try prisoners held at Guantanamo Bay] sank in, the instinct for self-preservation asserted itself. The lawyers got busy. Within four months President Bush signed into law the Military Commissions Act. This created a new legal defense against lawsuits for misconduct arising from the “detention and interrogation of aliens” between September 11, 2001, and December 30, 2005. That covered the interrogation of al-Qahtani, and no doubt much else. Signing the bill on October 17, 2006, President Bush explained that it provided “legal protections that ensure our military and intelligence personnel will not have to fear lawsuits filed by terrorists simply for doing their jobs.” ... In a word, the interrogators and their superiors were granted immunity from prosecution. Some of the lawyers who contributed to this legislation were immunizing themselves. The hitch, and it is a big one, is that the immunity is good only within the borders of the United States. The Altstötter case had been prosecuted by the Allies to establish the principle that lawyers and judges in the Nazi regime bore a particular responsibility for the regime’s crimes. Sixteen lawyers appeared as defendants. The scale of the Nazi atrocities makes any factual comparison with Guantanamo absurd, a point made to me by Douglas Feith, and with which I agree. But I wasn’t interested in drawing a facile comparison between historical episodes. I wanted to know more about the underlying principle. Mohammed al-Qahtani is among the first six detainees scheduled to go on trial for complicity in the 9/11 attacks; the Bush administration has announced that it will seek the death penalty. Last month, President Bush vetoed a bill that would have outlawed the use by the C.I.A. of the techniques set out in the Haynes Memo and used on al-Qahtani. Whatever he may have done, Mohammed al-Qahtani was entitled to the protections afforded by international law, including Geneva and the torture convention. His interrogation violated those conventions. There can be no doubt that he was treated cruelly and degraded, that the standards of Common Article 3 were violated, and that his treatment amounts to a war crime. If he suffered the degree of severe mental distress prohibited by the torture convention, then his treatment crosses the line into outright torture. These acts resulted from a policy decision made right at the top, not simply from ground-level requests in Guantanamo, and they were supported by legal advice from the president’s own circle. Those responsible for the interrogation of Detainee 063 face a real risk of investigation if they set foot outside the United States. Article 4 of the torture convention criminalizes “complicity” or “participation” in torture, and the same principle governs violations of Common Article 3. It would be wrong to consider the prospect of legal jeopardy unlikely. I remember sitting in the House of Lords during the landmark Pinochet case, back in 1999 - in which a prosecutor was seeking the extradition to Spain of the former Chilean head of state for torture and other international crimes - and being told by one of his key advisers that they had never expected the torture convention to lead to the former president of Chile’s loss of legal immunity. In my efforts to get to the heart of this story, and its possible consequences, I visited a judge and a prosecutor in a major European city, and guided them through all the materials pertaining to the Guantanamo case. The judge and prosecutor were particularly struck by the immunity from prosecution provided by the Military Commissions Act. “That is very stupid,” said the prosecutor, explaining that it would make it much easier for investigators outside the United States to argue that possible war crimes would never be addressed by the justice system in the home country - one of the trip wires enabling foreign courts to intervene. For some of those involved in the Guantanamo decisions, prudence may well dictate a more cautious approach to international travel. And for some the future may hold a tap on the shoulder. “It’s a matter of time,” the judge observed. “These things take time.” As I gathered my papers, he looked up and said, “And then something unexpected happens, when one of these lawyers travels to the wrong place.” abu ghraib, addington, bagram, dunlavey, feith, geneva conventions, guantanamo bay, rumsfeld, Pulling Away the Veil of Euphemism Holding the Media Accountable Busy, Busy, Busy A King Crowned By Our Inaction Uncle Stupid Economic Data Versus Economic Opinion A Gulag By Any Other Name

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Who Are These Magistrates Anyway? Apocrypha (3) Unexpected Nasties (2) Unexpected Nasties They Do Things Differently in the USA Technology in Court - or Not To be Perfectly Honest..... "To be perfectly honest" is an eerily common phrase to hear in court. I usually think to myself that if the user knew about the laws of perjury he would realise that it is safer to be honest. Mr. Singh was in court on a charge of possessing an offensive weapon, namely a heavy dog chain. Nasty if used as a knuckleduster, or swung in anger. The defendant had turned up on the doorstep of his landlord, another Mr. Singh, at just before one in the morning. The latter Mr. Singh prudently declined to answer the door, and called the police, who duly turned up, searched the first Mr. Singh and arrested him. Defending himself Mr. S. told us that he had a long-standing problem with his property and that while out walking his dog he had happened to pass his landlord's house and thought "My, what luck, this is a good chance to speak to Mr. Singh and to resolve our problems". In cross-examination he was asked where the dog was, and why he had not mentioned the animal to the police at the scene or in interview later. "He is a good dog, and I let him off the lead to go home by himself, as Mr. Singh probably didn't want a dog in his house" he replied.He was then asked why he had not mentioned the dog before coming to court. "Ah well, you see, I was frightened of getting into trouble." "Why is that Mr. Singh?"(Hesitates) "You see, I haven't got a dog licence"It was hard enough trying to keep a straight face even without the sight of the officer in the case who was sitting at the back of the court attempting to stifle a serious attack of the giggles.Unsportingly we convicted Mr. Singh. Beyond Reasonable Doubt, you know. posted by Bystander Team | 10:44 pm

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Homestead woman sentenced for kidnapping Mercer college student Paul Peirce | Friday, March 22, 2013, 10:57 a.m. Just after a Homestead woman was sentenced by an Indiana County judge Friday to three to seven years in prison for kidnapping a Mercy County teenager in what police called a botched murder attempt, authorities announced that her alleged accomplice had been arrested. Marlena Lynn Jones, 34, of 819 Sarah St., Homestead, was sentenced by President Judge William Martin on charges of kidnapping and aggravated assault. Jones pleaded guilty to those charges while a charge of attempted murder was withdrawn. District Attorney Patrick Dougherty announced after the proceeding that Jones' alleged co-conspirator, Dwayne M. Jefferson, 31, of Homestead was apprehended Monday and arrested on charges of attempted murder, aggravated assault and kidnapping. He is being held in the county prison on $100,000 bond set by Blairsville District Judge Jennifer Rega. In court documents related to Jones' case, Jefferson was described as a mystery suspect. According to an affidavit of probable cause filed this week, Jones eventually identified Jefferson and an arrest warrant was issued in early February. Dougherty credited state police investigators with persistently “piecing together a complicated case” and eventually arresting Jefferson. “I'm pleased that the sentence was within the (state sentencing) standards and now we'll devote our attention to prosecuting Mr. Jefferson,” Dougherty said. The victim, Thomas A. Pierce III, 20, of Farrell, Mercer County, and family members attended the sentencing hearing, but declined comment. Jones did not address Martin, but public defender Bradley Ophaug asked the judge for leniency “The victim (Pierce) is not completely innocent here. She (Jones) has been very cooperative and provided details to investigators that were not previously known,” Ophaug said. “She is remorseful for her actions and apologizes to the court and Mr. Pierce.” Martin said Jones will serve her sentence at the state correctional institution in Muncy, a woman's prison in Lycoming County. At a preliminary hearing in August, Pierce testified that he got a phone call from Jones, a family friend who was seeking cocaine, on the afternoon of July 16. Jones and a man whom Pierce had never met arrived at Pierce's home, and he took them to a low-income housing development where they allegedly bought drugs, Pierce testified. When the group was driving Pierce back to Farrell, Jones claimed the drugs were fake, Pierce said. “She got real angry,” Pierce testified. “She was saying ... that I had something to do with it, and I was saying that I didn't.” The group returned to Homestead, where Jones held Pierce at gunpoint at her home. “She cocked it back and said, ‘Don't say no words,'” Pierce testified. “I was terrified.” Pierce was ordered to strip to his underwear and socks. He testified that the man tied and taped him and placed him in a plastic laundry tote. Jones stuck Pierce with a needle that later was determined to contain insulin, Pierce testified. “My whole body was numb, and it felt like my body was shutting down, like, real quick,” he said. Jones and the man allegedly drove Pierce to a wooded area along Route 286 in Young Township and attempted to shoot him. “Marlena had a gun, and she was trying to shoot me, but she said the gun jammed,” Pierce testified. He said he was doused in lighter fluid and thrown into a fire, but only his leg and elbow were burned. Pierce said he escaped and flagged down a motorist. He was taken to a hospital, then interviewed by police. Trooper Scott Mackanick testified that Pierce smelled of “some type of accelerant” when they spoke in the hospital. “He was pretty disheveled and out of it,” Mackanick said. Jefferson's preliminary hearing is scheduled for Wednesday before Rega. Paul Peirce is a staff writer for Trib Total Media. He can be reached at 724-850-2860 or [email protected]. More News

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Young children could face bullying charges in city CARSON, Calif. (AP) — Children as young as kindergarten-age could face misdemeanor charges for bullying under a proposed law advancing in a Southern California city.The Carson City Council gave preliminary approval this week to an ordinance that would target anyone from kindergarten to age 25 who makes another person feel "terrorized, frightened, intimidated, threatened, harassed or molested" with no legitimate purpose.A final vote is set for May 20, according to the Daily Breeze (http://bit.ly/1g3JLNT ).First-time offenders could be ticketed for an infraction and fined $100. A second infraction would cost $200, and a third-time offense could bring a criminal misdemeanor charge."If a child is bullying someone, and a parent has to pay a $100 fine as a result of that, a responsible parent will realize their child needs some help," said Councilman Mike Gipson, who introduced the ordinance and is spearheading a campaign to make Carson bully-free.Adults who bully would be charged with either an infraction or a misdemeanor, which could come with jail time.The measure also would cover forms of cyberbullying in the city of 93,000 people in Los Angeles County.It's unclear how the Sheriff's Department would enforce the law, since infractions and misdemeanors rarely are doled out unless the crime is witnessed by a law enforcement officer, officials said."A fitness hearing would be required to try a child as a criminal," Lt. Arthur Escamillas told the newspaper. "But if you see a 4-year-old riding a bike down the street without a helmet, are you going to give a 4-year-old a ticket? It's discretionary."Whether officers cite and charge children with misdemeanors for bullying will have to be decided by the Sheriff's Department leadership, Escamillas said.___

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cepPolicyBrief: Block Exemption Regulation in the Motor Vehicle Sector (Regulation/Guidelines) Vertical agreements are entered into by companies operating in the production or distribution chain at different levels. Such agreements are generally prohibited, however, the Treaty on the Functioning of the European Union provides for exemptions from the general prohibition. The Commission decides whether or not an exemption is given. In its Block Exemption Regulation in the Motor Vehicle Sector (EC) No. 1400/2002 and its Guidelines, the Commission is presenting the conditions according to which an agreement is deemed in line with competition law. Said Regulation will expire on 31 May 2010. At the end of last December the Commission has submitted a follow-up Draft Regulation and Draft Guidelines. cepPolicyBrief: Horizontal Guidelines (Communication) Under horizontal agreements, undertakings co-operate as competitors at the same level in the value-added chain. The Guidelines are intended to make it easier for undertakings to assess themselves whether or not their intended horizontal agreements infringe the ban on cartels of Art. 101(1) TFEU and whether an exemption applies. They contain general and agreement-specific explanations of the assessment of horizontal agreements for goods and services. The revised version contains also contains explanations on “information exchange” between undertakings which are relevant in terms of competition law. 2014 cepPolicyBrief: Deposit Guarantee Schemes (Directive) The Commission intends to restrict the maximum repayable amount of EU deposit guarantee schemes to € 100,000 in future. Deposit guarantee schemes are being obliged to mutually grant loans. In the middle of the financial crisis the Council and the European Parliament decided to increase the minimum coverage level to Euro 50,000 and – by the end of 2010 – up to 100,000. Issues such as the EU-wide harmonisation of the financing of deposit guarantee schemes and the establishment of a European deposit guarantee scheme were postponed to 2010. The latest plans face substantial opposition. Several national parliaments intend to file a subsidiarity complaint, a procedure newly introduced by the Lisbon Treaty, in order to force the Commission to reassess the Proposal. 2014 cepPolicyBrief: Bio-Waste (Communication) Pursuant to the Waste Framework Directive, the Commission is obliged to evaluate the management of bio-waste and, where necessary, to make proposals for action. According to the Commission, the existing EU waste legislation is adequate, but poorly implemented in several Member States. To this end, such Member States are to receive EU subsidies. Moreover, the Commission assesses whether or not minimum requirements for the management of bio-waste and quality standards for compost and digestate from bio-waste should be set. 2014 cepPolicyBrief: Economic Policy Coordination (Communication) The EU is to be entitled to monitor and avoid “macroeconomic imbalances” in and between Member States. Furthermore, it is to be entitled to carry out a “thematic surveillance“ in order to ensure that Member States comply with the “Europe 2020 targets”. A reform of the Stability and Growth Pact is to safeguard that Member States consolidate their state budgets sufficiently. In addition, the EU is to be entitled to coordinate the economic policies in Member States. To this end, a “European Semester” is to be established. 2014 cepPolicyBrief: Pension Systems (Green Paper) In its Green Paper „Adequate, sustainable and safe European pension systems”, published on 7 July 2010, the Commission addresses all the challenges that pay-as-you-go and funded pension schemes are facing. With regard to the pay-as-you-go – usually public – systems, the Commission sees urgent need for action in order to tackle demographic change. Regarding funded systems, the Commission manly calls for EU-wide, harmonised regulation and supervision. The Commission’s aim is to improve the sustainability and security of pension systems. Furthermore, the Commission is considering whether or not it should define “when” pension is adequate. 2014 cepPolicyBrief: Auctioning of greenhouse gas emission allowances (Draft Regulation) Since 2005 the framework of EU emission trading system (ETS) allows for certain stationary installations (e.g. for power and heat supply, for metal production and processing, for paper production and for the chemical industry) and, as of 2012, air traffic may emit greenhouse gases only if the operators possess the according allowances. Pursuant to the ETS Directive as of 2012 Member States must auction all allowances for aviation and as of 2013 for stationary installations which are not allocated free of charge. The submitted Regulation Draft affects the timing, administration and other aspects of auctioning of these greenhouse gas emission allowances. 2014 cepPolicyBrief: Block Exemption Regulation for Research & Development Agreements (Draft Regulation) Research and development agreements can stipulate provisions on the partial outsourcing of R&D activities, R&D co-operations or the common distribution and marketing of jointly developed products. Thus they can increase efficiency, lower costs and intensify the exchange of ideas and experience. The revised version of the Block Exemption Regulation for research & development agreements provides for a new exemption condition, namely that, prior to starting an R&D, all parties must disclose their existing and pending rights in intellectual property. Moreover, the Commission extends the scope of “hardcore restrictions” for both, the passive and active distribution. 2014 cepPolicyBrief: Credit rating agencies (Regulation) Since 2009, the Rating-CR regulates the registration and supervision of credit rating agencies at an EU-wide level. National supervisory authorities are key to this procedure. Now, the Commission wishes to change this: In September 2009, the Commission proposed to establish the European Securities and Markets Authority (ESMA) which is to be responsible for the supervision of credit rating agencies in future. Show items 350 to 360 from total 537

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Archives:United States Project Federal judge: Delayed access to court records raises First Amendment concerns Courthouse News editor sees "nationwide plague"--and he'll get a chance to make his case By Tony Biasotti It’s been a routine for generations of legal beat reporters: Every weekday afternoon, at courthouses across the United States, a reporter steps behind the records counter and thumbs through the lawsuits filed that day, looking for news. This custom is endangered, though, and not just because files have moved online, or because there aren’t as many legal beat reporters as there used to be. Many state courts now keep new civil cases out of sight of the press and public for days, and sometimes even weeks, after they’re filed. “It’s a nationwide plague,” said Bill Girdner, the founder and editor of Courthouse News Service. But now, a federal trial court in California will have to determine whether the standard delays at a local courthouse are permissible—after a higher court ruled that Girdner’s complaints raise First Amendment concerns. Based in Pasadena, CA, Courthouse News is a wire service that specializes in civil litigation and covers the courts for both its own website and around 3,000 subscribers, including the Los Angeles Times, The Boston Globe, and other major news organizations. In 2011, Courthouse News sued the Superior Court of Ventura County, CA, after the court stopped letting the newswire’s local correspondent see every new civil suit on the day it was filed. A federal judge dismissed the case. But Courthouse News appealed, and on April 7 a panel of three Ninth Circuit judges ruled that the trial court had to hear the case. Circuit Judge Kim McLane Wardlaw’s opinion said the case “presents an important First Amendment question” and thus should be heard in federal court. “Though the government may sometimes withhold information without violating the expressive rights protected by the First Amendment, the First Amendment right of access to public proceedings—where it applies—is inextricably intertwined with the First Amendment right of free speech,” Wardlaw wrote. The opinion doesn’t specifically find that Courthouse News is entitled to records access under the Constitution—that’s what the trial court will have to determine. But Wardlaw notes that federal appellate courts “have widely agreed” that the First Amendment right of access “extends to civil proceedings and associated records and documents.” Michael Planet, the executive officer of the Ventura County court, did not return repeated calls seeking comment. In court filings, he argued that the case revolved around state issues, not the First Amendment, and he said it would be impractical and expensive to provide same-day access to civil filings. Girdner said he’s heard the same story from court after court. It rings hollow to his ears, because courts for years have found cheap and easy ways to let reporters see the latest civil filings. Some of those methods, like having a clerk print a list of new filings, or letting reporters sift through a box of files before they’re processed, were mentioned by Wardlaw in her ruling. There’s a pattern in which courts have withdrawn same-day access, Girdner said. They tend to be the ones that have adopted new electronic filing systems. “E-filing, in theory, is technological progress, and in theory it should advance access,” Girdner said. “But the clerks and the court administrators, not the judges, are often using that transition to change the traditional access that journalists have had, and you have to fight to get it back. The access we’re fighting for is traditional beat coverage access.” In Ventura County and elsewhere, courts that don’t provide same-day access say they need to withhold new filings until they’re been “fully processed.” That can take a day or two, or it can take as long as two months, which Girdner said was common in Sacramento County until recently. The typical delay tends to be between one and three days. Of course, a lawsuit doesn’t have to “fully processed” to be considered filed by the legal system. A case is stamped as soon as it’s filed, and once that happens, it is, in Girdner’s words, “a real case. It’s filed, it’s in the courthouse, and it’s a public record.” Late last year, while its appeal was under consideration by the Ninth Circuit panel, Courthouse News spent a few weeks tracking how often 13 different courthouses, both state and federal, provided civil records on the day they were filed. In Kansas City, MO, not one of the 29 state cases filed was shown to Courthouse News on its filing date. The state courthouse in Orange County, CA, provided same-day access 6 percent of the time. On the other hand, three state courthouses—those in Los Angeles, Portland and Chicago—provided same-day access to more than 90 percent of their new filings. By contrast, all five federal courts that Courthouse News tracked provided same-day access to more than 90 percent of their new filings. “There is an institution that’s doing it the right way, and that’s the federal courts,” Girdner said. Federal courts use an e-filing system called Public Access to Court Electronic Records, or PACER. When a lawyer files a document in PACER, it’s immediately visible online to the public, even on a weekend or court holiday. PACER charges 10 cents per page to view records. That makes it a frequent target of open-government advocates, but as Girdner pointed out, 10 cents per page is much less than many state courts charge to make copies of a file. “There are plenty of state courts that are charging a buck a page,” Girdner said. And with PACER, a reporter doesn’t have to physically go to the courthouse. Other journalists, including the California Newspaper Publishers Association, have joined Courthouse News’ battles for immediate access, and the Reporters Committee for Freedom of the Press served as an amicus. But there aren’t many news outlets that are still in the businesses of stalking the courthouse every day. They either outsource that job to Courthouse News, or rely on their sources to let them know when there might be a juicy new case coming. Bob Egelko, who covers courts for the San Francisco Chronicle, said he thinks courts should make new filings immediately available to the press and the public. But the Chronicle doesn’t monitor all new filings, and waiting a day or even a week to find out about a high-profile case doesn’t change his coverage. “I personally don’t care that much if I find out about a lawsuit the day after it’s filed, as long as the competition didn’t find out about it yesterday,” he said. Courthouse News makes its living on up-to-the-minute litigation coverage. For anyone else, Egelko may have a point. If a lawsuit is worth reading about today, does it become any less so tomorrow? Girdner would say that yes, days-old or weeks-old news is less newsworthy. “There’s a human interest in immediacy, in what just happened,” he says. “Reading yesterday’s news can be interesting, but it’s not as interesting as today’s news.” But he also sees important principles at stake in courts backtracking on prompt access—and he doesn’t believe they only affect niche outlets like his. “This is a war,” Girdner said in a follow-up interview. “The journalists just don’t know it yet.” There’s no timetable yet for when the trial court might hear the Courthouse News case. A win by the newswire there would compel only the Ventura County courthouse to change its practices—but the logic and holdings of Wardlaw’s opinion about the First Amendment implications apply across the Ninth Circuit. Wardlaw’s opinion doesn’t tackle the merits of the case against Ventura County, but Girdner took hope from it anyway. “You look at the examples she uses to show that it’s very feasible,” he said, “…and one can very fairly conclude that the judge is saying it is feasible, and she would question why it’s not being granted.” Tony Biasotti is a freelance writer in Ventura, California. Find him on Twitter @tonybiasotti. Tags: Courthouse News Service, First Amendment, public records Trending stories

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Truth and the Gitmo Detainees Published on Sunday, July 06, 2008 by the Chicago TribuneTruth and the Gitmo Detainees bySteve Chapman'Islamic terrorists have constitutional rights," lamented one conservative blog when the Supreme Court said Guantanamo inmates can challenge their detention in court. "These are enemy combatants," railed John McCain. The court, charged former federal prosecutor Andrew McCarthy of National Review, sided with foreigners "whose only connection with our body politic is their bloody jihad against Americans. "The operating assumption here is that the prisoners are terrorists who were captured while fighting a vicious war against the United States. But can the critics be sure? All they really know about the Guantanamo detainees is that they are Guantanamo detainees. To conclude that they are all bloodthirsty jihadists requires believing that the U.S. government is infallible. But how sensible is that approach? Judging from a little-noticed federal appeals court decision that came down after the Supreme Court ruling, not very. The case involved Huzaifa Parhat, a Chinese Muslim who fled to Afghanistan in May 2001 to escape persecution of his Uighur ethnic group by the Beijing government. When the U.S. invaded after the Sept. 11, 2001, attacks, the Uighur camp where he lived was destroyed by air strike. He and his compatriots then made their way to Pakistan, where villagers handed them over to the government, which transferred them to American custody. You might think you would have to do something pretty obvious to wind up in Guantanamo. Apparently not. The U.S. government does not claim Parhat was a member of the Taliban or Al Qaeda. He was not captured on a battlefield. The government's own military commission admitted it found no evidence that he "committed any hostile acts against the United States or its coalition partners." So why did the Pentagon insist on holding him as an enemy combatant? Because he was affiliated with the East Turkistan Islamic Movement, a separatist Muslim group fighting for independence from Beijing. It had nothing to do with the Sept. 11 attacks but reputedly got help from Al Qaeda. But the U.S. Court of Appeals for the District of Columbia Circuit, after reviewing secret documents submitted by the government, found that there was no real evidence. It said the flimsy case mounted against Parhat "comes perilously close to suggesting that whatever the government says must be treated as true." And it ruled that, based on the information available, he was not an enemy combatant even under the Pentagon's own definition of the term. Is this verdict just another act of judicial activism by arrogant liberals on the bench? Not by a long shot. Of the three judges who signed the opinion, one, Thomas Griffith, was appointed in 2005 by President Bush himself. Another, David Sentelle, was nominated in 1985 by President Ronald Reagan-and had earlier joined in ruling that the Guantanamo detainees could not go to federal court to assert their innocence (a decision the Supreme Court overturned). The administration could hardly have asked for a more accommodating group of judges. Yet they found in favor of the detainee on the simple grounds that if the government is going to imprison someone as an enemy combatant, it needs some evidence that he is one. Parhat may not be an exceptional case. Most of the prisoners were not captured by the U.S. in combat but were turned over by local forces, often in exchange for a bounty. We had to take someone else's word that they were bad guys. A 2006 report by Seton Hall law professor Mark Denbeaux found that only 8 percent of those held at Guantanamo were Al Qaeda fighters. Even a study done at West Point concluded that 73 percent of the detainees were a "demonstrated threat"-which means 27 percent were not. The Parhat case doesn't prove that everyone in detention at Guantanamo is an innocent victim of some misunderstanding. But it does show the dangers of trusting the administration-any administration-to act as judge, jury and jailer. It illustrates the need for an independent review to make sure there is some reason to believe the people being treated as terrorists really deserve it. If any particular detainees are as bad as the administration claims, it should have no trouble making that case in court. But there is nothing to be gained from the indefinite imprisonment of someone whose only crime was to be in the wrong place at the wrong time. Keeping innocent people behind bars is a tragedy for them and a waste for us. Steve Chapman is a member of the Tribune's editorial board. He blogs at chicagotribune.com/chapman Copyright © 2008, Chicago TribuneShare This Article

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Made in America legislation could restrict Canadian freedoms on- and offline January 30, 2012February 16, 2016Site Admin By Everett Toews, Senior Developer, Edmonton Recently, the Stop Online Piracy Act (SOPA) bill was defeated in the US, I wrote about it here. The bill was deeply flawed and threatened freedom of speech online in the US. Since the American entertainment industry lobbyists have been (for the time being) stopped from going forward in the US, they've now turned their attention to Canada. Dr. Michael Geist, a law professor at the University of Ottawa and keynote speaker at Cybera'€™s 2011 Summit, explains it much better than I can in his article, The Behind-the-Scenes Campaign To Bring SOPA To Canada, but allow me to extract a few choice pieces: "The music industry is unsurprisingly leading the way, demanding a series of changes that would make Bill C-11 look much more like SOPA. "Several lobby groups also want language similar to that found in the infamous Section 103 of SOPA. That provision… spoke of sites '€˜primarily designed or operated for the purpose of…offering goods or services in a manner that engages in, enables, or facilitates; infringement'€™… The expansion of [an] enabler provision to include sites that operate to enable or induce infringement could extend far beyond so-called '€˜pirate sites'€™, since many user-generated content sites (such as YouTube) and cloud-based service sites can be said to enable or induce infringement, particularly in a country like Canada that does not have a fair use provision." This was one of the major problems with the SOPA bill in the US. Any site accused of being an "enabler" of piracy could be blocked. Unfortunately, the language used in the bill is broad and vague, and could therefore be used against legitimate sites. At the very least this would effectively create a chill on investing in online businesses in Canada. Geist continues: "The music industry also wants Internet providers to be required to adopt a termination policy for subscribers that are alleged to be repeat infringers… This demand would move Canada towards the graduated response policy that could result in loss of Internet service for Internet users. There is no indication in the music industry document of due process or even proof of infringement." This is the truly horrific piece and something the lobbyists tried to get through in the SOPA bill, throwing away the need for due process or proof of infringement. While it's targeted at piracy, the lack of due process that this legislation could enable makes me fear for our freedom of speech online. With Canadians spending more and more time online, preserving this freedom is becoming more and more important. I do not want to see Canada go down this slippery slope. Today it's being used against piracy, tomorrow it will be used to take down a site that is critical of the entertainment industry, or one that links to a clip of a movie in order to discuss it. Tin foil hats are unnecessary. Geist has this proof of American lobbyist influence on our legislation. And those are just the additions to Bill C-11. As it stands right now the bill will also: Make it illegal to unlock a DVD or video game for fair dealing purposes Make it illegal to obtain the tools required to unlock a cell phone or transfer a DVD to another device Make it illegal to unlock an eBook for research or private study purposes Make it illegal to record a TV show with a PVR (when broadcasters put a particular flag on the show) This is not about politics and I don't really believe this is about piracy. It is about our freedom. Visit the page Send A Letter To Ottawa To Stop The Canadian DMCA of the Canadian Coalition for Electronic Rights, which provides a template for you to write to your MP and other government members to let them know you oppose this bill. By writing this, I'm trying to create awareness about the issue. I've also sent this post as an email to my MP and other government members. In general, I'm supporting people who oppose this legislation anyway I can. I'm still on the lookout for any other ways to raise awareness and express opposition. I hope you join me. Posted UnderTech Radar blogTaggedAdvocacy Post navigation Cost-cutting connectionsApple’s cloud-based textbook is the future of learning Subscribe Subscribe to our mailing list for news updates

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Equifax + Follow Tweet NAIC Cybersecurity Task Force Weighs Credit Freezes On May 24-25, the NAIC Cybersecurity (EX) Task Force held an interim meeting to hear comments from various industry trade organizations and other interested parties on the proposed Insurance Data Security Model Law exposed...more New Putative FCRA Class Action May Signal a Trend by Ballard Spahr LLP on 6/24/2016 A borrower recently filed a putative class action against Fannie Mae under the Fair Credit Reporting Act (FCRA) in federal court in Washington, D.C., alleging that Fannie engaged in unauthorized inquiries into borrowers'...more Your daily dose of financial news The Brief – 5.25.16 by Robins Kaplan LLP on 5/25/2016 It’s a week of big fat NOs so far, with Tribune emphatically turning down Gannett yesterday and Monsanto doing the same to Bayer and its massive all-cash $62 billion offer...more CFPB Releases Monthly Complaint Report for March 2016 by Stinson Leonard Street - Dodd-Frank and the... on 4/6/2016 On March 29, 2016, the Consumer Financial Protection Bureau (CFPB) released its latest Monthly Complaint Report for March 2016, which provides an overview of three-month trends in consumer complaints. This Monthly Report...more Privacy Tip #21 – It’s a new year—time to get a free copy of your credit report I am fortunate to teach the Privacy Law class at Roger Williams University School of Law on Tuesday afternoons. Yesterday, we discussed all of the laws relating to the financial services industry. OK, not the most exciting...more Limits of Ascertainability Reached in Class Allegations Against Equifax Plaintiff, hoping to recover from Equifax for issuing a credit report with “incorrect and damaging information,” sought to represent a class of “all persons who disputed an Equifax credit report and where Equifax failed to...more CFPB Releases Monthly Complaint Report for December 2015 and Highlights New York Metro Area Complaints On January 28, 2016, the Consumer Financial Protection Bureau (CFPB) released its latest Monthly Complaint Report for December 2015, which provides an overview of three-month trends in consumer complaints. This Monthly...more CFPB Releases Monthly Complaint Report for September by Stinson Leonard Street on 11/2/2015 On October 27, 2015, the Consumer Financial Protection Bureau (CFPB) released its latest Monthly Complaint Report, which provides an overview of three-month trends in consumer complaints. This Monthly Complaint Report also...more Class Action Round-Up: Summer 2015 by Alston & Bird on 9/17/2015 The big news this quarter is the U.S. Supreme Court’s acceptance of Tyson Foods, Inc. v. Bouaphakeo, an employment case likely to have major ramifications across the whole spectrum of class action litigation. The Court is set...more CFPB Issues Monthly Complaint Snapshot – Failure to Provide Normalization and Other Necessary Comparison Metrics Continues by MoFo Reenforcement on 8/28/2015 On August 15, 2015, the CFPB released its latest “consumer complaint snapshot.” The Bureau’s “snapshots” generally provide updated national complaint information, and further include product and geographic spotlights that...more State AG – Credit Bureaus Settlement: What Furnishers Need to Know - More than 30 state attorneys general reached a settlement... by Ballard Spahr LLP on 5/29/2015 Last week, Ohio Attorney General Mike DeWine issued a press release announcing the results of a multi-state investigation into the three national credit reporting agencies (CRAs) - Equifax Information Services LLC, Experian...more NY Attorney General Settlement Portends a Major Shift in the Credit Reporting Industry by Bradley Arant Boult Cummings LLP on 5/5/2015 In March, the big three credit reporting bureaus entered into an agreement with the New York Attorney General that is a harbinger for regulation and reform outside of New York State. Because of the size of New York, many of...more Big Three Credit Bureaus Announce Consumer Financial Assistance Plan Earlier this month, Equifax, Experian and TransUnion announced the creation of the “National Consumer Assistance Plan,” which will, among other things, change the way these credit bureaus handle consumer disputes and report...more NY Attorney General Enters into Far-Reaching Settlement with Largest Credit Reporting Agencies by Ballard Spahr LLP on 3/20/2015 New York Attorney General Eric Schneiderman recently announced that his office reached a landmark settlement with the nation’s three leading credit reporting agencies (CRAs) that will require them to significantly reform,...more New York Attorney General and Credit Bureaus Reach Deal Affecting Furnishers of Information to Credit Bureaus by Morrison & Foerster LLP on 3/17/2015 The New York Attorney General announced a settlement with credit bureaus Equifax, Experian and TransUnion regarding credit reporting policies and practices, including methods of addressing inaccuracies identified by...more CFPB takes steps to protect foster care youth from credit reporting problems by Ballard Spahr LLP on 5/8/2014 To address concerns about the vulnerability of foster care children to credit reporting problems, the CFPB has published three action letter templates for child welfare caseworkers to send to credit bureaus if they find...more Further Affiant Sayeth Naught: The Import Of Personal Knowledge In Class Certification Affidavits The Eastern District of Virginia weighed in on the split among federal district courts as to whether affidavits in support of or in opposition to motions for class certification must be based on personal knowledge. The...more Spotlight on Mississippi: Opportunity for Legislature to Level Playing Field by Baker Donelson on 1/28/2014 New proposed legislation has been introduced in the Mississippi State Senate to reform several laws that directly affect Mississippi taxpayers. The new bill, S.B. 2487, was introduced on January 21, 2014 by the chairman of...more Mississippi Supreme Court: Tax Assessments Not Subject to Meaningful Judicial Review On November 21, the Mississippi Supreme Court denied the taxpayer's Motion for Rehearing in Equifax, Inc. and Equifax Credit Information Services, Inc. v. Miss. Dept. of Revenue, letting stand the court's earlier ruling that...more ’60 Minutes’ Show Gets Facts All Wrong in Report on Credit Reporting Agencies by Jeff Ifrah on 8/28/2013 The credit reporting industry – dominated by Experian, Equifax and Transunion – maintains a precarious balance of obligations: On the one hand, these companies bear a responsibility to banks and other businesses at large to...more Huge FCRA Verdict Against Equifax Shows Potential Costs of Failing to Protect and Correct Consumer’s Credit History by Mintz Levin - Privacy & Security Matters on 8/8/2013 Last week an Oregon jury awarded an individual plaintiff over $18 million in compensatory and punitive damages in what some sources have reported to be the first jury verdict in a case brought under the Fair Credit Reporting...more Mississippi Supreme Court Reverses Court of Appeals in Equifax Case by Bradley Arant Boult Cummings LLP on 6/25/2013 In a landmark (and somewhat surprising) decision issued June 20, the Mississippi Supreme Court reversed the Mississippi Court of Appeals’ decision in Equifax, Inc. and Equifax Credit Info. Services, Inc. v. Miss. Dep’t of...more Is Equifax Selling Your Salary Information? According to a recent NBC News report, Equifax, one of the three largest American credit reporting agencies, has assembled an enormous database containing employment and salary information for more than 190 million U.S....more CFPB issues paper on credit reporting by Ballard Spahr LLP on 12/17/2012 The CFPB has issued a paper that describes the infrastructure and processes used by Equifax, Experian and TransUnion, the three largest nationwide consumer reporting agencies (NCRAs), to collect, compile and report...more Privacy Breaches Can Be One-Two Punch for Employers: Arbitrator Awards Damages for Employee Credit Checks that Breached Privacy... by Field Law on 12/14/2012 Twenty-six employees of the Alberta Justice and Attorney General’s Maintenance Enforcement Program (“MEP”) were each awarded $1250.00 in damages each after a Peace Officer carrying out a workplace investigation used their...more ExperianTransUnionCredit ReportsCredit Reporting AgenciesCFPBFCRAConsumer Complaint SystemConsumer Financial ProductsBank of AmericaClass ActionData BreachDebt CollectionFTCAscertainable ClassAttorney Generals

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Legislature agrees on 'Puppy Doe' bill Patrick Ronan The Patriot Ledger @pronan_Ledger State legislators have agreed on the terms of a bill inspired by Puppy Doe that would toughen the state’s animal cruelty laws.The state Senate on Monday accepted the language of a bill proposed by the House that would increase penalties for animal cruelty and require veterinarians to report animal abuse. The bill needs to be voted on by both chambers, then it will head to the desk of Gov. Deval Patrick.The House has an informal session Thursday, and the Senate hadn’t scheduled its next session as of Monday night. Bills are harder to pass in informal session because any single lawmaker can block it.But supporters of the bill said the Senate agreeing to the House’s language means the bill’s adoption is imminent.“It’s justice for Puppy Doe and all other animals who may suffer from the hands of a cruel human being,” Deni Goldman, a spokeswoman for FOUR PAWS International, an animal-protection group in Boston. “Hopefully it will also have an effect on would-be animal abusers who may just rethink their actions – if aware of the penalties – before they commit them.”Puppy Doe is the name given to the pit bull that was brutally abused in a Quincy home last year. The dog’s injuries were so severe that she had to be euthanized.In response to Puppy Doe’s story, which attracted worldwide attention, Sen. Bruce Tarr, R-Gloucester, filed the Protecting Animal Welfare and Safety Act, or the PAWS Act, which aimed to stiffen the state’s animal cruelty laws, considered by some to be among the weakest in the nation.The PAWS Act has undergone many changes, and the final version endorsed by lawmakers would increase the maximum prison sentence for one count of animal cruelty from five years to seven years and the maximum fine from $2,500 to $5,000. For repeat offenders, the maximum prison sentence would rise to 10 years and the fine to $10,000.Also, the law would require veterinarians to report any suspicions of abuse they see during their observations of animals, and it would create a task force that would look at ways to strengthen animal protection laws.Last October, Quincy police arrested Radoslaw Czerkawski for allegedly abusing Puppy Doe, and he later pleaded innocent in Dedham Superior Court to 12 counts of animal cruelty. He’s also accused of stealing $150,000 from an elderly woman with dementia whom he was hired to care for at 89 Whitwell St. Both cases are still pending.This September, a Puppy Doe memorial bench will be dedicated at the Whitwell Street Playground near Quincy Medical Center.Follow Patrick Ronan on Twitter @PRonan_Ledger.

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Miami Woman Convicted for Trying to Stop Police From Tasering Her Handicapped Son Wednesday, April 27, 2011 at 2:36 p.m. Ana V. Ramirez's 25-year-old son, Christian Pagan, has Down syndrome. In April 2010, Pagan flew into a violent rage, and Ramirez had little choice but to call 911. She specifically asked officers not to use a Taser because Pagan has a heart condition. Well, they zapped him anyway, and now a jury has convicted Ramirez and her other adult son for trying to stop the incident.During her 911 call, Ramirez specifically asked that a stun gun not be used to subdue Pagan, but a female cop pulled out her Taser when the young man charged her outside the family home in west Kendall. According to the Miami Herald, she said she feared for her safety. Not to be sexist, but why was a female officer dispatched to deal with a fully grown man with mental disabilities who was in the midst of a violent outburst?Ramirez and her other son, Hernando Yunis, tried to remove the Taser's prongs from Pagan because of his heart condition. They ended up cuffed and charged with "resisting arrest without violence."After the incident, Pagan spent several weeks recovering in the hospital. Upcoming Events Ramirez and Yunis have been convicted of the crime. However, Miami-Dade County Judge Andrea Ricker Wolfson is at least trying to be somewhat considerate. The two will not serve jail time, and the conviction will not be placed on their criminal records. But they must pay $400 each in court fees.[Herald: Jury convicts West Kendall mother who tried to stop son's Tasering]Follow Miami New Times on Facebook and Twitter @MiamiNewTimes.

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Our FirmOverviewKey FactsOur ManagementOur Core ValuesLetter from Our ChairDiversityDiversity InitiativesPro Bono & Community ServicePro Bono HighlightsCommunity Service HighlightsPro Bono RecognitionOur LocationWashington, D.C.DiversityMiller & Chevalier is committed to enhancing the diversity of our firm at all levels, because we believe diverse backgrounds and experiences bring different perspectives and valuable insights to our work and provide significant benefit for our clients. We see our differences as a strength and continuously seek to enhance the depth and diversity of our talent. Promoting the diversity of the firm takes many forms. The firm has earned the Vault Seal of Approval for its participation in the diversity partnership between Vault and the Minority Corporate Counsel Association (MCCA) in support of the Call to Action, an effort developed by top general counsel to advance diversity in the legal profession. The firm participates in the Vault/MCCA Legal Diversity Career Fair and the Lavender Law Conference (LGBT). We continue to focus on diverse hiring on law school campuses through events and support of local diverse student groups, and we encourage our lawyers to spend time with those groups, speaking on a variety of topics. We support the creation and growth of affinity groups for diverse lawyers that are designed to provide support, guidance, and a forum for regular discussions concerning issues relevant to diverse professionals. The women’s affinity group, for example, meets regularly and discusses topics including time management practices, business development tips, and attaining work/family balance. We believe that a key aspect in the firm’s development and promotion of diverse attorneys is the formal mentoring program, which is designed to assist lawyers transitioning into the firm. Firm mentors are expected to assist all young associates define and pursue professional goals and maximize their potential for success across an array of practice areas. Our ultimate goal is to create a workplace environment that fosters open and honest communication and supports each member of the community in his or her quest to thrive professionally. Women hold key positions throughout the firm’s leadership. The firm was selected as one of Working Mother Magazine and Flextime Lawyers “Best Law Firms for Women” in 2007, 2008, and 2009 due to its women-friendly policies and women-focused mentoring, leadership, and networking programs designed to retain and promote top legal talent. Continuing and expanding on such successes remains a constant and key priority of the firm’s strategic planning. The efforts are coordinated by the firm’s Diversity Committee, which is made up of a cross-section of members and associates, plus the Pro Bono Counsel and the Director of Recruiting and Professional Development. "We are pleased to be recognized as one of the nation's most progressive law firms in terms of our commitment to encouraging and supporting the professional advancement of women attorneys," said Marianna Dyson, Immediate Past Chair of Miller & Chevalier. "We are focused on recruiting and retaining top attorneys, and we recognize the value of offering a work environment that is respectful of individuals' priorities inside and outside the office and encourages attorneys to excel in their legal practice. The policies and programs that exist at Miller & Chevalier are reflective of the important changes that are occurring in the business world and are an acknowledgement of the benefits of applying forward thinking to the retention and promotion of women attorneys."

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EDITORIAL: Can an airport lawsuit be avoided? Looking at the big picture of the Waterville municipal airport closure like a jigsaw puzzle, there is a piece missing. It also looks as though Supreme Court legal action over the airport closure will go ahead. A counter proposal presented to the municipality’s lawyers by the applicants, who are a group of hangar owners and the Waterville Airport Co-operative Limited, also has the support of the Annapolis Valley Flying Association. If the municipality accepted by Aug. 22, the legal action would be withdrawn. There was, however, no word from the applicants as of mid afternoon on Aug. 22 whether or not they’d heard back from the municipality about whether the proposal was accepted or rejected. The municipality has offered no comment on the situation. Waterville Airport Co-operative chairman Gordon Squires described the counter proposal as a “constructive and reasonable direct reply” to the municipality’s strategy passed by council on July 29. The municipality’s strategy includes the relocation of the airport to 14 Wing Greenwood. Ongoing negotiations into the future of the relocated airport would be conducted between 14 Wing and the aviation community. The intention is for the relocated airport to be owned and managed by an arm’s-length organization operating as a business. In order for these negotiations to take place, the closure date of the Waterville airport would have to be extended from Sept. 30 of this year to March 31, 2015, providing that aviation users confirm their agreement, in writing, prior to Aug. 31. Hangar owners representative Tom Goddard said if the airport co-op signs on and agrees, this would essentially void the current management agreement and “we would have no lawsuit.” Goddard said the legal challenge has always been about the management agreement between the county and airport co-op. If the municipality agrees to honour the terms and postpone the closure date of the airport to Sept. 30, 2015, the legal action will be withdrawn. For the aviation community, this is a matter of principle: it is about holding the municipality to its contract. The municipality wants to make the current airport land available for a potential expansion of the neighbouring Michelin tire plant and the aviation community isn’t against a Michelin expansion, however, unless the municipality is aware of something regarding the company’s plans that the general public is not, the aviation community doesn’t understand why there is such a rush to vacate the land. We appreciate that Michelin is a private company and the general public doesn’t necessarily have a right to know what its plans are. However, Michelin has yet to identify publicly a need to access the land as soon as possible. For the sake of transparency and accountability, we think Kings County taxpayers deserve a thorough explanation. Is it as simple as wanting to demonstrate to Michelin how eager the municipality is to have the company expand here? Regardless of the funding source, most likely to be taken from the proceeds of the eventual land sale, tax dollars will be spent battling the aviation community in court. To what end? If Michelin doesn’t have a pressing need for the land, why can’t the closure date be extended to avoid a costly battle in the courts? Are we missing something here? Our ears are open. Tweets from https://twitter.com/NovaNewsNow1/nova-scotia-weeklies

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U.S.|Justices Reject Veterans' Suit Over Promises By Recruiters U.S. Justices Reject Veterans' Suit Over Promises By Recruiters By DAVID STOUTJUNE 3, 2003 The Supreme Court declined today to hear a case that sought the free lifetime medical care that was promised to some veterans of World War II and the Korean War.Without comment, the justices refused to review a November ruling by the United States Court of Appeals for the Federal Circuit. That court held that promises of lifetime health care made decades ago by recruiters to entice people to serve in the military for at least 20 years were not valid, since the recruiters did not have the authority to make them.''While we are sympathetic to the plaintiffs' position and acknowledge the likelihood that plaintiffs believed these promises and relied on them, the government is not legally bound to abide by them,'' the circuit court ruled, 9 to 4, in an opinion written by Judge Paul R. Michel.Grand promises by recruiters have been part of military lore for generations, like foul-mouthed top sergeants and breakfasts of creamed chipped beef on toast. But the two plaintiffs in this case, William O. Schism and Robert L. Reinlie, both with more than 20 years' military service, seemed to have been let down more by a huge and shifting bureaucracy than by fast-talking salesmen.Both men are represented by George E. Day, a lawyer in Fort Walton Beach, Fla., who has been trying to get the case certified as a class action. Mr. Day has estimated that up to three million people, either elderly veterans or their spouses, may be affected, with the government's potential liability in the billions of dollars. ''I'm terribly disappointed,'' Mr. Day said today in a telephone interview from Salt Lake City.He said that the Supreme Court had taken ''the easy way out,'' and that he would push his cause in Congress.Mr. Day is a retired Air Force colonel who was a prisoner of war in Vietnam.The circuit court said it was clear that recruiters had long made promises of free medical care and had been encouraged to do so by their superiors. ''Unfortunately for plaintiffs, however, Congress has never authorized these promises,'' it said last fall.Until 1956, when Congress established a uniform system of health care for service members and their dependents, medical care for those who retired from military service was fragmentary, the circuit court noted. Under a law enacted in 1966, retired members of the armed forces and their dependents have relied on benefits provided through Medicare, which charges monthly premiums.In 1996, Mr. Schism and Mr. Reinlie, both of Fort Walton Beach, filed suit in Federal District Court in Florida, accusing the government of breaking its contract with them. The plaintiffs asked the court to order the government to reimburse them for the medical expenses they had incurred since they retired.The district court rejected the men's claims, but a panel of the circuit court ruled in early 2001 that they should be upheld. The ruling against the plaintiffs by the full Court of Appeals for the Federal Circuit, and the Supreme Court's refusal today to review the case, may signal that Congress will be the next arena.Indeed, in its ruling last fall the circuit court said it could do ''no more than hope Congress will make good on the promises recruiters made in good faith to plaintiffs.''Mr. Schism served as an enlisted man in the Navy from 1943 to 1946, then intermittently in the Navy and Army between 1947 and 1951. In 1951, he became an Air Force officer, alternating from active to inactive duty for several years. He was on active duty from 1956 to 1979, when he retired as a lieutenant colonel. He died several months ago.Mr. Reinlie was an enlisted man in the Army from 1942 to 1945. He entered the Air Force in 1951, became an officer in 1953 and served continuously until retiring as a lieutenant colonel in 1967.In a dissent joined by three colleagues, Chief Judge Haldane Robert Mayer rejected as ''pure sophistry'' the notion that Congress did not know what recruiters were promising. ''If Congress can appropriate billions for this aspect of national defense and not know how it is accounted for, then God Save the Republic,'' Judge Mayer wrote. Continue reading the main story

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Marijuana Legalization Would Eliminate Several Felony Arrests a Day in City of Phoenix Ask a Stoner: Can NFL Players Use Medical Marijuana? Thursday, August 11, 2016 at 7:07 a.m. Shane T. McCoy / US Marshals via Flickr A If voters approve it in November, the pending ballot initiative to legalize marijuana for recreational use in Arizona stands to eliminate several felony arrests each day in the city of Phoenix alone.On average, the Phoenix police have arrested more than seven people a day since January 2015 for suspicion of marijuana possession, according to figures New Times obtained through a public-records request.The numbers represent a decline from the roughly 10 people per day police arrested from 2012 to 2014. The decline was especially notable for juveniles, who were arrested nearly half as often in 2015 compared to other recent years.Lieutenant Paul Taylor of the department's public-affairs bureau didn't offer any explanation for the decline when asked for a possible reason, such as a policy change. But he said he didn't dispute the figures, which came from the bureau's Crime Analysis and Research Unit. Possession of any amount of marijuana up to two pounds is a Class Six felony in Arizona, which has one of the nation's toughest pot-prohibition laws on the books. Medical cardholders can possess up to 2.5 ounces legally, but most of the state's estimated 600,000 marijuana users take their chances with the law. Typically, a county prosecutor will reduce the felony charge to a misdemeanor or allow a defendant to escape a conviction by agreeing to take a drug-rehabilitation course. Even if convicted of a felony or misdemeanor for simple possession, first- and second-time drug offenders can't be sentenced to jail because of a law voters passed in 1996.Yet most do a see the inside of a jail or city booking facility following their arrest by police for a felony. Nearly all adults are temporarily jailed during the booking process, Phoenix police have previously told New Times. The new statistics show that more than 25 percent of the children busted for pot were detained. The rest were cited and released to a parent or guardian.Here are the numbers of possession-only cases as released by Phoenix PD and compiled by New Times. Related StoriesIs Arizona's Zero-Tolerance Stance on Pot and Driving a Load of B.S.?Prohibitionists Like Arizona County Attorneys Sheila Polk and Bill Montgomery Insist That Pot Is Hurting People. All They Lack Is Real EvidenceIt's Cheaper to Grow Pot in Arizona in Greenhouses Than Indoors, But Is It Better? 2012: Approximately 3,000 adults arrested, 600 juveniles. 2013: 3,169 adults arrested, 465 juveniles. 2014: 3,162 adults arrested, 404 juveniles. 2015: 2,663 adults arrested, 278 juveniles. 2016: 1,254 adults arrested, 172 juveniles (through June) Upcoming Events Sheila Polk, Yavapai County Attorney and co-chair of a group lobbying to defeat the legalization measure, claims in published literature that "marijuana legalization does not mean fewer arrests."That's incorrect, judging by the state's largest city. Yet the new statistics don't give a perfect idea as to what won't happen, in terms of arrests, if voters approve the Regulation and Taxation of Marijuana Act (RTMA) in November. Many, if not up to half, of those arrested for marijuana possession may have been charged with other crimes, too. If that's the case, then they probably would have been arrested regardless. Tanjila Ahmed via Flickr Nor do the stats indicate the quantity of marijuana seized. Even if marijuana becomes legal for recreational use, possession of more than two pounds would remain a felony. (A spokesman with the Arizona Department of Public Safety told New Times in June that more than 90 percent of marijuana cases the state crime lab analyzes involve less than one ounce.)Under the RTMA, residents 21 and older could legally possess an ounce or less, and anything between an ounce and 2.5 ounces would be a civil offense payable by a fine. Possession by those under 21, also a felony now, would become a petty offense subject to a $300 fine for amounts under an ounce. Possession of more than an ounce by a minor would remain a felony.Clearly, then, police would continue to make some marijuana-possession arrests. But when it comes to busting cannabis consumers, the vast bulk of their work would be eliminated.Paraphernalia charges related to marijuana would disappear as well. The RTMA would legalize "marijuana accessories," which include devices in which to carry or use marijuana. As things stand now, police have the option of submitting charges to prosecutors for both possession and paraphernalia when they bust someone with pot and a pipe. While Phoenix stats don't differentiate between pot-related paraphernalia bookings and those that involve other drugs, the RTMA would likely rid the state of thousands of paraphernalia charges each year.Finally, the law would allow adults 21 and older to grow up to six plants in a discreet location, with a 12-plant-per-household maximum. Growing pot is currently a Class Five felony if the weight of the plants is less than two pounds. The Phoenix PD has averaged about 30 cultivation arrests per year since 2012, the stats show. Yet in the past 12 months, the department has made just one cultivation arrest.Perhaps it's time to start envisioning all the productive ways police officers could spend the time they currently devote to escorting cannabis consumers to jail. Christmas, Motown & More Medical Marijuana Dispensary Marijuana Compliance Attorney Sponsor Content

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2008-06-20 / Top Stories State Senate Democrats Call For Tougher Domestic Violence Laws Goal is to Keep Families Together Senate Democrats are calling for tougher laws on domestic abusers and holistic family support systems for victims in New York as the number of incidents continue to increase in some parts of the state. Senator Ruth Hassell-Thompson (DBronx/ Mount Vernon) has formed the Senate Minority Task Force on Domestic Violence to look at new ways to combat the escalation in violent acts committed against family members, loved ones and children, and Senator Malcolm Smith, who represents Rockaway in the State Senate, agrees. A key component of the 10-member Task Force set up by Smith as the Minority Leader will be to review current legislation and state programs to determine whether consolidation of either the programs of the outcomes is needed. Hassell-Thompson said that the ultimate goal is to keep families together. "The escalation of violence in the home has a negative impact on every mother, father and child in a family," said Senator Hassell-Thompson, Chair of the Task Force. "Some current procedures for handling domestic violence cases are erratic because there is no uniformity or conformity among law enforcement officials." New York State's diversity also plays a role, the senator added. "Knowing that culture plays a major role in how domestic violence is viewed we must ensure that the upmost sensitivity is employed when providing services to victims," Hassell- Thompson said. "Through the creation of this Task Force the Senate Democratic Conference takes the stance that domestic violence is unacceptable." According to a five-year study by the State Department of Criminal Justice Services, there were up to 450,000 domestic incidents reported to police departments throughout the state from 2001 to 2005. Last year, New York City Police responded to 229,354 domestic violence incidents-about 600 incidents per day. The same year, domestic violence investigators made 76,602 home visits, a 98 percent increase since 2002. Strikingly, federal statistics show that more than half of all domestic crimes went unreported. The new Task Force will work in conjunction with the related Domestic Violence Advisory Committee. Together both entities will refocus statewide efforts to stop domestic abuse and to assure that action is always on the minds of state leaders. State Senate Democratic Leader Malcolm Smith said, "Domestic violence should never be in the shadows." "Victims of domestic abuse can carry their physical and emotional scars for a lifetime," said Senator Smith (DSt. Albans). "We all must look to bolster and improve support for victims, as well as, to strengthen measures to combat continued acts of domestic violence." Members of the Senate Minority Task Force on Domestic Violence, include Democratic Senators Smith, Hassell-Thompson, Eric Adams (DBrooklyn), Darrel J. Aubertine (DCape Vincent), Neil Breslin (DAlbany), Efrain Gonzalez Jr. (DBronx), Liz Krueger (D-Manhattan), Suzi Oppenheimer (D-Mamaroneck), Kevin Parker (D-Brooklyn) and Eric Schneiderman (D-Manhattan/Bronx). Each senator will appoint two members to the Task Force's Advisory Committee. The committee will engage in open dialogue throughout the state with social workers, victims and community members. Using community recommendations as a compass, the Task Force will reshape how lawmakers examine domestic violence, victim services and community outreach. Senator Smith said that the ultimate goals of this renewed effort to eradicate domestic violence is to improve services for victims and survivors and toughen penalties for abusers. Currently, there are nearly 50 domestic violence bills in both houses to strengthen protections and penalties. Using committee recommendations the Task Force will set out to meet the challenges each family faces when confronted with domestic violence issues. Through family, community and education outreach, hopefully, new solutions will be found to understanding the causes and ways to prevent domestic violence. Hassell-Thompson said that the committee will be committed to increasing public awareness. It will suggest ideas and strategies to improve the delivery of services to victims and survivors, as well as support educational efforts and advocate for victims and their families. "The purpose of both the Task Force and committee is to look at and take on a new approach as to how we deal with domestic abuse," said Senate Democratic Whip Kevin Parker. "First and foremost, we need to look to our community members statewide [to determine] who is impacted by domestic abuse. We need from them what can work better in supporting all victims." State Senator Liz Krueger said: "Ultimately, the goal is to create policy that will end domestic violence. There is legislation out there that runs the course of domestic abuse issues from bolstering children services, the shuffling of administrative and judicial roles, to enhancement of penal codes. However, they are only the gambits of change until they become law." Krueger added that the work of the Task Force and Advisory Committee could help strengthen legislation. In 19 other states, recent measures have increased penalties for convicted abusers and help protect the identities of domestic abuse victims.

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Blumenthal wants background checks for ammunition purchases U.S. Sen. Richard Blumenthal said Tuesday that in the aftermath of the school shooting in Newtown he will introduce a bill to require background checks on people buying gun ammunition.The government has a background-check system for gun purchases but not for ammunition, even though it is illegal to sell both firearms and ammunition to felons, fugitives, drug addicts, the mentally ill and perpetrators of domestic violence. Ammunition is the “black hole of gun violence prevention,” said Blumenthal, D-Conn., because under current law there is virtually no way to enforce the prohibition.“A felon who walks into a store to buy ammunition can load an entire shopping cart, pay and walk out, no questions asked, because there are no background checks,” he said in a press conference call.Blumenthal said that after the Dec. 14 shooting at Sandy Hook Elementary School, he spoke with many people in Newtown and throughout the state about gun violence and devised a set of proposals to introduce in the coming weeks. The other bills will focus on banning assault weapons and high-capacity magazines, closing a loophole that allows the private sale of guns without background checks, and addressing the relationship between mental health issues and gun violence, Blumenthal said.In addition to requiring ammunition buyers to undergo an instant background check in the FBI’s national database, the Ammunition Background Check Act of 2013 would require sellers of ammunition to notify law enforcement officials when someone buys more than 1,000 rounds of ammunition at once or within five days, or when a large quantity of ammunition is stolen. Teflon-coated bullets and incendiary ammunition would be banned by the bill.Several members of the new Congress have introduced measures to combat gun violence. Blumenthal was asked during the conference call whether it would make more sense to wait for the administration to come up with a plan and make one concerted push. Blumenthal said his bill does not preclude a unified effort and it could be included as part of a larger initiative. The system for background checks is in place and most background checks can be done in about 30 seconds, he said. “I’m incredibly hopeful that a common sense enforcement tool like this one will have traction and success,” Blumenthal said. “And maybe, most importantly, I regard it as keeping faith with the people in Newtown and across Connecticut, people who were directly affected by this horrific tragedy.” [email protected]

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Stonington sues bar owner over signs Stonington has sued the owner of the Handlebar Cafe over the legality of a new, large mural on the side of business and a pair of handlebars overhanging its roof, both added as part of the filming of a television reality show. Published September 17. 2013 12:08AM By Joe Wojtas Day Staff Writer Stonington - The town has sued the owner of the Handlebar Cafe on Route 1 because she has refused to remove an illegal mural and a large set of rooftop handlebars that were erected without permits as part of a reality show makeover.The town, which filed the action last Thursday, is asking a judge to issue an injunction prohibiting Girlie LLC, whose principal is Elizabeth Mitchell, from keeping the illegal signs. In addition, the town is asking that Mitchell pay its attorney's fees, court costs and any damages.Although she considers the handlebars and mural to be more like ornaments and pieces of art than signs, Mitchell said Monday that she will probably have to comply with the town's cease-and-desist order because it's "senseless" to spend money on legal fees."I feel there's other things the town could be spending money on instead of a harmless set of handlebars on the roof," she said. "It's not offensive to anyone. If I put a potted plant out front will I need a permit for that, too?"Mitchell is also upset with town officials, who she says congratulated her during the filming of the "Bar Rescue" show but then cited her after the film crews left.At a May Planning and Zoning Commission meeting, member John Prue accused the town of employing a double standard by allowing the Handlebar Cafe to put up a new sign as part of the production of the show without getting a permit. He pointed out at the time that other businesses are required to first obtain a permit.At that May meeting, First Selectman Ed Haberek said the Handlebar was a unique situation because the point of the Spike TV show "Bar Rescue" was to surprise the public with the makeover and there were contractual requirements between the show and Mitchell regarding the secrecy of the changes.Haberek, who became frustrated with the commission's questioning, said the town was just trying to help the television show, which brought good publicity to the town. Haberek is the town's acting director of planning and oversees the department. He appeared in the show and plays on the bar's softball team.As part of the makeover, "Bar Rescue" painted an elaborate mural on the side of the business with the name of the bar and erected the large handlebars on an overhang over the front entrance. Both changes require a sign and building permit from the town. If the bar name is removed from the mural, it would likely no longer be considered a sign.A team from the Spike TV show worked for five days to renovate the bar and unveiled their work at the beginning of May. The show and its host, Jon Taffer, help drinking establishments "transform themselves into vibrant profitable businesses."The town's lawsuit states that on May 7, Zoning Enforcement Officer Candace Palmer received a complaint that the bar had illegally put up the signs without permits. On May 20, the same day the town inspected the property, Mitchell met with Town Planner Keith Brynes to discuss applying for a permit but never submitted an application.On July 2 the town issued a notice of violation, and when the signs were not removed as of July 23, Palmer issued a cease-and-desist order to require the bar to remove the signs. That order could have been appealed to the Zoning Board of Appeals within 15 days but Mitchell did not file an appeal.Because the handlebars and mural stayed, Town Attorney Jeff Londregan filed the lawsuit.The bar faces fines of at least $100 a day if it is found to have willfully violated zoning [email protected]

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› United States v. Terminal Railroad Ass'n United States v. Terminal Railroad Ass'n 224 U.S. 383 (1912) U.S. Supreme CourtUnited States v. Terminal Railroad Ass'n, 224 U.S. 383 (1912)United States v. Terminal Railroad Association of St. LouisNo. 386Argued October 20, 23, 1911Decided April 22, 1912224 U.S. 383Syllabus Whether the unification of terminals in a railroad center is a permissible facility in aid of interstate commerce, or an illegal combination in restraint thereof, depends upon the intent to be inferred from the extent of the control secured over the instrumentalities which such commerce is compelled to use, the method by which such control has been obtained, and the manner in which it is exercised. The unification of substantially every terminal facility by which the traffic of St. Louis is served is a combination in restraint of interstate Page 224 U. S. 384 trade within the meaning and purposes of the Anti-Trust Act of July 2, 1890, as the same has been construed by this Court in Standard Oil Co. v. United States, 221 U. S. 1, and United States v. American Tobacco Co., 221 U. S. 106. The history of the unification of the railroad terminal systems in St. Louis in the Terminal Railroad Association shows an intent to destroy the independent existence of the terminal systems previously existing, to close the door to competition, and to prevent the joint use or control of the terminals by any nonproprietary company. A provision in an agreement for joint use of terminals by nonproprietary companies on equal terms does not render an illegal combination legal where there is no provision by which the nonproprietary companies can enforce their right to such use. Although the proprietary companies of a combination unifying terminals may not use their full power to impede free competition by outside companies, the control may so result in methods inconsistent with freedom of competition as to render it an illegal restraint under the Sherman Act. This Court bases its conclusion that the unification of the terminals in St. Louis is an illegal restraint on interstate traffic, and not an aid thereto, largely upon the extraordinary situation at St. Louis and upon the physical and topographical conditions of the locality. A combination of terminal facilities, which is an illegal restraint of trade by reason of the exclusion of nonproprietary companies, may be modified by the court by permitting such nonproprietors to avail of the facilities on equal terms. In this case, held that the practices of the Terminal Association in not only absorbing other railroad corporation but in doing a transportation business other than supplying terminal facilities operated to the disadvantage of interstate commerce. One of the fundamental purposes of the Anti-Trust Act is to protect, and not to destroy, the rights of property, and, in applying the remedy, injury to the public by the prevention of the restraint is the foundation of the prohibitions of the statute. Standard Oil Co. v. United States, 221 U. S. 1, 221 U. S. 78. Where the illegality of the combination grows out of administrative conditions which may be eliminated, an inhibition of the obnoxious practices may vindicate the statute, and where public advantages of a unified system can be preserved, that method may be adopted by the Court. In this case, the objects of the Anti-Trust Act are best attained by a decree directing the defendants to reorganize the contracts unifying Page 224 U. S. 385 the terminal facilities of St. Louis under their control so as to permit the proper and equal use thereof by nonproprietary companies, and abolishing the obnoxious practices in regard to transportation of merchandise. Unless defendants, whose combination has been declared illegal by reason of administrative abuse, mollify it to the satisfaction of the Court so as to eliminate such abuse in the future, the Court will direct a complete disjoinder of the element of the combination and enjoin the defendants from exercising any joint control thereover. The facts, which involve the validity under the Sherman Anti-Trust Act of the Terminal Railroad Association of St. Louis, are stated in the opinion. Page 224 U. S. 390

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› BROWN v. HERALD CO., INC. BROWN v. HERALD CO., INC. 464 U.S. 928 (1983) U.S. Supreme Court BROWN v. HERALD CO., INC. , 464 U.S. 928 (1983) 464 U.S. 928 Theodis BROWNv. HERALD CO., INC., etc.No. 82-6778. Supreme Court of the United States October 31, 1983 On petition for writ of certiorari to the United States Court of Appeals for the Eighth Circuit. Kenneth ALEXANDER v. TEXAS et al. 82-6907. On petition for writ of certiorari to the Court of Criminal Appeals of Texas. Nancy Jewell CROSS v. SECRETARY OF STATE. 82-6956. Richard T. ENO et al. v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT et al. 83-5040. On petition for writ of certiorari to the United States Court of Appeals for the First Circuit. David L. LINFIELD v. BOARD OF HIGHER EDUCATION OF the CITY OF NEW YORK. 83-5100. [ Brown v. Herald Co., Inc. 464 U.S. 928 (1983) ][928-Continued.] On petition for writ of certiorari to the United States Court of Appeals for the Second Circuit. Alice MILLER v. Samuel R. PIERCE, Jr., Secretary of Housing and Urban Development, et al. 83-5349. On petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit. The motions of petitioners and appellant for leave to proceed in forma pauperis are denied. Petitioners and appellant are allowed until November 21, 1983, within which to pay the docketing fee required by Rule 45(a) and to submit petitions and a jurisdictional statement in compliance with Rule 33 of the Rules of this Court. Justice BRENNAN, with whom Justice MARSHALL and Justice BLACKMUN join, dissenting. In each of these cases, the Court has denied petitioner's or appellant's motion to proceed in forma pauperis without initially addressing the issue whether the questions presented in the petition for certiorari or jurisdictional statement merit our plenary review-and the Court is apparently announcing today that this will Page 464 U.S. 928 , 929 be our practice in the future. [Footnote 1] At a time when at least some of us proclaim that we are sorely pressed for adequate time to do our work, this treatment is both unfair and wasteful, and I respectfully dissent. Ordinarily, a $200 filing fee must be paid before a petition for certiorari or a jurisdictional statement, properly conforming to the requirements of Supreme Court Rule 33, may be filed. Supreme Court Rule 46. However, 28 U.S.C. 1915 provides that "[a]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without payment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs or give security therefor." Supreme Court Rule 46, which implements this statute, provides that "[a] party desiring to proceed in this Court in forma pauperis shall file a motion for leave to so proceed, together with his affidavit in the form prescribed in Fed.Rules App.Proc., Form 4 . . . setting forth with particularity facts showing that he comes within the statutory requirements." 2 If the motion is granted, no filing fee is charged and a single typewritten petition or jurisdictional statement may be filed. Each year, roughly 1,000 motions supported by affidavit are made for leave to proceed in forma pauperis. [Footnote 3] These motions usually accompany a petition for a writ of certiorari or a jurisdictional statement, and our practice heretofore has almost always been not to pass on the in forma pauperis motion but to proceed directly to grant or deny the petition based on the merits of the questions presented in the petition or statement. Yet in the instant cases, each of which presents questions so lacking in merit as to have virtually no chance of receiving a plenary hearing, the Court has chosen instead to focus initially on the affidavits supporting the in forma pauperis motions and to deny the motions. Page 464 U.S. 928 , 930 This practice simply postpones the determination of the merits of the questions presented until after deficiencies in the in forma pauperis motion are corrected or the filing fee is paid. That approach multiplies our work to no purpose. I cannot concur in this treatment. Not only does the Court fail to provide the parties with any guidance as to how their affidavits may be considered in the future, it also prescribes no standards by which litigants and those screening the motions may determine when an individual is sufficiently poor to warrant a grant of in forma pauperis status. The only statement the Court has ever made on this subject is that an affiant must show he is unable to " 'pay or give security for the costs . . . and still be able to provide' himself and dependents 'with the necessities of life.' " Adkins v. DuPont Co., 335 U.S. 331, 339, 89 (1948). This is hardly a meaningful standard; it indeed suggests that a wide array of factors must be considered before ruling on a motion. 4 But, even with an articulated set of standards against which to make decisions, under today's procedure we lose, not gain. Certainly that should be clear to those of us who perceive that we engage in a never- ending struggle to find time needed for important work. The likely result of disposing of cases as the Court does today will be to encourage parties bringing these motions to resubmit their petitions or appeals with a new affidavit they hope will strike a more sympathetic chord-thus increasing the time we must spend to dispose of frivolous cases. Where it is clear that the merits involved are almost certainly insufficient to demand full review (as has been our experience in all but a handful of in forma pauperis cases each year) no purpose is served by indulging in that waste. It is important that we try to avoid the waste of the parties' time, but perhaps even more important that this Court's Page 464 U.S. 928 , 931 time not be used in this unnecessary exercise. As Justice STEVENS has stated in a similar context, "given the volume of frivolous, illegible, and sometimes unintelligible petitions that are filed in this Court, our work is facilitated by the practice of simply denying certiorari once a determination is made that there is no merit to the petitioner's claim." Davis v. Jacobs, 454 U.S. 911, 914, 419 ( 1981) (STEVENS, J., opinion respecting denial of certiorari). What possible justification can support the scrutiny of 1,000 affidavits in support of in forma pauperis motions each year? Except, perhaps, in cases of extreme abuse,5 where a petition or appeal wholly lacks merit, we surely benefit all concerned by relying on that reason for disposing finally of the case. Our time certainly can be spent in more productive effort than the determination of whether a petitioner or appellant is able to pay $200 plus the cost of printing and still provide himself and his dependents with the necessities of life. Justice STEVENS, dissenting. Although I agree with Justice BRENNAN that we should simply deny unmeritorious certiorari petitions without scrutinizing the petitioner's right to proceed in forma pauperis, I would not grant any such petition without making sure that the petitioner is unable to pay the required costs. If such examination disclosed the kind of disrespect for our rules that has motivated the Court's unusual action in these cases, I would deny the petition even if it would otherwise have merited review. That would remove any incentive a petitioner might otherwise have to seek in forma pauperis status although ineligible for such status, without requiring the Court to assume the burden of examining every motion for leave to proceed in forma pauperis. In borderline cases the petitioner should, of course, be given an opportunity to pay the required costs before final action is taken on his application. I see no purpose, however, in insisting that these petitioners-none of whom is represented by counsel who could advise them that their petitions stand no chance of being granted-pay a fee for the privilege of having their petitions denied. Footnotes Footnote 1 This new procedure emerged last Term, when in several instances the Court denied parties' motions to proceed in forma pauperis because the parties were deemed either not to be sufficiently poor or to have failed to file adequate affidavits. Footnote 2 Rule 46 further provides that "if the district court or the court of appeals has appointed counsel under the Criminal Justice Act of 1964, as amended, the party need not file an affidavit." Footnote 3 Approximately 1,000 additional motions are filed in which Rule 46 does not require an affidavit. Footnote 4 I note in passing that Form 4 of the Federal Rules of Appellate Procedure does not even call for a description of the debts of the affiant ; nor does it call for the affiant's age; nor does it call for an indication of the cost of living in the affiant's place of residence. Hence, I doubt that the Court could successfully develop standards based on the information currently available. Furthermore, it is no answer that there is a wide range of motions, such as motions for extensions of time, that the Court decides without the aid of explicit standards. Motions to proceed in forma pauperis are a special case since they will determine whether an individual gains access to this Court. Footnote 5 See, e.g., Unterthiner v. Desert Hospital District Of Palm Springs, ___ U.S. ___, 77 L.Ed.2d ___ (1983) No. 82-6765 ( approximately $1,000,000 net assets, $2,500 salary per month, and four dependents). Disclaimer: Official Supreme Court case law is only found in the print version of the United States Reports. Justia case law is provided for general informational purposes only, and may not reflect current legal developments, verdicts or settlements. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or information linked to from this site. Please check official sources.

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HomeMediaPress ReleasesArizona's Parental Consent and Other New Abortion-Related Laws Now Go into Effect Arizona's Parental Consent and Other New Abortion-Related Laws Now Go into Effect PHOENIX (Thursday, August 11, 2011) -- Attorney General Tom Horne announced today that the Arizona Court of Appeals has overturned a Maricopa County Superior Court ruling that prevented the enforcement of four state abortion-related statutory provisions signed into law in 2009. The case in question is Planned Parenthood of Arizona vs. the American Association of Pro-Life Obstetricians & Gynecologists , Attorney General Tom Horne, et al. Writing for a unanimous court, Judge Peter B. Swann held that “the four statutory provisions that regulate the performance of abortions [do not] violate the equal protection or privacy clauses of the Arizona Constitution.” The Court vacated an order issued by the Maricopa County Superior Court in September, 2009, that enjoined enforcement of the challenged provisions, including (1) the requirement that a parent’s consent to a minor’s abortion be notarized; (2) the requirement that a physician provide in-person counseling to a woman at least twenty-four hours before she has the abortion; (3) the requirement that physicians perform surgical abortions; and (4) the provision that allows health professionals to refuse to participate in abortions if they have a moral or religious objection to such procedures. The Court noted as follows: “We hold that the statutes at issue would withstand federal constitutional scrutiny, and that the Arizona Constitution – to the extent it protects abortion rights at all – offers no greater protection than the federal constitution with respect to the regulations at issue in this case.” In addition, the Court specifically rejected Planned Parenthood’s argument that the statutory provisions had to withstand “strict scrutiny” and held that the proper standard to apply is the “undue burden” test articulated by the United States Supreme Court in a 1992 case captioned Planned Parenthood v. Casey. “The Court found that the laws in question do not violate the Arizona Constitution, and likely would stand up to scrutiny under the United States Constitution as well,” Horne said. “I am a strong believer in defending the constitutionality of our laws, and I applaud the work of Solicitor General Dave Cole, Civil Appeals Section Chief Paula Bickett, and others who worked tirelessly to defend these laws.” Pages« first‹ prev…789101112131415…next ›last » Arizona Attorney General

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Pa. Federal Judge Latest To Rule Against Obamacare Mandates Discussion in 'Politics & Religion' started by JamesL, Sep 13, 2011. 393Likes Pa. federal judge rules against insurance mandate HARRISBURG, Pa. - The requirement in the national health-care overhaul law that individuals buy health insurance is unconstitutional, a federal judge in Pennsylvania ruled Tuesday in a question that the U.S. Supreme Court is expected to settle. The suit decided by Judge Christopher C. Conner in Harrisburg is one of more than 30 lawsuits nationwide that have been filed over the 2010 law that is President Barack Obama's signature initiative. Conner, who was appointed to the federal bench in 2002 by President George W. Bush, said the individual mandate is an unconstitutional extension of authority granted to the federal government under the Constitution's commerce clause. "The nation undoubtably faces a health care crisis," Conner said. "Scores of individuals are uninsured and the costs to all citizens are measurable and significant. The federal government, however, is one of limited enumerated powers, and Congress's efforts to remedy the ailing health care and health insurance markets must fit squarely within the boundaries of those powers." But Conner rejected an argument by the plaintiffs , a York County couple, Barbara Goudy-Bachman and Gregory Bachman , that the mandate is "disastrous to this nation's future, such as the Bachmans' prediction of America evolving into a socialist state. These suggestions of cataclysmic results ... are both unproductive and unpersuasive." While most of the massive law can remain intact, Conner said, certain provisions are linked to the health insurance requirement and must also be struck down. Those provisions are designed to guarantee that insurance companies cannot discriminate against or deny coverage to the sick or people with pre-existing conditions. Separate lawsuits have already reached appeals courts in Richmond, Va., Atlanta and Cincinnati, with one of those courts ruling against the mandate. http://www.philly.com/philly/news/b...federaljudgerulesagainstinsurancemandate.html seneca_roman 0Likes "Court Of Appeals Shoots Down Virginia, Liberty University Healthcare Argument September 12, 2011 by Sam Rolley The court ruling in the case of Virginia absolved the Federal government of any wrongdoing in its push to require individual mandates for health insurance. The 4th U.S. Circuit Court of Appeals ruled on Thursday in favor of President Barack Obama’s healthcare overhaul, saying that Virginia has no right to challenge the law’s mandate that requires most Americans to purchase health insurance. The court also shot down Liberty University’s preemptive argument against having to make additional payments for not complying with the healthcare law, according to POLITICO." http://www.personalliberty.com/news...liberty-university-healthcare-argument-43570/ We all have to wait till the Supremes take it up.

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Posted Nov. 07, 2011, at 4:09 p.m. BANGOR, Maine — A Michigan man was sentenced Monday in U.S. District Court to 18 months in prison for illegally receiving veterans benefits while he worked at the Togus Veterans Affairs Medical Center in Augusta. Mark Stephen Palmquist, 44, of Menominee, Mich., also was sentenced to three years of supervised release. He qualified for disability benefits due to a 1989 accident in Central America. In addition, U.S. District Judge John Woodcock ordered Palmquist to pay $47,229 in restitution. The judge ordered that Palmquist begin serving his sentence Jan. 6.Story continues below advertisement. Palmquist was indicted last fall by a federal grand jury in Bangor for making a false and fraudulent statement, theft of government property, fraudulent receipt of Veterans Affairs services and 21 counts of wire fraud. He pleaded guilty in May to one count of making a false claim for veterans benefits and one count of theft of government property. As called for in Palmquist’s plea agreement with the U.S. Attorney’s Office, the other charges were dismissed Monday after sentencing. The bulk of the charges on which he was indicted stemmed from disability payments Palmquist received because of injuries he suffered in a 1989 helicopter crash in Panama while serving in the U.S. Marine Corps. Palmquist suffered injuries to his back and brain that qualified him to receive disability benefits, according to court documents. The amount of the monthly check an individual receives in disability benefits is based on the number of dependents being supported, according to court documents. Palmquist applied for dependent benefits in June 2002 when he married and was supporting a stepchild, according to the documents. He divorced his wife a year later but allegedly did not inform the proper authorities so his benefits could be reduced to what they had been when he was single. The wire fraud charges stem from the fact that his benefit check was automatically deposited into a credit union account in Portland between Dec. 1, 2006, and May 30, 2008. Assistant U.S. Attorney James Moore, who prosecuted the case, said in a telephone interview after the sentencing that he recommended Palmquist spend three years behind bars. Defense attorney George “Toby” Dilworth of Portland recommended his client be sentenced to a year and a day in prison, which would have allowed him to earn good time. “Mr. Palmquist accepts the court’s decision and is looking forward to paying the restitution and resuming his life,” Dilworth said in a telephone interview after the sentencing. The defense attorney said that the restitution would be repaid by the VA deducting $400 a month from Palmquist’s $1,600-a-month benefits check. Palmquist worked as a patient representative at Togus from November 2006 to March 2010 but now is unemployed, according to court documents. Before moving to Maine, he worked for more than two years at the VA Medical Center in Iron Mountain, Mich., in the state’s Upper Peninsula on the Wisconsin border. Last December, a federal jury in Portland issued a split verdict in Palmquist’s discrimination lawsuit against the U.S. Department of Veterans Affairs. After deliberating for 5¼ hours, jurors found that the VA facility in Michigan had denied Palmquist affirmative action for disabled veterans when his former supervisor gave him an unfavorable reference in March 2006. The jury also found that the bad reference was in retaliation for Palmquist’s complaints that he had been denied legally required promotion opportunities for disabled veterans. But jurors also decided that retaliation was not his former supervisor’s motive for writing the negative recommendation and that Palmquist would have been denied the promotion he had applied for in Tennessee anyway. Woodcock entered judgment for the VA after the jury’s verdict in the lawsuit filed in 2007 was announced. The criminal indictment, handed up by the federal grand jury in Bangor on Sept. 15, 2010, alleged that Palmquist lied about his criminal background when he applied to work at Togus in 2006. He was convicted of assault and battery on June 4, 2001, according to court documents, but on his application he said he had never been convicted of a crime. http://bangordailynews.com/2011/11/07/news/court/michigan-man-sentenced-to-18-months-in-prison-over-togus-va-benefits/ printed on December 10, 2016

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A Conversation with James Lobsenz, Part III: The Awkwardness of Appeal By Erik Lundegaard of Super Lawyers on Wednesday, June 22, 2011. Our article on James Lobsenz, entitled "James Lobsenz Rewrites the Rules," about the criminal defense and appellate lawyer with Seattle's Carney Badley Spellman who was the ACLU's cooperating attorney in the Witt v. Department of the Air Force case, is now available online and in magazine form. But we had such an interesting conversation with Mr. Lobsenz we couldn't include it all in the story. Here's some of what was left out. In part one, Lobsenz wondered what juries were thinking. In part two, he debated when to appeal. Below, he talks about the awkwardness, if any, of appealing another lawyer's case. When you take on an appeal, is it difficult to contact another attorney and say, "I think you screwed up?"The level of difficulty or awkwardness depends upon how graceful the other attorney might be. Sometimes you call up and start talking with them, and they might be... open to it? Open in the sense of "Look, Jim, if you think I made a mistake you go right ahead and raise my mistake, I understand, that's your job." Sometimes they might say, " Yeah, I've been thinking about that and I think I maybe did make a mistake." Sometimes they may be horribly offended that you're calling and "How dare you suggest I made a mistake." It's all over the map.I like to think that over the last 20 years, the culture, in a way, among criminal defense attorneys, has changed a little bit, so that people understand ... Somebody once said to me: "If you're going to do this kind of work"--trial court, criminal defense work--"then eventually somebody is going to call you up and say, 'I think you made a mistake and rendered ineffective assistance.' So to get all high-and-mighty offended by it is silly. It's going to happen sooner or later.I mean: Is anybody perfect? If somebody said to you, "In the last 25 years, do you think you made any traffic infractions?" None of us are perfect. I'm sure you rolled through some stop signs. Or worse. But you didn't kill anybody. You were lucky. [But] when you're lawyering like this, it's hard to put your finger on, "Well, when you rolled past that stop sign in court, by not objecting to that evidence that you should've objected to, is that the key thing that led to the case going one away instead of the other way?" It's hard to tell. It's not like there was a giant collision between two cars.But if you're honest with yourself as a criminal defense attorney you acknowledge, "Sure, I make some mistakes. Probably a couple a month. Just hopefully they're not too big and not too prejudicial to the client." And if the case should come along where I did make a mistake and it was prejudicial, the forthright thing to do is say, "That was probably a big mistake, and maybe my client should get a new trial because of it."Has that happened to you? Where someone came to you and said...?I can think of one case where somebody came to me and said I made a mistake. I didn't agree. But I said, "Go ahead and raise it. If you think that's a mistake, go ahead." But the court didn't agree. Tags: Carney Badley Spellman, James Lobsenz, Washington Super Lawyers Tweet Get Updates About New Blog Posts

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2016-50/4390/en_head.json.gz/9091

U.S. Attorney: New York’s Corruption Cases ‘Feel Like a Scene From Groundhog Day’ By Colin Campbell on April 2, 2013 at 2:06 PM Preet Bharara gestures towards his chart with Senator Smith in the center. “Today is another sad and disappointing day for every New Yorker,” U.S. Attorney Preet Bharara announced at his press conference this morning where he unsealed corruption charges against six officials–including State Senator Malcolm Smith and Councilman Dan Halloran–accusing them of accepting bribes to boost Mr. Smith’s mayoral campaign. “The charges we unsealed today demonstrate once again the ‘show me the money culture’ seems to pervade every level of New York government,” he continued. “The criminal complaint describes an unappetizing smorgasbord of graft and greed involving six officials who together built a corridor of corruption stretching from Queens and the Bronx to Rockland County and all the way up to Albany.” But, Mr. Bharara noted, this latest case of alleged corruption is unlikely to surprise New Yorkers. A plethora of politicians have been convicted in recent years, while others like Assemblyman William Boyland Jr. currently stand trial. Still more are reportedly under investigation. “After the string of public corruption scandals that we continue to expose, many may understandably fear that there is no vote that is not for sale, no office without a price, and no official clean of corruption,” Mr. Bharara argued. “Many may understandably resign themselves to the sad truth that perhaps the most powerful special interest in politics is self-interest. As I said before, Every time a politician is arrested in New York it should not feel like a scene from Groundhog Day. And yet it does.” Mr. Bharara said there is only so much he can do to end this cycle of corruption, however, as a prosecutor. He urged city and state legislatures to pass tougher disclosure requirements to try and dissuade future misconduct. “Because what can we expect when there continues to be–even after a parade of politicians have been hauled off to prison–a lack of transparency, a lack of self-disclosure, a lack of self- policing, a lack of will, and a failure of leadership?” he asked. “What can we expect when transgressions seem to be tolerated and nothing seems ever to change? New Yorkers should demand more. Federal prosecutors and federal agents … are doing everything we can to proactively attack the corruption problem. And it’s time that others stepped up to the plate also.” Comments are closed.

法律

2016-50/4390/en_head.json.gz/9178

United States Tax Court Building Added by jon buono, last update: October 14, 2011, 8:00 pmLocation 400 2nd Street NW Washington, D.C., DC 38° 53' 43.17" N, 77° 0' 52.3656" W See map: Google Maps Javascript is required to view this map.Identity of Building / SitePrimary classification: Law (LAW)Secondary classification: Federal, State, or Local Designation(s) and Date(s): National Register of Historic Places Designation: August 26, 2008; Washington, D.C. Historic Landmark Designation: June 26, 2008History of Building/SiteOriginal Brief: The building was constructed specifically to house the U.S. Tax Court. The U.S. Tax Court is a federal trial court that adjudicates disputes between the Internal Revenue Service and the people of the United States. The commission called for the creation of a building that was responsive to the “Principles for Federal Architecture” developed in the Kennedy administration, which recommended architecture that would convey, “the dignity, enterprise, vigor and stability of the American government,” as well as the initiative of the General Services Administration in the arena of modern architecture.Dates: Commission / Completion:Construction: 1972 (c) / Completion: 1974 (c) Architectural and other Designer(s): Architects: Victor A. Lundy and Lyles, Bissett, Carlisle & Wolff, Associated Architects; Consulting Engineers: Jaros, Baum & Bolles and George Hyman Construction Co; GSA Project Engineer: Alfred BarthOthers associated with Building/Site: n/aSignificant Alteration(s) with Date(s): $2.3 million, 85,000 square feet of interior renovations and upgrades completed in 2001 by the Temple Group.Current Use: It houses courtrooms, offices, and related spaces for the judges and staff of the U.S. Tax Court.Current Condition: The building appears to be in good condition.General Description:The five-story, south-facing building is located on a plot of approximately 70,000 square feet. The site is bounded on the south by 2nd Street NW, on the east by E Street NW, on the north by 3rd Street NW and on the west by D Street NW. In general, the building’s exterior is designed as a cantilevered block resting on a two-story podium, flanked by similar blocks to the east and west. There is an open plaza in front of the building comprising a central reflecting pool bounded on east and west by walkways lined with trees. The plaza is built on an elevated deck over Interstate Route 395, which runs beneath the plaza from east to west. The building contains 151,420’ of floor space; the square footage is divided into 343 interior spaces plus a lower-level garage which accommodates approximately 100 cars. Of the 343 interior spaces sixty-three are used to provide public conveniences or service function for the building; the remainder of the spaces are used as courtrooms, offices, and related functions of the Tax Court. The most prominent interior space is a central public hall, called the Hall of Justice, which is four stories high and has a clerestory ceiling. The four-story public hall, visible above the podium, acts as the main circulation zone, linking all parts of the building. Four-story units on the north, south, and west sides of the hall contain offices and judges’ suites, while the cantilevered block on the east houses three courtrooms. Galleries with plate glass railings open onto the Hall of Justice from the adjacent office and courtroom blocks The courtroom block which projects from the east wall of the public hall contains three, two-story courtrooms; a large courtroom in the center and two smaller courtrooms on the north and south. The first-story podium of the building provides court support facilities: library, dining areas, storage facilities, mailrooms, and operations offices. Exterior finishes of the building are Royal Pearl granite and bronze-tinted glass with narrow bronze anodized aluminum mullions. Exterior handrails were fabricated from bronze tubing. Interior finishes utilize a number of materials associated with the Modern Movement including concrete walls, louvered teak screens, and a tongue-in-groove hemlock plank ceiling in the Hall of Justice. The plaza also uses granite in the cladding of the reflecting pool, walkways and exterior stairways. Construction Period:Some of the engineering techniques used in constructing the building were quite innovative at the time of its construction. Compression and post-tensioned bridges, steel cables hidden in the walls and six narrow columns support the 4000 ton courtroom block cantilevered over the entrance and additional compression and tension bridges are used for interior circulation. Additionally, the walls of the building were made of continuous, vertical, reinforced concrete shear walls. The floors were supported by precast, pre-stressed concrete tees spanning between the shear walls. The flat roof was surfaced in gravel. The plaza, a bridge spanning Interstate 395, is of structural steel and concrete construction. Original Physical Context:The U.S. Tax Court building is located in the northwest sector of Washington, D.C., the area of the city in which most federal office buildings are located. This sector is the location of many related government buildings, including the Internal Revenue Service building in which the Tax Court was once housed and the Department of Justice building, which houses Justice’s Tax Division. The building is easily accessible from Interstate Highway 395 which runs beneath it, making it an easily reached location for litigants and attorneys. The structures immediately adjacent to the Tax Court Building are of the same period and of modern design and not, therefore incongruent with the design of the Tax Court. The five-story building fits well into the low rise urban landscape that surrounds it.EvaluationTechnical Evaluation:Victor Lundy, already known for his use of innovative structural designs, boldly planned a massive cantilevered central element that appears to be resting, unsupported, on a first story podium in his design for the U.S. Tax Court Building. Implementing this design concept required the use of several construction innovations in order to assure the stability of the cantilevered central section. As previously noted, Lundy used compression and post-tensioned bridges, steel cables hidden in the building’s walls and six narrow columns to support the cantilevered section of the building. He also incorporated interior compression bridges and under-pavement ice melting systems in a design that Ada Louise Huxtable called “fully part of the mid twentieth century.” The extensive use of precast concrete throughout the building was also a key structural and design element. The technical aspects of this design are considered so important that they are listed among the reasons given for its landmark designation in Washington D.C. and for its acceptance as a National Historic Place, with the staff report indicating that “Lundy’s design for the Tax Court building is noted as showing a structural daring without precedent in federal architecture.”Social:The U.S. Tax Building is socially significant because it was one of the initial episodes in a federal initiative in modern architecture. This initiative was the product of President Kennedy’s desire to improve the aesthetics of federal architecture in Washington, D.C. and his establishment of an Ad Hoc Committee on Federal Office Space. The Committee recommended new emphasis on public architecture, as well as the landscaping, site selection and layout of federal buildings. In response, the General Services Administration (GSA), which acts as construction manager for federal buildings, initiated a construction program fostering modernist design of important public buildings. During this period, essentially the 1960s, important commissions for federal buildings were given to modernist architects Marcel Breuer, Walter Gropius, Ludwig Mies van der Rohe, and Victor Lundy. In doing this, the federal government demonstrated a growing acceptance of the government’s social responsibility to be a leader in support of the arts and a developing understanding of the relationship between public architecture and perception of government.Cultural & Aesthetic:The tax court is a building designed in the mid-1960s and reflects that era’s aesthetic sensibilities. The flat unornamented facades, the interplay of rectilinear volumes, and the floating stories above glass can identify the Tax Court Building as a study in modernism. Victor Lundy has described his design concept as a “monolithic block separated into its constituent functional units within which you will always have a sense of where you are, and of the sky outside.” This highly sculptural design has been described by Ada Louise Huxtable, in her 1967 review of Lundy’s plan, as a “progressive, sensitive, contemporary solution fully responsive to Washington’s classical tradition and yet fully part of the mid-20th century.” The design established four related but separately defined volumes tied together by the central hall in the cantilevered central section. It uses a clerestory ceiling in the Hall of Justice and curtain walls of bronzed glass to bring light into the building’s four massive granite clad sections. The use of granite to clad the exterior surfaces and the balance and order provided by the symmetries of the two end blocks and entry plaza provide a dignified aesthetic suitable to the building’s purpose, while the incorporation of modern technologies as a key design factor and the use of precast reinforced concrete as a structural element is clearly indicative of a modern building. The design is, as Lundy intended, “truth for today and tomorrow.”Historical:Victor Lundy’s final design for the Tax Court Building drew praise from all sides. The Fine Arts Commission, in approving the revised design on November 16, 1966, noted that it had “nothing but admiration” for the design that “superbly solves the problem of limited space.” The local press reported that the approval of the building, along with the new buildings in the District designed by van der Rohe and Breuer, assured that “we will have outstanding modern architecture represented in a city thus far dominated by Roman temples and architectural mediocrity.” The national architectural press as represented by the comments of Ada Louise Huxtable in the New York Times was equally laudatory. Lundy’s design received a GSA Honor Award in the first Design Awards Program held by the agency in 1972. In 1976, Progressive Architecture writer Stanley Abercrombie rated the U.S. Tax Court among the best federal buildings constructed in the previous 50 years and, more recently, a 2003 GSA study of federal government office buildings rated the U.S. Tax Court as one of a small group of buildings that “qualify as Modern masterpieces with high levels of architectural significance.” In providing historic designation to the Tax Court in 2008 the District of Columbia Preservation Commission noted that it “is an outstanding example of federal architecture of its time, using the most advanced structural engineering to achieve an expressive purpose” and the National Register nomination of the same year says of the building “the U.S. Tax Court Building is a striking and highly sculptural example of mid-century Modernist architecture.”General Assessment:Lundy’s U.S. Tax Court Building has modernist significance on several levels. When the Court Building was designed it was in the vanguard of modernist public architecture in the United States, and remains a structurally innovative building whose design fully integrated technical and design choices. This building and those of Gropius, van der Rohe, and Breuer demonstrate a new attitude toward modernist architecture among government bureaucrats that acknowledged the artistic as well as the functional aspects of the nation’s public buildings. Most significantly, The U.S. Tax Court is important because it succeeds in conveying the modernist design aesthetic in a building that is timelessly beautiful.DocumentationText references:“Building Overview.” U.S. Tax Court Building, Washington, D.C.U.S. General Services Administration. Web. March 2010. exploreByBuilding/buildingId/1264>. Huxtable, Ada Louise. “Architecture: Full Speed forward.” The New York Times 1 October National Archives. “Textual Records of the U.S. Tax Court.” Archives File 803.5. Washington, D.C. Quinn Evans/Architects. Historic Structures Report - United States Tax Court Building. Prepared for the General Services Administration. Washington, D.C.: July, 1996. Robinson, Judith H. “National Register of Historic Places. Registration Form for U.S. Tax Court. OMB No.10024-10018.” Prepared 23 April 23 2008. U.S. General Services Administration. Growth, Efficiency and Modernism: GSA Buildings of the 1950s,60s and 70s. Washington, D.C.: U.S. General Service Administration, 2003. Von Eckardt, Wolf. “Fine Arts Carping Leads to Excellence in Design. The Washington Post 17 Williams, Kim. “Historic Landmark Designation Case No. 08-14.” Historic Designation Review Board Staff Designation Report 26 June 2008. Web. March 2010 .AuthoringRecorder/Date: David Ault / March 2010 Tags: Lundy, Victor A. Lyles, Bissett, Carlisle & Wolff

法律

2016-50/4390/en_head.json.gz/9288

| 02/01/94 GENERAL ORDER MARCH 15 v. JULIE HULL 02/01/94 GENERAL ORDER MARCH 15 v. JULIE HULL APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION IN RE GENERAL ORDER OF MARCH 15, 1993, THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,v.JULIE HULL, RESPONDENT-APPELLANT. APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE ARTHUR ROSENBLUM, JUDGE PRESIDING. Released for Publication March 18, 1994. Scariano, DiVITO, Hartman The opinion of the court was delivered by: Scariano JUSTICE SCARIANO delivered the opinion of the court: On March 15, 1993, respondent Julie Hull, an assistant Cook County Public Defender, was representing a juvenile at a probable cause hearing which was being held before Judge Arthur Rosenblum in Cook County circuit court. The juvenile, alleged to be delinquent, was charged with possession of a controlled substance, heroin, with intent to deliver. At the hearing, the State established through the arresting officer that while the juvenile was being pursued by the police, the officer saw him drop a cellophane bag. The officer later retrieved the bag and learned that it contained 120 foil-wrapped packets which, combined, proved to hold 36.5 grams of heroin. During Hull's cross-examination of the arresting officer she attempted to show that he was mistaken in his belief that it was her client who had dropped the heroin. For example, she sought to have him admit that he was well behind the juvenile while chasing him. She emphasized that it was dark when the officer pursued the youth and that the street where he allegedly dropped the bag was litter-strewn, thus intimating that the heroin was discarded by someone other than her client. The court sustained some of the State's objections to this line of questioning and overruled others. The State next objected when Hull asked the officer to describe the size of the cellophane bag, and after the court sustained the objection, the following exchange took place: "Ms. Hull: May I have the basis your Honor? I am really -- this is not a game. We don't know if, in fact -- he says he was behind him. He didn't capture my client. It's dark out and the --. Court: Please. We don't have a jury here. Ms. Hull: It's not for the jury. The Court: I think it is. Ms. Hull: It's called the right to confront, you know, the sixth amendment right. The Court: Oh, the sixth amendment of the constitution itself? Ms. Hull: Yeah, that's why we have these hearings. The Court: The objection is sustained * * *." Despite the court's having sustained the State's objection to her line of questioning, Hull persistently attempted to explore the extent of the officer's ability to observe her client's activities during the chase. The court reminded her on more than one occasion that the State had previously and meritoriously objected to exactly the same questions and it further advised her that the answers to her questions were the proper subject matter of discovery requests but were inappropriate for the purposes of a hearing limited to determining whether the officer had sufficient cause to arrest the juvenile offender. At another point, she again demanded to know the basis of the court's sustaining the State's objection to a question she posed, and the court responded: "The basis of it is your demeanor, your line of questioning. I don't know who you are trying to impress, but it's not me that you are impressing, and we have gone over this several times but you go ahead. If you want to enjoy yourself, you go ahead until you get to a point where I am going to hold you in contempt of court for following the same line of questioning and bar you from this courtroom. Paying no regard to the court's admonishment, Hull continued to seek an admission from the officer regarding what he saw or did not see. When she explained to the court that her questioning bore on the witness's credibility, the Judge once more reminded her that he was holding only a probable cause hearing at which it would not be proper to make credibility assessments. At the close of cross-examination, the Judge entered a finding that there existed probable cause to arrest and also found, based on the juvenile's past record, that there were grounds to keep him in detention pending his delinquency adjudication. Hull then asserted a demand for trial on behalf of her client and the court scheduled the case to be heard two weeks later. Not satisfied with this date, she again demanded a trial, apparently indicating that her client sought a trial later that same day. When asked, the State informed the court that it would not be ready to present its case that soon on such scant notice, adding that the juvenile had not yet filed an answer to the delinquency petition nor had he submitted to the State's discovery; therefore, it urged, he was not entitled to a hearing that day. The court then suggested that the two sides go to trial without the juvenile's answer being filed or discovery having been completed, but the State stood on formality and repeated that it was not prepared for trial. Hull stated for the record that she was making her demand in order to begin the running of the 120-day period in compliance with the "speedy trial" provision of the Juvenile Court Act. (705 ILCS 405/5-14 (West 1992) formerly Ill. Rev. Stat. 1991, ch. 37, par. 805-14.) The court instructed her to adhere to circuit court practice by filing a written demand with the clerk's office. She asked the State to stipulate to her filing, to which the court responded that it was powerless to direct the State to stipulate to anything. The Judge then announced: "After today you are barred from appearing in my courtroom on any case. You can make any statements in the record. I find your demeanor, your courtroom demeanor, offensive and deliberately calculated to incur the anger of the Court and the patience of the Court. You are barred from coming into this court anymore." Immediately thereafter, Hull apparently turned, and as a last act of defiance, ran to the back of the court, put on her coat and headed out the door. The Judge ordered her to return to the well of the court, remove her coat and appear before it dressed properly. It then dismissed her. In the written order handed down by the court, the order from which she appeals, Hull was barred from appearing before Judge Rosenblum in the future "for all matters except those contested matters which were commenced prior to March 15, 1993[,] that she is the appointed attorney of record." Hull's principal contention on appeal is that section 6 of "An Act to revise the law in relation to attorneys and counselors" (Act) *fn1 (705 ILCS 205/6 (West 1992) formerly Ill. Rev. Stat. 1991, ch. 13, par. 6), which Act empowers circuit court Judges to suspend attorneys appearing before them for malconduct, constitutes an impermissible legislative encroachment on an exclusive prerogative of the supreme court, namely, the regulation of the legal profession. According to Hull, the Act is an archaic vestige of an older era when poor communications necessitated authorizing circuit court Judges to suspend dishonest attorneys in order to protect the public from them until such time when the supreme court could conduct proper disciplinary proceedings. She argues that with the creation of the Attorney Registration and Disciplinary Commission (ARDC), this interim disciplinary authority can no longer reside in the circuit Judges, but is reserved to the ARDC, endowed, as it is, with adequate investigative and adjudicatory capabilities. The State counters that an inquiry into the continuing constitutionality of the Act is not necessary here because the circuit court did not invoke or rely upon the Act when it sanctioned Hull. The State suggests that in order to suspend her, the Judge simply exercised his inherent authority to control his courtroom and to ensure that attorneys appearing before him exhibit proper respect for the authority of the court. The State also urges this court to find that Hull lacks standing to contest the constitutionality of the Act because the circuit Judge did not expressly indicate that he was relying on the Act as the source of his authority to suspend her. Thus, according to the State, she cannot allege that she is aggrieved by the unconstitutional enactment. See People v. Rogers (1989), 133 Ill. 2d 1, 549 N.E.2d 226; People v. Mayberry (1976), 63 Ill. 2d 1, 345 N.E.2d 97; People v. Hood (1990), 203 Ill. App. 3d 289, 296, 560 N.E.2d 1187, 1192 ("A party may not challenge a statute's constitutional validity unless that party has sustained or is in immediate danger of sustaining a direct injury as a result of the statute's enforcement."). Both of the State's preliminary arguments are baseless. First, the trial court's inherent power to control its courtroom and maintain the proper decorum extends no further than its ability to find someone in contempt (see In re G.B. (1981), 88 Ill. 2d 36, 430 N.E.2d 1096; In re F.B. (1990), 206 Ill. App. 3d 140, 564 N.E.2d 173); however, there exists no authority for the proposition that the trial court may invoke its power to declare an attorney in contempt and, as a consequence thereof, disbar or suspend him or her from appearing before it. As the United States Supreme Court has noted: "'The power to disbar an attorney proceeds upon very different grounds' from those which support a court's power to punish for contempt." Cammer v. United States (1956), 350 U.S. 399, 408 n.7, 100 L. Ed. 474, 479-80 n.7, 76 S. Ct. 456, 461 n.7 quoting Ex Parte Robinson (1873), 86 U.S. (19 Wall.) 505, 512, 22 L. Ed. 205, 208. The unfounded nature of the State's position is also evident in those cases where our supreme court long ago addressed the extent of the authority conferred on a circuit court by the original version of the Act. In each case, the unexpressed yet underlying principle was that the ability to suspend an attorney resides innately in no court but the supreme court. Consequently, the circuit court's authority to suspend Hull was fully dependent upon and was no broader than that which was expressly granted to it by the Act. In Winkelman v. The People (1869), 50 Ill. 449, the presiding Judge of the St. Clair circuit court which, at that time, encompassed St. Clair and two other unnamed counties, permanently suspended an attorney from practicing in the courts of the entire circuit; the attorney had altered a court document so as to make an injunction extend to individuals who had not been before the court. On review, the supreme court vacated the suspension order as being overly broad, holding that the Act then in existence did not confer such broad authority on the circuit courts as to empower them to disbar de facto an attorney who was guilty of some misconduct. More important for the purpose of this case, it held: "We know of no power inherent in the circuit courts, to suspend from practice an attorney duly licensed by this court, at least none, so to suspend him, as virtually to strike him from the roll." Winkelman, 50 Ill. at 452. Later in Moutray v. The People (1896), 162 Ill. 194, 44 N.E. 496, the court held invalid an order of a circuit Judge who prohibited two attorneys from appearing before any court in the Second Judicial District on a charge of forging court documents, effectively disbarring them in the courts of 14 counties. The supreme court held that the fullest extent of the Act was to enable the court to limit the practice of attorneys only in the court over which the suspending Judge presides. The most recent decision to consider the Act, which was handed down in 1938, also suggests that the circuit court, in the absence of the Act, is without the power to suspend an attorney generally, or even to prevent one from appearing in the court over which he presides. In that case, Wayland v. City of Chicago (1938), 369 Ill. 43, 15 N.E.2d 516, the court struck a local rule of the circuit court of Cook County which had created an executive commission of the court and charged it with the responsibility of suspending from practice in the circuit those attorneys who were deserving of such punishment. The court struck this rule on a variety of grounds, among which was that the Act, which the executive committee cited as the source of its authority, allowed a circuit Judge to restrain the practice of attorneys only in the courtroom wherein he sat and nowhere else. The Conclusion that the ability of the circuit court to suspend an attorney is not an aspect of the court's inherent ability to control its courtroom finds its ultimate support in the dicta of two decisions of our supreme court where it imposed some type of discipline on an attorney. In those cases, the court stated in passing and without analysis that "the privilege of appearing as an attorney in the courts of this State is granted by this court and taken away only by this court or by statutory enactment." ( In re Heirich (1957), 10 Ill. 2d 357, 362-63, 140 N.E.2d 825, 829 (emphasis added); People ex rel. Andrews v. Hassakis (1955), 6 Ill. 2d 463, 468, 129 N.E.2d 9, 11 citing Ill. Rev. Stat. 1953, ch. 13, par. 6.) Accordingly, the State is clearly incorrect when it asserts that Judge Rosenblum derived his ability to suspend Hull from his inherent power to control his courtroom. It follows, therefore, that the State is also wrong in maintaining that Hull lacks standing to challenge the constitutionality of the Act. It is an unavoidable Conclusion that she is aggrieved by the Act in view of the fact that it is the only potential source of the court's power to suspend her. Thus, we must reach the question of whether the Act constitutes an impermissible legislative encroachment on an area of judicial dominion which is beyond the control of the General Assembly. The State argues that the Act is constitutional in that it is not contrary to the disciplinary rules of the supreme court, but actually supplements them. It also claims that the statute provides a strong and effective deterrent which goes far in ensuring that no attorney will display the type of disrespect shown by Hull in the case at bar. At the outset of our analysis, we acknowledge that the constitutionality of the Act finds some implied support in Winkelman, Moutray and Wayland by the mere fact that in those cases the supreme court did not strike the Act outright, but only limited the scope of the authority it conveyed. However, we note and consider it significant that those cases are quite dated. Since they were handed down, our supreme court has promulgated a series of rules creating a comprehensive and pervasive regulatory scheme for the discipline of members of the Illinois bar. By this scheme, we conclude that our supreme court has elected to exercise plenary and exclusive control over attorney discipline and in so doing has rendered obsolete and without any force whatsoever, any legislative enactment, such as the Act, which furthered a similar interest. *fn2 In contexts other than the one at bar, the appellate court has reached the Conclusion that the creation of the ARDC signalled the intent of the supreme court to make attorney discipline its exclusive concern which is not susceptible to sharing, even if the enactment can be conceded to complement the supreme court's regulations. In In re Marriage of Dall (1991) 212 Ill. App. 3d 85, 569 N.E.2d 1131, for example, the court struck an order of a circuit court Judge which censured an attorney appearing before him in an action seeking a dissolution of marriage. The attorney was sanctioned when, at a contempt hearing of his client, it was disclosed that the attorney had given his client faulty legal advice which bordered on malpractice. In its written order denying the client's post-trial motion, the court included a sentence rebuking the attorney. The appellate court held that this constituted a censure which, like other means of professional discipline, could be imposed only by the supreme court; it therefore vacated that part of the order. Similarly in People v. Camden (1991), 210 Ill. App. 3d 921, 569 N.E.2d 312, the appellate court vacated an order of the trial court which fined the State's Attorney of Crawford County $1 for an alleged ex parte communication with a defendant's physicians. The appellate court determined that, in the absence of a finding of contempt as a necessary precursor to the fine, it constituted an unauthorized attempt at attorney discipline by the circuit court. The court held that that power resides only in the supreme court or in another body empowered by it to serve as its agent in that capacity. The reasoning of Camden and Dall adumbrates all other appellate decisions which have reviewed the sanctioning of an attorney which was not preceded by a finding of contempt and which was issued by a court other than the supreme court. E.g., City of Chicago v. Higginbottom (1991), 219 Ill. App. 3d 602, 629, 579 N.E.2d 890, 629 ("It is the law of this State that the sole authority to impose disciplinary sanctions on attorneys is with the supreme court, and the appropriate forum to investigate the conduct of an attorney and conduct hearings is the Attorney Registration and Disciplinary Commission[]"); Freeman v. Myers (1989), 191 Ill. App. 3d 223, 227, 547 N.E.2d 586, 589 ("These [various supreme court rules related to the regulation of the legal profession] provide for disciplinary measures to be taken by the and do not provide for the trial court to order its own independent sanction"); Reed Yates Farm v. Yates (1988), 172 Ill. App. 3d 519, 530, 526 N.E.2d 1115, 1122 (holding that the supreme court has the exclusive and plenary jurisdiction to punish attorney misconduct, and this task may not be undertaken by lower courts except when acting as its agent). In People ex rel. Brazen v. Finley (1988), 119 Ill. 2d 485, 519 N.E.2d898, the supreme court, although not expressly overruling its earlier decision which had countenanced some shared authority over the legal profession with the legislature, appears to have approved, at least implicitly, the contrary logic advanced by the aforementioned appellate decisions in a case reviewing the striking of a circuit court local rule. The circuit court of Cook County had promulgated a rule pursuant to the authority vested in it by Supreme Court Rule 21(a) (107 Ill. 2d R. 21(a)), which compelled plaintiffs' attorneys in personal injury actions to attest to compliance with Supreme Court Rules 2-103 and 5-103 of the Code of Professional Responsibility. (107 Ill. 2d R. 2-103 & 5-103.) The appellate court, after determining that the supreme court had preempted all authority having to do with attorney discipline, struck the local rule even though it served to further the effectiveness of the supreme court's own disciplinary rules. People ex rel. Brazen v. Finley (1986), 146 Ill. App. 3d 750, 497 N.E.2d 1013. The supreme court affirmed the appellate court. It held that it alone had the authority to regulate and to discipline attorneys in Illinois. The court identified the source of its power as being its exclusive authority to admit members to the bar in Illinois (see In re Mitan (1987), 119 Ill. 2d 229, 518 N.E.2d 1000; In re Application of Day (1899), 181 Ill. 73, 54 N.E. 646), and concluded that the power to admit carried with it the power to punish or to disbar, and that moreover, the power to admit being exclusive, the concomitant power to sanction must also be restricted to the body so empowered. The court deemed it irrelevant to its reasoning that the circuit court rule supplemented its own as opposed to being inconsistent therewith. Consequently, the court agreed that the rule must be invalidated as an impermissible intrusion on its indivisible authority. Under the logic of Brazen, the enactment sub judice must be deemed an improper legislative interference with a plenary and exclusive aspect of the jurisdiction of the supreme court. Even as circumscribed by the earlier cases, the Act nevertheless regulates the practice of law in Illinois. It enables an authority other than the supreme court, in this case circuit court Judges, to limit the ability of attorneys to practice their profession if the Judges choose to avail themselves of the provisions of the Act. We assume the earlier decisions of the supreme court which tacitly approved the Act to have been impliedly overruled. That being the case, the Act must now be considered an unconstitutional encroachment on the court's exclusive authority and therefore unenforceable. As a result, Judge Rosenblum was without the power to impair Hull's ability to practice before him. Accordingly, his general order of March 15, 1993, is vacated. DiVITO, P.J., and HARTMAN, J., concur.

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Ole Miss Law Makes History With Third National Title Win makes third this year, first in law school history OXFORD, Miss.–The University of Mississippi School of Law made history this weekend by grabbing its third moot court national championship this year, a feat never attained by the law school. From left: Team Coach Professor Ben Cooper, David Fletcher, Brett Grantham and Will Widman. Second-year students David Fletcher of Jackson and Brett Grantham of Corinth, along with third-year Will Widman of Birmingham won the National Professional Responsibility Moot Court Competition at Robert H. McKinney School of Law in Indianapolis. “This level of repeated success is really an extraordinary testament to both the depth and quality of our advocacy programs and our student body,” said Richard Gershon, dean. “Further, it demonstrates the commitment of our faculty to national caliber instruction — and not just in the traditional classroom.” The win came just weeks after national championships were obtained at the National Environmental Law Moot Court Competition and the Gabrielli National Family Law Moot Court Competition, both in New York. Ole Miss has won the environmental law championship three times in the past four years. “This year has been a true testament to what we can accomplish when we work hard together from beginning to end,” said Irving Jones, chairman of the law school’s moot court board. “I am very proud to be a part of this organization and also very proud of how we have represented this university.” The professional responsibility team competed against several nationally ranked moot court teams, including Chicago-Kent, Stetson and Florida Coastal in the final round. Widman won the Best Oralist Award in the final round and the team won the Best Brief Award for the respondent, which made them first seed going into the elimination rounds. “We had been working on this problem since November, so it was a relief that all of the work that the team put in definitely paid off,” said Fletcher. “We’ve been mooting every day since February, twice a day during spring break, and even in Indianapolis with each other. If anything, I’ve learned what people mean when they say you can never be too prepared.” The competition included a brief submission and oral arguments. Each brief was scored by a panel of judges to compile an average brief score, which was used throughout the competition. During the preliminary rounds, each team’s score was determined by combining the brief (35%) and oral argument (65%) scores. During the elimination rounds, teams were scored solely on their oral argument performance, which were judged on reasoning and logic; ability to answer questions; persuasiveness; knowledge and use of the facts; knowledge and use of the controlling law; and courtroom demeanor and professionalism, according to McKinney School of Law. “These three guys worked incredibly hard for weeks, through spring break, and beat Florida Coastal in the final round,” said Jones. “Winning this competition is an amazing achievement and we are so proud of them for their success and dedication to the Board.” Posted in: Home, Uncategorized

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Lawmakers Propose Mandatory Fee for Plastic Bags in New York City By Jill Colvin and Gideon Resnick • 08/20/13 11:02am An art piece representing plastic bag usage, displayed at today’s press conference. City Councilmembers and advocates announced a plan today to slap a 10 cent charge on all plastic and paper carry-out bags at grocery and retail stores across New York City. Customers would be required to bring their own bags or pay the fee, which stores would get to pocket, according to the proposed legislation, unveiled this afternoon at City Hall. The legislation, which will be formally introduced at a Council meeting Thursday, is aimed at reigning in “wasteful” plastic bag use in the city, where it’s not uncommon for grocery stores to double-bag single quarts of milk. “It is time for New york to substantially reduce our plastic bag waste!” said Councilman Brad Lander, who announced the plan on the steps of City Hall, where supporters waved sings reading “Only vampires should be this thin and last hundreds of years!” and “Plastic bags are demons and demons stink.” The 30-plus advocates also brought with them a giant art piece, which they splayed out on the steps, representing wasted plastic bags. According to the bill’s proponents, New Yorkers use approximately 5.2 billion plastic bags per year–the vast majority of which are not recycled. The city also spends an estimated $10 million a year to transport those 100,000 tons of plastic bags to landfills each year, they said. Mayor Bloomberg had previously proposed a similar piece of legislation that would have imposed a 6 cent tax on retailers distributing plastic bags–a policy proposal that City Council Speaker Christine Quinn did not support. But Mr. Lander made a clear distinction today between the two pieces of legislation. “What the mayor was actually proposing was a tax,” he said. “There are some legal questions there about whether the city actually has the power to do that or whether that takes action in Albany.” The new proposed piece of legislation would not require this oversight from the State Legislature, but would provide the same environmentally-positive impact, Mr. Lander explained. The legislation would also force the city to begin widespread distribution of free, reusable bags before the fees go into effect in what Mr. Lander described as a “public-private partnership.” “There are obviously a lot of businesses that either for marketing purposes or because they share the environmental goals, [might] be willing to help provide some of the resources or the bags themselves,” he said. The bill also specifies that grocery and retail stores will be precluded from charging the fee until people are given the chance to take advantage of the citywide bag giveaways. “We’re going to target the giveaway in lower-income neighborhoods. I think we’d actually like to do a meaningful amount of that through the grocery stores,” Mr. Lander explained. Restaurants would be exempt from the rule and stores that break the rules twice would be slapped with $250 fines. A spokesman for Ms. Quinn, whose support is likely necessary for the bills to pass, declined to say whether or not she supports the bills. A spokesman for the mayor said the office is reviewing the legislation. Plastic bags are restricted in many cities across the country, including in San Fransisco and Washington, D.C. Update (2:29 p.m.): At least one group is not happy about the proposal. The American Progressive Bag Alliance, which represents bag manufacturers, issued a statement this afternoon calling the proponents “misinformed” and arguing that Americana-made plastic bags are 100-percent recyclable anyway. “New York City residents already pay among the highest taxes in the nation. A 10-cent per bag tax would be a detriment to hardworking families and businesses trying to make ends meet,” said the group’s chair, Mark Daniels. “The proponents of this bill are misinformed and largely rely on science that has been hijacked by environmental activists. A grocery bag tax pushes shoppers toward less sustainable options, like reusable bags, which cannot be recycled, are made from foreign oil and imported at a rate of 500 million annually.” “If lawmakers are interested in protecting the environment, they should consider the facts and concentrate on meaningful legislation to boost proper reuse and disposal of grocery bags,” he said.

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| SCHOOL DIST. OF PHILADELPHIA v. HARPER & ROW PUBLR SCHOOL DIST. OF PHILADELPHIA v. HARPER & ROW PUBLR School District Of Philadelphia, et al. Harper & Row Publishers, Inc., et al. Kraft, J. The opinion of the court was delivered by: KRAFT KRAFT, J: On December 12, 1966, the Court sua sponte, directed the parties to submit briefs on the question whether this action for treble damages, brought under the antitrust laws, (15 U.S.C.A. §§ 1, 15) should be maintained as a class action under the recently amended provisions of Rule 23(a), (b) and (c). Timely hearing was held thereafter. Upon careful consideration of the respective contentions of the parties, we have concluded that this suit is not to be maintained as a class action. Briefly summarized, the gist of the plaintiffs' claim is that the defendants (publishers, jobbers and wholesalers) have engaged in a national conspiracy3 to fix and maintain uniform, arbitrary and non-competitive prices in the sale of "library" editions of children's books to public libraries and public schools throughout the United States. Plaintiffs also claim that the defendants have restricted and limited the supply, physical qualities and the types of books available to public schools and public libraries and have required these entities to purchase books of inferior physical quality at unreasonably high and non-competitive prices. As originally filed, the class purported to encompass "* * * all public libraries and schools, and school systems maintaining libraries * * * and other educational institutions, organized and situated throughout the United States. * * *" It has been fairly estimated that such libraries and school systems aggregate 60,000 in number. By amendment of paragraph 4 of the Complaint permitted by the Court on January 27, 1967, the proposed class was reduced and divided into two subclasses totaling approximately 1224 members. Subclass A (about 453 members) is composed of all public school systems in the United States with an enrollment of 12,000 students or more, as set forth in the 1964-1965 Education Directory published by the Office of Education of the United States Department of Health, Education and Welfare. Subclass B (about 871 members) consists of all states, municipal governments, governmental agencies and political subdivisions which maintain libraries for the use of the general public and all public libraries which have annual book funds in excess of $10,000. Presently, the class is actually composed of the three original plaintiffs (School District of Philadelphia, Commonwealth of Pennsylvania and City of Philadelphia) and five intervenor plaintiffs. Recognizing that practical considerations, among others, materially affect our determination of the class issue, we are impelled to conclude that the class action device is not, in this instance, "superior" to the more conventional procedure of allowing liberal intervention under Rule 24 and permissive joinder under Rule 20. Assuming, for purposes of deciding this motion, that the plaintiffs have satisfied the four criteria of Rule 23(a), we do not believe, at this time, that any questions of law and fact, common to all members, "predominate" over questions affecting individual members. The commodity involved in this litigation (library editions of children's books) is commercially unique. Many of the children's books, either by reason of literary content, or the number and quality of the illustrations and the types of bindings, are unquestionably both educational and artistic in character. An individual volume, bound by its publisher in a distinctive way exclusively for library use, will often have different production, service and marketing problems from a like volume offered and sold to the general retail trade in an ordinary paper wrapper. Accordingly, the economic factors, among others, involved in establishing the price in such a specialized market may depend in large part upon the volume of demand, the publisher, the cost of the reading content, the illustrations and the binding. Proof of the business relations between individual plaintiffs and individual defendants will be complex and will naturally tend to vary according to the dissimilar requirements of the respective plaintiffs for children's books and their employment of differing methods of purchase, such as, by sealed bids solicited by public notice, by bids obtained by solicitation of selected suppliers, by direct purchase from the publisher or from wholesalers or jobbers. At this juncture we are persuaded that the diverse nature of the issues affecting the interests of the individual members of the alleged class and the sundry defendants predominates over any existing common questions of law and fact. Additional considerations which constrain us to deny the maintenance of this suit as a class action are the difficulties certain to be encountered in its management as a class action. Suit was commenced June 26, 1966. Numerous hearings, arguments and conferences have since been held on most phases of this action. More than 100 pleadings and documents have already been filed of record, despite the entry of a stay of all proceedings on November 10, 1966, which is now in effect. We are loath to impose upon the already overburdened clerical facilities of this Court the onerous task of preparing and forwarding to all the proposed members of the class the notices required by new Rule 23(c)(2), and the ensuing detail of the consequent record-keeping. Counsel for the plaintiffs have proposed that we delegate to counsel the "ministerial" task of transmitting such notice to all members of the class. We are reluctant to embark on such a course of action, mindful of the prevailing view of the Court of Appeals in this Circuit that "* * * the proper administration of justice requires of a judge not only actual impartiality, but also the appearance of a detached impartiality." Rapp v. VanDusen, 350 F.2d 806, 812 (3 Cir. 1965). We have little doubt that our "appearance of detached impartiality" would be seriously impaired by any delegation to plaintiffs' counsel of the Court's duty to frame and serve suitable notice on all class members. Observation and long experience have taught us that the mere service of notice upon the hundreds who would be involved is far more likely to be the beginning, rather than the end, of frustrating complexities. Inquiries inevitably ensue, one upon another, which must be answered or ignored. To answer involves the Court in direct correspondence with prospective litigants in a pending case, a very questionable judicial undertaking. To ignore an inquiry, which the Court appears to have invited by a notice to a prospective litigant to "opt out" or be joined, would cast doubt and suspicion upon the judicial process. It has been recognized by others, as well, that "The new rule poses the dilemma that despite the express disclaimer of expansion of jurisdiction in Rule 82, a literal adherence to the commands of Rule 23 would extend jurisdiction to citizens not previously within the Court's power. That is, inclusion of all members of the former spurious class in the judgment - the clear mandate of Rule 23 - could be construed as changing the manner of meeting the requirements of diversity of citizenship and jurisdictional amount." Although the new rule gives us no express power to order a proposed member to join the class - if a proposed member, over whom we previously had no personal jurisdiction, simply ignores the notice, whether by intention or by inadvertence, it becomes, by inaction alone, a member of the class to be bound by the judgment. Our "invitation", thus extended, becomes, in effect, a "command". Such a radical extension by this Court's jurisdiction by the mere inaction of a non-appearing, non-resident citizen is, in our view, unprecedented. By its silence, a proposed class member not only forfeits its previously unfettered right to choose its own forum and to initiate its own litigation, but apparently waives any objections it might have concerning the lack of personal jurisdiction and venue of this Court. We have some doubt, too, of the propriety of a rule which extends the binding, substantive effect of a judgment to absent, but "described", class members as well as to "identified" class members. Conceivably, after trial, unsuccessful antitrust defendants could find themselves liable to unidentified, but "described", class members, against whom they had had no fair opportunity to pursue pre-trial discovery, to define and refine issues in pre-trial conference or to cross-examine upon trial. We recognize, of course, that some class actions and certain types of class action will readily and naturally meet the manifold standards of Rule 23, while in others, a premature judgment, later found erroneous, that these standards are fully met will create endless pitfalls. It is apparent to us that every doubtful case must be carefully reviewed and measured against the standards established by Rule 23 in the searching light of experience and practicality before a proper decision can be made upon the foreseeable consequences of maintenance as a class action. So reviewed and measured, we have concluded that a presently foreseeable result in permitting this action to be so maintained would be a myriad of complex, frustrating, needless problems in attempted management. Order Now, this 24th day of April, 1967, after full consideration of the briefs of counsel, the applicable law and oral argument. It Is Ordered that: (1) this action does not now meet the requirements of Rule 23(b)(3), as amended, for maintenance as a class action; (2) all references to class action contained in Plaintiffs' Amended Complaint and the Intervenor Plaintiffs' Complaints be, and they are hereby stricken; (3) this action shall henceforth proceed as an ordinary civil action, with liberal allowance of permissive joinder and intervention under Federal Rules 20 and 24. Our website includes the main text of the court's opinion but does not include the

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Reading Between The Lines Of Monday's Supreme Court Arguments By Liz Halloran Mar 26, 2012 TweetShareGoogle+Email Demonstrators in support of President Obama's health care overhaul march outside the U.S. Supreme Court on Monday. John Rose The U.S. Supreme Court on Monday opened three days of oral arguments over the constitutionality of the insurance requirement embedded in President Obama's landmark health care law with a simple question and an obscure 1867 law. The question: Does the court even have the right to hear the health care challenge, given that the Anti-Injunction Act prevents federal courts from taking cases where taxpayers are trying to prevent the government from "assessing or collecting" taxes? The argument against the court's role in the case hinges on justices buying the theory that penalties assessed under the law on those who fail to obtain health insurance by 2014 are tantamount to taxes. Unfortunately for Washington lawyer Robert Long, who was making the argument, they appeared not to be buying it. At all. A sample, from Justice Stephen Breyer: "Congress has nowhere used the word 'tax.' What it says is 'penalty.' Moreover, this is not in the Internal Revenue Code but for purposes of collection." The penalty, Breyer added, is "not attached to a tax. It is attached to a health care requirement." That it's being "collected in the same manner as a tax," he said, "doesn't automatically make it a tax." After 90 minutes of rapid-fire questions from eight of the nine high court justices (Justice Clarence Thomas remained characteristically silent), the court appeared ready to assert its authority to hear the case. And eager to move on to Tuesday's main event: arguments over the centerpiece of the case, the constitutionality of the 2010 law's mandate that Americans obtain health insurance or face a penalty. But even though Monday's arguments were at times dominated by in-the-weeds references to tax codes, the morning event provided moments of illumination and humor, as well as fodder for how the justices view their role in the case and how lawyers for both sides will be packaging their arguments in coming days. Here are four exchanges from Monday's arguments that provide a look into the court and, perhaps, the minds of this week's main players. Hints At The Arguments To Come On Wednesday, the justices will hear arguments in challenges to the health care law's expansion of Americans enrolled in the federal Medicaid program. The 26 Republican governors and attorneys general who have led the appeal of the law were represented Monday by attorney Gregory Katsas. In an exchange with Justice Elena Kagan, he attempted to make the states' "pocketbook" case. Katsas: [The states] are injured by the mandate because the mandate forces 6 million new people onto their Medicaid rolls. But they are not directly subject to the mandate, nor could they violate the mandate and incur a penalty. Kagan: Could I just understand, Mr. Katsas, when the states say that they are injured, are they talking about the people who are eligible now who are not enrolled? Or are they also talking about people who will become newly eligible? Katsas: It's people who will enroll, people who wouldn't have enrolled had they been given a voluntary choice. Kagan: But who are eligible now. Katsas: That's the largest category. I think there could be future eligibles who would enroll because they are subject to a legal obligation but wouldn't have enrolled if given a voluntary choice. ... This particular class is the one that gives rise to, simply in Florida alone, a pocketbook injury on the order of $500 to $600 million per year. Kagan: But that does seem odd, to suggest that the state is being injured because people who could show up tomorrow with or without this law will — will show up in greater numbers. I mean, presumably the state wants to cover people whom it has declared eligible for this benefit. Cutting To The Chase U.S. Solicitor General Donald Verrilli Jr., who is defending the law before the court, argued in favor of the high court's hearing the case. The administration is looking for a decision on the highly politicized law by the end of the court's spring term in June. During an exchange with Justice Ruth Bader Ginsburg over the court's jurisdiction in the matter, Verrilli exhibited a let's-get-on-with-it posture that prompted a wry question from Justice Anthony Kennedy. (The "statute" is the health care law.) Ginsburg: So ... if we agree with you about the correct interpretation of the statute, we need not decide the jurisdiction. Verrilli: There would be no reason to decide the jurisdictional issue. Kennedy: Don't you want to know the answer? (Laughter.) Verrilli: Justice Kennedy, I think we all want to know the answer to a lot of things in this case. But — but I do — I do think that the prudent course here is to construe the statute in the manner that we read it. If It's Collected Like A Tax, Is It A Tax? Attorney Long, who was asked by the court to defend a lower court ruling that the Supreme Court had no standing to hear the health care case, was peppered with skeptical questions. Here's an exchange with Ginsburg: Ginsburg: And this is not a revenue-raising measure, because, if it's successful, they won't — nobody will pay the penalty and there will be no revenue to raise. Long: ... This one certainly raises — is expected to raise very substantial amounts of revenues, at least $4 billion a year ... But the justices noted a difference between tax revenue needed for the operation of government and revenue collected in penalties for failure to comply with a health care mandate or other regulations. Breyer referred to a copyright decision used to defend a before-implementation challenge to the health care penalty mentioned by Katsas. Breyer: Registration for the copyright register is not the life's blood of anything. Copyright law exists regardless. So the reasoning isn't there. Can Penalty Be Separated From Mandate? Katsas argued yes. Chief Justice John Roberts did not agree, asserting that "the whole point" of the health care challenge "is to prevent the collection of penalties." Here's their exchange: Roberts: The idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn't seem to make much sense. Katsas: It's entirely separate, and let me explain to you why. Roberts: It's a command. A mandate is a command. If there is nothing behind the command. It's sort of well what happens if you don't file the mandate? And the answer is nothing. It seems very artificial to separate the punishment from the crime. Katsas: I'm not sure the answer is nothing, but even assuming it were nothing, it seems to me there is a difference between what the law requires and what enforcement consequences happen to you. This statute was very deliberately written to separate mandate from penalty in several different ways. Roberts: Why would you have a requirement that is completely toothless? You know, buy insurance or else. Or else what? Or else nothing. Copyright 2012 National Public Radio. To see more, visit http://www.npr.org/. TweetShareGoogle+EmailView the discussion thread. Our Partners

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Giving Tuesday: WEMU Open House & Jam Session States Struggle To Find An Execution Method That Works By Alan Greenblatt Apr 30, 2014 TweetShareGoogle+Email The gurney in the execution chamber at the Oklahoma State Penitentiary is pictured in McAlester, Okla., in 2008. Legal pressures and concerns from European manufacturers have made traditional execution drugs unavailable to states. Originally published on April 30, 2014 6:23 pm States have always struggled to find humane ways to carry out the death penalty. For a generation, they have favored lethal injection, but that method has become increasingly problematic. It's coming under increased scrutiny following the death of Clayton Lockett, who died Tuesday of a heart attack after writhing visibly during an execution attempt in Oklahoma. The execution "fell short" of humane standards, White House spokesman Jay Carney told reporters on Wednesday. "This is a highly problematic method of execution," says Deborah Denno, an expert on lethal injections at Fordham Law School. "It's as problematic as any we've ever had." Legal pressures and concerns from European manufacturers have made traditional execution drugs unavailable to states. That has caused states to scramble — some say experiment — and try out new drug combinations. Death penalty opponents will seize on this latest incident as evidence that states are unable to get the procedure right. But the states that have been most active in holding executions have shown persistence in trying to find a method they can use. "Some of these states are very determined," says John Blume, director of the Cornell University Law School Death Penalty Project. "Are they just going to stop because of this? The answer is probably no. "The question then," Blume continues, "is how much tolerance the federal courts and the Supreme Court are going to have for this experimentation process." The Three-Drug Protocol For about 30 years, the primary death penalty method used in the United States was a three-drug protocol, consisting of a barbiturate, or anesthetic; a muscle relaxant to create paralysis; and a drug that would stop the heart. The method was created in Oklahoma in 1977 and first used in Texas five years later. Soon, every death penalty state but one had adopted it. But defense attorneys have challenged the method in recent years, leading some states and courts to impose temporary moratoriums on executions. In 2011, the European Union imposed an embargo on exports of drugs used to carry out the death penalty in America, cutting states off from their primary suppliers of sodium thiopental, the anesthetic they had most relied on. Some states consequently have tried out new drugs and dosages in recent months. Some have turned to unregulated compounding pharmacies to make the drugs. "As the states have shifted away from reputable suppliers of drugs, who won't sell to them, the states have gone to more and more questionable sources," says Joseph Luby, an attorney with the Death Penalty Litigation Clinic in Kansas City, Mo. "As that's happened, we've actually seen more botched executions." Struggling To Get It Right Some states, such as California and Kentucky, require public hearings on execution methods. Most, though, leave the matter up to their departments of corrections. Opponents of the death penalty say that the state departments, which have sometimes been secretive about their drug combinations and sources, can't be trusted to get it right. "We've had several botched executions in 2014," says Denno, the Fordham professor. "We're having more botches than we've had before, with so much experimentation." In January, Oklahoma executed a man named Michael Lee Wilson, who complained before he died, "I can feel my whole body burning." Ohio's correction department announced on Monday that it will increase the amount of drugs given to condemned prisoners. The move followed its own investigation into the January execution of Dennis McGuire, who took 25 minutes to die from a previously untried drug combination, while his fists clenched and his stomach churned visibly. "The department finds no harm in increasing the dosage levels of its drugs," the department announced in a statement. It will increase the dose of midazolam from 10 milligrams to 50 milligrams and up the painkiller hydromorphone from 40 milligrams to 50 milligrams. Tuesday marked the first time Oklahoma tried midazolam as the anesthetic in an execution, giving Lockett 100 milligrams of the drug. Florida, which also uses midazolam, administers 500 milligrams. Calls For Investigation Oklahoma Gov. Mary Fallin, a Republican, put executions on hold pending the results of a review of the state's procedures. "It would reduce the possibility of something potentially horrific happening again," says Blume, the Cornell law professor. But by consistently challenging execution methods, death penalty opponents have helped bring about the current confused state of affairs, argues Robert Blecker, author of the 2013 book The Death of Punishment. "Abolitionists pressured companies to stop supplying the lethal drugs with a threat of economic boycott," Blecker says. "Ironically, by forcing states into untried chemical combinations, they increase the odds of the very situation they purport to decry." Luby, the Kansas City attorney, says that he hopes courts will grow even more skeptical about the methods states are trying out. "We as a society need to be better than the people we are killing in the name of carrying out and enforcing the law," he says. But Blecker, who teaches at New York Law School, says he isn't moved by complaints that condemned men have suffered at the end. "I do confess I'm not overly troubled that a man who shot a 19-year-old victim and stood by while his cohort buried her alive should himself experience a quick but painful death," he says.Copyright 2014 NPR. To see more, visit http://www.npr.org/. TweetShareGoogle+EmailView the discussion thread. Our Partners:

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ARSA Prevails: FAA Must Show Cause in Drug Test Case by David A. Lombardo - March 9, 2011, 10:08 AM The United States Court of Appeals for the District of Columbia Circuit has sided with the Aeronautical Repair Station Association (Arsa) against the FAA as reported last week. In accordance with Arsa’s request in a writ of mandamus, the court ordered the FAA to explain why it should not grant Arsa’s request to force the agency to comply with the court’s mandate to perform a final regulatory flexibility analysis (FRFA) of its 2006 drug and alcohol rules. The FAA must respond to the court by 4 p.m. tomorrow (March 10, 2011). “It is extremely troubling that it takes courts to ensure the government follows its own mandates. If the final analysis is as problematic as the initial product of the agency, the association will again be forced to remind the agency of its responsibilities,” Arsa executive director Sarah MacLeod told AIN. “Neither the association nor the industry made the rules but we sure are required to follow them; therefore, we will continue to demand the same compliance from the government agency.” If the FAA fails to show cause, the agency will have until May 23, 2011, to complete the analysis. The court order would also stay the rules for testing of subcontractor employees who perform safety-related functions at any tier while the FAA carries out the review. In the underlying case, the court found that the FAA failed to perform a required FRFA to determine the small business impact of its drug and alcohol testing rules. The court sided with Arsa and determined that the rules would pose a substantial burden on many small businesses; the association estimates that the FAA failed to account for as many as 22,000 small businesses. Despite the court’s decision, the FAA ignored the mandate for more than three years. As a result, Arsa filed a formal request with the court to compel the FAA to fulfill its legal obligation. “This is a major victory for small business and establishes that the Regulatory Flexibility Act can have teeth,” said MacLeod. “Today’s ruling shows that agencies cannot [flout] the law without consequence.” Maintenance and Modifications http://www.ainonline.com/aviation-news/business-aviation/2011-03-09/arsa-prevails-faa-must-show-cause-drug-test-case

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The Trial of Judge Baltasar Garzon Posted By Vincent Navarro On January 31, 2012 @ 6:27 am In article,articles 2014 onward,FrontPageArticle | Comments Disabled In 1936, a democratic government was forced to face a military coup led by General Franco. The coup succeeded because it had the support of the majority of the Spanish armed forces which were well-equipped and supported by Hitler in Germany and Mussolini in Italy. Without that assistance, the coup would not have prevailed. The purpose of the coup was to stop the popular reforms carried out by the democratically elected progressive government opposed by the Church, banking community, finance companies, large employers, armed forces, and the usual cast of characters that became the major axis of the horrible dictatorship that was established at that time in Spain and which lasted until 1978. To ensure its survival, the dictatorship required and maintained an enormous apparatus of repression carried out by the Fascist party, La Falange, the armed forces and the Church. For every political assassination Mussolini ordered in Italy, Franco killed 10,000, according to Professor Malekafis, expert in European fascism. As a result of that fascist repression, Spain became the European country with the largest number of people who disappeared due to political assassinations. Even today, their families do not know where they are buried. How can that be? To be able to answer that question, it is necessary to understand the enormous limitations of Spanish democracy (1978-2011), the outcome of a transition from dictatorship to democracy that took place during the period 1976-1978 under the dominance of the ultra-right wing forces that supported and benefited from the fascist state. The transition was based on a pact of silence, Ley de Amnistia, according to which all political forces, including the left wing parties, had to agree not to look at the past, that is, not to look for responsibility or accountability for those terrible crimes committed during the fascist dictatorship in Spain. That silence meant the disappeared persons remained disappeared and their memory lost. But the grandchildren of the disappeared started asking what had happened to their grandparents and where they were buried. They wanted to have a tomb they could visit and bring flowers to once a year. And they wanted to pay homage to their fight for freedom, the cause for which they were assassinated. In this way, a popular movement began which demanded the Spanish state (supposedly a democratic state) find the disappeared and honor them. The state, governed then by the socialist party, resisted any response to that demand, even though many of the disappeared were members and sympathizers of that party in the 30s and 40s. But responding to that pressure, Judge Baltasar Garzón, who had become known internationally because of his intention to judge the dictator Augusto Pinochet (an admirer of General Franco and trained in the Spanish military school), started an investigation and requested the state find the disappeared and pay homage to those whose bodies had not yet been found. Judge Garzón soon discovered the numbers were much higher than previously believed. The numbers started with 30,000 and by the end of 2008 they had increased to 152,000. And still the numbers continue to grow. People began to lose their fear and came out publicly with the names of their dead, proving they had been assassinated, but not knowing where they had been killed and where their bodies were. It soon became a mass phenomenon and the numbers grew so large that many believe the killings of the disappeared could be referred to as genocide. As predicted, the right wing forces and some voices within the left immediately mobilized, accusing Judge Garzón of not respecting the Ley de Amnistia that was supposed to have put to rest any possibility of judging these crimes. And none other than La Falange, the fascist party, still legal in Spain, and other allied forces brought Judge Garzón to the Supreme Court to stand trial. The Supreme Court accepted the legal arguments and recently started proceedings against Judge Garzón. A few days ago, January 24, this judge had to sit in front of the Supreme Court for daring to ask the Spanish state to find and honor the disappeared ones and find those responsible for their killings. It started a process unique in Europe at this time where a judge defending human rights, freedom and democracy is put on trial for upholding the honor and dignity of democratic forces. This trial is an offense to all democratic persons in the world and a mobilization of protest should occur worldwide against what is occurring in Spain at this time. VINCENT NAVARRO, Professor of Public Policy, The Johns Hopkins University. He is a contributor to Hopeless: Barack Obama and the Politics of Illusion, forthcoming from AK Press. TweetEmail Article printed from www.counterpunch.org: http://www.counterpunch.org URL to article: http://www.counterpunch.org/2012/01/31/the-trial-of-judge-baltasar-garzon/ Click here to print.

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DuPage women get 10 years each in mortgage scam Art BarnumTribune reporter Two DuPage businesswomen who illegally used money from customers at their Wheaton title company for their personal use each were sentenced today to 10 years in prison and ordered jointly to pay $1.8 million in restitution.Pamela Williams, 58, of Darien, and Patricia Johnson, 57, of Naperville, pleaded guilty in April to 10 counts of theft, stemming from their operation of the PLM Title Company from 2005 to 2008. The pair would facilitate homeowners seeking a refinanced mortgage and were supposed to take the funds issued by a new mortgage lender and pay off a customer’s first mortgage.Assistant DuPage County State’s Attorney Diane Michalak said that the pair “ran the business into the ground” and used their customers’ money to pay off credit cards bills and pay for personal expenses, like Williams’ daughter’s wedding at a DuPage country club, upkeep of a trailer at a Indiana lakeside, and refurbishing Johnson’s home kitchen with new cabinets.Michalak said that many of their former clients still own double mortgages on their homes and have not recovered from their financial loss, while some have received insurance settlements after many months of paying double mortgages.“You should be ashamed of your pitiful, disgusting, shameful behavior,” said Judge John Kinsella. “One iota of common sense in your brain should have made you realize what you were doing.”Mark Kowalczyk, Johnson’s defense attorney, said, “The collapse of the real estate market caught these ladies off guard. They were intending to pay off.”Michalak acknowledged that the downturn of the real estate market in 2007 had an adverse effect, “but when that crash happened, they just stole more money.” Several victims testified that they paid off two mortgages for extended periods of time, with some getting insurance settlements and others still waiting for help.Jocelyn Cole, of Chicago, testified, “I still have two mortgages and I can’t pay the bill. I worked hard for someone to tear it all down.” Wheaton Detective David Zdan said that the firm closed its doors in 2008 after being confronted with evidence that the officials may have stolen more than $3 million that they were covering up in audits by producing counterfeit bank payments.Michalak said that the investigation showed that the pair may have illegal taken as much as $3.2 million from September 2005 until the scheme was uncovered in April 2008, and that police believe the theft may have begun as early as 2002, possibly accounting for another $3 million in stolen funds. She said that from 2005 through 2008 each of their expenses were about $9,000 to $10,000 a month more than their income.Both Williams and Johnson were eligible for prison terms from four to 15 [email protected]

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William A. Schabas. Genocide in International Law. Cambridge: Cambridge University Press, 2000. xvi + 624 pp. $175.00 (cloth), ISBN 978-0-521-78790-1. Reviewed by Daryl Mundis (Legal Officer, Office of the Prosecutor, International Criminal Tribunal for the former Yugoslavia) Published on H-Genocide (January, 2002) The views expressed herein are solely those of the author and are not attributable to the United Nations, ICTY or Office of the Prosecutor. A recent exchange on the genocide list focused on whether lawyers "have a monopoly over the use of the term 'genocide'"? That is, should the legal definition of genocide prevail over definitions used by social scientists or historians, on the grounds that genocide is a crime? Of course, this rhetorical question cannot be answered. Professor William A. Schabas, the Director of the Irish Centre for Human Rights and Professor of human rights law at the National University of Ireland, Galway, has done an outstanding job in presenting, in one volume, the legal aspects of the "crime of crimes." In fact, this book represents the first treatise on the international law of genocide in more than two decades. In light of the numerous legal developments concerning the development of the law of genocide, this book will prove to be a welcome addition to the library of any genocide scholar and international legal practitioner. The author has hit on the main points that a lawyer would analyze in undertaking an examination of allegations of genocide. He first addresses the historical origins of the Genocide Convention, including the negotiating history. He then thoroughly examines the groups protected by the treaty, the physical (actus reus) and mental (mens rea) elements of genocide, and the defences to genocide. He also addresses the prosecution of genocide by international and domestic tribunals and the fascinating issues of state responsibility and the role of the International Court of Justice. He concludes with chapters on the prevention of genocide and treaty law questions raised by the Genocide Convention. As a useful tool for historians, this volume also includes the three principle drafts of the Genocide Convention, permitting scholars to examine the nuances leading to the conclusion of the treaty. There are two legal venues in which genocide allegations may be advanced: claims by State X that State Y committed genocide against the nationals of either State X or State Y, or allegations that individuals committed genocide. The former involves suits filed by States at the International Court of Justice in The Hague. The latter may involve criminal prosecutions before the International Criminal Tribunal for the former Yugoslavia (ICTY) or the International Criminal Tribunal for Rwanda (ICTR), before national courts (as in the recent case in Belgium concerning four individuals convicted of committing genocide in Rwanda) or, in the future, before the International Criminal Court (ICC). This book explores both types of legal actions. The focus of the book is correctly on criminal prosecutions, with the case law of the ICTY and ICTR forming the basis for the analysis. Of the two ad hoc tribunals, the jurisprudence of the ICTR is the more important, given the number of genocide cases that that tribunal has adjudicated. The ICTR has tried nine genocide cases and there are more than 40 individuals awaiting trial on genocide, while the ICTY has only completed two trials involving genocide charges.[1] The law concerning genocide is relatively simple in theory, although highly complex and difficult to prove in a court. Schabas does a good job of taking the reader through the elements, or legal ingredients which must be proven to establish genocide. In the context of a criminal prosecution, the accused must commit one of the prohibited acts against a member of the protected group with the specific intent to destroy, in whole or in part, the members of that group as such. The author carefully and thoughtfully describes each of these elements, rendering this complex legal topic easily manageable for the non-lawyer, while satisfying the lawyer by providing extensive support for each proposition, through citations to the case law and negotiating history of the treaty. A quick perusal of the table of contents demonstrates the thorough treatment which Schabas provides. The most difficult element, of course, is the mental state of the accused, the mens rea. It is extremely difficult to establish that a defendant has the specific intent to destroy the members of a group. Perpetrators usually do not manifest such an intent, and thus the prosecutor is usually left with urging the judges to draw such an inference from the evidence of either the context in which the genocide occurs (including the knowledge of the perpetrator with respect to these contextual elements) or the specific acts of the accused. In at least one area, Schabas has anticipated a development in the law of genocide. He presents an eleven-page discussion on motive (pp. 245-256), tracing the negotiating history of the Genocide Convention and briefly analyzing the relevant case law. The jurisprudence of many jurisdictions, including the ad hoc Tribunals, makes it clear that motive is irrelevant with respect to criminal law. For example, in the Tadic Appeals Judgement, the Appeals Chamber, in the context of crimes against humanity, stated that "purely personal motives" are irrelevant.[2] Schabas writes that while genocide must be "motivated by hatred of the group...[i]ndividual offenders should not be entitled to raise personal motives as a defence to genocide, arguing for instance that they participated in an act of collective hatred but were driven by other factors" (p. 255). The Appeals Chamber in the recently decided Jelisic case, had the following to say about motive: "The personal motive of the perpetrator of the crime of genocide may be, for example, to obtain personal economic benefits, or political advantage or some form of power. The existence of a personal motive does not preclude the perpetrator from also having the specific intent to commit genocide."[3] Thus, the author, based on his extensive knowledge of the law, "predicted" what the court, in interpreting that law, would decide. Two very minor points detract from an otherwise excellent work. First, Schabas does a meticulous job of detailing the various negotiations that led to the Genocide Convention. This discussion will be of particular interest to international legal historians. However, perhaps too much attention was paid to the various national negotiating positions. For example, certain States raised the same points at numerous stages of the negotiations. The author details these discussions not only in the chapter on the negotiations, but also in his treatment of the substantive areas of the Genocide Convention as well. In this case, the desire to be thorough may be a slight distraction. Second, although Schabas should not be faulted for legal developments occurring after this book was published, he asserts that "for genocide to take place, there must be a plan, even though there is nothing in the [Genocide] Convention that explicitly requires this" (p. 207). Under the ICC Statute, the issue of an objective contextual element is indeed required. That is, there is a requirement that the genocidal conduct either (1) "took place in the context of a manifest pattern of similar conduct against that group" or (2) that the conduct "could itself effect such destruction."[4] However, Schabas fails to point out that the Prosecutor for the ICTY and ICTR has consistently argued that there is no such requirement under the statutes governing genocide trials before the ad hoc tribunals. The ICTY Appeals Chamber in the Jelisic appeal recently affirmed that proof of a genocidal plan was not an element of the crime of genocide. In that case, the Appeals Chamber held the following: "The Appeals Chamber is of the opinion that the existence of a plan or policy is not a legal ingredient of the crime. However, in the context of proving specific intent, the existence of a plan or policy may become an important factor in most cases. The evidence may be consistent with the existence of a plan or policy, or may even show such existence, and the existence of a plan or policy may facilitate proof of the plan."[5] For the victims and international community as a whole, it is, of course, unfortunate that the ad hoc tribunals face a large number of genocide cases on their dockets. It is to be hoped that Professor Schabas will keep a finger on the pulse of this judicial activity and that this volume will be kept up to date with the likely rapid judicial developments concerning genocide. If the first edition is any indication of his ability to grapple with this deceptively simple, yet very complex crime, future editions will be eagerly anticipated. As a prosecutor who has argued genocide before the ICTY, this reviewer can attest to the fact that Professor Schabas' book is one of the first sources to be consulted when questions arise about the international crime of genocide. [1]. See Prosecutor v. Jelisic, Case No. IT-95-10-A, Judgement, Appeals Chamber, 5 July 2001, available at: <http://un.org/icty/brcko/appeal/judgement/index.htm>, para. 49 [hereinafter "Jelisic Appeal"]. The case of General Krstic (involving Srebrenica) has been completed and is awaiting judgement. In addition, the ICTY commenced a prosecution against Dr. Milan Kovacevic in 1998, but the accused died of a heart attack after the 11th day of his trial. Also, the ICTY Prosecutor advanced genocide charges against Dusko Sikirica for his alleged role as commander of the Keraterm Camp in Prijedor, Bosnia Herzegovina in 1992. However, following the presentation of the prosecution case, the Trial Chamber acquitted the accused on these charges. The reviewer was one of the trial attorneys in this case. [2]. Prosecutor v. Tadic, Case No. IT-94-1-A, Judgement, Appeals Chamber, 15 July 1999, available at: <http://un.org/icty/tadic/appeal/judgement/index.htm>, para. 270. [3]. Prosecutor v. Jelisic, Case No. IT-95-10-A, Judgement, Appeals Chamber, 5 July 2001, available at: <http://un.org/icty/brcko/appeal/judgement/index.htm>, para. 49 [hereinafter "Jelisic Appeal"]. [4]. UN Document PCNICC/2000/INF/3/Add.2, 6 July 2001, p. 6. [5]. Jelisic Appeal, para. 48. If there is additional discussion of this review, you may access it through the network, at: https://networks.h-net.org/h-genocide. Citation: Daryl Mundis. Review of Schabas, William A., Genocide in International Law. H-Genocide, H-Net Reviews. URL: http://www.h-net.org/reviews/showrev.php?id=5804

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Home › News › Martin Guggenheim '71 joins amicus brief in Supreme Court adoption case NYU LAW NEWS Martin Guggenheim '71 joins amicus brief in Supreme Court adoption case Martin Guggenheim ’71, Fiorello LaGuardia Professor of Clinical Law, joined an amicus brief, along with other attorneys serving as counsel for child welfare organizations, in the case Adoptive Couple v. Baby Girl, which the U.S. Supreme Court heard earlier this month. The case involves the South Carolina Supreme Court’s interpretation of the Indian Child Welfare Act (ICWA). That court ruled to dismiss an adoption proceeding filed by a South Carolina couple. The couple, who are not Native American, took custody of the child three days after her birth in September 2009 and subsequently moved her from Oklahoma back to their home in South Carolina. Four months later the child’s biological father, a member of the Cherokee Nation, who had been estranged from the birth mother, was notified of the couple’s intention to adopt. Although he had previously renounced his parental rights, he had done so under the assumption that the biological mother would raise his child, so after learning of the adoption he began an attempt to regain custody. Now the Supreme Court must consider whether an unwed biological father can use the ICWA, a federal law, to block the adoption of his daughter and have her returned to him permanently; the law’s original intent was to address the high rate of removal of Native American children from their homes and, at the same time, from their tribal culture, since the majority went to non-Native American families. Following the ruling of the South Carolina Supreme Court, the adoptive couple turned the girl over to the father’s custody at the end of 2011; she currently remains with him. The amicus brief argues in support of the biological father, asserting that “the child welfare standards embodied in ICWA enforce the best child welfare practices of transparency, stability, and supporting, developing, maintaining, and preserving the relationships between children and their loving and fit birth parents, up until the moment that those birth relationships are permanently severed and a new family is created.” Related Link"Family Defense Clinic helps win justice for young mother" NYU Law website, 4/8/13

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Learn More About Transportation Law in Moline, Illinois Hometransportation lawillinoismoline Moline is a city located in Rock Island County, Illinois, United States, with an estimated population of 43,016 in 2007. Moline is one of the Quad Cities, along with neighboring East Moline and Rock Island in Illinois and the cities of Davenport and Bettendorf in Iowa. The corporate headquarters of Deere &amp; Company is located in Moline, as is Quad City International Airport, Black Hawk College, and the Quad Cities campus of Western Illinois University. Moline is a retail hub for the Illinois Quad Cities, as Southpark Mall and numerous big box shopping plazas are located in the city. In the mid-1990s, the city undertook major efforts to revitalize its central business district, which had thrived throughout the 1950s and 1960s but thereafter fell into decline. Today, Moline's downtown again serves as one of the civic and recreational hubs of the Quad Cities, with many events taking place at the 12,000-seat i wireless Center (formerly known as the Mark of the Quad Cities) and at John Deere Commons. Transportation Law Lawyers In Moline Illinois What is transportation law? Transportation Law includes regulations for operators, vehicles and infrastructure; as well as the contract of carriage, regulations and relation between the carrier and passenger in public transport, shipper and cargo owners. Attorneys who practice transportation law represent individuals and businesses in cases involving most aspects of travel and commerce on the ground, in the air, and on the water -- including regulation of private and commercial vehicles, aircraft, and vessels; compliance with transportation safety standards; and oversight of commercial freight shipment activity. Federal court opinions concerning transportation law in Illinois 614 F2d 990 Chrome Plate Inc Chrome Plate Inc v. District Director of Internal Revenue 621 F2d 865 Foglesong v. Commissioner of Internal Revenue Hometransportation lawillinoismoline

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You are here: Parliament home page > Parliamentary business > Publications and Records > Hansard > Commons Debates > Public Bill Committee Debates > Standing Committee on Bills Proceeds of Crime Bill Mr. Ainsworth: I am afraid that I do not agree. As I said, normal civil proceedings have the potential to do serious damage to people's or businesses' reputations. Despite the potential for that damage, until now, Parliament has decided that, in general, court decisions should be taken in open court, and that justice should be seen to be done as well as being done. The hon. Gentleman is asking for an exception and a predisposition—at least, when certain issues are exposed—that would allow for private hearings. Such matters are best left to the court; it is perfectly capable of listening to representations and making decisions. We ought not to seek to limit the court's discretion, or to depart from the normal civil procedure rules. The amendment should be withdrawn. Mr. Grieve: I am sorry that the Minister takes that approach. I was prepared to be flexible, although a serious issue is at stake. In last Tuesday's debate, the hon. Member for Redcar (Vera Baird) highlighted the potentially damaging impact that such a process could have on people. Other hon. Members have made similar points—and some of them are also Government Members. I accept that the presumption in favour of public hearings is an important principle. I listened carefully to the Minister's arguments, and he has come close to persuading me—for instance, in serious cases in which individuals are accused of personally possessing the proceeds of their own unlawful conduct, I agree that important public policy issues must be taken into account, and that justice should be seen to be done, and that the seriousness of the allegation should be considered. As he knows, I have anxieties about the test that will be applied, and the nature of the proceedings, but I can see the argument for conducting such proceedings in public—unless the court decides that there are compelling reasons not to do so. However, as the Minister has stated, unusual cases will arise in which proceedings are brought against a person who, it is acknowledged at the outset, is either a bona fide purchaser or the innocent recipient of money. In such circumstances, it would be extraordinary if even the court were left with the discretion to decide whether the proceedings should be public or private. I can see no public policy reasons whatever why that should not be a private process, unless the person being subjected to it wishes otherwise. Vera Baird (Redcar): I understand the cause for concern. I wish to recruit an argument that I made yesterday. An accountant might be a named party in such proceedings, and he might be found to have behaved wholly properly. However, during the proceedings, the publicity that attaches to him could be very damaging to the confidence that his other clients might have in him as an honest accountant. I also advocated that there should be a code of practice for the director of the Assets Recovery Agency, which I likened to the code of conduct for Crown prosecutors. That code might include a duty for the director, in advance of bringing proceedings that involve an innocent third party, to consider whether he might wish to make an application to the court for the proceedings to be held in private, because, although my hon. Friend the Minister is absolutely right that the court has that discretion, it would be much more likely to exercise it if the application were to come from both sides. Furthermore, the director might be glad to have the duty to consider that. I pray it in aid again as a suggestion that there should be a guide. Mr. Grieve: I am very grateful to the hon. Lady. At lunchtime, when I reread the remarks that she made on Tuesday, they immediately brought to mind her Column Number: 690 comment about the code of conduct. That was an unfortunate consequence of not having a chance to reread Hansard before this morning's proceedings, because I would have raised that issue when closing my submissions on the amendment that we were only halfway through discussing. She made an important point. It slipped my mind when I made my closing remarks about the balance of probabilities. If such a code were offered and details were provided, it would be good grounds for no longer having such an anxiety. I agree entirely with the hon. Lady about the code if it provided that the director must pay due regard to the need for privacy in cases when an individual's interests may be damaged and, included within that, the nature of the director's case against that individual in seeking to recover the particular assets. When such a code was set up, one could easily have a joint application to the court when the director said, ''We fully accept that, although we are seeking to recover money from this particular individual, this is not a case in which he has personally committed unlawful conduct. Although we believe that the assets should still be recovered, we would support his application that the matter be dealt with in chambers, because he falls within the category of an innocent recipient.'' That would go a long way towards solving the problem. I shall give the Minister an opportunity to say that he is minded to go along with our proposal. Mr. Ainsworth: I am enormously aware of the fact that the hon. Gentleman, as well as my hon. Friend the Member for Redcar, has experience of matters that I do not have, but surely he accepts that there is a code. It is the civil procedure rules. It is our desire that those rules should apply absolutely to the director. They will govern him and everyone else. The hon. Gentleman is suggesting that there should be a separate code, other than the civil procedure rules, that applies specifically to such cases and to no other civil recovery cases. I am stretching for the justification for such an argument. Mr. Grieve: The justification starts with the premise that the proceedings are, by their very nature, unusual. What generally goes on in civil courts is the litigation of individual rights between individuals—claims by one individual or corporation against another. Here, we are talking about a state-sponsored mechanism for recovering assets from an individual. Furthermore, as the Minister has accepted, we are discussing the recovery of assets that need not otherwise be impugned either by the taint of criminality—because no criminal charge has been brought—or by a claim of any other individual. There may be cases when the money has also been claimed by another individual as the assets of crime, but that is not necessarily the case. In those circumstances, surely we are much closer to the processes that take place before the special commissioners of income tax than to ordinary court procedure. I have serious doubts about importing ordinary civil rules to that procedure under the Bill, because it does not bear much resemblance to the Column Number: 691 rules. I am not sure that the discretion under part 39 of the civil procedure rules is helpful, although the courts might starting making use of it. I do not know about the experience of other members of the Committee who have practised in legal matters, but I have never taken a civil case in which the court sat in chambers unless it was specified in the rules that that was the ordinary practice, as it is in family law work, for example. I have heard of cases in which the court has gone in camera to hear evidence that is particularly difficult or sensitive. I can apply only my own experience, and I have not encountered that, although other hon. Members who are solicitors or barristers with practising certificates may have knowledge that I do not. I am concerned that, unless the habit develops over time, courts will follow their usual practices and matters will be heard in open court. As the procedure is between the state and a person, the state, through the director of the Assets Recovery Agency, has particular responsibility to act in a totally fair manner and to have regard to the impact that proceedings will have on innocent people. That is different from the adversarial system, which sets one civil litigant against another. Parliament and the Government could lay down a sensible rule. That rule might not have to be as broad as the one that I suggest, but I urge the Minister to go away and speak to his advisers. He should think about the matter and consider whether he is prepared to return with a concession that could mete out the justice needed in such cases. So far, he has not given an inch, and in light of that I intend to press the amendment to a Division. I will also come back on Report with a slightly different proposal that may commend itself to him more than the broad amendment currently proposed. I regret that, in the absence of any concessions or indications that the Minister will do anything about the matter, I want to press the amendment to a Division. Question put, That the amendment be made:— The Committee divided: Ayes 6, Noes 13. Division No. 16] Carmichael, Mr. Alistair Field, Mr. Mark Grieve, Mr. Dominic Hawkins, Mr. Nick Wilshire, Mr. David Ainsworth, Mr. Bob Baird, Vera Clark, Mrs. Helen David, Mr. Wayne Foulkes, Mr. George Harris, Mr. Tom Lazarowicz, Mr. Mark Lucas, Ian McCabe, Mr. Stephen McGuire, Mrs. Anne Stinchcombe, Mr. Paul Stoate, Dr. Howard Mr. Grieve: I beg to move amendment No. 355, in page 146, line 17, at end add— '(5)The claim form must give details of the criminal offence or unlawful conduct relied upon in accordance with a code issued by the Secretary of State prior to implementation.'. The Chairman: With this it will be convenient to take amendment No. 353, in page 146, line 26, at end insert— '(2A)The application must contain details of the criminal offence or unlawful conduct relied upon in accordance with any code that may be made by act of sederunt.'. Prepared 13 December 2001

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Home > News > Publisher News AAR Urges Members to Write to DoJ Opposing Antitrust Settlement After Writers House agent and Association of Authors Representatives digital rights committee member Simon Lipskar got some traction from an open letter he wrote to the DoJ listing, in great detail, the ways in which the department's suit against publishers was misguided and ill-informed, the AAR is making public an official letter of its own.Gail Hochman, president of the group, said that on Tuesday it sent a letter to its members, as well as to the DoJ, "outlining the position of the AAR Board on the settlement, and urging members (and their clients) to write their own feelings about the settlement to the Department."The letter sent to AAR members reads as follows:Dear AAR member:I am writing to advise you that the AAR Board has unanimously voted to send the attached letter to the U.S. Department of Justice in opposition to the pending settlement with three publishers in connection with the antitrust lawsuit that the Department recently filed against Apple and five publishers. That letter was sent today. The case will continue against Apple and two of the publishers, Penguin and Macmillan, who declined to settle on the proposed terms. The AAR Board and I believe that the lawsuit, and the proposed settlement, present issues that are of critical importance to our (and our clients') industry and individual livelihoods. The DOJ must read and report to the judge, who must ultimately approve the settlement, each communication it receives commenting on the proposed settlement. For that reason, in addition to the AAR's letter we urge all AAR members to express their views on the settlement to the DOJ and we hope you will also urge your clients to do the same. Your note might address whether you feel the settlement will foster competition and well-being in the literary marketplace, or the opposite. There is a time limit for such communications, so your messages should be sent as promptly as possible. (The address is on the AAR's letter.) We believe it is tremendously important that we all be heard on this most significant issue. We believe the more letters from publishing professionals that are received, the better the chance of affecting the judge's final decision. (A link to the proposed settlement is also pasted below.)The AAR is also arranging an open forum at which we will discuss the various elements of the suit and the proposed settlement for those who would like to hear more about it and join the discussion. Details to be announced.Yours,Gail HochmanPresident, AAR

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Place an Ad This Just In Man charged in scissor assault Staff Report | January 01,2013 Police say a Tinmouth man stabbed a woman in front of their daughter and then coached the girl to lie about it.Kevin Frederick, 29, of McCoy Road, pleaded innocent Monday in Rutland Criminal Court to charges of domestic assault and interference with access to emergency services. He was released on the conditions including that he stay away from the woman and their children. If convicted, he could face a maximum of two and a half years in prison and $10,000 in fines.Police said they arrived at the family home Friday afternoon in response to a family fight complaint and found the woman “crying profusely, and physically trembling.” She said a dispute escalated to Frederick stabbing her in the forearm with a pair of scissors, according to affidavits, and unplugging the phone to keep her from calling for help before hitting himself in the head with a metal space heater.Police said the woman’s arm had several fresh puncture wounds.Frederick’s account of events, according to police, was that the woman hit him in the face and then stabbed herself with the scissors.Police said three small children were in the room for the fight, and that the oldest, an eight-year-old, initially backed Frederick’s story. However, police said that after a discussion of the difference between truth and lies, the girl told them Frederick had stabbed her mother and then told her to tell the police her mother had stabbed himself.The affidavit noted that state law allows a court to consider the presence of small children during a crime when it determines [email protected]

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THE TEXAS CONSTITUTIONARTICLE 15. IMPEACHMENTSec. 1. POWER OF IMPEACHMENT. The power of impeachment shall be vested in the House of Representatives. Sec. 2. TRIAL OF IMPEACHMENT OF CERTAIN OFFICERS BY SENATE. Impeachment of the Governor, Lieutenant Governor, Attorney General, Commissioner of the General Land Office, Comptroller and the Judges of the Supreme Court, Court of Appeals and District Court shall be tried by the Senate. (Amended Nov. 7, 1995.) Sec. 3. OATH OR AFFIRMATION OF SENATORS; CONCURRENCE OF TWO-THIRDS REQUIRED. When the Senate is sitting as a Court of Impeachment, the Senators shall be on oath, or affirmation impartially to try the party impeached, and no person shall be convicted without the concurrence of two-thirds of the Senators present. Sec. 4. JUDGMENT; INDICTMENT, TRIAL, AND PUNISHMENT. Judgment in cases of impeachment shall extend only to removal from office, and disqualification from holding any office of honor, trust or profit under this State. A party convicted on impeachment shall also be subject to indictment, trial and punishment according to law. Sec. 5. SUSPENSION PENDING IMPEACHMENT; PROVISIONAL APPOINTMENTS. All officers against whom articles of impeachment may be preferred shall be suspended from the exercise of the duties of their office, during the pendency of such impeachment. The Governor may make a provisional appointment to fill the vacancy occasioned by the suspension of an officer until the decision on the impeachment. Sec. 6. JUDGES OF DISTRICT COURT; REMOVAL BY SUPREME COURT. Any judge of the District Courts of the State who is incompetent to discharge the duties of his office, or who shall be guilty of partiality, or oppression, or other official misconduct, or whose habits and conduct are such as to render him unfit to hold such office, or who shall negligently fail to perform his duties as judge; or who shall fail to execute in a reasonable measure the business in his courts, may be removed by the Supreme Court. The Supreme Court shall have original jurisdiction to hear and determine the causes aforesaid when presented in writing upon the oaths taken before some judge of a court of record of not less than ten lawyers, practicing in the courts held by such judge, and licensed to practice in the Supreme Court; said presentment to be founded either upon the knowledge of the persons making it or upon the written oaths as to the facts of creditable witnesses. The Supreme Court may issue all needful process and prescribe all needful rules to give effect to this section. Causes of this kind shall have precedence and be tried as soon as practicable. Sec. 7. REMOVAL OF OFFICERS WHEN MODE NOT PROVIDED IN CONSTITUTION. The Legislature shall provide by law for the trial and removal from office of all officers of this State, the modes for which have not been provided in this Constitution. Sec. 8. REMOVAL OF JUDGES BY GOVERNOR ON ADDRESS OF TWO-THIRDS OF EACH HOUSE OF LEGISLATURE. The Judges of the Supreme Court, Court of Appeals and District Courts, shall be removed by the Governor on the address of two-thirds of each House of the Legislature, for wilful neglect of duty, incompetency, habitual drunkenness, oppression in office, or other reasonable cause which shall not be sufficient ground for impeachment; provided, however, that the cause or causes for which such removal shall be required, shall be stated at length in such address and entered on the journals of each House; and provided further, that the cause or causes shall be notified to the judge so intended to be removed, and he shall be admitted to a hearing in his own defense before any vote for such address shall pass, and in all such cases, the vote shall be taken by yeas and nays and entered on the journals of each House respectively. Sec. 9. REMOVAL OF PUBLIC OFFICER BY GOVERNOR WITH ADVICE AND CONSENT OF SENATE. (a) In addition to the other procedures provided by law for removal of public officers, the governor who appoints an officer may remove the officer with the advice and consent of two-thirds of the members of the senate present.(b) If the legislature is not in session when the governor desires to remove an officer, the governor shall call a special session of the senate for consideration of the proposed removal. The session may not exceed two days in duration. (Added Nov. 4, 1980.)

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Lawsuit looms in Groton case where schoolchild had towel stuck in mouth By Chuck Potter Day Staff Writer Groton - The mother of a fourth-grade student at Northeast Academy Elementary School is suing the child's teacher for allegedly bullying her son by making him stuff a paper towel in his mouth to keep him from talking. Attorney James A. Hall IV of Pawcatuck filed a letter of intent to sue April 10. The letter names the teacher, Carole Van Erven, Superintendent of Schools Paul J. Kadri, and the principal and vice principal of the school. Hall contends the student and others suffered injuries caused by negligence and carelessness when Van Erven violated the law and policies "by using her position of power and authority ... to repeatedly bully students by ordering (them) to hold the paper towels in their mouths to publicly punish, ridicule and humiliate the student in the presence of the other students." Hall said Van Erven also told at least one student that telling anyone or complaining about the incident could result in suspension. Hall said the school administration was also irresponsible in the course of investigating the incident. Hall said the investigation took place, in part, during the school day while students and Van Erven were in the classroom. He said students were taken from the classroom and questioned. Upon their return to the class, he said, Van Erven asked them what questions were asked and how they answered. Hall also contends that his clients were damaged by Kadri's version of events, which Hall described as a "public campaign to restate and distort the facts ... to protect Van Erven and the board of education." He alleged that the administration, including Kadri, "publicly began asserting that the paper towels were placed between the students lips like a duck bill rather than crumpled into a wad and put into the students' mouths." In a March 20 letter to parents of the students who were not subjected to the paper towels, Principal Paul Esposito said the children were "asked to put a crumpled up paper towel in their mouth and keep it there for five minutes." Esposito called the incident "unfortunate" and "regrettable." Van Erven, a 20-year-teacher at the Mystic elementary school, was put on administrative leave when the incident came to light last month. Kadri said the teacher was facing disciplinary action but declined to elaborate on the details of that action, calling it a personnel matter. Kadri said Van Erven used poor judgment but is an "outstanding" teacher who has done "outstanding" things throughout her teaching career. Kadri said Van Erven had apologized to the students. [email protected] Mother sues school, town over paper towel incident

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Counsellor appears in court ROB TRIPP 6:10:00 EDT AM Life on the other side of the bars appears to have taken a toll on a prison psychologist jailed on charges of aiding the escape of a murderer.Erin Danto, 35, appeared in a Kingston courtroom yesterday by video link from the Quinte Detention Centre, where she spent the weekend after her arrest last Thursday.She stared blankly at the camera and screen as lawyers and the justice of the peace discussed her case in the Kingston courtroom.Danto appeared bewildered or disoriented and stood with her head tilted slightly to the side. When justice of the peace Cathy Hickling told her she would appear by video again today at 1 p. m., and asked if she understood, Danto did not speak.The justice also imposed a no-contact order, forbidding her from communicating with Andrew John Wood, the 42-year-old killer with whom she was caught last week. Investigators believe she had a romantic relationship with Wood.Danto is charged with helping Wood escape from Frontenac Institution, the minimum-security prison where she works counselling convicts.Wood also appeared from Quinte yesterday by video link. His case was put over for another video appearance on July 6. He is charged with escaping lawful custody.He was ordered not to communicate with Danto, who is being held in a segregated area of Quinte, away from the general population.Court heard yesterday that Danto's mother is coming to Kingston from Pennsylvania.Danto, who holds American citizenship, is from Butler, Pa., a small community of about 15,000 people just north of Pittsburgh.She has been working at Frontenac Institution for roughly a year and she also provided counselling services at a private practice in Belleville, theWhig-Standard learned.Authorities are expected to seek to have her held behind bars, out of concern she would flee Canada.In addition to two escape-related charges, she's also charged with breach of trust and with obstructing police.Danto and Wood were caught in a car on Bedford Road in South Frontenac Township, about 30 kilometres north of Kingston, last Thursday night.Wood had walked away from Frontenac Institution on June 13.He's serving a life sentence for second-degree murder with no chance of parole for 15 years. In 1989, he shot a former friend to death.He was eligible to seek full parole in 2004. The National Parole Board has turned him down for day parole three times because he has not provided a credible account of the murder. St. Lawrence College Summer Accommodations RealtySource - Isabel Rovinelli Avanta Salon and Spa

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Ruling Aids Access to Public Records | Tully Rinckey PLLC Home | News | Ruling Aids Access to Public Records PDFPrintEmail to Friend Ruling Aids Access to Public Records | Next Post Posted on October 26, 2011 The state’s top court, in a stern ruling Tuesday that put all governmental agencies on notice in the handling of Freedom of Information requests, settled a four-year-old case involving names and addresses of veterinarians in Schenectady County. In its unanimous opinion, the Court of Appeals lashed out at the state Department of Education, which licenses veterinarians, for not complying with a request from the Schenectady County Society for the Prevention of Cruelty to Animals, affirming a ruling of a mid-level appellate court that the SPCA had the right to the information it sought. Further, the top court said it was at a loss as to why the case was even litigated. The society wanted the names of vets and veterinary technicians in the county so as to “tell people in the animal community who we are, what we do and how to reach us,” said attorney Mathew Tully, last year after the relatively new animal-protection organization’s suit was successful by a 3-2 vote by the Appellate Division of state Supreme Court. It then went to the Court of Appeals. On Tuesday, Tully called the victory “a full-frontal attack on state agencies who ignore FOIL,” the state’s Freedom of Information Law. The ruling is a “big win for people who are seeking transparency in government.” It also could affect some 800,000 people in various occupations licensed by the state Education Department, said Tully, a principal in the firm of Tully Rinckey. Tully is chairman of the SPCA board of directors and its chief humane law enforcement officer. “We hold that an agency responding to a demand under the Freedom of Information Law may not withhold a record solely because some of the information in that record may be exempt from disclosure,” began the five-page opinion written by Associate Judge Robert S. Smith. “Where it can do so without unreasonable difficulty, the agency must redact the record to take out the exempt information.” The SPCA wanted to do a mass mailing to about 72 veterinarians and veterinary technicians in Schenectady County. The state Education Department said it would only provide the names and not addresses because the agency couldn’t ascertain whether the addresses were business or personal and expressed concern of an unwarranted invasion of privacy. Many licensed professionals operate out of their homes, the agency noted. “We didn’t ask for home addresses,” Tully said. “We just asked for addresses, and the state couldn’t determine if it was home or business.” While the agency said its database didn’t distinguish between addresses, the agency “does not claim that it would be hard to find out, by communicating with the licensees, which addresses are homes and which are businesses,” the opinion stated. “This should not be a burdensome task” because 72 was the number given at the oral arguments. The Appellate Division noted last year the state agency could have heeded the 2006 opinion from the state Committee on Open Government. That decision, written by its executive director, Robert Freeman, said licensee records are subject to FOIL, and licensees should be told when renewal notices go out that addresses are subject to disclosure. The seven members on the top court were “at a loss to understand why this case has been litigated,” was how Smith concluded the opinion. “It seems that an agency sensitive to its FOIL obligations could have furnished petitioner a redacted list with a few hours effort, and at negligible cost. Instead, lawyers for both sides have submitted briefs and argued the case in three courts, demanding the attention of 13 judges, generating four judicial opinions and resulting in a delay in disclosure of almost four years. It is our hope that the department, and other agencies of government, will generally comply with their FOIL obligations in a more efficient way.” The court awarded attorneys’ fees to his law firm, according to Tully, “because it was almost as if this case was frivolous in their defense of it.” But Tully said he has a suggestion that would save taxpayers money. If the state Education Department would buy the SPCA an animal-control van for about $40,000 and an investigative car for about $20,000, the law firm would waive the remaining attorneys’ fees, which Tully estimated to be at least $100,000. “It’s going for a good cause,” he said. “It’s to help animals and finally put a conclusion to this four-year disaster of a legal battle.”

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Court records show woman set to admit ex-boyfriend's murder | New Hampshire Contact us November 21. 2012 9:10PM Nicole LeBlanc, of Londonderry is shown during her appearance in 10th Circuit Court in Derry in February. She is expected to return to court Dec. 28 to enter a guilty plea. (FILE PHOTO) Court records show woman set to admit ex-boyfriend's murder BRENTWOOD - A Londonderry woman charged with shooting to death her ex-boyfriend has struck a plea deal with state prosecutors prior to being indicted on murder charges, according to court records. Nicole LeBlanc, 39, is returning to court on Dec. 28 to admit to killing Richard Mannion Jr. of Sandown earlier this year while he slept in his own bed, according to court documents. Terms of the plea deal have not been made public, so for now it remains unknown whether LeBlanc will be allowed to plead guilty to a lesser charge. She is charged with first-degree murder, which carries of a term of life in prison without the possibility of parole. Judge Marguerite Wageling has scheduled a two-hour plea-and-sentencing hearing to resolve the case.Mannion, a divorced father of four, was found dead inside his Sandown home around 5 p.m. on Jan. 14 by his current girlfriend, according to state police. State police used a wiretap on Feb. 21 to record LeBlanc confessing to a friend over the phone that she killed Mannion, took his cell phone and searched his computer after the murder, according to a police affidavit. "In those conversations, LeBlanc stated directly that she had shot and killed the victim," state police Sgt. Joseph Ebert said in a sworn affidavit. "LeBlanc also detailed how she had entered the victim's house and had killed him."Court records suggest that LeBlanc may have undergone a mental evaluation earlier this year. Her public defenders filed a sealed motion in Rockingham County Superior Court on April 20 requesting funds to pay for the services of a forensic psychologist, court records say. Wageling approved the request. State prosecutors then asked Wageling for an extension twice in seeking an indictment against LeBlanc. Months before LeBlanc was charged with murder, she had been ordered by a judge to stay away from Mannion. LeBlanc was convicted of simple assault from an incident involving Mannion last August. She twice violated a no-contact order by appearing at Mannion's home in Sandown on Dec. 25 and Dec. 28, the affidavit says.State police say LeBlanc had stolen the murder weapon, a handgun, from her friend Dennis Johnson.Johnson, who has not been charged in the case, agreed to work with police after disposing of some evidence and hiring a lawyer, according to a police affidavit.Police say that Johnson elicited details from LeBlanc during the phone call in which she admitted to the murder. Mannion's body was found in his bed with a single gunshot wound to the back of the head, the affidavit says. Police believe the murder happened in the early morning hours, because Mannion's cell phone shows he was sending text messages until about midnight, court documents show.- - - - - - - -James A. Kimble may be reached at [email protected]..

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n Acta Criminologica: Southern African Journal of Criminology - Prison overcrowding in Namibia : the problem and suggested solutions Sufian Hemed Bukurura Rent: Rent this article for Abstract Full Text Metrics Related Content Abstract For years overcrowding in prisons has been a problem in many countries. In the past, prison officials could afford to ignore it as being part of the hardship prison inmates were expected to endure in consequence of prison sentences. Today, prison administrators recognise that despite imprisonment, prison inmates enjoy some fundamental rights that have to be protected and respected, and that their welfare needs to be maintained within acceptable levels. These ideals cannot be achieved where prison facilities accommodate more prison inmates than they were established for. Although concerned prison administrators may attempt to deal with the problem within the constraints of their own means and powers, in most cases they choose to draw the attention of their governments to how the problem can be alleviated. In Namibia, overcrowding in prisons has not reached alarming proportions compared to what it is in some neighbouring countries. Officials in the Namibian Prison Service are concerned, however, not only with imprisonment trends but also the number of awaiting trial prisoners that is currently held in police cells. It is for that reason that the introduction of community service, as a mechanism for dealing with short-term offenders who do not deserve to be sent to prisons, is being considered. The article seeks to highlight the problem of overcrowding in prisons in some countries (South Africa, Tanzania, Uganda and Zimbabwe) as a way of sensitising policy makers on the importance of taking the decision before the situation gets out of control. The article briefly examines how perceptions of crime and punishment have changed over time, outlines the causes of prison overcrowding and shows, with statistics, the extent of the problem in selected countries. A case for community service, as an option for short-term imprisonment, is made giving the example of successes achieved in Zimbabwe. The article also highlights on potential limitations that have to be borne in mind, and dealt with, if community service is to succeed. /content/crim/16/1/EJC28755 http://sabinet.metastore.ingenta.com/content/crim/16/1/EJC28755

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Submit Search Federal Bureau of Investigation Georgia Man Pleads Guilty to Wire Fraud, Money Laundering, and Theft Charges Middle District of Pennsylvania Georgia Man Pleads Guilty to Wire Fraud, Money Laundering, and Theft Charges HARRISBURG—The United States Attorney’s Office for the Middle District of Pennsylvania announced today that Jorge Salazar, age 57, of Georgia pleaded guilty on Wednesday, July 29, 2015, to wire fraud, money laundering and aggravated theft charges before United States District Court Judge Sylvia H. Rambo in Harrisburg. According to United States Attorney Peter Smith, the charges against Salazar were a result of a fraudulent investment scheme he carried out in Adams County, Pennsylvania from 2012 through 2014. The investment scheme netted about $360,000. The investigation was conducted by the Federal Bureau of Investigation, the Internal Revenue service, Criminal Investigations, and the Pennsylvania State Police. The case is being prosecuted by Assistant United States Attorney Joseph J. Terz. A sentencing date has not yet been set. Indictments and Criminal Informations are only allegations. All persons charged are presumed to be innocent unless and until found guilty in court. A sentence following a finding of guilt is imposed by the Judge after consideration of the applicable federal sentencing statutes and the Federal Sentencing Guidelines. The maximum penalty under federal law is 42 years of imprisonment, a term of supervised release following imprisonment, and a $750,000 fine. Under the Federal Sentencing Guidelines, the Judge is also required to consider and weigh a number of factors, including the nature, circumstances and seriousness of the offense; the history and characteristics of the defendant; and the need to punish the defendant, protect the public and provide for the defendant’s educational, vocational and medical needs. For these reasons, the statutory maximum penalty for the offense is not an accurate indicator of the potential sentence for a specific defendant.

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Videos/Photos Gallery Meet the U.S. AttorneySenior Management Team District Report DIVISIONSCivil Division Admin Division PROGRAMSEnforcement JOBSDiversity CONTACT USCivil Rights Hotline Citizen Complaints You are hereU.S. Attorneys » Eastern District of Michigan » News Justice News Tuesday, January 29, 2013 Former Michigan Supreme Court Justice Diane Marie Hathaway Pleads Guilty To Bank Fraud Press Conference - Former Michigan Supreme Court Justice Diane M. Hathaway Diane M. Hathaway, a former Michigan Supreme Court Justice, pleaded guilty today to committing bank fraud in connection with a property owned at 15834 Lakeview Court, Grosse Pointe Park, Michigan, United States Attorney Barbara L. McQuade announced today. McQuade was joined in the announcement by Special Agent in Charge Robert D. Foley, III of the Federal Bureau of Investigation ("FBI"), and Michigan Attorney General, Bill Schuette. During a hearing this morning before United States District Judge John Corbett O’Meara, Hathaway, 58, of Grosse Pointe, Michigan, admitted that between 2010 and 2011 she knowingly engaged in a scheme to defraud ING Direct bank by concealing assets from the bank to qualify for a “short sale.” A short sale is a forgiveness of debt by the bank to a borrower who claims financial hardship. Based on her guilty plea and felony conviction for committing bank fraud Hathaway is facing a maximum of thirty years in prison, a fine of up to $1,000,000 and up to five years of supervised release. United States Attorney McQuade said, "We have made mortgage fraud a priority in this district because of the harm this crime causes to our housing markets in the aggregate. Homeowners who play by the rules should know that those who don't will be held accountable, no matter who they are." Robert Foley, Special Agent in Charge of the FBI said, "Regardless of a person's stature or position in life, we must all follow the same set of rules. In this case, an individual in a prominent position of public trust made extremely poor choices that have resulted in criminal activity. The FBI is committed to stopping these illegal acts." Michigan Attorney General Bill Schuette said, “"Public corruption scandals have damaged the public's trust in government and tarnished our state's reputation. But today, we begin to move forward, beyond the cloud of controversy that hung over our state's Supreme Court. I appreciate the hard work of U.S. Attorney Barbara McQuade and FBI Special Agent In Charge Bob Foley, who brought this case to a swift and just end." This case was investigated by the FBI with assistance from Michigan Attorney General’s Office. USAO - Michigan, Eastern Updated March 19, 2015 U.S. v. Farid Fata U.S. v. Angela Patton, et.al. (BCBSM Identity Fraud) United States v. Matthew David Kuppe

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Legal Case Summaries In this sectionFederal Regulation Compliance Fericks v. Lucy Ann Soffe Trust: Statute of Frauds Does Not Bar Tort Action In this sectionFederal Regulation Compliance Utah's highest court has considered whether a real estate professional could be liable in tort for statements which were unenforceable oral modifications to a real estate contract. C. Kurt Hoffman and John A. Fericks ("Buyers") entered into an agreement to purchase property from the Lucy Ann Soffe Trust ("Seller"). Joe Goodman ("Salesperson") of Pentad Properties, Inc. ("Brokerage") represented the Seller in the transaction. The purchase agreement required an initial $5,000 down payment and an additional $10,000 earnest money payment on April 6, 2002. On March 26th, one of the Buyers contacted the Salesperson and requested an additional 30 days to make the second earnest money payment. The Salesperson stated that the Buyers should consider the extension "done" and he would memorialize the extension in writing. On April 5th, one of the Buyers contacted the Salesperson again about the extension, as the Buyers had not received the extension paperwork. The Salesperson apologized for not having obtained the written extension and stated that he would get it done today. The second deadline passed without the Seller ever granting the Buyers an extension of the deadline, and so the Salesperson notified the Buyers on April 8th that the Seller had terminated the purchase contract. On April 18th, one of the Buyers contacted a trustee of the Seller to discuss the cancellation. The trustee stated that the Salesperson had never asked the Seller for an extension of the second earnest money date. Around that time, the Buyers also learned that after they had requested an extension, the Sellers had received another offer containing a higher price as well as an earlier closing date. The Buyers filed a lawsuit against both the Seller and the Brokerage. The actions against the Seller sought performance of the purchase contract while the actions against the Brokerage alleged fraudulent misrepresentation and intentional interference with a contractual relationship. The trial court ruled that the Statute of Frauds barred the Buyers' contract claims against the Seller because the Statute of Frauds bars oral modifications to real estate contracts. The trial court also ruled because the alleged misrepresentations were oral modifications to a real estate contract barred by the Statute of Fraud, the Buyers' tort claims against the Brokerage were also barred, since the oral modifications were unenforceable. The Buyers appealed only the rulings denying their claims against the Brokerage. The Supreme Court of Utah reversed the trial court's rulings in favor of the Brokerage. The Buyers argued that the tort claims against the Brokerage should not have been dismissed by the trial court because these claims did not depend on whether or not they were enforceable contract claims. Meanwhile, the Brokerage argued that the alleged modifications to the purchase contract must be enforceable before serving as the basis for a tort claim. Looking at prior Utah case law, the court determined that when the oral contract representation is a "circumstance" of the alleged fraud, then the Statute of Frauds has no application to the tort claims. Here, the Buyers argued that the Salesperson and Brokerage had induced them to breach the purchase agreement in order to collect a higher commission from the sale to the group who made the second offer. The alleged misrepresentations about the extension were simply part of the alleged plan to induce the Buyers’ breach of the purchase agreement and so the tort claims were not barred by the Statute of Frauds. Thus, the tort claims were sent back to the trial court for further proceedings. Next, the Buyers challenged the trial court's award of attorney fees to the Brokerage. The Brokerage had collected fees based on a provision in the purchase contract which stated that if a lawsuit arose out of the purchase contract, the prevailing party in the litigation was entitled to an award of attorney fees. The Brokerage argued that, as agents of the Seller, they were entitled to enforce this provision as well. The court rejected this argument and ruled that the Brokerage had no right to enforce the purchase contract provision, no matter what happened on remand to the trial court. The contract provision only applied to the parties to the agreement and not to their agents. Thus, the court ruled the Brokerage was not entitled to the recovery of attorney's fees, even if it was the prevailing party on remand. Fericks v. Lucy Ann Soffe Trust, 100 P.3d 1200 (Utah 2004). In this section Federal Regulation Compliance

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Published on Center for Public Integrity (https://www.publicintegrity.org) Home > Badly flawed background check system fails to contain firearms sales Badly flawed background check system fails to contain firearms sales [1] Center story detailed 'instant check' system flaws By Rick Schmitt [2] June 23, 2011 Editor’s note, September 19, 2013: The tragic shootings this week at the Washington Navy Yard have rekindled debate over what more might be done to keep firearms from the hands of troubled individuals. Gunman Aaron Alexis had apparently struggled with a variety of mental health issues, but none serious enough to trigger the federal Brady Act’s existing bar on firearms purchases by those who have been ordered into mental health treatment by a judge. Lawmakers are now discussing new initiatives, but face a high bar, as legislation mandating major changes in the federal background check system died earlier this year. As the Center for Public Integrity reported in 2011, the system is plagued by a host of data problems, loopholes and disputes over just who should be barred. Like many states, Maine depends on the FBI to conduct background checks of people who want to acquire firearms from the state’s federally licensed gun dealers. And like many states, Maine is a slacker in supplying the records that the FBI depends on to run those checks. That’s how Raymond Geisel got his guns, including a Glock Model 17 pistol and a semi-automatic version of the AK-47 assault rifle. Geisel had previously been committed to a psychiatric hospital in Bangor, which made him ineligible under federal law to buy or possess a gun. But because state officials had not supplied records of his commitment to the FBI, Geisel passed background checks without being flagged. Eventually, the law caught up with Geisel. He was arrested in Miami in August 2008 for making threats against Barack Obama, who was campaigning in south Florida around the same time. Another gun that Geisel had acquired in Maine was subsequently recovered by federal agents in his hotel room, along with a combat-style hatchet, armor-piercing ammo and canisters of tear gas. The data gap that Geisel exploited should have been closed by now. Four years ago, after the massacre at Virginia Tech exposed gaps in the National Instant Criminal Background Check System (NICS), Congress and the Bush administration took decisive action to shore up the joint state-federal operation, which is supposed to keep guns away from the deranged and the dangerous. But the so-called NICS Improvement Amendments Act of 2007 has clearly not improved things much at all, an iWatch News [3] investigation found. And that’s far from the only problem. The federal background check system, conceived as a first line of defense against gun crime, remains riddled with data gaps, loopholes and disputes over just who should be barred – a troubling conclusion brought into sharp relief by the January shooting spree in Arizona that killed six and wounded 13 others, including Rep. Gabrielle Giffords. A dozen years after it went fully operational, NICS is still a patchwork operation that, despite a huge data base, often relies on massively incomplete information. Millions of pertinent documents – from mental health and drug abuse records to the case records of accused felons – remain outside the system, in boxes in courthouse basements or in legal limbo because of state and local laws that prohibit sharing with the feds. As a result, guns are getting into the hands of people who should never possess them. The mess reflects policy differences with states over which records should be supplied as well as a lack of money and political will and computer prowess to hook up aging state and federal networks. Many millions of records have been added over the years – and many millions spent on overhauling the technology to get it there. Yet officials are still far from having such basic information as a comprehensive list of everyone who is barred under the law from buying guns. One reason is because the NICS system was bootstrapped to two existing federal data bases that were not designed to conduct background checks. “We have no idea how many prohibited people there are in the United States,” says John Strong, chief of the FBI section overseeing the NICS operation, in an interview at the NICS headquarters in Clarksburg, W.Va. “We’re not even close to being able to know.” Background on background checks Federal background checks are rooted in the assassination attempt on President Ronald Reagan in March 1981 by John Hinckley Jr.; the system was authorized in 1993 in a law named for the former Reagan press secretary, James Brady, who was wounded in the attack. Until then, gun checks were left to the states; 21 continue to do their own checks at least for some guns. The federal law has 10 categories of “prohibited persons,” including felons, “mental defectives,” drug users, people subject to restraining orders and convicted of misdemeanor domestic assault, fugitives and illegal immigrants, among others. Millions of checks are done every year, but just a small fraction, between 1 and 2 percent, turn up a problem. In 2009, the latest data available, only about 150,000, or 1.4 percent, of the 10.8 million applications to purchase firearms through a federal dealer were denied, according to a study published last October by the Justice Department’s Bureau of Justice Statistics. Convicted felons account for the largest share of those rejected; persons with a record of domestic violence, while growing in recent years, are a distant second. Lying about one’s criminal history or background on the form to purchase guns is fairly common – and a federal offense – but hardly anyone is ever prosecuted. Among the 67,000 people who failed background checks conducted directly by the FBI in 2009, fewer than 70 ever faced criminal charges, a Justice Department-funded study published in April found. Justice officials cited a lack of resources. What’s more, several thousand people each year who are prohibited from buying guns are cleared to buy them anyway. That is because gaps in the FBI criminal history data base prevent examiners from completing background checks within the three-day time limit set by federal law. The impact of the Brady law is also the subject of debate. Proponents say the act is one of an amalgam of factors that has brought violent crime down over the last two decades. But some academics believe the effect has been minimal because criminals have been able to get guns from other sources. A 2004 report by the Justice Department’s Inspector General found that even agents who regularly investigate gun crime believe that most people who fail background checks are not dangerous, and that the reasons they flunk the check are minor or based on incidents that occurred years in the past. The report cited the case of a man who was rejected because of a 1941 felony conviction for stealing a pig. The actual number of people denied guns for failing a background check, while rising annually since 2004, is still down by about 25 percent from its peak in 1999, NICS' first full year of operations. During that same period, the number of records of prohibited persons in the system has increased six-fold. Experts say that adds credence to the notion that the really bad guys are getting their guns elsewhere, through unregulated or illegal sources. “The word went out, ‘You are going to be denied. You might as well find another means of getting it, either through the illicit market or through the legal non-NICS markets, such as gun shows and private transactions,’” says Alfred Blumstein, a crime expert at Carnegie Mellon University. A seemingly smooth system To be sure, NICS seems a highly efficient operation, based on the records that it does have. The NICS headquarters, four hours from Washington on a West Virginia hill top, has the look and feel of a finely honed retail operation. Operators are standing by, 17 hours a day, every day except for Christmas. More than 90 percent of the gun checks are resolved in a phone call that, on average, takes three to five minutes. The checks involve searching three different federal data bases, including a massive 58-million record FBI repository of state and federal criminal history records, and a separate system with “hot files” of fugitives and persons subject to restraining orders. A new “NICS Index” was created as a kind of default to include people who would not show up in the other files but who are prohibited from buying guns. These include the dishonorably discharged, mental defectives, illegal immigrants, among others. Thousands of checks are conducted every day, with a record 98,000 completed on the Friday after Thanksgiving in 2008. Gun sales are booming, with the volume of background checks up 14 percent through April. Dealers are initially routed through one of three call centers around the country, in Wheeling, W.Va, Barbourville, Ky., and Fort Worth, Texas, manned by contract employees who resolve about 70 percent of the checks. Calls are transferred to the FBI center in Clarksburg, W.Va., only when a would-be buyer has been flagged by a document in the system. (The contract employees do not see the actual documents because they are not FBI employees.) The case is then handed off to an FBI “legal examiner” who plumbs the record systems to figure out whether the deal can legally go through. On the surface, it is monotonous work. On a recent morning, an examiner gave the green light to a man once convicted of DWI (“not disqualifying”) and another who had been charged with narcotics possession (the charges were dismissed). A third buyer had a misdemeanor disorderly conduct charge on his record, not a disqualifying offense unless it involved domestic violence, which a quick check of the system showed, it did not. “That transaction will be a proceed,” the examiner says, over and over again. The mental health loophole The horrific April 2007 shootings at Virginia Tech focused new attention on the NICS’ lack of access to many relevant mental health records. Seung-Hui Cho murdered 32 people with guns he acquired despite a documented history of court-ordered mental health treatment – records of which never made their way into the background check system. The obstacles to accessing mental health records were numerous. State privacy laws often prohibited the sharing of documents with law enforcement, absent consent or a court order. Most states did not have a single contact person to collect the information and ship it to NICS. The FBI’s Strong said that in some states the bureau still has to check with individual psychiatric hospitals to stay on top of the latest cases. The NICS improvement act, signed by President George W. Bush in January 2008 – and supported by the National Rifle Association – theoretically provided hefty federal grants to help states overhaul their computer systems in order to get more mental health and other records into the NICS. State legislatures responded by starting to rewrite privacy laws that had limited information-sharing. Under the 2007 law, Congress authorized $875 million over five years for states willing to overhaul their systems and get records to the FBI quicker. But in the ensuing only about 5 percent of the money has actually been appropriated. Using one of those federal grants, the state of New Jersey expects to have a fully automated records system up and running next year that could deliver thousands of mental health records to the NICS. At the same time, though, a requirement pushed by the NRA that states offer the mentally ill a chance to win back their gun rights once they return to health has created a major new stumbling block. The Violence Policy Center, a Washington-based gun control group, charged that the measure showed how the legislation had been “hijacked by the gun lobby.” Experts say such a formal process for restoring those gun rights may be legally required under the Second Amendment. But the idea has stoked an often emotional and fractious debate that has left state legislatures stalemated. As a result, only eight states have thus far won a share of the federal money. “These issues are so sensitive that they just polarize people,” says Kristen Mahoney, president of the National Criminal Justice Association, a Washington-based nonprofit advocacy group of state and local law enforcement officials. She is also a senior crime-control adviser to the governor of Maryland, Martin O’Malley. In 2008, Maine became one of the first states to give the formerly mentally ill a clear pathway to buying guns again. But its legislature also stopped short of granting the right to everybody, drawing the line at people who had been found not guilty by reason of insanity. The move seemed reasonable to its supporters: the few Maine cases in which the insanity defense was employed successfully have been unusually grisly, including the murder trial of a man who gained national attention by attacking four elderly nuns in a chapel in Waterville, stabbing and bludgeoning two of them to death. But Washington decided the state did not go far enough. “The NICS Section declares unless your law is 100 percent in compliance with federal law then we are not going to give you any money to build these systems,” says Anne Jordan, the state’s public safety commissioner at the time the law was passed. Jordan says she found the state’s approach to be reasonable and appropriate. “Maine is a very traditional gun rights state, a huge tradition of hunting in this state,” she says. “The legislature was very aware and careful where it drew the line in the law.” The Bureau of Alcohol, Tobacco, Firearms and Explosives said the agency does not comment on individual applications. Illinois qualified for a federal grant but its own system for collecting mental health records is such a mess that it could take many years to improve the situation. Mental health data that is available there is rarely reported in a systematic way. Only 41 of the 130,000 licensed practitioners and clinicians in Illinois are reporting adjudications of mental deficiency. The state’s judiciary has no standard practice in place to have judges instruct clerks to report court adjudications of mental incompetence. Records at the state’s mental health department are not automated. The state police background check system is 40 years old and showing its age. “It is a Tower of Babel,” says Elliot Fineman, chief executive of the National Gun Victims Action Council, a Chicago-based advocacy group, which monitors efforts by the state of Illinois to improve its background check system. Illinois has submitted 5,000 mental health records to NICS. Fineman estimates that total is just 5 percent of the number held by state agencies and courts. State police say they are trying to improve the system as quickly as possible. “The biggest hurdles continue to be advocacy concerns with regard to dissemination of names of prohibited individuals and the pace with which much need technical improvements can be made,” said Illinois State Police spokesman Scott Compton in an e-mail. “The ISP is working cooperatively to improve processes on both fronts.” Beyond records, the debate raises broader questions over defining categories that should allow for denial of a gun purchase. The federal law’s definition of mental illness, for example, is a narrow one, limited to people who have been involuntarily committed or found insane or incompetent by a court. Large segments of the population – including alleged Tucson shooter Jared Lee Loughner, a diagnosed schizophrenic -- are not captured by that system. Criminal histories and other loopholes The criminal history data base the FBI uses to check for felons has its own troubled history. The good news is that the system contains millions of easily accessible arrest records. The bad news is that in about half of the cases there is no information about how the cases turned out – whether the person was found guilty or not or even prosecuted at all. Without that information, the FBI cannot make a final decision to approve or reject an application. Moreover, under the law, a dealer has the right to transfer a firearm to a purchaser after three days, even if the FBI has not completed the background check. What that means at the NICS operation center in Clarksburg is that missing disposition information begins a race against time. Calls are placed to local courts where the initial charges were filed, in the hope of finding a clerk willing to run down documents. Often, the documents are in storage. Sometimes, they have been destroyed. In most cases, the examiners beat the clock. The FBI digs out thousands of disposition records each year – and sends the information back to state agencies to update their records. But if the deadline is not met the dealer can transfer the firearm to the purchaser even if the check is not completed, which happens hundreds of times a year. While declining since NICS was launched, the number – about 3,000 in 2010 – remains a concern. The FBI overnights the names of “delayed denials” to the ATF, which is responsible for retrieving the guns, but which has been criticized for devoting inadequate time and resources to the problem. “ATF views delayed denials as a top priority and is committed to act quickly in the interest of public safety and preventing violent crimes,” an agency spokesman said in an e-mail. Since the inspector general report, ATF has issued new guidelines on handling such cases, including a requirement that initial action be taken within 48 hours of receipt of the referral, the spokesman said, adding that about 10 percent of the referrals turn out not to involve a person who is prohibited from buying a gun. Drug abusers and addicts are also prohibited from buying guns under the law – but the law has been interpreted to bar only those who have been convicted of drug crimes or charged on multiple occasions. And that no doubt leaves a lot of addicts and abusers out. More and more people have been blocked from buying guns because they are subject to restraining orders designed to protect family members. But the prohibition ends when the restraining orders lapse, which advocates argue still leaves potential victims vulnerable. In addition, some criminals game the system by saying they are someone else. NICS relies on government-issued identification cards like driver’s licenses that are easily and often faked. A 2001 Government Accountability Office report revealed that GAO investigators were able to purchase firearms in five states — Virginia, West Virginia, Montana, New Mexico and Arizona — using counterfeit driver’s licenses with fictitious identifiers. Some law enforcement officials believe the only sure-fire identification of a prospective gun purchaser would be through fingerprints, which would be read at a gun store by a scanner, and then compared against the FBI’s automated fingerprint database. But such an idea doesn’t even seem to be on the table for consideration. Gun shows, straw buyers and gaming the system John Patrick Bedell was one of those tripped up by the background check system. But he also tragically found a way around it. One of the guns that Bedell used to shoot two police officers at a checkpoint outside the Pentagon in March 2010 – before the officers returned fire and killed him — was purchased in a private sale at a gun show in Las Vegas. Bedell was able to acquire the 9mm Ruger pistol even though he had a history of mental illness, and had been rejected by a gun dealer in California a few weeks earlier. That’s because private sales at gun shows – and other venues — are essentially unregulated, with no requirement that the sellers have a license or keep records, and no requirement of a background check for the people they do business with, although requiring them anew has been frequently proposed. Gun-control groups see private sales at gun shows as a massive loophole for criminals and other prohibited persons to arm themselves. The ATF has called gun shows “a major venue for illegal trafficking.” Several studies have found them to be a magnet for gang members from Mexico and California. The Violence Policy Center has referred to gun shows as “Tupperware Parties for Criminals.” American-born al-Qaida member Adam Gadahn suggested in a video message over the Internet earlier this month that would-be terrorists check out gun shows as a way of getting easy access to arms to launch attacks in the United States. ''America is absolutely awash with easily obtainable firearms,” Gadahn said. “You can go down to a gun show at the local convention center and come away with a fully automatic assault rifle, without a background check, and most likely, without having to show an identification card. So what are you waiting for?'' Critics say gun shows are also rampant with straw purchasers, people who use their own clean records to pass background checks and buy guns for felons and other prohibited persons. While requiring background checks might not directly address the issue of straw buyers, some academics believe that creating an atmosphere of tighter regulation would discourage such sales. Ann Trina Collins, 37, was a working mother of four, who bought three semi-automatic pistols and three Romanian-made knock-offs of the AK-47 at a gun show near Cleveland. Collins told investigators that she went to the show because she was having problems with people trespassing and damaging property at her home, and wanted some protection. But one of the pistols ended up in the possession of her estranged husband, who had a string of felony convictions, and another weapon showed up at the scene of a felonious assault and attempted murder. An investigation turned up the fact that she had bought other guns for her husband. Collins was convicted of illegally using her clean record to purchase guns for others, and was sentenced to 48 months in prison. She is appealing. “Whenever one speaks of restricting gun rights, the immediate response is that the result will be that only criminals will have guns if such restrictions are put in place,” U.S. District Judge John R. Adams said in sentencing Collins. “Unfortunately, it appears that even with regulations, guns will inevitably end up in the hands of criminal due to persons like the defendant circumventing the existing restrictions.” Washington dithers In an op-ed in the Arizona Daily Star two months after the Tucson shootings, Obama launched his own campaign for tougher laws. He said the NICS system had not been “properly implemented.” He called for enforcing existing laws to ensure that data supplied by the states to NICS is complete; rewarding states that provide “the best data”; and making the system “faster and nimbler” for sellers “who want to do the right thing.” “I want this to at least be the beginning of a new discussion on how we can keep America safe for all our people,” Obama wrote. The NRA responded that it welcomed such a discussion – so long as it focused on prosecuting criminals and fixing what it said were deficiencies in the mental health system. “Any proposals to the contrary are not a legitimate approach to the issue,” NRA officials said in a letter to Obama in March. Since then, progress has been marked by periodic meetings at the Justice Department where gun-control advocates make a case for tougher laws and policies. Legislation developed by the Mayors Against Illegal Guns -- a coalition of more than 500 mayors led by Michael Bloomberg of New York and Boston Mayor Thomas Menino — began surfacing in Congress. In March, Sen. Charles Schumer of New York introduced the Fix Gun Checks Act of 2011, which would toughen the penalties for states that fail to share the various records the system depends on, as well as mandating cuts in federal crime-fighting grants for the underperformers. The legislation would also extend background checks to virtually all gun sales, routing private transactions at gun shows through a federally licensed firearms dealer or a law enforcement agency. Schumer’s bill would also broaden the prohibition on drug users to include anyone who has admitted to “using or possessing a controlled substance unlawfully within the past 5 years” — a provision that critics say could also snag many ordinary citizens if strictly enforced. Rep. Carolyn McCarthy of New York, the co-author of the 2007 NICS amendment law, introduced companion legislation in the House last month that she says would “close some of the loopholes” that have allowed states to shirk their record-reporting duties. Beyond legislation, Obama is said to be reviewing ways he could tighten up the NICS system through an executive order, including getting federal agencies to turn over more records. Activists say they regret Obama has not devoted more public attention to the issue. Paul Helmke, the president of the Brady Center to Prevent Gun Violence, has been pushing unsuccessfully for a presidential commission to examine the issues of mental health and gun violence. “My main disappointment with the administration has been they have not even used the bully pulpit on this issue,” Helmke said, adding that he felt Obama’s election on a strong gun-control platform suggested to him that the nation was ready for a crack down on guns. “It showed me this isn’t as politically radioactive as some people like to think it is.” The White House says that Obama remains committed and is not backing off the issue. “The President believes we can identify some common sense measures that would improve American safety and security while fully respecting Second Amendment rights,” White House spokesman Eric Schultz said. “And that is why he has directed the attorney general to do just that.” North Country Blues Back in Maine, Raymond Geisel spent 16 days in 2003 at the state psychiatric and chemical dependency treatment hospital in Bangor, following an emergency commitment, according to court records. Starting in 2005, he acquired at least six weapons from licensed gun shops in Maine. In addition to the Glock pistol and the Romanian-made AK-47, he purchased a Smith & Wesson revolver, a variant of the AR-15 assault rifle, and two shotguns. He had moved to Florida in January 2008. At the time of his arrest, he was taking a 10-day class in Miami, learning to become a licensed bail bondsman. Classmates overheard him making angry and racist threats against Obama, in one case vowing to “assassinate him myself” if he were elected, according to an affidavit on file in U.S. district court in Miami. Another student said she heard Geisel say he “hated George W. Bush and that he wanted to put a bullet in the President’s head." The information made its way to the Secret Service, which interviewed Geisel on Aug. 1, the same day Obama arrived in St. Petersburg to campaign. Geisel was arrested the next day, and charged with making threats against Bush and Obama. A search of his SUV and his hotel room yielded an astounding cache: military fatigues, hand-held radios, a loaded Smith & Wesson handgun, 40 rounds of Black Talon armor-piercing ammunition, body armor, a stun gun, two canisters of tear gas, and more. The arsenal stunned federal authorities in Maine, who had no access to his mental health records because of a state ban on sharing commitment records with law enforcement. After Geisel’s arrest, the Secret Service notified the ATF office in Maine, which tied Geisel to purchases of five other guns, which he had left with a friend. Those weapons were later seized. Geisel pleaded guilty to a charge of possessing a firearm and ammunition after having been committed to a mental institution. He was sentenced to 10 months in prison. He could not be reached, and his attorney declined comment. He told the Secret Service that he had been a victim of physical and emotional abuse when he was younger. He also said that he had voluntarily checked himself into a mental health facility in Maine, and had sought psychiatric treatment for post traumatic stress disorder. Observers say the episode shows that making NICS work is not as easy or straightforward as some politicians might suggest. “This is a perfect example why simplistic enforcement of the law is not working … because we have the federal and state governments out of sync,” said William Harwood, a Portland, Maine attorney, and founder of the Maine Citizens Against Handgun Violence. “We are a NICS state, not a state that has set up its own system,” he adds. “If we have submitted to being a NICS state, why are we fighting NICS?” Last month, Maine’s legislature held a hearing on a bill that would put the state in compliance with the federal law, requiring the sharing of all commitment papers and broadening the procedures for restoring rights. It died in committee. Strong, of the FBI, appreciates the dilemmas that states face in making such judgments. “There’s probably some folks in the community that say ‘Yeah, that’s something that happened to them 20 years ago, they’ve been a responsible citizen since,’ ’’ he observes. “But do you want to be the judge that signs off on that? That’s a tough one. Do you want to be the legislature that votes for that and then somebody that gets their rights restored has another Virginia Tech type incident? It’s a hard sell.” Even the most ardent supporters of the background check system question its suitability for catching every worrisome person. Jared Lee Loughner was able to buy a gun from a dealer and pass a check even though he was widely viewed as troubled. Pima Community College police had several contacts with him, and college officials had informed Loughner that he could not return to campus without a mental health clearance. “If we had at least some human involvement in this process…maybe he would have been stopped. Instead we rely purely on a computer thumbs-up or thumbs-down,” said Helmke of the Brady Center. “The guy could be frothing at the mouth, talking to aliens, and if his record is clear, he gets the gun. There is a problem with a system like that. It is harder for a high school kid to get a job at McDonald’s.” Rick Schmitt is a Maryland-based freelance writer. This story was funded in part by a grant from the Joyce Foundation. Source URL (modified on 05/19/2014 - 12:19): https://www.publicintegrity.org/2011/06/23/4982/badly-flawed-background-check-system-fails-contain-firearms-sales Links[1] https://www.publicintegrity.org/2011/06/23/4982/badly-flawed-background-check-system-fails-contain-firearms-sales [2] https://www.publicintegrity.org/authors/rick-schmitt [3] http://www.iwatchnews.org

法律

2016-50/4390/en_head.json.gz/11412

» IB decisions » CSIB/14/1996 HomeHow To SubscribeContact and Help Employment and Support Allowance (ESA)Personal Independence Payment (PIP)Disability Living Allowance (DLA)Incapacity BenefitIB claimsIB medicalsIB appealsIB resourcesIB decisionsOther BenefitsSurviving Life On Benefits CSIB/14/1996 This decision has been reproduced in plain text only. If you wish to submit a copy of a decision as part of an appeal, please download a Word copy from the link below. http://www.osscsc.gov.uk/aspx/view.aspx?id=1625 CSIB/14/96 The Office of Social Security and Child Support Commissioners THE SOCIAL SECURITY COMMISSIONERS SOCIAL SECURITY ADMINISTRATION ACT 1992 APPEAL TO THE COMMISSIONER FROM A DECISION OF A SOCIAL SECURITY APPEAL TRIBUNAL UPON A QUESTION OF LAW DECISION OF THE SOCIAL SECURITY COMMISSIONER MR COMMISSIONER W M WALKER QC Tribunal: Tribunal Case No: 1. This claimant’s appeal succeeds. I hold the decision of the appeal tribunal dated 11 October 1995 to be erroneous in point of law and accordingly I set it aside. I remit the case to the tribunal for determination afresh in accordance with the directions which follow. 2. The adjudication officer’s decision carried to the tribunal was one reviewing the claimant’s award of incapacity benefit and revising it to the effect of ceasing it from and including 8 June 1995. The basis of that decision was that the claimant no longer satisfied the qualification for the benefit being no longer incapable of work in accordance with the then applicable test, known as the "all work test" set out in, and in accordance with the prescribed conditions in, the Social Security (Incapacity for Work) (General) Regulations 1995. In light of the information before him the adjudication officer determined that the claimant’s score was nil. The system of the test requires an individual, where, as here, only physical disability is in question, to score 15 points in terms of the activities and descriptives set out in the schedule to the Regulations. The appeal tribunal came to the same conclusion, and made the same score, as the adjudication officer. 3. At the hearing before me the claimant as ably represented by Mr C McCrae, a welfare benefits officer with Scottish Borders Council. The adjudication officer was represented by Mr W Neilson, of the Office of the Solicitor in Scotland to the Department of Social Security. I am grateful for the careful submissions made to me. 4. Mr McCrae carefully laid out the scheme of his argument to the effect that the tribunal decision erred in law. He had three main heads in that argument. The first concerned the adequacy of the findings of fact and the reasons. This largely centred upon a contention that relevant evidence had not been considered. I was not entirely persuaded that the submissions in support of that contention were well founded but because I am satisfied on other grounds I need not deal with it in detail. Equally, I was not entirely persuaded by the third head of Mr McCrae’s argument, namely that in the circumstances the tribunal should have sought the opinion of a doctor under what was then regulation 27(b) of the General Regulations. For the same reason I do not think it helpful to the new tribunal to go into that matter either, save to observe that should any material come before them which persuades them that they ought to seek the assistance of a further medical assessment then they will have to bear in mind the current provisions of the regulation. 5. The central issue which concerned me, and indeed was the reason behind my direction of hearing was a matter only raised before the tribunal for the first time. That concerned activity 14 in the schedule - "remaining conscious other than for normal periods of sleep". The claimant’s case, indeed I suspect really his only case before the tribunal, centred on descriptor "a" or "b". That is that he claimed to have:- ".... an involuntary episode of lost or altered consciousness at least once a day ...." ".... [or] at least once a week ...." Either would have resulted in an award of 15 points and so restored his award of benefit. The disabling condition behind that contention was a series of headaches. Whether that was connected to the cervical spondylosis upon which the case had hitherto depended is not clear to me and it may be necessary for the claimant, with the assistance of his representative, to enlarge the medical backing to the case before the new tribunal. The tribunal found as fact on this matter thus:- "The appellant puts in issue the problems arising in his condition relating to severe headaches which occur fairly frequently, most days of the month with for example in August, only a few days being free from these events. During the episodes the appellant has to lie down. The episodes of headaches last from half an hour to 2 hours. The appellant is disabled during these episodes and is unable to conduct his normal daily activities nor would he be able to work. However, he does not lose consciousness. He is still aware during these episodes of ambient noise. It is understood also that he does not lose vision, he does not have any feeling of nausea". In explaining why they did not find these episodes to amount to occasions of "altered consciousness" in order to qualify in terms of the Regulations, the tribunal said this:- "The tribunal is, therefore, in the necessity of applying those rules [in the schedule] to the appellant’s circumstances and the crux of the matter is whether the conditions described by the appellant on his severe headaches amount to "altered consciousness". It is accepted that there is no question of lost consciousness. The tribunal take the view that altered consciousness has to effect the perception of the individual to such an extent that he becomes less conscious of his surroundings, for example in such a situation in which someone has suffered from post-traumatic shock, petit mal epilepsy or possibly hypoglycaemic episode of a diabetic who had failed to take appropriate medication. These conditions, it is understood, would result to somewhat less than actually losing consciousness but in being "absent" in the instance of petit mal or otherwise having their ordinary perception and awareness of their every day surroundings altered to such an extent that they were not conscious of the surroundings to such an extent as they would be in consciousness. In this respect the appellant’s condition, while undoubtedly disabling, does not in the tribunal’s judgment amount to altered consciousness. The appellant appears to be conscious throughout and in particular is concerned over ambient noise, for example he commented in evidence that if there were problems of severe noise close to him eg pneumatic drills, he might have to move to get away from such noises which would aggravate the headache problems. It is also understood that the appellant’s vision would not be affected adversely. This would also be an element in relation to assessment of whether the resulted consciousness in the instance of this particular appellant". 6. The main thrust of Mr McCrae’s case, indeed the second head thereof, was that the tribunal had misinterpreted what was meant by "altered consciousness" in the schedule. The crux of his argument centred upon the degree of awareness of perception which an individual would normally have when conscious. If, he submitted, that awareness or perception became distorted or restricted by a degree of pain sufficient to that end then for the duration of that distorted or restricted awareness of perception the individual’s consciousness could properly be said to have become "altered". He pointed to what was said for the guidance of the examining medical practitioner in the medical report form IB85, at page 41 of documents, a sheet headed "Remaining conscious other than for normal periods of sleep". There then followed the various descriptors. But between the activity and the descriptors this guidance is contained:- "These include seizures, black outs, faints and any disturbance of consciousness occurring while awake that prevents continuing activity". Mr McCrae’s point, at its simplest, was that if an individual suffered a degree of pain which disturbed his consciousness in the way submitted and prevented continuing activity then that amounted to the requisite "involuntary episode". 7. Mr Neilson, in response, rebutted Mr McCrae’s first and third heads. Had it been necessary to decide I would probably have been persuaded thereby. However, on the central issue about "altered consciousness" he submitted that "altered" indicated something wider than "lost". He then sought to rely upon the ejusdem generis rule as indicating that the scope of "altered" fell to be construed in accordance with the scope of "lost". Thus, he contended, an enhanced degree of consciousness could not count as "altered" consciousness. I was not persuaded that the rule applied and I am satisfied that the two concepts are different and fall to be construed in the normal way as being two alternative conditions set out within a statutory provision. The "or" I regard as simply disjunctive. In the alternative Mr Neilson submitted that to have an alteration there would require to be some loss of perception but not necessarily as at the onset of a coma. That the claimant could still see and hear meant that there was no loss. If he became somewhat unaware in that his degree of consciousness was altered by pain it might be that he could not have proper perception and so could qualify. On that branch, I rather understood the contention to be that since the tribunal had considered the matter and come to the view which they did they could not be said to have erred in law, although it might have been that another tribunal, or this one on the basis of different evidence, could have reached another result. 8. The more that the matter was pursued the less I was persuaded that this tribunal’s reasoning was sufficiently clear so that the claimant, and perhaps more in particular this Commissioner, could see exactly why they had made their decision. The passage from the reasons quoted above seems to indicate that it would have been enough had the individual’s perception become sufficiently changed so that he was less conscious of his surroundings. (I should interject that there was some discussion as to whether "lost" meant whole or total and so "altered" meant something different from even a partial loss. However since the phrase is not "loss" but "lost" I am satisfied that it means a total loss and so "altered" falls to be construed in contra distinction thereto. But then the tribunal went on to posit a case of post-traumatic shock - which would be transient and so not likely to occur more than once a day or once a week. They then refer to petit mal epilepsy and hypoglycaemic episodes. It is then said that those conditions "it is understood" would result in something less than actual loss of consciousness but in some sense of being "absent". That may well have been as a result of the advice of their medical assessor but without that guidance being quoted I have some difficulty in following the reasoning nor am I satisfied that "absence", as they refer to it is necessary for there to have been a state of "altered" consciousness. There then follows what seems to me a slightly circuitous passage where they refer to an individual:- ".... having their ordinary perception and awareness of their every day surroundings altered to such an extent that they were not conscious of the surroundings to such an extent as they would be in normal circumstances". That seems to be their central reason for rejecting the claimant’s contention that his headache condition qualified. But their finding of fact was that during the period in question the claimant was disabled and:- ".... unable to conduct his normal daily activities nor would he be able to work". That seemed to be an alteration of perception and awareness to such an extent that the claimant was not as conscious of his surroundings as he would have been in normal consciousness. At all events I am persuaded that the explanation is insufficiently clear and Mr Neilson fairly readily accepted that once the passages had been explored in argument. It is for that reason, primarily, that I hold the tribunal decision to be in error of law and so the matter will have to be reconsidered afresh. 9. The discussion satisfied me that it is not possible to lay down guidelines as to what, in law, is meant by "altered consciousness". It is, I am equally satisfied, essentially a practical matter for a tribunal to determine in the light of medical guidance from their assessor and by the application of commonsense. But where, as here, episodes of pain are the disabling condition it will be necessary for the tribunal to explore, and for a claimant to present appropriate evidence to allow such exploration, in some detail how the pain affects the individual during an episode. It is not, in my view, sufficient to find as a fact that during the period "the appellant is disabled". Nor that he "is unable to conduct his normal daily activities". It is for determination first how the pain forecloses these and the way in which and the extent to which it does so. Thus, as Mr McCrae figured in submission, if an individual is so distracted by the pain that he requires to lie down and otherwise retire from what he is doing then it may be possible to conclude that his consciousness has become altered by the degree of pain and he is incapable of doing anything effective other than coping with it. But that would be a secondary finding which would require proper primary findings to justify it. Above all, I am persuaded that the concept of "altered consciousness", which may have some medical significance, is impossible of legal definition and is a concept of difficulty for application by lay tribunals. For these reasons I do not think that it is appropriate that I should give any further guidance to the new tribunal in this case. 10. For the reasons given the appeal is allowed and the case remitted accordingly. W.M. Walker QC Commissioner 13 August 1997 Prev Next Please note: we use cookies to provide you with a better service. Carry on browsing if you're happy with this, or find out how to manage cookies

法律

2016-50/4390/en_head.json.gz/11613

| Fischer v. Dickinson Industrial Site Fischer v. Dickinson Industrial Site ILLINOIS APPELLATE COURT — FIRST DISTRICT, SECOND DIVISION. CHARLES FISCHER, APPELLANT,v.DICKINSON INDUSTRIAL SITE, INC., ET AL., APPELLEES. Appeal from the Superior Court of Cook county; the Hon. JOHN J. LUPE, Judge, presiding. Affirmed. PRESIDING JUSTICE KILEY DELIVERED THE OPINION OF THE COURT. This is an appeal from an order allowing attorney's, and other, fees in a proceeding to liquidate the assets and business of a corporation. Plaintiff, who appeals, is a holder of a Voting Trust Certificate under a voting trust agreement covering the stock of the defendant corporation. The complaint was filed in October, 1950. It does not present "an action by a shareholder" under the Involuntary Dissolution and Receivership Act (Ill. Rev. Stat., Chap. 32, Pars. 157.82-157.94) because it does not allege a "deadlock" under (a)(1) or (a)(2), "illegal, oppressive or fraudulent" acts of defendant directors or trustees under (a)(3) or misapplication or waste of corporate assets under (a)(4). Defendants originally asserted lack of jurisdiction of the court to liquidate the assets of the corporation. Subsequently, however, the corporation through the defendant voting trustees submitted to the jurisdiction and asked the court's instruction with respect to a course of action leading to a sale of the corporation assets. Thereafter, a Complete Plan of Liquidation was adopted and executed under the court's supervision. For these reasons we are of the opinion that this proceeding grew into a proceeding under the Voluntary Dissolution Act (Pars. 157.74-157.81) in which the defendant corporation applied to the court "to have the liquidation continued under the supervision of the court. . . ." Par. 157-79. We need not detail the many steps leading to the final liquidation order of the chancellor directing the filing of Articles of Dissolution "on or before May 16, 1956." That order was entered May 11, 1957, and was the culmination of a series of steps taken by the defendant's directors and voting trustees to dissolve the defendant corporation and liquidate its assets through a sale. This course of action was begun with the petition for instruction filed March 24, 1955, and involved the preparation, adoption, approval and execution of the Complete Plan of Liquidation. The Plan was pursuant to section 337 of the U.S. Revenue Act. Under this section a capital gains tax of about $300,000 was avoided by selling for $2,560,000 all the corporate property within 12 months of the adoption of the Plan. In January of 1956 the defendant voting trustees petitioned the court for authority to pay $5,000 each to two attorneys with whom the trustees had negotiated settlements of fee claims. The petition stated plaintiff's attorney, Scherman, and the trustees had not reached an agreement and requested an early hearing of the Scherman claim. The chancellor directed the three attorneys to file a formal application for fees. This was done not only by the three attorneys involved in the original petition, but by defendants Hillebrecht and Ferry as officers; by Wham, Welch, Metzdorf and McKee, law firm of defendant-trustee Wham; and by other attorneys associated with the Wham firm in representing the corporate defendant and voting trustees. Also a petition was filed by an accountant's firm. These petitions were considered and evidence heard upon them by the chancellor; and on May 7, 1956, the chancellor entered the order appealed from allowing a total of $132,500 in fees. Plaintiff contends that the chancellor had no jurisdiction to allow the fees, that attorney's fees are not allowable directly to the attorney and must be allowed to the parties, that attorney's fees cannot be allowed in this proceeding on the theory that a common fund was enhanced, and that a trustee cannot receive fees for his own legal services. We shall consider these contentions and shall not consider points made by defendants in their brief and also made in their motion to dismiss the appeal. The motion is being denied by separate order. The jurisdictional contention made by plaintiff rests on the claim that since the Corporation Act which gives power to the courts of equity to liquidate the assets of corporations confers no power to allow attorney's fees, that power has been withheld from the courts. The arguments of plaintiff in support of this contention refer to the dissolution of a corporation under the Involuntary Dissolution and Receivership Act (Pars. 157.82 and 157.94) in which courts of equity are expressly empowered to decree dissolution of corporations. The arguments are not relevant to this proceeding under the Voluntary Dissolution Act (Par. 157.79(c)). Neither are the cases cited to support this argument pertinent. The activities of the voting trustees, directors, attorneys and others engaged in the liquidation were performed in bringing about the main objective of plaintiff's suit. The Voluntary Dissolution Act (Pars. 157.74-157.81) makes no mention of the court's allowing fees because the Act contemplates that the corporation is dissolving itself. In providing for the court's mere "supervising," the Act does not contemplate court officers, as in the Involuntary Dissolution Act, for whose services the court should make provision. But this is not to say that in assuming supervision of the corporation's voluntary dissolution, the court may not decide an issue, upon a claim for fees, which arises directly from the liquidation, as in the claim of Attorney Scherman. Had there been complete agreement upon the fees, the court might merely have approved, as it had in other matters. On the other hand, it might not have approved if the fees were unreasonable even though no objections were made. This would be a "correction" within Webster's definition of "supervise." (See Webster's New International Dictionary, 2nd ed.) Moreover, it would be absurd for the supervising chancellor to remit Scherman's claim to a suit at law. We see no merit to the contention that the court lacked jurisdiction to decide the fees issue. The case of Wiedoeft v. Frank Holton & Co., 294 Ill. App. 118, does not militate against this conclusion. Finally, when the jurisdiction of the court was invoked to supervise the liquidation of the corporation, the voting trust was submitted to the court; and the broad, exclusive equity jurisdiction over trusts (Equity Jurisprudence Pomeroy, 5th Ed., p. 206) became operable with the power of the chancellor over the fees claimed by the several attorneys, officers and accountants. We need not consider, on the foregoing point, whether plaintiff's suit benefited a common fund which ought to be charged with the fees. The corporation employed the services of those who were allowed fees and the chancellor had jurisdiction to approve proper payment of the fees. The claim is made that the order must be reversed because the fees were ordered paid to the attorney, instead of to the parties. This is the rule in foreclosure proceedings (Klein v. Chicago Title & Trust Co., 295 Ill. App. 208); in cases where a common fund has been preserved, protected or involved (First National Bank v. LaSalle-Wacker Bldg. Corp., 280 Ill. App. 188); and in suits to construe wills (Montgomery v. Dime Savings Co., 290 Ill. 407). In the latter case the court said at page 409, "Where there is a statute providing for an allowance of solicitors' fees, the allowance can only be made to the party to the litigation and not to the solicitor performing the services." The claim has no merit as applied to the facts here. In the instant case there is no claim that the fees allowed are excessive, and there is no claim that the services were not rendered or necessary in the liquidation. And the claim of plaintiff does not reach the fees of the officers nor the accountants. The corporation asked for authority to pay two attorneys, including Scherman, with whom it had negotiated settlement of fees. If plaintiff's contention were right the court would have to direct the corporation to allow itself fees with which to pay the attorneys. In Attorney Scherman's petition he claimed fees for representing plaintiff and fees for services rendered to the corporation with plaintiff's knowledge. He claimed $56,745 and was allowed $20,000. We have no way of knowing what part compensated for services to plaintiff and what part for services to the corporation. Plaintiff does not show that the fees were not entirely allocated by the chancellor to services rendered to the corporation for providing a better purchase price for the corporate properties. In the absence of such a showing, we presume that the chancellor allowed the fees to Scherman for services rendered the corporation; and, consequently, our reasoning and conclusion in the next preceeding paragraph applies to Scherman; and there was no impropriety in the allowance to him directly. We see no merit in the claim that the corporation should not be required to pay the fees of the voting trustee's law firm. The record shows that the services were rendered to the corporation and to the voting trustees. Furthermore, that law firm had been the corporate attorneys since 1938 and served without objection from the plaintiff in this cause since its inception. In Gray v. Robertson, 174 Ill. 242, the Supreme Court said that its repeated decisions had adopted the common law rule that, in the absence of an express contract giving the right, a trustee had no right to compensation for services rendered in connection with the trust. Here, the corporation agreed in the voting trust agreement to pay the trustees reasonable compensation for services rendered as "officers and/or counsel for the Trustees and/or the Corporation." We have considered all points necessary for the decision. The order of May 7, 1956, is affirmed. FEINBERG and LEWE, JJ., concur.

法律

2016-50/4390/en_head.json.gz/11614

| National Labor Relations Board v. Towel National Labor Relations Board v. Towel UNITED STATES COURT OF APPEALS, SEVENTH CIRCUIT. NATIONAL LABOR RELATIONS BOARD, PETITIONERv.MID-WEST TOWEL & LINEN SERVICE, INC., RESPONDENT. Author: Hastings Before HASTINGS, Chief Judge, KNOCH and KILEY, Circuit Judges. HASTINGS, Ch. J.: We have this case on petition of the National Labor Relations Board, pursuant to Section 10(e) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 151 et seq ., for enforcement of its order issued against respondent Mid-West Towel & Linen Service, Inc . (company) on July 23, 1963. The Board's decision and order are reported in 143 NLRB 744 (1963). The Board's opinion fully states the facts and we deem it necessary to restate only such as are relevant to our decision. The Board found the company violated Section 8(a)(1) of the Act by coercively interrogating employees concerning their union activities, soliciting employees to withdraw from or refuse to join Local 135, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (union) and sanctioning the takof a poll to ascertain the union sympathies and desires of its employees. The Board also found that the company violated Section 8(a)(3) and (1) by discharging Thomas E. Smith because of his activities in the union organizing campaign. The Board further found that the company violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the union and by increasing its minimum wage without notice to or consultation with the union at a time when the union represented a majority of its driver-salesmen employees in an appropriate unit. The Board ordered the company to cease and desist from engaging in the above unfair labor practices and to reinstate Smith with backpay. The issues presented to us are whether there is substantial evidence in the record as a whole to justify the above findings by the Board. The company employs eighty-nine persons "inside" its plant located at Muncie, Indiana. These employees have been represented for thirteen years by the Laundry Workers Union. The company also employs about twenty-four "outside" employees as truck drivers or driver-salesmen who deliver and pick up uniforms, towels, etc. These employees have never been represented by a union although Teamsters Union Local 369, a predecessor of the union, twice unsuccessfully attempted to organize them. In both attempts elections were held and the union received no votes. The company expanded rapidly after entering the industrial linen supply field in 1955 and its growth caused severe congestion in the area adjacent to its plant where delivery trucks are loaded and unloaded. Loading congestion was the subject of numerous complaints by the drivers, some of whom insisted that their duties should not include loading and unloading. On Saturday, September 29, 1962, company vice-president Benjamin Hertz completed negotiations for a new Laundry Workers' contract covering the inside employees. The same day, driver Norman Childs picked up thirty union membership application cards from Pat Mahoney, a representative of the union. Childs and driver Edward Chesney signed cards and visited other drivers at their homes, securing thirteen additional signatures on Saturday and three on Sunday. Childs, Robert Nemyer and James Kierstead took the signed cards to Mahoney at his home. Driver Jack Janney signed on October 2 and driver Jerry Johnson on October 4 to complete the campaign and bring the the total number of signed membership cards to twenty. I. The company does not materially contest the Board's finding and order concerning violations of Section 8(a)(1) by coercively interrogating employees. The company states, "we do not oppose an 8(a)(1) finding limited to interrogation designed to elicit information about individual participation in the union, and an order narrowly drawn to require respondent to cease and desist from such interrogation." We feel the record as a whole amply supports the Board's finding of coercive interrogation and that the Board's order respecting this finding is proper. The company asserts that the Board's finding that Hertz sanctioned or conducted a private poll of the employees, which was, in essence, soliciting the employees to express sentiment against the union, is not supported by the evidence since Hertz was not present at the balloting and could not have known how any driver voted. On October 8, 1962, the drivers held their regular sales meeting at a restaurant. Hertz entered and after excusing all other supervisors and three new drivers reported he had received the union's request for recognition and a letter from the Board he "hadn't read yet." He said he could not understand why the drivers needed a union to do their talking, he had always had an "open door policy," he was "deeply hurt" by the organizing attempt and it was "just like his son slapping him in the face." Hertz asked the drivers what their problems were, stated he would do his best to "iron them out and keep us happy" and said the company was doing its best to alleviate the unloading situation. Driver Chesney remarked that they had heard "the company's side" and the union should also be heard. Chesney stated the drivers would feel more secure under a union contract. Philip Fosnaugh asserted he could not live on his earnings. Hertz promised that he would "see him after the meeting." Hertz agreed to "talk about" additional insurance benefits. When an employee asked if benefits or bonuses would be taken away under a union, Hertz stated he was not "at liberty" to discuss such matters at that time. Hertz said, "I have to know tonight where I stand," and the drivers had to make up their minds what they were "going to do about the union." He told the drivers if they wanted a union they could have it but he did not know whether the union had a majority and they should let him know "which way they wanted me to go - should I go down to negotiate a contract with Local 135 or should we fight them to an election." He reiterated that he had to known where he stood and that he wanted "to get this settled tonight and forget about it." Driver Jack Janney suggested a vote. Hertz left the room. The employees voted by writing "yes" or "no" on the ballots. After the voting Hertz returned and counted the ballots, assisted by driver Lewis Mathew. Hertz announced the results as fourteen to six against the union and declared, "I take it from this that you want me to fight the union to an election." He thanked the drivers for their "vote of confidence" in him. Hertz was asked how the drivers could get their membership cards from the union. He replied that the "only way be knew was * * * to get a lawyer to write a letter" demanding their return. It was suggested by one of the drivers that an employee committee be formed to take "all the gripes * * * straight to * * * Hertz." Four drivers volunteered to serve on such a committee. Polling and interrogation of employees are not per se unfair labor practices. Frank Sullivan and Company, 133 NLRB 726, 727 (1961); Burke Golf Equipment Corporation, 127 NLRB 241, 245 (1960); Blue Flash Express Inc ., 109 NLRB 591, 593 (1954). The Board has held that polling of employees does not violate Section 8(a)(1) of the Act if "'It is clear from the record that the only purpose was to ascertain whether a union demanding recognition actually represented a majority' and where the interrogations '* * * were communicated to the employees with assurances against reprisals * * * in a background free from hostilities to unions.'" Frank Sullivan and Company, supra, at 727, quoting from Burke Golf Equipment Corporation, supra at 245. The poll in the instant case was instigated by Hertz. Four days prior to the poll Hertz began interrogation of certain drivers, which the company admits, supra, was violative of Section 8(a)(1) of the Act. Drivers Kierstead and Smith were discharged. Kierstead was rehired by Hertz the same day and the trial examiner found that Kierstead's discharge had been for cause and was not discriminatorily motivated. The trial examiner found that Smith's discharge was motivated by his union membership and activity. We agree. See infra . It thus appears the poll was not taken in a background free from hostilities and anti-union activities by the company. The fact that Hertz absented himself from the room while the employees marked their ballots is immaterial.Hertz instigated the poll, was absent from the room only while the ballots were being marked and returned to count the ballots. Neither do we find persuasive the argument that since the vote was by unsigned ballots and Hertz could not know how any driver voted the poll was not coercive. In view of prior coercive interrogation, the illegal discharge of Smith, the size of the group (twenty) and Hertz's sponsorship of the poll, his preceding remarks and presence, we do not think it unreasonable that the drivers would be coerced by the poll. There is substantial evidence to support the Board's finding that the poll violated Section 8(a)(1) of the Act. II. The Board ordered the company to offer Thomas E. Smith immediate and full reinstatement to his former or a substantially equivalent position, with back pay. The following events led up to Smith's discharge by Hertz. At about 5:30 p.m., on October 4, 1962, Hertz called Smith and John Felton to his office. Hertz stated he had heard talk about a union and asked if they had heard it and why they needed one. Smith replied he had heard about the union. Hertz asked what their complaints were and they replied "the conditions in the plant." Hertz said he knew about "the conditions in the plant," he was doing all he could to remedy them and the union could not make him change those conditions. He assured them if they wanted a union they could get it and he would pay union wages but insisted he was presently paying higher than union wages. Smith complained to Hertz about having to wait three hours on the highway for a replacement truck when his truck broke down. During the discussion of this complaint Hertz characterized Smith as a chronic complainer or "habitual bitcher." Smith stated, "I guess I'm just a born trouble maker and never will change." Hertz asked Smith why he did not quit. Smith replied he liked route work. Hertz stated he wished Smith would quit. Hertz excused Felton from the room and asked Smith why he was trying to hurt him. He asked if Smith was seeking a steward's job and whether Smith was "the ringleader" in unionizing the drivers. He invited Smith to go to work in a union place if he "wanted the union so bad" instead of trying to bring a union into the plant and hurt Hertz. Hertz asked Smith if he had done anything for which he could be fired and added he could fire Smith or "all you boys involved in this and the union wouldn't make me keep you" because he could find a reason to discharge them. Hertz then told Smith to pick up his severance pay and not come in the next day for work. Hertz testified that at a staff conference in June, 1962, he discussed Smith's alleged shortcomings and "* * * it was decided at that time that Tom Smith would have to go," as soon as the vacations ended. Vacations were staggered from June to September. "The mere existence of valid grounds for a discharge is no defense to a charge that the discharge was unlawful, unless the discharge was predicated solely on those grounds, and not by a desire to discourage union activity." NLRB v. Symons Manufacturing Co ., 7 Cir., 328 F.2d 835, 837 (1964). It is clear Hertz was concerned about Smith's union activity. Smith had signed a union card and solicited other drivers to sign cards. Hertz asked Smith if Smith was the ringleader and whether Smith was seeking a steward's job. We find substantial evidence on the record as a whole to support the Board's finding that "the predominating or motivating reasons for Smith's discharge were his union membership and activity, rather than that he chronically complained or because he 'bitched' continually, or because his production was unsatisfactory." III. The following facts led the Board to conclude that the company refused to bargain with the union in violation of Section 8(a)(5) and (1) of the Act. Beginning on September 29, 1962, a few drivers signed union cards and began soliciting and obtaining the signatures of other drivers. By October 4, 1962, twenty of a total of twenty-four drivers had signed union cards. Drivers Lewis Mathew and John McCreery testified at the hearing conducted by the trial examiner that they signed the cards believing the signing was for the purpose of obtaining an election and not for obtaining union representation. Jack Hoover testified initially he understood "that signing the card was to obtain an election." The trial examiner discredited his testimony due to subsequent contradictory statements. The examiner found Hoover testified credibly that he was in favor of the union. On October 6, 1962, the company received by mail the union's request for recognition and petition for certification. On October 8, Hertz appeared at the drivers' meeting and initiated the poll previously described. The week following October 8, Hertz increased driver James Murphy's minimum guaranteed salary from $85 to $100 a week for a thirteen-week trial period. About six weeks prior to this time, Murphy had been given a $5-a-week raise and about four weeks prior a second $5 raise. About this same time Hertz increased the minimum weekly guaranteed wages of two newly hired drivers from $85 to $100. The company is guilty of violating Section 8(a)(5) of the Act if, as found by the Board, the union in fact occupied majority status when it sought recognition on October 6 and the company's refusal to recognize the union was motivated by a desire to gain time to dissipate the union's majority rather than a good faith doubt as to the union's majority status. Joy Silk Mills v. National Labor Relations Board, D.C. Cir., 185 F.2d 732, 741 (1950), cert. denied, 341 U.S. 914. The company contends the union never occupied majority status, relying on our decision in NLRB v. Koehler, 7 Cir., 328 F.2d 770 (1964). In Koehler, twenty employees constituted a majority and union cards were signed by twnety-two employees. In holding the union did not have a majority, we stated, "the overwhelming proof is that many employees signed cards because they were promised that such cards were to be used for the purpose of obtaining an election, with a secret ballot, to be conducted by the Board." Id . at 773. In Koehler, the union barely had a majority number of cards while here the majority was substantial. In Koehler, "many" employees believed the cards were to obtain an election while in the present case only two employees were found to have this belief. The company asserts it to be "virtually certain" that other employees than the two mentioned above believed the cards were for the purpose of obtaining an election. At the top of each card in large capital letters were the words, "APPLICATION FOR MEMBERSHIP AND AUTHORIZATION FOR REPRESENTATION." In light of this language and the absence of sufficient testimony to the contrary, we hold the trial examiner's finding, that a majority of employees signed for the purpose of representation, to be supported by substantial evidence. See National Labor Rel. Bd. v. Stow Manufacturing Co ., 2 Cir., 217 F.2d 900, 902 (1954), cert. denied, 348 U.S. 964. The company argues that assuming the union did have a majority, the company's refusal to bargain was based on a good faith doubt as to the union's majority status. The company's Section 8(a)(1) violations occurring about the time of the union's request for recognition, while not permitting a mechanical finding of intent to dissipate a union's majority, Cameo Lingerie, Inc ., 148 NLRB No. 60 (August 27, 1964), may properly be considered in determining the company's intent. On October 4, 1962, Hertz coercively questioned Kierstead, Childs, Felton and Smith concerning the union and discharged Smith for union activity. The union sent Hertz a letter requesting recognition which he received on October 6. On that day Hertz asked Childs to "talk the boys out of the union." On October 8, Hertz initiated the poll, supra, and shortly thereafter raised the minimum weekly guaranteed wages of newly hired employees. Hertz committed these acts contemporaneously with the union's organization campaign and request for recognition. Under these circumstances the unfair labor practices are indicative, although not dispositive, of the company's motive in not recognizing the union. The company points to statements made by Hertz, upon which the Board relied in its finding of lack of good faith in refusing to bargain, and argues that these statements do not indicate lack of good faith. The trial examiner heard the testimony of the witnesses and judged their credibility. He was in a better position to determine the effect to be attributed to such statements than we are from the record. In view of the unfair labor practices which accompanied the company's refusal to recognize the union and the trial examiner's appraisal of the testimony, we are convinced there is substantial evidence in the record as a whole to support the Board's finding that the company's refusal to bargain was not in good faith. Finally, the company argues that the poll demonstrates the union lost its majority and this loss was not a result of unfair labor practices by the company. From our holding, supra, that substantial evidence supports the Board's finding that the poll was itself an unfair labor practice and coercive, it follows that the results of this poll cannot be used to demonstrate the union lost its majority. The minimum wage increase by the company was a refusal to bargain in violation of Section 8(a)(5) in view of our holding that the union had a majority on October 6 and the company's refusal to recognize the union was not in good faith. E.g., Labor Board v. Katz, 369 U.S. 736, 744-745 (1962). The Board's order is in all respects affirmed and enforcement is granted. Enforcement ordered.

法律

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The latest news and information from Michigan Lawyers Weekly State Bar Representative Assembly: End judicial age limits Posted on May 10, 2013 by Traci R. Gentilozzi The State Bar Representative Assembly, after “vigorous debate,” has approved a resolution to end the constitutionally mandated age limit for Michigan judges. The Michigan Constitution says: “No person shall be elected or appointed to a judicial office after reaching the age of 70 years.” According to the Rep Assembly proposal, this age 70 cap goes back to the Michigan Constitution of 1908, which was broadened in the 1963 Constitution to apply to all judicial offices. The Rep Assembly asserts that, given the increase in life expectancy and laws prohibiting age discrimination, the Michigan Constitution should be amended to remove the age limitation. Before the Rep Assembly voted on the resolution, former Michigan Supreme Court Justice Marilyn Kelly discussed the report and recommendations of the Michigan Judicial Selection Task Force, which she co-chaired with former 6thU.S. Circuit Court of Appeals Judge James Ryan. In particular, the task force notes that the age 70 provision applies only to judges and justices, and not to other elected officials in Michigan. Therefore, the task force believes the limitation is “arbitrary” and “serves no legitimate public interest.” The task force asserts that the age 70 limit “artificially ends the judicial careers of existing judges and justices who reach the age limitation and unnecessarily constricts the pool of otherwise qualified persons who might be candidates for judicial office.” As a result, the task force says the age limitation “warps the judicial selection process in our state.” Currently, the Michigan Senate is considering Joint Resolution F, which would effectuate the amendment recommended by the task force. Joint Resolution F has been reported to the Committee of the Whole and is awaiting further action. If passed by both the Senate and the House, the amendment will be submitted for a public vote in November 2014. This entry was posted in The MiLW Blog, Uncategorized and tagged Justice Marilyn Kelly by Traci R. Gentilozzi. Bookmark the permalink. Leave a Reply Cancel reply Your email address will not be published. Required fields are marked *Comment Name * Email * Website Proudly powered by WordPress

法律

2016-50/4390/en_head.json.gz/11746

| De Rose v. Delaware De Rose v. Delaware Decided: May 16, 1932. JOSEPHINE DE ROSE, ADMINISTRATRIX OF THE ESTATE OF ALPHONSA DE ROSE, DECEASED, RESPONDENT,v.THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, APPELLANT For the appellant, Frederic B. Scott. For the respondent, John O. Benson. We are of the opinion that the grounds of appeal as presented on this appeal were involved in a rule for new trial allowed in the Supreme Court and disposed of there. 9 N.J. Mis. R. 183. The grounds of appeal are that the trial court refused to direct a nonsuit for the reasons (1) that the accident, if it occurred by the deceased coming in contact with train No. 66, was caused by the sole negligence of plaintiff's decedent and therefore his negligence was the proximate cause of the accident; (2) that no negligence had been shown on the part of the railroad; (3) that plaintiff's decedent assumed the risk of the accident. Also that the court refused to direct a verdict in favor of the defendant on the same grounds. Among the reasons filed on the rule for new trial were (1) because the verdict of the jury was contrary to the charge of the court wherein it charged the jury as follows: "If you find that De Rose was an experienced trackman and that when he was working alone he had been instructed to 'look out' or 'watch out' for trains, then your verdict must be for the railroad company, for his injuries, if he received them by coming in contact with a train of the defendant, was a risk which under the law he assumed," and (2) because the verdict of the jury was against the evidence and the [109 NJL Page 136] weight thereof (and) of the charge of the court wherein it charged as above quoted. In the opinion of the Supreme Court discharging the rule we find the following: "It is now argued under reasons 1 and 2 that the verdict was contrary to the charge as above quoted, and against the evidence and the weight thereof and the above quoted portion of the court's charge. In other words, it is sought now to review the case on the theory that the verdict was contrary to the charge of the trial court, in that the evidence demonstrated as a matter of law that decedent had assumed the risks incident to his employment. The question so presented was reserved by the exception taken when the motion for a nonsuit and a directed verdict on this ground was made. However, it is argued here and it may as well be decided." Under the reasons so filed it is apparent that all the grounds now urged on appeal were involved and cannot be raised again on a legal review. Cleaves v. Yeskel, 104 N.J.L. 497. The appeal is accordingly dismissed. For dismissal -- THE CHIEF JUSTICE, TRENCHARD, LLOYD, CASE, DONGES, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, KERNEY, JJ. 11.

法律

2016-50/4390/en_head.json.gz/11747

| Maria v. Curtiss-Wright Corp. Maria v. Curtiss-Wright Corp. JOSEPH DI MARIA, PETITIONER-RESPONDENT,v.CURTISS-WRIGHT CORP., RESPONDENT-PROSECUTOR On writ of certiorari. For the prosecutor, John W. Taylor. For the respondent, Nathan & Isadore Rabinowitz. Before Case, Chief Justice, and Justices Heher and Colie. Colie COLIE, J. This is a workmen's compensation matter in which the employee was awarded compensation in the Bureau and, on appeal, in the Court of Common Pleas. The evidence was that DiMaria on June 21st, 1943, commenced to operate a roller-sanding gun which vibrated his hand. On July 2d he felt his hands becoming stiff and reported the condition to the first-aid department. There was medical testimony to support a finding of "traumatic chronic progressive adhesive teno-synovitis of the flexor tendons of both hands." The sole question presented by this writ of certiorari is whether or not the employee sustained an accident within the meaning of the Workmen's Compensation Act. We find no evidence of an accident. In Liondale Bleach Works v. Riker, 85 N.J.L. 426, the Supreme Court, speaking through Mr. Justice Swayze held [134 NJL Page 525] that "where no specific time or occasion can be fixed upon as the time when the alleged accident happened, there is no injury by accident within the meaning of the act." This statement of the law was followed by the Court of Errors and Appeals in Smith v. International High Speed Steel Co., 98 N.J.L. 574. Respondent quotes from Bollinger v. Wagaraw Building Supply Co., 122 Id. 512 (at p. 520), a statement which purportedly supports the judgment now under review. The Court of Errors and Appeals in the cited case said "we think that the requirement that the injury or death arise by accident, under our statute, is satisfied if the claimant discharges the burden of proving that the condition complained of, i.e., the injury or death, is related to or affected by the employment, that is to say, if but for the employment it would not have occurred." We suggest that the above quotation from the Bollinger case is dictum and unnecessary to the decision thereof since the opinion of the Court of Errors and Appeals expressly states that there was plenary medical evidence that the sand coming into contact with the mole on July 15th was the cause of the melanoma. This latter statement from the opinion in the Bollinger case is precisely in line with the holding in Liondale Bleach Works v. Riker, supra, requiring the fixing of a specific time or an occasion when an accident happens in order to make the resultant injury compensable. The term "accident" as used in the Compensation Act connotes some unlooked for mishap or untoward event, not expected or designed. Bryant v. Fissell, 84 Id. 72. The opinion of the Common Pleas discusses the fact that the employee's system was peculiarly susceptible to vibration. Assuming such to be the case, that merely goes to the extent of the injury sustained and has no bearing upon whether an accident within the meaning of the act was sustained. The case of Capuano v. Wright Aeronautical Corp., 134 N.J.L. 339, seems on all fours with the instant case and is controlling upon us. There the injury was caused by repeated traumatic vibrations but there was no evidence of a time or place when the alleged accident took place. The Supreme Court reversed a judgment awarding compensation. The judgment under appeal is reversed, but without costs. HEHER, J. (Dissenting.) It cannot be doubted that the workman suffered a partially disabling injury which arose out of and in the course of the master's service. The question is whether the injury had its genesis in an accident within the intendment of the statute. I think it had. There was no pathology. It is conceded that the disability is the consequence of a "traumatic, chronic, adhesive, tenosynovitis" of the flexor tendons of both hands due, in turn, to the vibration incident to the workman's operation of a compressed air roller sander over a period of a little more than a week after the service began; and this condition the employer considers an occupational disease. It introduced medical opinion that it is "a rare condition" which "may be due to repeated trauma in which fibrotic changes are set up, following small pin-point hemorrhages" -- such as may ensue from manual use of a vibrating machine -- but that it is not the result of a "particular injury" or a "single occurrence," and is "rather in the nature of an occupational disease." Thus, the opinion evidence involves mixed conclusions of law and fact, in part beyond the province of medical science, and is to be assessed accordingly. The medical opinion is one on the proposition that the injury was traumatic and not idiopathic in origin. It does not take the category of an occupational disease, for the "pinpoint hemorrhages" and the attendant disabling fibrotic changes were the consequents of "repeated trauma," rather than causes incident to the nature of the work, and so a disease which naturally and customarily attends its performance. Is not this employee's incapacity the cumulative effect of a succession of particular occurrences in their nature accidental? It would seem to be axiomatic that the disability derivable from a series of traumatic injuries is no less compensable than the consequence of one. The expressed design of the statute is the provision of compensation for personal injuries or death "by accident arising out of and in the course" of the employment. R.S. 34:15-7. There was personal injury to the employee here, and it was unquestionably suffered by accident; and this is not the less so because the [134 NJL Page 527] ultimate injury and incapacity were the cumulation of a succession of accidents of like nature. Such is the rationale of the English case of Selvage v. Charles Burrell and Sons, Ltd., (1921) 1 K.B. 355; affirmed, sub nom. Charles Burrell and Sons, Ltd., v. Selvage, 90 L.J.K.B. 1340, where the servant, while using a machine, suffered occasional scratches of the hands over a period of several months and osteoarthritis as the result of a gradual septic absorption through the abrasions. In upholding an award of compensation, Lord Buckmaster for the House of Lords said that the workman sustained personal injury by accident, and that "the accident is no less accidental because it occurred on a series of occasions instead of on one." Lord Wrenbury, concurring, pointed out that "the compensation is paid not for the accident, but for the personal injury caused by the accident," and that where the contraction of disease is the injury for which compensation is to be given, "it cannot be material that the disease was contracted by reason of a succession of scratches suffered over a period of some four months. Not the scratches, but the disease resulting from the scratches, formed the injury here for which compensation was given by the act." The principle was applied by the House of Lords in Innes (or Grant) v. G. & G. Kynoch, (1919) A.C. 765. I do not read the case of Liondale Bleach, Dye and Paint Works v. Riker, 85 N.J.L. 426, citing earlier English cases, as laying down a different doctrine. Where the incapacity is the cumulative effect of successive accidents of the same character, it is not requisite under the statute that a single occurrence be identified, by time, place and circumstance, as the producing cause of the injury. That would be an artificial view of the Act in disregard of its essential policy. Here, as in the Selvage case, supra, there was a series of accidents, each specific and ascertainable, although its actual influence on the ensuing illness cannot be precisely fixed. The statute does not require that, where an accident is proved, there must also be proof of the exact time and the circumstances and the place of the accident. The rule is not so rigid and inflexible. [134 NJL Page 528] Its application is limited by the reason which underlies it. "Accident" in the statutory view imports a particular occurrence; and therein lies the significance of the usual requirement that the time and place of the happening be fixed. Unless there is a specific occurrence at a particular time, the essence of an accident is wanting. But an accident may be established without proof of the precise time of its occurrence; it suffices if the evidence demonstrates a specific happening of that nature, causally related to the employment, with such proof of time and place as the circumstances reasonably admit. In Innes v. G. & G. Kynoch, supra, Lord Parmoor said (at p. 796): "There are some accidents in which such particularity would not be practicable. I am unable to draw any distinction between an accident which has been proved to have occurred at a particular hour on a particular day, and an accident in reference to which the particular hour or day cannot be established, but which certainly is proved to have occurred within some narrow limitation of time. The question is not so much the minute particularity of the occurrence, as the existence of competent evidence on which the arbitrator may find the causal connection between the accident and the injury." Of course, the time of the mishap has a bearing upon the provision for notice, but that question is not in this case. It is enough to say that that provision has reference to the "occurrence" of the "injury." R.S. 34:15-17. In the case at hand, the injury is directly traceable to specific occurrences accidental in nature, within a comparatively brief period of time, all referable to the employment; and thus the statutory requirement of proof of a causal relationship between the accidental occurrences and the injury is satisfied. The time of the happening of the accidental injury is fixed with as much certainty as its nature permits. There was "injury by accident" in the legislative sense. And it goes without saying that the particular workman's peculiar susceptibility to injury of this character is not preclusive of the right to compensation. I would affirm the judgment.

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Learn More About Train Accident Litigation in Bloomsbury, New Jersey Hometrain accident litigationnew jerseybloomsbury Bloomsbury is a Borough in Hunterdon County, New Jersey, United States. As of the United States 2000 Census, the borough population was 886. Bloomsbury was incorporated as a borough by an Act of the New Jersey Legislature on March 30, 1905, from portions of Bethlehem Township. The Borough of Bloomsbury was once known as "Johnson's Iron Works", owned by Robert Johnson, on the north bank of the river. The current name is derived either from the Bloom family, influential in the early history of the town, or from the iron ore processed into "blooms," masses of wrought iron. Train Accident Litigation Lawyers In Bloomsbury New Jersey What is train accident litigation? Train accidents often occur because of human error, problems with the track, equipment, and/or signal. Oftentimes many people are injured because of train accidents. There are many factors that lead to a railroad accident and there are many people who may be liable. It is the responsibility of the railroad company to maintain the tracks and the train. But truck and car drivers are responsible if they do not follow laws that are intended to protect against accidents. People who are injured in train accidents may be compensated for their injury, lost income, and pain and suffering. Answers to train accident litigation issues in New Jersey Who is at fault in a accident with a train? Railroad accidents may take the form of a collision with another train, a car or bus, or even a solo derailment or... Federal court opinions concerning train accident litigation in New Jersey 207 US 328 Atlantic Coast Line Railroad Company v. J H Wharton B L H 103 US 11 Dennick v. Railroad Company 112 US 331 Hart v. Pennsylvania R Co 114 US 325 Marye v. Parsons 115 US 413 State of Alabama v. Burr 116 US 366 Little v. Hackett 117 US 1 Memphis Co v. 30 US 1 The Cherokee Nation v. The State of Georgia Hometrain accident litigationnew jerseybloomsbury

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2016-50/4390/en_head.json.gz/11783

| SHARMAN v. C. SCHMIDT & SONS SHARMAN v. C. SCHMIDT & SONS UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA William SHARMAN C. SCHMIDT & SONS, INC. The opinion of the court was delivered by: WOOD Plaintiff, William Sharman, hereinafter referred to as 'Sharman,' is a nationally known professional, amateur athlete and coach. The defendant, C. Schmidt & Sons, Inc., hereinafter referred to as 'Schmidt's,' is engaged in the business of manufacturing and selling beer and malt beverages. The gist of the Complaint is that there is an unauthorized libel by reason of the use of Sharman's picture in an advertising campaign put on by Schmidt's and that in addition thereto his rights of privacy and publicity were invaded. Trial was to the Court without a jury and we make the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT 1. That at the time of the institution of this action, plaintiff was a citizen of the State of Massachusetts, residing in the City of Needham, and is presently a resident of the State of California, residing in Covina. 2. The defendant is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, having its principal place of business in Philadelphia, Pennsylvania. 3. The defendant is and was at all times relevant hereto the operator of a brewery engaged in the business of manufacturing, advertising, selling and distributing beer and other malt beverages in and throughout the States of Pennsylvania, New Jersey, New York, Delaware, Maryland, Virginia, District of Columbia and in the New England States, except Vermont, New Hampshire and Rhode Island. 4. On or about January 6, 1960 plaintiff was a professional basketball player, playing with a professional team known as 'The Boston Celtics.' 5. About a year before the occurrence in question, plaintiff retained one John Harkrider, 341 E. 43rd Street, New York, New York, to act as his agent in soliciting professional photographic studios to use Sharman as a model for advertising. Harkrider was then engaged in the business of acting as an agent for male models. 6. Several weeks before January 6, 1960, Sharman, in the company of Harkrider, personally called at a number of commercial photographic studios for the purpose of interesting these studios in the use of Sharman's picture in connection with advertising. 7. One of these studios at which they called was Studio Associates, Inc., where Sharman had test photographs taken. 8. There is no affirmative evidence from which the Court can find as a fact that Sharman or anyone on his behalf made known to anyone at Studio Associates, Inc., of any restrictions on the use of his picture in advertisements for the sale of beer. 9. Sharman's picture together with a number of others were subsequently sent to Ted Bates & Company, an advertising agency, for the purpose of selecting the picture of an individual to be used in conjunction with a campaign which they were putting on for Schmidt's. 10. The representative of Ted Bates & Company selected at least three from a group of pictures which they felt would be desirable and among them was the picture of Sharman later used as more particularly set forth herein. 11. On January 6, 1960, as a result of a telephone call from Harkrider's office, the plaintiff's picture was taken at the photographic studio of Studio Associates, Inc., in New York City, New York, and for such picture Sharman was posed in a red shirt holding a bowling ball and without any particular backdrop and no other props in the picture. 12. At no time during the final sitting did Sharman state to anyone at Studio Associates, Inc. that he was unwilling to have his picture used in connection with a beer advertisement. 13. After the pictures were taken Sharman was given two releases which he read and signed in the presence of Patricia Griffing. He was paid $ 125.00 for the picture used in the advertisement, the subject of this controversy. 14. At no time during the course of signing these releases did Sharman indicate to anyone at Studio Associates, Inc., or Ted Bates & Company that there was any qualification to the general language of these releases or that he did not intend to be legally bound by the written terms thereof. 15. After Sharman's pictures were taken at Studio Associates on January 6, 1960, they were then sent to Ted Bates & Company. Ted Bates thereafter did the necessary art work and furnished the finished product to the Schmidt Company for approval. 16. Schmidt's advertising manager approved the final art work which had Sharman's face in the bowling ad. Later the beer glass and bottle were engraved on the composite advertisement. 17. Uncontradicted evidence causes us to find as a fact that the representative of the Ted Bates agency did not know that at the time he selected Sharman's picture that he was an athlete of national standing. On the contrary, from the evidence, we must find that his picture was chosen because of the photograph itself and on the basis of their judgment that a person of his features would be most conducive to the advertising campaign which they were promoting. 18. Plaintiff first objected to the defendant's beer advertisement in July of 1960, through his counsel in a letter addressed to the defendant. 19. As a result of the use of the picture in the beer advertisement, he suffered to some extent ridicule and criticism during a few basketball games and, particularly, in the City of Philadelphia. This subjectively caused him concern and worriment. He was particularly concerned over the possible loss to him of many endorsements in the field of sports and its effect on children and parents. He suffered further anguish by reason of his contemplated future career as a college coach, participation in boy's camps activities and personal appearances before audiences comprised of parents and children. DISCUSSION With the advent of 1960 Schmidt's launched an extensive advertising campaign to sell its beer by outlining 'The One Man in Four' who possessed the discerning good taste to purchase its product. For this project they contemplated using rugged, masculine 'faces' to illustrate certain athletic recreational backgrounds, such as a skiing scene, a fishing scene, a trapshooting scene and a bowling scene. Meanwhile, Sharman had been properly attempting to supplement his income by the use of his picture or by endorsements in the advertising field. As we have found, one of the pictures for which he was paid was used in this campaign. At the time of the taking of the picture Sharman was paid a fee of $ 125.00 for which he executed two releases, which, inter alia, permitted the use of his picture 'distorted in character, or form.' The releases also recited that the picture was to be used for advertising purposes and gave unrestricted rights to all persons and corporations to use the subject's name in conjunction with his picture. Schmidt's did not use Sharman's name, and we are merely concerned with the use of his picture. The issue in this case rests solely on the legal interpretation of the releases in conjunction with the facts which we have found above. The only protection reserved to Sharman after execution thereof is contained in the words 'unless it can be shown that said reproduction was maliciously caused, produced and published solely for the purpose of subjecting me to conspicuous ridicule, scandal, reproach, scorn and indignity.' It is Sharman's contention that because of his close association with youth activities and his previous youth directed endorsements that the advertising has legally subjected him to conspicuous ridicule and scorn, thereby vitiating his written consent. We must decide, therefore, as the issues are framed, whether in any event the picture is defamatory in its portrayal of the plaintiff in connection with the beer advertisement and also whether or not such portrayal is a serious and unreasonable invasion of the plaintiff's right of privacy and publicity beyond the terms of his express written consent. Theorizing in the libel action that Schmidt's through their advertising agency, probably posed him with a bowling ball to disguise his identity as a basketball player but realizing full well that he would be immediately recognized by a large segment of a sports-conscious public because of the reputation which he had achieved, he contends that this constituted a 'false prop' and they in fact published his picture under an alias. Be that as it may, we are compelled to conclude that he willingly and voluntarily permitted his picture to be taken for a consideration and executed at that time the aforementioned releases. It is inescapable that he knew his picture was to be used in connection with bowling. Whether he knew that it was to be used in a beer advertisement or a particular type of advertisement may be open to some doubt; but, regardless, it is not controlling in this case. The consent of a plaintiff will avoid liability for any defamation. Such consent negatives the existence of any tort in the first instance. There was initial consent by signing the release and by acquiescence in the taking of his picture with a bowling ball. Coming to his second cause of action for invasion of his right to privacy, he argues that while he posed for a bowling picture he never consented to the use of the picture to promote the sale of beer. In this connection, he contends that it is detrimental to a professional athlete, and particularly to him and others in a similar status, to be in any way connected with the promotion of the sale of alcoholic beverages, including beer. We find it impossible to come to such a conclusion. It may very well be that Sharman was economically or financially affected by what took place, but it cannot be maintained as a principle of law that for an athlete to be associated with an advertisement for beer involves his right to privacy, particularly where he has given such broad and unequivocal consent to the use performed in this case. Sharman further contends that although there was consent to the use of the bowling picture the additional use of it in connection with beer and the composite advertising containing his picture, the bowling ball, a beer glass and a bottle, exceeded the authorization of the release. In support thereof, he cites Russell v. Marboro Books, 18 Misc.2d 166, 183 N.Y.S.2d 8 (1959). In that case a professional female model posed for a photograph to be used for advertising purposes and executed a release of liability. Subsequently, by photographic manipulation, her head was removed from this picture and placed on the body of another female pictured in bed with an elderly man. The altered picture was used to advertise a vulgar book entitled 'Clothes Make the Man' which contained obscene illustrations. In that case Judge Levy ruled that the picture in its altered form exceeded the consent conferred by the release. He stated at page 27 of 183 N.Y.S.2d: '* * * I would hold that the original written consent would not apply and that liability would accrue where the content of the picture has been 'so changed that it is substantially unlike the original. In this aspect of the case, I speak of content of the picture as used, not the purpose or extent of its use. If, for instance, Springs had used the original picture for its advertising of bed sheets, without the attendant objectionable writing or references, the fact that the purpose of the advertisement was not to interest readers in books would not negate the effect of the release.' (Emphasis supplied) Applying the principles of that case to ours we conclude that Sharman's picture was not substantially altered in content. It remained a bowling picture to which was appended a glass and bottle of beer. These additions supplied the purpose of the picture, namely: to sell beer. Having in mind, as we have previously stated, that Sharman did not restrict the commercial use of his picture before it was published in order to justify his position here he would have to bring himself within the provisions of the release, which we find he cannot do. It was contemplated by all parties concerned that the picture would eventually be used for a commercial purpose. The sale of beer is a commercial purpose and is not such a use as brings the facts of this case within those of the Russell case. In O'Brien v. Pabst Sales Co., 124 F.2d 167 (5 Cir., 1941), the United States Court of Appeals for the Fifth Circuit had reason to rule on a situation factually similar to the instant case. There, the defendant, Pabst Beer, had used a picture of All-American Quarterback, Davie O'Brien (who subsequently became a star for the Philadelphia Eagles) on a calendar which contained advertisements for its beer. O'Brien had never signed a written release and had never been paid for the use of his picture. He claimed that this use had been an invasion of privacy and defamation. The District Court found that there had been an implied consent to the use of plaintiff's photograph and dismissed the claim. The Court of Appeals in sustaining this dismissal, accepted the reasoning of the lower court in reference to the use of an athlete's picture in connection with an advertisement for beer. The District Court had stated that: '* * * the business of making and selling beer is a legitimate and eminently respectable business and people of all walks and views in life, without injury to or reflection upon themselves, drink it, and that any association of O'Brien's picture with a glass of beer could not possibly disgrace or reflect upon or cause him damage.' pp. 169, 170. The present state of the law regarding the right to privacy has been colorfully described by Chief Judge Biggs as being '* * * still that of a haystack in a hurricane.' However unsettled the law, the right to privacy exists in all of the jurisdictions where Schmidt's used Sharman's picture to advertise its beer. Therefore, no conflict of laws question arises in this case regarding the application of the law of the forum. One universally accepted principle of the right to privacy is that a consent to an invasion is a complete defense to the appropriation of a plaintiff's likeness to sell products. In the case at bar, by the execution of the release Sharman conclusively consented to the use of his picture. It has also been held that a celebrity such as Sharman has a limited right to privacy because of his prominence. His actions and life are subject to a legitimate public curiosity. A sports figure can complain when his name or likeness is used to advertise a product but he can recover damages only if he has not consented to such use or the advertising exceeds the consent granted. We hold that the use of his picture in the advertisement did not come within the reservations of the release nor was it an intrusion upon his rights which is outrageous or beyond the limits of common decency, and therefore is not an invasion which warrants relief by this Court. In respect to the action based on an invasion of his right of publicity, this, too, is a fledgling branch of the tort of invasion of privacy. Public figures in the celebrity category have a valuable property right in their name and image. Pennsylvania has recognized this right in the case of Hagan v. A. S. Barnes & Co., 137 Legal Intelligencer (July 11, 1957), C.P. Philadelphia County. In this case, relied upon by the plaintiff, Walter Hagan, the famous golfer, brought suit because his name and picture had been used in a book on famous golfers after he had objected to the same. The Court allowed compensatory damages because there was an unprivileged appropriation of the elements of plaintiff's personality. Factually, the Hagan case, with which we do not disagree, is inapposite to the instant controversy. There, Mr. Hagan's picture was taken without his knowledge while he was on the golf course. Later, the photographer sent him a letter containing a release and a check for $ 100.00. The letter requested that Mr. Hagan sign and return the release and permit the use of the pictures in the golf book. Mr. Hagan simply answered by stating: 'Are you kidding?' Also he wrote a letter to the publisher informing him that he strenuously objected to any use of these pictures and would not authorize their publication in the golf book. The publisher ignored this obvious refusal of consent and published Walter Hagan's picture. Clearly, this case is basically different from ours since Sharman did consent to the use of his picture for advertising purposes. We come to the question as to whether Schmidt's 'maliciously' caused the picture to be used solely for the purpose of subjecting him to ridicule. From the facts presented to us at the trial, and as stated above, there is a total lack of proof of malice. Sharman contends that having given notice that the continued use of his picture constituted malice per se. It will be recalled that notice was not given until seven months after the picture was originally taken. The fact that members of the sporting public recognized him in the advertisement does not constitute malice and the continued use of it would not create malice if it were not unlawful to begin with. The defendant spent large sums of money in what they contended then and contend now was in a lawful manner. To protect their investment by legitimate means of course resulted in the ultimate trial of the case and its disposition here, but that alone is far from a malicious act. In conclusion, there is no allegation let alone any proof of fraud, accident or mistake which caused Sharman to execute this release and he is therefore bound by its terms. We might add that we do not condone all that took place and in fact we are forced to conclude that some economic advantage was taken of Sharman by his own agent and the agency with which he, on Sharman's behalf, negotiated. This situation is not one for which the law provides redress in this action, even though we conclude that there may have been reprehensible conduct and an unfair advantage taken by the recipients of the picture and the release. CONCLUSIONS OF LAW 1. We have jurisdiction of the parties and the subject matter. 2. In executing the releases in favor of Studio Associates, Inc. and Ted Bates & Company and their nominees Sharman entered into a valid and binding contract releasing and discharging Ted Bates & Company and Studio Associates, Inc. and their nominees from any liability by virtue of any reasonable and lawful use of the pictures for which the plaintiff voluntarily posed and was paid for on January 6, 1960. 3. Schmidt's used the pictures of the plaintiff in the 'One Man in Four' campaign with the consent of Studio Associates and Ted Bates & Company and defendant, C. Schmidt & Sons, Inc. was the nominee of Ted Bates & Company and Studio Associates at the time the pictures were taken and the releases executed. 4. In executing the releases Sharman released and discharged Schmidt's of and from any liability of any nature whatsoever arising out of or related to the use of Sharman's picture in connection with advertising Schmidt's products. 5. The releases executed by Sharman bar all of the claims which he has asserted in this case. Restatement of Torts, § 892. 6. The use of Sharman's picture by Schmidt's under these circumstances did not libel or defame the plaintiff. 7. The use of plaintiff's picture by the defendant did not violate plaintiff's right to privacy. 8. The use of plaintiff's picture by the defendant under these circumstances did not violate plaintiff's 'right of publicity.' 9. The verdict is in favor of the defendant on all counts. ORDER And now, this 5th day of April, 1963, judgment is entered in favor of the defendant, C. Schmidt & Sons, Inc., on all counts of the Complaint. Our website includes the main text of the court's opinion but does not include the

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Tipton Statement on USFS Ski Area Water Rights Directive Dec 30, 2015 Issues: Agriculture, Constitutional Issues, Energy Environment and Public Lands WASHINGTON—Today, Congressman Scott Tipton (R-CO) issued this statement in response to the U.S. Forest Service’s publication of the final directive for the Ski Area Water Clause in the federal record. “The Forest Service’s conditional use of permit for ski areas has been one of the Administration’s most onerous attempts to hijack private water rights. While the latest version of the directive is improved from the original that sought to outright force the transfer of private water rights to the federal government, there still is room for improvement. The latest rendition of this ill-fated directive places unnecessary restrictions on private water rights holders, in an attempt to solve a problem that doesn’t exist. By the Forest Service Chief’s own admission, there has not been an instance of ski area water rights being sold off for other uses. Furthermore, there is still ongoing concern that while the Forest Service may not require the outright transfer of private water rights in this directive, it is still enforcing manuals that do. “Western water users are right to be wary of any action on water rights by this Administration, which has been dead set on slowly expanding federal control over water in the Western U.S. We continue to work on getting legislative protections in place to codify state water law and defend private water rights users from federal taking and interference as our Water Rights Protection Act seeks to do.” Despite the Forest Service’s insistence that under the new ski area permit condition it will no longer require the transfer of water rights, Forest Service manual 2441.32 (Possessory Interests), which is currently being enforced, instructs the agency to continue to claim water rights of permittees. It is unclear if or how the Forest Service plans to reconcile the conflicting instructions. Section 2541.32 of the 2007 Forest Service Water Uses and Development Manual directs: “Claim possessory interest in water rights in the name of the United States for water uses on National Forest System lands as follows: “Claim water rights for water used directly by the Forest Service and by the general public on the National Forest System. “Claim water rights for water used by permittees, contractors, and other authorized users of the National Forest System, to carry out activities related to multiple use objectives. Make these claims if both water use and water development are on the “National Forest System and one or more of the following situations exists: a. National Forest management alternatives or efficiency will be limited if another party holds the water right. b. Forest Service programs or activities will continue after the current permittee, contractors or other authorized user discontinues operations.” See the full manual HERE. Tipton has led the charge in Congress to protect private water rights users from federal takings and interference. He is the sponsor of the Water Rights Protection Act, H.R. 1830, which would provide water users with a line of defense from federal attempts, such as the Forest Service Groundwater Management Directive and ski area permit clause, to take private water rights without compensation or restrict user access to them. H.R. 1830 has passed the House in the 113th and 114th Congresses, and has wide support from local, state and national stakeholders including the National Ski Areas Association.

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2016-50/4390/en_head.json.gz/11926

You are hereHome > Report: Government Transparency Massachusetts Stimulus Website: What It Tells Us & How It Could Tell Us More MASSPIRG > Download Report (PDF) The American Recovery and Reinvestment Act (ARRA) was both a response to an economic emergency and an effort to launch a new set of policies to build a stronger foundation for long-term economic growth. It was signed into law 28 days after the new President took office. In the following months, the federal and state governments have been required to develop systems to distribute – and to track – hundreds of billions of dollars targeted at rebuilding our infrastructure, maintaining and improving the quality of education in our public schools, helping states to avoid budget cuts that would harm residents and the economy, supporting conservation and weatherization, investing in healthcare technology, and funding a variety of strategies to put people to work. To better insure the ARRA investments meet these critical goals, the law called for a comprehensive level of data collection and transparency, significantly exceeding the current level of budget and contracting disclosure for most states, including Massachusetts. Comprehensive transparency allows us all—the public, government officials, administrators, businesses contractors, and residents—to ensure ARRA projects and investments are distributed and used fairly and efficiently. Because the law also sought to distribute funds quickly, building these tracking systems while implementing the law and distributing the funds poses daunting challenges. This brief examines how Massachusetts has used its recovery website to provide information about ARRA spending – and describes additional strategies that could improve transparency.

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2016-50/4390/en_head.json.gz/12127

Developer and Bank Give Couple the Runaround With Chinese Drywall Claim Eric Barton Tuesday, June 30, 2009 at 6:28 a.m. By Eric Barton John and Jacci Knouff first figured out there was something wrong with their house because of the cat box. They kept changing the litter, yet every time they walked in, it smelled like they'd forgotten it for a week. "There were times at the beginning when we just had changed the litter and I'd think, 'God! It smells terrible in here,'" John recalls.That was in December 2006, when the couple first bought their three-bedroom, three-and-a-half bath townhome in the Coconut Creek development of Julia Gardens. After a few months, they realized it wasn't the cats making the place stink. But the cause would escape them for a few months.Like as many as 30,000 homeowners in Florida, the Knouffs now know that their home was built with defective Chinese drywall. Lawsuits are making their way through the courts against developers and manufacturers. Meanwhile, homeowners are trying to figure out if the drywall that's eating through copper wires in electronics is also making them sick. But few stories of the people who suffer from this stuff have been told, so the Juice will dedicate space to a few of them over the next few months. Upcoming Events The Knouffs finally figured out they had Chinese drywall earlier this year after hearing news reports about the stuff. John crawled up in the attic and looked down at the walls below. Printed on the back was the word "Tianjin," the city in China that manufactured the bad drywall.The couple got an attorney, Chinese drywall expert Allison Grant of Boca Raton. Grant first tried to get the developer or the lender to fix the home. But so far, no luck. "I'm trying everything, and they're not listening," Grant said.Julia Gardens developer Standard Pacific Homes has been unwilling to work with the couple. The Knouffs didn't threaten lawsuits or demand big-money settlements -- they just asked that Standard Pacific move them in to one of the unsold townhomes in the 112-unit development until their place can be fixed. John said that only about a third of the townhomes in Julia Gardens are believed to have Chinese drywall, and the new units were built with good drywall. But Standard Pacific wouldn't budge. "They've basically said tough luck," John said.I reached Standard Pacific CFO John Stevens at his office in Irvine, California. Stevens said: "We're investigating the problem and looking for solutions, but I can't comment at this time." As for the Knouffs, he said: "They should continue to call."The Knouffs have also tried to work with their lender, JP Morgan Chase. They hoped the international banking conglomerate could see its way into forgiving their mortgage for a few months while the place gets fixed up. That would allow the Knouffs to afford a rental property. Nancy Norris, a spokeswoman for JP Morgan Chase, said the bank was "going to reach out to the customer and see" about options. Somebody from Chase did call the Knouffs afterward, but so far, nothing has been done to help them.As if things weren't already bad for the Knouffs, John lost his job recently. He was the beverage manager for a country club in Boca Raton. They're now living off his wife's salary as a nurse. And the stress? It's constant."The stress and tension is incredible every day. I don't want to say I'm sitting by the phone, but I keep wondering if somebody is going to do anything to help us? At the end of the day, I know it's all about money."

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2016-50/4390/en_head.json.gz/12132

View has no place While Nancy Cope may feel as if she has been robbed as same-sex marriage is increasingly recognized as a civil right, supporters of same-sex marriage have long felt robbed because of the unnatural monopoly religion has had on the concept of marriage. I’m referring to her Jan. 8 letter to the editor, “Words’ meaning stolen.” Cope’s construction of marriage as solely the province of religion is evident when she writes, “God designed this union to be so special that new life is produced as a result — a baby.” Does Cope believe atheists have a right to marry? What about those who choose not to procreate? As is evident, Cope’s conception of marriage is one entirely derived from her religious beliefs and, as such, has no place in this debate. Marriage is simply a specific type of contractual agreement between consenting individuals, and government’s role is simply to enforce the terms of the contract, not stipulate who the parties are to the contract. If Cope and other religious individuals wish to have a religious ritual surrounding instances of this contract that comply with church dogma, that is their right and is a separate issue that has no bearing on the fundamental at stake. Amesh A. Adalja, M.D. Penn Township Back

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Kansas working on law to require Doctors to tell patients abortion causes cancer banyon Location: Dodge City, Kansas These kind of topics usually don't interest me, but this interests me more on the "government competence" front than pro-life/pro-choice: Gwynn: Legislators factually incorrect in anti-abortion bill• By Katherine Gwynn •Feb. 25, 2013 On Feb. 6, HB 2253 was introduced in the legislature, a 70-page bill that endeavors to severely restrict reproductive freedom in the state of Kansas. It further limits freedoms of individuals with the capability to become pregnant who decide to terminate a pregnancy. And while there are numerous sections in the bill I could criticize and tear into about their complete lack of respect for individuals’ rights to choose, as well as inserting religious doctrine into secular governmental regulation, I’ll focus on one section in particular. Specifically, how it requires doctors by law to feed false information to their patients when they consider receiving an abortion. The bill states that “abortion causes breast cancer.” This statement originates from an outdated study that has long been disproven. In fact, according to the National Cancer Institute (NCI) in February of 2003 “a workshop of over a 100 of the world’s leading experts who study pregnancy and breast cancer risk … they concluded that having an abortion or miscarriage does not increase a woman’s subsequent risk of developing breast cancer.” Yet Kansas legislators – even though they could discover this by, you know, talking to a doctor for example – insist this is “medical fact” rather than antiquated and discredited research. In which case, if we’re allowing information that has been disproven by science to still reign as reality, then I declare Pluto is still a planet. Because science used to say it was. Personally, I think I’ll trust medical professionals rather than politicians when it comes to what is actually medical fact. Which “abortion causes breast cancer” is not. This section’s inclusion in the bill not only stands out as morally wrong – requiring doctors to lie to their patients in order to coerce them into decisions about their bodies sounds like a hypocritical no-no to me – but tarnishes the reputation of the University of Kansas Medical School. Just this past summer, the University received accreditation as a National Cancer Institute. This is incredible, not only for what it means for increased opportunities and funds for medical advances at KU Med, but in terms of the recognition the University has received for the work its students are doing to end cancer. But requiring doctors that train at KU Med who go on to practice in Kansas to tell individuals that they are at risk for breast cancer if they receive an abortion is an insult to the field of cancer research, and to the doctor-patient relationship. Also, the National Cancer Institute? They’re kind of the ones who, if you remember from earlier in the article, have said breast cancer and abortion have no correlation. So now our med school would be required to basically train doctors who practice in Kansas to say, “Hey that big important entity who funds us? And who are cancer experts? Yeah, those guys have no idea what they’re saying.” You might be pro-choice. You might be pro-life. But either way you should be kind of pissed that your legislators are trying to get your doctors to lie to you, about something that has blatantly been proven is a lie. Also, I can’t be the only one tired of a bunch of people in Topeka being so incredibly concerned about the future of my ovaries that they’re willing to write 70 pages of anti-abortion legislation, in the fourth strictest state in terms of abortion regulations, when we have other things to focus on — like the economy. So call your legislator. If you don’t know who they are, go to openkansas.org and type in the address where you’re registered. E-mail them, tweet them, call them, whatever. Just let your legislature know that this piece of legislation? Yeah, not cool, bro. http://kansan.com/opinion/2013/02/25...abortion-bill/ Find More Posts by banyon That is just silly. I get annoyed by the group of people who wish to force their beliefs regarding their invisible friend. However to compare them the the ****ing Taliban is asinine~ Didn't say they were exactly like the Taliban, just said that there are probably many normal people there, but the leaders of that place are ****wit religious nutjobs. Not to be outdone, the Kansas Senate passes a bill that allows Doctors to conceal information about birth defects if they believe it might cause a decision to abort: Measure banning "wrongful birth" claims approved by Kansas Senate By SCOTT ROTHSCHILD, The Lawrence Journal-World The Kansas Senate on Thursday approved legislation that critics said would allow doctors to withhold information about prenatal problems from pregnant women if they believe it would lead the mother to get an abortion. Senate Bill 142 bans civil actions for a claim of so-called "wrongful life" or "wrongful birth," in which a doctor withholds information about medical problems with the fetus from the pregnant woman and the baby is born with problems the mother was not warned about. Abortion rights supporters say the measure will encourage doctors to lie to pregnant women. State Sen. Pat Pettey, D-Kansas City, said the measure "invites doctors to break the oath of their profession." She added, "This legislation is disrespectful to woman and families." But supporters of the bill said a doctor who lies to a patient would still be liable for medical malpractice and possible violations of standards set by the Kansas Board of Healing Arts. State Sen. Mary Pilcher-Cook, R-Shawnee, said the legislation, supported by Kansans for Life, would prohibit parents from filing lawsuits where they want to be compensated for not aborting their child. The measure was approved by the Senate, 34-5, and now goes to the House for consideration. http://www.kckansan.com/2013/03/meas...th-claims.html So basically supporters of the bill understand not only how ridiculous it is, but that there very well may be legal backlash becasue of it and have preemptively moved to cover their asses. What in the ****.... If I were a health care provider in that state I would be warming up my lawyers immediately. That, and/or looking to move. A lot of providers feel compelled to go where they are needed. Sometimes, it's a calling. Originally Posted by FishingRod Making it ok for Doctors to lie to their patients in any circumstance opens the door for them to do likewise in a situation that may be the exact opposite. Just something to consider for the ends justify the means crowd. Violation of the Hippocratic Oath. Understand, and agreed. But when lawmakers try to step in and give you a list of of things you can and cannot tell your patients... When I think of medical missions, I think of places like Uganda or the Congo, not Kansas. My daughter the LVN (on her way to RN) did an inoculation trip to India not too long ago. Maybe she'll be going to Kansas soon.

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Nation of Cowards? So says Eric Holder, but what’s really cowardly is racial dishonesty. Attorney General Eric Holder, a Clinton administration retread, wants to revive Bill Clinton’s National Conversation on Race. (What’s next? Hillarycare?) Holder recently told his Justice Department employees that the United States was a “nation of cowards” for not talking more about race. “It is an issue we have never been at ease with and, given our nation’s history, this is in some ways understandable,” Holder said. “If we are to make progress in this area, we must feel comfortable enough with one another and tolerant enough of each other to have frank conversations about the racial matters that continue to divide us.” Is he nuts? Leave aside for a moment Holder’s purely decorative call for a “frank” conversation about race. The Clinton-era Conversation also purported to be frank, and we know what that meant: a one-sided litany of white injustices. Please raise your hand if you haven’t heard the following bromides about “the racial matters that continue to divide us” more times than you can count: Police stop and arrest blacks at disproportionate rates because of racism; blacks are disproportionately in prison because of racism; blacks are failing in school because of racist inequities in school funding; the black poverty rate is the highest in the country because of racism; blacks were given mortgages that they couldn’t afford because of racism. I will stop there. Not only do colleges, law schools, almost all of the nation’s elite public and private high schools, and the mainstream media, among others, have “conversations about . . . racial matters”; they never stop talking about them. Any student who graduates from a moderately selective college without hearing that its black students are victims of institutional racism—notwithstanding the fact that the vast majority of black students there will have been deliberately admitted with radically lower SAT scores than their white and Asian comrades—has been in a coma throughout his time there. Education bureaucrats maintain an incessant harangue on white racism because they see the writing on the wall: most students are indifferent to race and just want to get along. If left to themselves, they would go about their business perfectly happily and color-blindly, and the race industry would wither on the vine. Thus the institutional imperative to remind black students constantly about their victimization and the white students about their guilt. Last month, the elite Phillips Academy at Andover proudly announced a student presentation on White Privilege: A History and Its Role in Education. Would the student have come up with such a topic on her own without the school’s educators deliberately immersing her in such trivial matters? Of course not. But if Attorney General Holder is really sincere about wanting a “frank” conversation about race, he should put the following items on the agenda: The American electorate. The country just elected its first black president. And it actually didn’t talk a lot about Barack Obama’s race during the election, thank heavens, because most Americans were more interested in the candidate’s ideas than in his skin color. There were undoubtedly hundreds of thousands of people who wouldn’t vote for Obama because of his race. I would guess that their average age was 75. There is no question that a great many geriatric Americans continue to harbor the rankest racism for blacks, but guess what? They’re not going to be around for much longer. Young people growing up in the last 30 years live on a different planet when it comes to racial attitudes—until the educrats start playing with their minds. We might also talk about those legions of older, black Americans who have held on to their love of country and belief in its ideals, despite having been subjected to America at its worst. I have had the privilege to speak to many such individuals for my work, and they have broken my heart with their dignity and nobility. Rather than reflexively consulting professional race activists for insights into race in America, the media and politicians might for once seek some voices that contradict the mandatory “angry black male” trope. Crime. Holder told his Justice Department employees that they had a special responsibility to advance racial understanding, according to the Associated Press. Uh-oh. Before and during Holder’s first stint at Justice, when he served as Clinton’s deputy attorney general, the department’s civil rights division specialized in slapping onerous federal consent decrees on police departments. Its assumption was that racial disparities in cops’ stop-and-arrest rates reflected police racism, not racial disparities in crime rates. Before Holder and his attorneys revive that practice, they should study certain facts that remain taboo in the mainstream media. For instance, the homicide rate for black men between the ages of 18 and 24 is well over ten times that of whites. And disparities in other violent-crime rates are just as startling. In New York City, one of the nation’s safest large cities, 83 percent of all gun assailants were black during the first six months of 2008, according to victims and witnesses, though blacks make up only 24 percent of the city’s population. Add Hispanic perps, and you account for 98 percent of all shootings in New York City. The face of violent crime in cities is almost exclusively black or brown. That explains why someone might feel a sense of trepidation when approached by a group of black youths. That’s not racism; it’s the reality of crime. And it’s that reality that determines whom the police stop, frisk, and arrest. Education. Commentators on NPR’s “black” show, News and Notes, recently groused about the lack of black policy experts on the Sunday talk shows but ignored the possibility that the education gap might have something to do with it. Blacks, they said, need to be twice as qualified as whites to get a job. Let’s look at the evidence. The black high school drop-out rate approaches 50 percent. On the 2006 SAT, the average score in the critical-reading section was 434 for blacks, 527 for whites, and 510 for Asians; in the math section, 429 for blacks, 536 for whites, and 587 for Asians; and in the writing section, 428 for blacks, 519 for whites, and 512 for Asians. America’s lousy showing in international math, science, and reading tests compared with Japan and Western Europe is influenced in large part by the low scores of blacks and Hispanics. If blacks and Hispanics performed at the level that whites do, the U.S. would lead all industrialized nations in reading and would lead Europe in math and science, according to a study published in the Phi Delta Kappan in 2005. Likewise, after their first year of legal education, 51 percent of blacks labor in the bottom tenth of their class; two-thirds reside in the bottom fifth. Blacks are four times as likely as whites to fail the bar exam on the first try. Until such achievement disparities are eliminated, any allegations of racial discrimination in the absence of proportional numbers of black policy wonks—or law partners, chemists, engineers, or investment bankers—is absurd, especially when the nation’s elite institutions are doing everything they can to recruit black students, professors, and employees. Perhaps Holder could confront the stigma against academic achievement among many black youth, who deride studying and staying out of trouble as “acting white.” The family. Closing the educational achievement gap will be difficult as long as the black illegitimacy rate is nearly 71 percent, compared with a white rate of 26 percent. Taxpayers foot the bill for this family breakdown—when fatherless children who never learned self-control and self-discipline disrupt classrooms and prevent other children from learning, and when the same fatherless children get sucked up into gang life and fail to connect with the world of work and responsibility. Many poor single mothers work heroically to raise law-abiding sons, but the odds are against them. When communities resist an influx of Section 8 housing-voucher holders from the inner city, say, they are reacting overwhelmingly to behavior. Skin color is a proxy for that behavior. If inner-city blacks behaved like Asians—cramming as much knowledge into their kids as they can possibly fit into their skulls—the lingering wariness towards lower-income blacks that many Americans unquestionably harbor would disappear. Are there irredeemable racists among Americans? To be sure. They come in all colors, and we should deplore all of them. But the issue of race in the United States is more complex than polite company is usually allowed to express. If Eric Holder wants to crank up our racial preoccupations even further, let him at least do so with a full airing of the facts. Heather Mac Donald is a contributing editor of City Journal and the John M. Olin Fellow at the Manhattan Institute. Democrats, Not Trump, Racialize Our Politics A party obsessed with race won’t have much luck reaching out to non-elite whites. Law, Order, and Trump The Republican candidate supported police and expressed concern about the growing homicide toll in black neighborhoods—in contrast with his opponent. The Times’s Weak-Willed Women How else to explain female absence from the sciences? January 28, 2009 City Journal

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Religious Freedom News Bulletin CLS Files Brief in Tenth Circuit March 1, 2013 - CLS filed an amicus brief in support of Christian business owners' rights to follow their religious convictions when providing insurance coverage for employees. The brief was filed in the Tenth Circuit in Newland v. Sebelius. The brief explains why the HHS Mandate's definition of "religious employers" sharply departs from the American bipartisan tradition of respecting religious conscience rights. Joining the CLS brief are: Association of Gospel Rescue Missions; Prison Fellowship Ministries; Association of Christian Schools International; National Association of Evangelicals; Ethics & Religious Liberty Commission of the Southern Baptist Convention; the C12 Group; and the Institutional Religious Freedom Alliance. Vanderbilt University Curtails Religious Liberty

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Pirate Bay Trial Judge Admits He Was Member of Copyright Protection Org Jason Mick (Blog) - April 24, 2009 9:43 AM Pirate Bay admins' lawyer demands a retrial Last week, the trial of four admins from The Pirate Bay, the world's largest torrent site, concluded. The result was a stunning defeat for the pirates, with a guilty verdict and a sentence of over $3M USD in damages (to be paid to Warner Bros., Sony Music Entertainment, EMI and Columbia Pictures) and a year in jail. Now new revelations have surfaced. It turns out the judge presiding over the trial, Judge Tomas Norstrom, was a member of two Swedish copyright protection groups. He confirmed his affiliation this week, which first surfaced in Swedish Radio reports. The affiliation represents a relatively clear conflict of interest, given that the prosecution lawyers consisted of three lawyers of similar affiliations. Peter Althin, who represented Pirate Bay spokesman Peter Sunde in the case, is demanding a retrial. He states, "This is completely new to me. It is reasonable that we should have known about this before. It is a clear case of bias." After successful actions against Kazaa and Grokster, two popular P2P clients, copyright lawyers are eager to trying to take down The Pirate Bay, which boasts over 22 million users. And it appears they had a fully loaded deck to do it with the trial of the administrators, as they had control of the Judge and the prosecution. All four defendants will appeal the guilty verdict Friday. It is likely that all of them will request a retrial as part of that appeal. Judge Nordstrom, meanwhile, defends his record, claiming he was completely unbiased. He admits he is a member of The Swedish Association for Copyright and Swedish Association for the Protection of Industrial Property. He also admits he worked with Monica Wadsted, who represented the American movie industry in the trial, in resolving internet domain name disputes. Despite these close ties, though he insists the trial was clean. He states, "I don't think there are any circumstances that have made me biased in this case." Meanwhile, Pirate Bay ringleader Peter "brokep" Sunde was quick to poke fun at the judge's affiliation, calling it "quite remarkable". He sums up the trial, in comments to the AP, in one word -- a "farce". "Mac OS X is like living in a farmhouse in the country with no locks, and Windows is living in a house with bars on the windows in the bad part of town." -- Charlie Miller Swedish Court Sends Pirate Bay Leaders to Brig, Takes Their Bounty Prosecution Alters Charges While Plaintiffs Fumble in Pirate Bay Trial The Pirate Bay Tells IFPI Lawyers to “Screw Themselves” RIAA Defendant Files Lawsuit on Kazaa Owner

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Testimony portion of trial ends, closing arguments next The closing arguments in the Michael Jackson wrongful death lawsuit are expected to begin next week after the testimony portion of the trial concluded on Friday. The trial regarding whether or not the promoters of Jackson’s planned comeback tour were negligent in hiring the doctor who ultimately caused the pop icons death has been a lengthy one, but is now moving into its final stages. Closing arguments are expected to begin on Tuesday, with the case potentially going to jurors as early as next week. Lawyers for the singer’s mother Katherine Jackson, who filed the suit, concluded testimony in the 21-week trial after hearing from Jackson’s longtime personal physician Dr. Allan Metzger and his attorney. Metzger spoke of Jackson’s skin conditions, burns and other injuries that requires medical attention from a variety of doctors, and also described the singer’s generosity. The King of Pop died in 2009 at his home ahead of his This Is It shows. Dr Conrad Murray was later convicted of involuntary manslaughter for administering and overdose of the anesthetic propofol, which Jackson took to help him sleep. Metzger, who was close to the singer and was his best man in his marriage to Debbie Rowe, concede that the singer engaged in doctor shopping, but only took prescription medication to treat genuine pain. “He needed it,” the doctor told the court. “He didn’t take it for joy.” Watch the This Is It clip below Metzger was called as a witness by lawyers or both Katherine Jackson and promoters AEG Live. The promoters used the physician to testify about Jackson’s use of multiple doctors, while Jackson’s mother’s attorneys called him to remind the jury of the singer’s generosity and the pain he endured following having his scalp burnt in a Pepsi commercial in 1984. Friday also saw Judge Yvette Palazuelos rule that the singer’s mother had been financially dependent on her son to some extent for the necessities of life, and as such is entitled to damages if jurors find AEG Live liable for her son’s death. AEG Live maintain they are not responsible for hiring of Conrad Murray or the singer’s death. Below: Michael Jackson's birthday - 10 stars he inspired Adam Tait Staff

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Sheriffs say state prisoner compensation not enough Two area sheriffs say Missouri's compensation for holding prisoners facing state charges is not enough. The state of Missouri pays counties $19.58 a day for food, housing and some medical care for inmates convicted of state crimes. At least two area sheriffs whose counties operate jails say that’s not enough.According to Marion County Sheriff Jimmy Shinn, the state cut its level of compensation from roughly $24 to $19 two years ago.“That was pretty detrimental. It’s a huge hit for all county jails. We feel as county sheriffs that it’s not right,” he said.Pike County Sheriff Stephen Korte described the state’s level of compensation as simply being “better than nothing.”It’s not uncommon for state fees to be accrued over years of time.“If we have a defendant up there for murder, he may be in the county jail for two years until the case is disposed of. The county has to consume all that incarceration fee up until the time he is sent to the Department of Corrections,” said Shinn. “If he or she is acquitted of the crime the county is just out the money. We don’t get paid at all.”The fee Shinn charges other counties is almost double what Marion County receives from the state.“I don’t charge other counties less than $37.50 a day. We feel that’s breaking us even after we pay our detention officers, meals and all the stuff that it costs a day to incarcerate someone in our facility,” said Shinn.The fee Marion County charges has not been changed since 2001.“I know and understand the crunch that counties around us are in budget-wise. They can’t afford it either,” said Shinn.According to the Missouri Sheriffs’ Association, it can cost a county at least $1,000 to hold a person charged with a state misdemeanor offense. Such a high cost can be incurred if the prisoner has a health issue that requires treatment.“That’s another burden on local communities, taking care of detainees medically while they are in the county jail,” said Korte, who met with an interim House committee last November that was looking at issues affecting sheriff’s departments. “The reality of the situation is this, many people that commit crimes are in situations where they don’t necessarily lead the healthiest life. Once they’re in the custody of the county jail on a state charge, we have an obligation to provide them access to medical care.”On occasion a county will seek reimbursement costs from a prisoner through the court system. According to Korte, that course of action is frequently not worth taking.“My experience has been if people end up committing these felony crimes and go to prison, you’re not going to be able to get restitution out of them because in those situations they’ve been incarcerated, they don’t have a job, or things you can attach to to be able to get some kind of reimbursement out of,” he said.State Rep. Galen Higdon, a Republican from St. Joseph, is chairman of a house committee on sheriff’s operations. He acknowledged that county taxpayers are bearing some of the cost for housing state prisoners.Higdon says his committee will propose legislation this session to address compensation as well as several other issues for law enforcement agencies. He wouldn’t discuss specific recommendations until all committee members have approved a draft of the bill.(The Associated Press contributed to this story.)

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Jailed by a Computer Glitch How a state Department of Licensing error cost one Spokane man three years of his life (CORRECTION APPENDED) Matt Gregory is one of an estimated 8,000 people whose driving offenses have been miscategorized, resulting in unnecessary jail time and fines. CORRECTION: In May of 2009, the Washington State Department of Licensing updated the records of 8,000 people in an attempt to fix a computer glitch. The update corrected a previous error, but also misclassified some records, subsequently resulting in some drivers facing stiffer fines and penalties than the law warranted. The Department of Licensing caught the error in July 2015. This week, in an attempt to put a face on the issue, the Inlander profiled Matt Gregory, who, through his public defender, was identified as one of the people negatively impacted by the glitch. State officials now say Gregory’s record was not misclassified, as we reported. Our error was due in part to interpretation of an incorrect driving record sent to Gregory’s Spokane County public defender, confusing the status of his license. When Matt Gregory was pulled over on his way home earlier this month for a busted headlight, he should have been issued two tickets — one for the headlight and one for driving on a suspended license in the third degree. He tried to tell the officer as much, but information on the officer's computer from the Department of Licensing told a different story. So instead, Gregory was arrested for driving on a suspended license in the first degree, and his car was impounded. The difference is significant because a conviction in the first degree means mandatory jail time, whereas a third-degree conviction doesn't. It also means that Gregory will be arrested, booked and could spend the night in jail. Thanks to an error in the Department of Licensing's computer system that went unnoticed for six years, Gregory has been classified as a first-degree offender, racking up 11 convictions since 2010. That means with good behavior, he spent a combined total of more than three years in jail because of a computer glitch. Gregory is one of an estimated 8,000 people statewide whose license suspension was impacted by the Department of Licensing's system change in 2009, which automatically placed all habitual traffic offenders into first-degree status, whether they belonged there or not. By continuing to drive with a suspended license, Gregory certainly has played a role in his legal troubles, but each time he's been charged, there was an opportunity for an attorney to catch the mistake. No one — not even the private attorneys he's hired — caught it until recently. On top of the jail time, he's paid tens of thousands of dollars in bail and attorneys' fees and lost cars to impound lots. Gregory knows he isn't allowed to drive, yet he continues to do it, in part out of necessity — he has four school-age kids — and in part out of principle. "I don't cause [bad] things in cars. I don't do malicious acts," he says. "I believe that people should be able to move about ... and [suspended license charges] are a way to generate revenue. Tell me, who's the victim on driving suspended?" click to enlarge Besides jail time, Matt Gregory has spent thousands defending his traffic offenses. Christine Anthony, a spokeswoman for the Department of Licensing, says the error went unnoticed until July of this year. Employees are currently going through each of the 8,000 records to make sure the degree status of each is correct. They've gotten through 3,000 so far, Anthony says. However, not until September did the Department of Licensing notify judges and attorneys throughout the state via an email listserv. Even then, not all attorneys got the memo, and no law enforcement agencies were notified, Anthony says. "It's not a law enforcement thing," she says. "It's really a courts and attorneys issue. It doesn't matter if you're in the first degree or third degree, law enforcement will still give you the ticket." Chelsey Heindel, Gregory's public defender who caught the error, disagrees. If the Department of Licensing hadn't incorrectly classified Gregory in the first degree, she says, he might not have been arrested and could have avoided all that jail time — at least 1,147 days in all. Heindel is representing Gregory on his two most recent driving charges. She says she first heard of the glitch through an email from a prosecutor in Cheney. In that email, the prosecutor writes that they've instructed officers to stop making arrests on first-degree suspended licenses. In Spokane, neither the Sheriff's Office nor the Spokane Police Department has been made aware of the error; both continue to make arrests for most first-degree suspended licenses, according to spokespeople for each agency. Eventually, Heindel and the other Spokane County public defenders who handle misdemeanor cases received a copy of the memo sent by the Department of Licensing from the county prosecutor's office. In that email, Toni Hood, an administrative attorney for the Department of Licensing, advises all prosecutors to request certified driving records, which will show the correct suspension status. If Gregory's case is any indication, prosecutors in Spokane County aren't heeding this advice. Heindel is representing Gregory on two charges of driving with a suspended license in the first degree — one from Aug. 31, the other from Oct. 7, stemming from the busted headlight. When the August case came across her desk, she requested Gregory's certified driving record from the Department of Licensing. A response on Oct. 1 showed he should have been charged in the third degree, yet he was still charged in the first degree on Oct. 7. Several calls and emails to deputy prosecutors in the county were not returned. In the Oct. 7 incident, Gregory was driving a little red Ford ZX2 that he'd bought for $1,000 when he got out of jail. He had just fixed it up and planned to sell it. "That was the car that was going to restart me," he says. "But they impounded it before I could sell it." Now, with the tow fee, impound fee and daily storage fees mounting, the $1,000 investment has turned into several thousand dollars in expenses. It gets worse: For at least three driving charges in 2014, Gregory hired private attorneys, who he says he paid about $1,500 for each case. Each time he pleaded guilty because his attorney didn't catch the error. "That could be a malpractice claim right there," says Justin Bingham, head of the city prosecutor's office. The 46-year-old Gregory says he's never had a driver's license. At 14, he says he was held responsible for a car wreck while driving some friends home. Since then, he's racked up a history that includes 136 cases, most of them traffic offenses, including operating a vehicle without insurance, speeding eight miles per hour over the limit, failure to wear a seat belt, using a cell phone, failing to signal, driving too fast for conditions and driving the wrong way on a one-way street. He had one DUI conviction in 1999, but says he completed the court-ordered treatment. A long list, indeed, but not enough to be considered a habitual traffic offender and warrant jail time, Heindel says. As he sits in a north Spokane house, hands folded in his lap and reading glasses resting on his curly hair, Gregory's eyes well with tears when he thinks about the time he's lost. Asked why he keeps driving if he knows what it will cost him, he looks to his 9-year-old daughter on the couch next to him. Gregory has seven kids; four are between the ages of 9 and 16. "It's just going to school, going to work, doing what I need to do as a man," he says. "Or trying to do what I need to do as a man and a father." Gregory continues to drive, even though he knows he's not allowed. Now that the issue is finally getting worked out, though, he says he's trying to get his license and is drumming up a little business fixing cars at his house. He's been a mechanic for 27 years, but says he's been unable to get a job at a shop recently: Most employers require a valid driver's license. ♦ Tags: News, CRIMINAL JUSTICE Tweet « Drowning in Bubbles | A Deep Breath » Speaking of CRIMINAL JUSTICE Spokane among leaders in the state for bail reform Should judges be elected by the public? Let's break it down A man accused of jerking off in public walks free after prosecutors' mistake Skunked Why Spokane County Commissioners passed a temporary ban on new outdoor pot farms without telling anyone by Wilson Criscione Prisoner Problems Computer errors continue to plague state Department of Corrections; plus, Washington ranked first in pro-charter-school policies by Mitch Ryals and Wilson Criscione In Defense of Refugees In the aftermath of the presidential election, local residents seek ways to love and support their refugee friends More by Mitch Ryals McMorris Rodgers to the cabinet? Walmart truck joyride and morning headlines Gift Guide, outdoor pot farm ban, pizzagate guy talks and other headlines Isaiah Wall wants to get his life on track. But first, he's gotta buy drugs for the police Fake-News Nightmare The social media dream of the 2000s is fading, but we can reset the system by sticking up for the truth by Ted S. McGregor Jr. Top Tags inNews & Comment Patrolling While Black Gordon Grant's nearly 30 years as a Spokane cop have been affected by race, but that's not the whole story If it could talk, it could tell stories of three generations, along with a lot of griping from neighbors

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Preparing the long-range outlook of your company Skills for planning ahead offer a road map for GC success By A. Verona DorchJanuary 28, 2013 In June 2012, I became general counsel of Harsco Corp., taking on responsibility for both the legal and compliance functions. Although I was well-prepared for the position, I initially felt a bit overwhelmed. I quickly settled in and became more strategic about my new role, and the timing could not have been better, as my teams and I were immediately tasked with developing long-range plans, which were to be presented to the executive leadership team six weeks into my tenure. These long-range plans were intended to cover a three-year period and take a critical look at the current state of each function and the path forward, discuss the strategic planning methodology, and highlight areas of strategic focus (the businesses, regional analyses, spend optimization and reduction, continuous improvement and technology). One might see this as a time-sensitive impossibility, but what I saw was an incredible opportunity to not only gain a clear understanding of the vision and strategy of the business, but also to align the strategy and forward motion of legal and compliance with that of the business. Long-range planning offers GCs a valuable opportunity to understand and protect the needs of the corporation while serving the needs of their business clients in a manner that preserves and encourages the profitability of the business. Add in the compliance function, and it provides an opportunity for early planning with regard to measures that can be put in place to ensure that entry into new markets allows for early planning; a collaborative approach to mitigation of risks; and training and education around cultural sensibilities, applicable laws, and regulations. Whether you do this as a newly minted general counsel or periodically throughout your tenure, completing long-range plans is a must-have tool in every successful general counsel’s toolbox, and it has the added benefit of focusing your teams on clear, achievable goals. If done correctly, it can provide a road map to success. The long-range planning process at Harsco showed clear and distinct differences between the legal and compliance functions. While legal was well on its way to becoming proactive and business-focused, using a matrix-based business partner structure to become embedded within the business, the compliance function was much more reactive. In many ways this was by design, given the short tenure (two years) of our compliance function. But what long-range planning should also give general counsel the chance to do is take an objective, no-holds-barred look at every department under their purview, and to assess whether there are parts of the same that need to be refocused or re-engineered. By taking this type of look at compliance, it became immediately apparent that the department needed to be restructured and aligned much more closely with the business. This resulted in a split of the function into two sub-functions: investigators who focused on issues and complaints that arise within the business; and business partners who focused on the training, education and road-map building mentioned above. When preparing a long-range plan, be sure to focus on team-building by including as many members of each function as possible in the planning process. An added benefit of this inclusion is that team members will be able to help one another see past their own blind spots and biases, resulting in a more complete and balanced plan. These past six months have without a doubt been some of the most fulfilling of my career, as I have seen first hand what articulating a clear vision and strategy, gaining buy-in from team members, and then holding those team members accountable can reap. Both our legal and compliance functions were able to enter 2013 with a road map for success built by the entire team. There is no better way to begin a general counsel career and build world-class legal and compliance teams. A. Verona Dorch is vice president, general counsel and corporate secretary at Harsco Corp. « Prev A. Verona Dorch Department Operations 2086 Careers 1976 compliance 446 general counsel 310 planning 6 A. Verona Dorch 4 Harsco Corp. 4 harsco 2 Join the Conversation

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2016-50/4390/en_head.json.gz/12607

Do you want to advertise with us? Jay Holtmeier 7 World Trade Center www.wilmerhale.com Send Email Litigation (109839)Criminal Law (7108) Click here to claim your profile Overview Jay Holtmeier is a partner in the firm's Litigation/Controversy Department, and a member of the Investigations and Criminal Litigation Practice Group, the Foreign Corrupt Practices Act and Anti-Corruption Group and the Dodd-Frank Whistleblower Working Group. He joined the firm in 2004. Mr. Holtmeier’s breadth of experience as a litigator includes service as a federal prosecutor, a senior in-house attorney and a lawyer in private practice. Mr. Holtmeier represents institutions and individuals in complex government and internal investigations and matters of corporate governance and compliance. He has particular expertise in matters involving the Foreign Corrupt Practices Act (FCPA). In FCPA matters, Mr. Holtmeier has represented clients in government and internal investigations involving conduct in Europe, Asia, the Middle East, Africa, Latin America and Australia. He regularly counsels clients facing difficult FCPA issues in a variety of business contexts, and he has assisted clients in numerous industries in developing and implementing FCPA compliance programs. He devotes substantial attention to advising clients on FCPA problems that arise in the context of mergers and acquisitions, joint ventures and other corporate transactions. He writes and speaks extensively on the subject and is a co-author, with partners Roger Witten and Kimberly Parker, of the leading treatise in the field, Complying with the Foreign Corrupt Practices Act (8th ed. 2013). As a senior vice president and principal legal counsel with the Reuters Group, Mr. Holtmeier was responsible for all litigation and compliance matters in North and South America. As an assistant US Attorney for the Southern District of New York, he tried several cases to verdict and led extensive grand jury investigations of various crimes, including racketeering, securities fraud, murder, narcotics and counterfeiting. Significant prosecutions included United States v. Jose Muyet, et al., and United States v. Ronald Ocasio, et al., related cases involving more than twenty murders, for which Mr. Holtmeier received the Director’s Award for Superior Performance from the Executive Office for US Attorneys, and United States v. Carol Bayless, which received national attention and calls for the impeachment of the presiding US District Judge. Good to know 1) Foreign Corrupt Practices Act and Anti-Corruption and 2) Investigations and Criminal Litigation Cornell University Law School, J.D., 1990 University of Minnesota, B.A.,1986 USA-NY-New York CityBoutique matrimonial and family law firm is seeking a litigation paralegal / administrative assistant with at least 3 years of experience. Applicant must be a college graduate, highly proficient in Mi... USA-NY-New York CityATTORNEY with 4-10 years commercial litigation/construction law experience for construction law firm concentrating in representation of institutional property owners including commercial and residen... IP Counsel with 5-10 Years Experience New York City office is seeking an intellectual property of counsel with 5-10 years of experience. Candidate should have prosecution, copyright and trademark experience.

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FCA warns businesses on competition law compliance The Financial Conduct Authority (FCA) has taken steps to require various businesses to implement competition law compliance programmes, in light of concerns that came to light in a broader review that it was conducting into the pensions sector. The FCA's intervention serves as a timely reminder to businesses in the financial services sector that the FCA has the power to enforce competition law, that it is actively on the look-out for possible issues and that it will take steps to ensure compliance where necessary. The FCA's announcement gives a clear indication that it expects financial services businesses to have competition law compliance programmes in place, so that they (and their staff) are able to assess the lawfulness of their commercial arrangements and to avoid conduct that infringes competition law. The current announcement comes as a follow-up to the market study into Retirement Income that the FCA reported on last year. On 11 March 2016, the FCA issued a press release saying that it had contacted various firms regarding competition law compliance. Its market study had uncovered various issues that gave the FCA course for possible concern. In particular, the FCA's review of the distribution arrangements and strategies of pension providers had identified certain arrangements that it wanted to understand better. It is unclear precisely what the FCA's concerns are, although they appear to relate to meetings in which pension providers discussed the performance of distribution arrangements, without any competition compliance protocol to prevent the disclosure of commercially sensitive information. It is likely that the FCA's concern was that such arrangements and meetings could lead to a flow of commercially sensitive information between competitors, which could be unlawful as a matter of competition law. The FCA has written to the companies involved to 'warn' them of their obligations under competition law. It has asked them to confirm what action they plan to take, and by when, to address the concerns it has identified. It has specifically asked them to implement competition compliance protocols and to train staff on competition law compliance. It is implicit from the FCA's announcement that it is not currently planning to use its formal competition enforcement powers against the pensions companies involved. However, it reserves the right to do so in the future, should its concerns not be addressed or should it identify further issues that merit investigation. This development should be noted by all businesses operating the financial services sector for a number of reasons. First, the FCA's intervention is a timely reminder that, since April 2014, it has had the power (concurrently with the Competition and Markets Authority (CMA) to enforce competition law in relation to financial services. This includes the power to impose fines of up to 10% of group turnover. Second, it is notable that the FCA's concerns in this case came out of a market study, of which the FCA conducts many. Businesses involved in market studies should beware 'skeletons in the closet' that can prompt a different (and potentially more serious) sort of investigation. Third, the FCA's announcement confirms its expectation that all businesses should have competition law compliance arrangements in place. Indeed, in many respects, having compliance arrangements in place is key to businesses protecting themselves against potential enforcement action by the FCA (or, for that matter, the CMA). Precisely what a business needs to do in this regard will depend from case to case - e-learning and compliance manuals are popular options, but there is no one-size-fits-all and what steps it is appropriate to take will depend on the precise circumstances of the business in question. Shoosmiths LLP - Simon Barnes Filed under Statutory employment payments to rise from April 2017 * Business Rates Revaluation: impact on Statutory Compensation * Overpayment of wages: when and how can employers recover? * Land Registry to stay in the public sector * Modern Slavery Act compliance - A cut and paste job?

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2016-50/4390/en_head.json.gz/12616

Lessons from DOJ’s FCPA Resolution with PTC China: No Partial Self-Disclosure Credit In 2015, the Department of Justice (DOJ) made more news for the corporate Foreign Corrupt Practices Act (FCPA) cases that it did not bring than for the two that it did bring: Nine times last year, DOJ declined to join corporate FCPA resolutions brought by the Securities and Exchange Commission (SEC). This led some observers, including us, to wonder what had caused the “great divide” between DOJ and SEC. When asked in late 2015 whether there had been a “slow down” in DOJ FCPA enforcement, Assistant Attorney General (AAG) Leslie Caldwell stated that the Criminal Division was focusing on “bigger, higher impact” FCPA cases that involve bribery in multiple countries or wrongdoing by senior executives.1 And indeed, the SEC resolution papers indicated that many of the nine SEC-only enforcement actions involved relatively small penalties and bribery that was generally contained to one foreign country. Many of those actions also included a self-disclosure, cooperation, or both. In light of this, and because of the availability of a non-criminal remedy in the form of the SEC resolution itself, one could infer that in several of these SEC-only cases from 2015, DOJ exercised its discretion under the Federal Principles of Prosecution of Business Organizations and declined to pursue a criminal resolution. Prior to February 16, 2016, it appeared that DOJ might be following a similar course this year, as it declined to join the two SEC corporate FCPA resolutions brought up to that point. But on February 16, 2016, DOJ and SEC brought parallel FCPA corporate resolutions involving Massachusettsbased issuer PTC Inc. and two of its wholly owned Chinese subsidiaries under circumstances that, at least at first glance, seemed similar to the cases that DOJ declined to join in 2015 and earlier in 2016: a relatively small penalty and bribery contained to one foreign country, plus self-disclosure and cooperation. So what was different about the PTC case that made DOJ pursue its own resolution? The answer appears to be the manner in which PTC self-disclosed the misconduct. According to the DOJ resolution papers, PTC and its subsidiaries did not disclose all relevant facts known to the companies at the time of the initial disclosure. In fact, they did not disclose these facts until the Department independently uncovered them and brought them to PTC’s attention. Thus, the PTC resolution sends a strong message that incomplete or piecemeal self-disclosures are insufficient to obtain a declination. In other words, DOJ is saying that if you are coming in, you must be all-in. FACTS This case involved PTC Inc. (formerly Parametric Technology Corporation), a Massachusetts-based technology company, whose shares are traded on the NASDAQ Global Select Market, and two of its wholly owned Chinese subsidiaries, Parametric Technology (Shanghai) Software Co. Ltd. and Parametric Technology (Hong Kong) Limited (collectively, PTC China). According to the statement of facts accompanying the DOJ resolution papers, PTC China agreed to provide travel to employees of Chinese state-owned entities (SOEs) in order to obtain and retain contracts with their employers. The travel typically began with a short, ostensibly bona fide training session at PTC’s headquarters in Massachusetts but then continued on to lengthier, recreational visits to popular tourist destinations in other parts of the United States. PTC China funded these trips by inflating subcontracting and commission payments made to its local “business partners,” third parties that helped PTC China identify, pursue, and execute business opportunities with Chinese SOEs. All told, PTC China, through its business partners, paid at least $1.1 million to fund at least 24 trips that included a “recreational component” for over 100 Chinese SOE employees. DOJ specifically described three of these trips, which involved recreational travel to New York, Las Vegas, San Diego, Atlanta, Los Angeles, and Honolulu and were associated with over $13 million in contracts between PTC and Chinese SOEs. Notably, the fact that this travel occurred in the United States appears to have been the basis for DOJ’s claim of jurisdiction over PTC China, under the FCPA’s territorial jurisdiction provision, 15 U.S.C. § 78dd-3(a).2 In addition to the improper travel, PTC China sales staff provided over $250,000 in improper gifts and entertainment directly to Chinese SOE employees, at least in part to obtain or retain business for and on behalf of PTC.3 On February 16, 2016, SEC and DOJ announced parallel resolutions with PTC and PTC China, respectively, with $28 million in combined penalties, disgorgement, and prejudgment interest. Specifically, PTC agreed to pay $11.858 million in disgorgement and $1.764 million in prejudgment interest to settle SEC’s charges, while its two Chinese subsidiaries agreed to pay a $14.54 million monetary penalty pursuant to their non-prosecution agreement (NPA) with DOJ. Interestingly, DOJ described this penalty as being “15% off the bottom of the Sentencing Guidelines fine range for [PTC China’s] cooperation,” even though the NPA—like other NPAs— contains no Sentencing Guidelines calculation. In a related action, SEC announced its first Deferred Prosecution Agreement (DPA) with an individual in an FCPA case, a former PTC-China employee named Yu Kai Yuan.4 According to SEC, Mr. Yu provided “significant cooperation” during the course of the investigation, and FCPA charges against Mr. Yu will be deferred for three years as a result. WHY THIS ONE? Given DOJ’s recent history of deferring to an SEC remedy in cases that seem relatively similar to this one, why did DOJ decide to pursue a parallel resolution in the PTC case? The key appears to be DOJ’s conclusion that PTC failed to make a complete disclosure when it self-reported the misconduct to DOJ in 2011. According to DOJ, PTC’s Chinese subsidiaries: did not receive voluntary disclosure credit because, although the Companies, through their parent corporation PTC Inc., reported to the Office in 2011 certain misconduct identified through a then-ongoing internal investigation, they did not voluntarily disclose relevant facts known to PTC Inc. at the time of the initial disclosure until the Office uncovered salient facts regarding the Companies’ responsibility for the improper travel and entertainment expenditures at issue independently and brought them to the Companies’ attention, after which the Companies disclosed information that they had learned as part of an earlier internal investigation[.] At least in this case, a company’s limited self-disclosure appears to have been the key difference between a DOJ declination and an NPA. The deficiencies in PTC China’s initial disclosure also appear to have cost PTC China some cooperation credit, as DOJ noted that the companies “did not receive full cooperation credit” for the same reasons. Nevertheless, PTC China was entitled to partial cooperation credit because, “by the conclusion of the investigation,” they had disclosed all relevant facts, “including information about individuals involved in the FCPA misconduct.” The PTC resolution is consistent with recent policy statements made by senior DOJ leadership about selfdisclosure and cooperation. In a November 2015 speech regarding the Criminal Division’s FCPA enforcement program, AAG Caldwell stressed that, in order “to be eligible for the maximum mitigation credit in an FCPA case [a company] must do three things: (1) voluntarily self-disclose, (2) fully cooperate and (3) timely and appropriately remediate. When a company voluntarily self-discloses, fully cooperates and remediates, it is eligible for a full range of consideration with respect to both charging and penalty determinations.” 5 Applying this rubric, PTC China did not receive full mitigation credit—which otherwise may have included a declination in favor of the SEC resolution—because it failed to fully satisfy the first two mitigating factors. DOJ’s decision to award PTC China less than full cooperation credit is also consistent with the “Yates Memo,” a policy memo announced by Deputy Attorney General Sally Quillian Yates in September 2015 that sets forth six “key steps” designed to better hold individuals accountable for corporate wrongdoing. According to the Yates Memo’s first “key step,” “[i]n order for a company to receive any consideration for cooperation under the Principles of Federal Prosecution of Business Organizations, the company must completely disclose to the Department all relevant facts about individual misconduct.” The Memo continues: Once a company meets the threshold requirement of providing all relevant facts with respect to individuals, it will be eligible for consideration for cooperation credit. The extent of that cooperation credit will depend on all the various factors that have traditionally applied in making this assessment (e.g., the timeliness of the cooperation, the diligence, thoroughness, and speed of the internal investigation, the proactive nature of the cooperation, etc.). Under this rubric, PTC China passed the “threshold test” and was thus eligible for cooperation credit because it provided “all relevant facts known to them, including information about individuals involved in the FCPA misconduct,” but it was not entitled to the full extent of cooperation credit because the facts were provided late and only after DOJ independently discovered them. TAKE-AWAYS DOJ is “pressure testing” internal investigations. The PTC China resolution demonstrates that DOJ is making good on recent promises to “pressure test a company’s internal investigation with the facts we gather on our own.” This message underscores that a company should not self-disclose misconduct to DOJ unless it is prepared to fully disclose all facts related to that misconduct. However, because it can be seen as raising the stakes of self-disclosure, especially given that the resolution does not indicate whether DOJ viewed the failure to disclose certain facts as intentional or inadvertent, it remains to be seen what effect the PTC China resolution will have on companies’ willingness to self-disclose misconduct in the first place. DOJ is attempting to provide additional detail on the value of self-reporting and cooperation—but, in doing so, it is raising additional, unanswered questions. The PTC China resolution also demonstrates that DOJ is trying to make good on recent statements that “we are working on becoming increasingly transparent” in explaining the reasoning behind criminal FCPA enforcement decisions. In particular, the PTC China resolution provides a relatively clear message that a self-disclosure must be complete to be fully rewarded and that DOJ is attempting to implement the Yates Memo’s “threshold” test for gaining cooperation credit. But the PTC China resolution raises a host of additional, unanswered questions, including, among other things, why an NPA (with two subsidiaries) was appropriate, what penalty reduction should be expected for full cooperation credit, and how exactly remediation factored into the resolution. Under the circumstances described in the resolution papers, an NPA here does not seem beyond the pale, but the PTC China resolution is not a complete exposition of DOJ’s thought process. Given the competing policy objectives DOJ faces—balancing greater transparency against the protection of reputational interests of uncharged parties, confidential business information, and ongoing investigations—no statement of reasons will likely ever be complete. Foreign subsidiaries may be exposed to FCPA territorial jurisdiction when they visit the home office. Companies with foreign subsidiaries should pay close attention to DOJ’s use of the FCPA’s territorial jurisdiction to capture conduct by a foreign subsidiary in the United States. The continuing risk posed by third parties. Finally, as with approximately 90% of FCPA resolutions, the improper payments at issue in the PTC China resolution were made possible by third-party intermediaries. That is not always the case in gift, travel, and entertainment cases, where those benefits are often provided directly to foreign officials by the company. But this case nevertheless shows a familiar pattern of a subsidiary inflating payments to third-party business partners in order to create a slush fund used for improper purposes—activities that may be hard to detect at headquarters. James M. Koukios and Lauren A. Navarro Filed under United States Assistant Attorney General PTC (software company)

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Home > 2016 > Gulbarg Society Judgement: From Retribution to Restoration Mainstream, VOL LIV No 29 New Delhi July 9, 2016 Gulbarg Society Judgement: From Retribution to Restoration Saturday 9 July 2016 by Binish Maryam Ethnic violence leaves in its wake devastation on the one hand and deep psychological trauma on the other. The suffering of the victims becomes part of the collective psyche of the society. The strategies that the Indian state generally adopts to build peace in the post-violence scenario are not well equipped to take care of the antagonisms, grievances and pain that constitute the collective consciousness of the conflicting communities. Often monetary compensation and legal justice are used as tools to gain normalcy, but the erosion of trust and confidence between commu-nities is hardly addressed. In such circumstances although there is absence of violence, the apprehension and prejudices become an integral part of the community and its consciousness. Unless we initiate a process of restorative justice along with retributive justice, building peace will remain a distant dream and society will continue being prone to the recurrence of communal violence. The Nuremberg trial, held by the Allies after World War II, brought all the perpetrators of human rights violation in Germany to undergo the legal judicial process. The culprits were held responsible for their crimes and sentenced under the criminal justice system. This model of justice was not accepted in South Africa in the post- apartheid period. In his book, No Future without Forgiveness, Desmond Tutu, the Archbishop and social right activist in South Africa, writes that the retributive justice system is more acceptable in the case of inter-state conflicts where people are confined to their own boundaries whereas in case of intra-state conflicts where the con-flicting groups have to stay together, there is a need for restorative justice so that the relations between the groups are restored. Justice as a concept can be of two types: one that is retributive in nature and the other that is restorative in character. When we talk about justice, it is mostly in the legal context where the guilty are punished for their crime. This kind of justice is retributive justice. One argu-ment given in favour of legal justice is that if the offenders are not put behind bars, the victims may develop an idea of personal revenge and vengeance, which could be more dangerous for the society. It is argued that only trials serve to reinstate the lost dignity of the victims and re-establish their faith in the political system and its value. The legal procedure establishes individual accountability and thus eliminates the perception that the whole community is responsible for the wrong done. It also brings an end to impunity that sometimes is considered as a reason for increased human rights violations. After every episode of mass violence, people long for justice but this wait hardly ends as the record of delivering legal justice to victims of communal violence is not very impressive in India. Gujarat has been one of the first cases where the culprits of mass violence have been brought to justice. This is a welcome step towards reinstating faith in the democratic and judicial system of our country. In earlier episodes of mass violence—like Nellie (1983), Delhi Sikh Riots (1984), Bhagalpur (1989), Mumbai (1992-93) and Kandhamal (2008)—a culture of impunity has prevailed. In such a scenario the Gujarat verdict comes as a ray of hope where the perpetrators of riots can be sent a message that impunity won’t remain a norm anymore, and if they are involved in the violence they will be prosecuted and justice will be done. On February 28, 2002 the Gulbarg society in Ahmedabad witnessed brutal killing of 69 innocent persons, including former Congress MP Ehsan Jafri. Fourteen years after the incident 24 people have been convicted in the case, 36 have been acquitted and the charge of criminal conspiracy has been dropped. While the prosecution wants stringent punishment for the convicted, the defence seeks leniency in sentencing the convicts. For the family of the victims it is half-hearted justice as the masterminds are still roaming free. They call it a diluted and weak verdict. They believe that the 32 convicts should not have been acquitted in the case and among those convicted all should have been given life imprisonment; whereas families of those convicted believe that those with money and influence have got away while the poor and the weak have been caught in this case. Even after the announcement of the sentence a legal battle will continue between the two parties to prove guilt and claim innocence. The closure of the case and closure of pain remain elusive at the moment for either side. Today in Ahmedabad the riot survivors live in desolate ghettos and resettlement colonies that at one and the same time remind of supreme neglect and denial. More than a decade has passed but the building where Ehsan Jafri resided is left all empty with no sign of life in it. The blackened walls of the Gulbarg society reflect wounded psyche, withering trust and permanent divide. The mistrust amongst the communities is so high that a day before the Naroda Patiya verdict most Muslim residents locked up their houses and left for a safe destination. People living in the relief colonies believe that real peace can come when the two communities will share maximum space with each other. Polarisation of communities on religious grounds is so stark that the peace that is visible in the form of absence of direct violence can be easily disturbed anytime. An atmosphere of mistrust and apprehension has developed amongst the people, thus raising the need for authentic reconciliation. The retributive system recognises criminal guilt, not political or moral responsibility. The court is able to punish only a handful of culprits involved. Further, the emphasis on the individualisation of guilt is inherent in the retributive process, which overlooks the community dimension in conflicts. The legal sentences assuage the grievance and pain of the victims, still the family of convicts is left unsatisfied and broken. One community is at peace and not the other. Therefore the idea of justice needs to be revisited. Retributive justice alone cannot establish peace. For rebuilding relations there is a need for restorative justice as well. Restorative justice seeks at mediating peace between groups in conflict. The ultimate aim is to restore relations as far as possible. In the restorative justice system the problem is viewed as that of the community as a whole with the purpose of achieving reconciliation and social harmony. This is a process where all the members of the community get involved and they are given a lesson on how to peacefully resolve a conflict. The healing process starts with a personalised description of the traumatic events by the victims or their representatives. The acknowledgement of the tragedy and injustice of losses by the aggressors is accompanied by a formal apology and a request for forgiveness. The concepts of acknowledgement, apology and forgiveness are not familiar to the Indian system. Never after any gruesome event of violence has our society felt the need to indulge in these ideas. Amidst this battle for legal justice what we often forget to notice is the individual pain, trauma and permanent scar on the minds of the victims as a result of these brutal massacres. The Gulbarg Society judgment has succeeded in bringing legal justice but it has failed to bring peace for the victims and society at large. The survivors of violence are living with deep psychological trauma, as there is no formal mechanism to address this traumatic mindset; so the pain lingers. The individual pain of the victims of violence, if not addressed properly, leads to the permanent division of society. There is a need to come up with a peace model that takes care of both the physical and emotional damage done during riots. Any society should build upon the strength of the criminal law process, the retributive model, but to move it as far as possible towards the restorative ends. Both the retributive and restorative justice systems are equally important for the establishment of long-term peace. 1. Annelies Verdoolaege, Reconciliation Discourse: The Case of the Truth and ReconciliationCommission, John Benjamins Publishing Company Amsterdam Philadelphia, 2008. 2. Antonia Chayes and Martha Minow, Imagine Coexistence: Restoring Humanity After Violent Ethnic Conflict, ed. Boston: Jossey-Bass, 2003. 3. Colin Knox and Padraic Quirk, eds., Peace Building in Northern Ireland, Israel and South Africa: Transition, Transformation and Reconciliation. MacMillan Press, 2000. 4. Charles Webel and Johan Galtung, eds., Handbook of Peace and Conflict Studies, Routledge: Taylor and Francis Group, 2007. 5. David J. Whittaker, Conflict and Reconciliation in the Contemporary World: The Making of the Contemporary World Routledge, Taylor & Francis Group, 1999. 6. Desmond Mpilo Tutu, No Future Without Forgiveness, Doubleday, 1999. 7. Ho Wen Jeong, Peace and Conflict Studies: An Introduction, Ashgate Publishing Limited, 2000. 8. John Paul Lederach, The Journey toward Reconciliation, Herald Press, 1999. 9. John Paul Lederach and Angella Jill Lederach, eds. When Blood and Bones Cry Out Journeys Through the Sound Scape of Healing and Reconciliation, Oxford University Press, 2010. 10. Luc Reychler and Thania Paffenholz, eds., Peace Building: A Field Guide, Lynne Rienner Publishers, 2001. 11. Veena Das, Mirror of Violence: Communities,Riots and Survivors, Oxford University Press, 1990. 12. “Gulberg Society Massacre: Court Sentences 11 Persons Convicted Of Murder To Life”, The Indian Express, June 16, 2016. 13. “Gulberg Society Verdict: This Is Not Justice, My Struggle Continues”, Says Zakia Jafri, The Indian Express, June 17, 2016. 14. “Gulberg Massacre: Teesta Setalvad to Appeal against ‘Diluted, Weak’ Verdict”, The Indian Express, June 17, 2016. 15. Martha Nussbaum, “When is Forgiveness Right?”, TheIndian Express, October 9, 2012. 16. “A Ground Zero in Gulberg Society: the Remains of 14 years, Blackened Walls, Broken Soft Toys”, Ritu Misra and Leena Misra, The Indian Express, June 3, 2016. 17. Rasheeda, personal interview, Naroda Patiya, Ahmedabad, October 22, 2012. 18. Rehana Rathore, personal interview, Naroda Patiya, Ahmedabad, October 22, 2012. 19. Abida, personal interview, Naroda Patiya, Ahmedabad, October 23, 2012. 20. Rehana Bano, personal interview, Naroda Patiya, Ahmedabad, October 24, 2012. Dr Binish Haryam is an Assistant Professor (Ad-hoc), Maitreyi College, University of Delhi. She can be contacted at e-mail: [email protected]

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Opinion: Dune v. Ocean View Comes Before High Court R. William Potter | April 23, 2013 A virtually unknown case could affect almost everyone living or working along the Jersey Shore. Soon to be argued in the New Jersey Supreme Court: a little-noted case with profound implications for efforts to restore and protect the Jersey Shore in the aftermath of Hurricane Sandy and before the next major storm hits. The case is Borough of Harvey Cedars v. Karan. You may not have heard of it; few have. But if you're among the millions of New Jerseyans living or working on the Jersey Shore, how the high court decides this case could have big impact on you -- and on the state's economy, which depends heavily on those Shore vacation dollars. The justices are being asked to clarify a nettlesome issue at the crossroads of public funding for shore protection projects: dunes. Everyone agrees that dunes are needed to protect life and property. But what about the rights of the owners of private property who want to be fully compensated for losing ocean views when these engineered dunes are bulldozed into place? The facts in this case are not disputed, but what is up for grabs is the rule of law the justices will apply. Will they feel bound by a rigid 1889 precedent, like the lower courts, or will they try to modernize a doctrine that's slowing shore protection efforts, and eating up scarce shore restoration funds? The Karans own one of those enviable beachfront houses in a gracious shore community, Harvey Cedars. When the Army Corps of Engineers asked them for an easement on the beachfront side of their land to build a dune to replace what previous storms had washed away, the Karans refused. If you want it, they replied, you'll have to pay for it. (Aside: the governor has lately threatened to "call out" property owners he has labeled as "selfish," and who he accuses of standing in the way of the state's plan to establish protective dunes along the coast "because their view of the ocean is blocked.") As a result of the Karan's refusal, Harvey Cedars had to condemn the easement -- pay just compensation for it -- so the Army Corps could proceed to build a continuous line of artificial dunes along the seashore. Here's where it gets complicated for the justices. There's no doubt that governments -- municipal, state, and federal -- may take private property for "public use," provided they pay the property owner "just compensation." This is the traditional power of eminent domain, useful for public projects like roads and schools and -- yes -- shore protection initiatives like beach replenishment and dune creation that need to be located, at least in part, on the private property of beachfront homes, like the Karan's. (Full disclosure: The writer is the attorney for the New Jersey Association for Floodplain Management, which has petitioned the State Supreme Court to allow it to submit a friend of the court brief in the Karan case.) Why are dunes so important? When storms hit the coast, the dunes absorb the brunt of hurricane-force wind and rain, shielding the structures built behind them. In effect, the dunes are sacrificed to protect the houses that would otherwise be destroyed, which is what happened during Sandy. The superstorm caused an estimated $3.8 billion in damages to New Jersey homes and $1.87 billion in commercial property losses. The problem facing the courts is how to determine the "just compensation" that must be paid property owners for the privilege of building or restoring the dunes that protect not only the first houses behind the dunes -- like the Karan's -- but also properties located further inland. No one doubts that the Karans are entitled to just compensation for the value of the land taken for the dune project. This is measured in lost property values when the house no longer boasts an expansive ocean view but faces a solid wall of sand. Not a pretty picture. What's disputed -- and the Supreme Court will decide -- is whether the value conferred by the dune in protecting the Karan's house against future destruction should be considered as a partial offset for the compensation paid for the easement. Say the Karan's house was worth $2 million when it had a beautiful view of the ocean. With a dune blocking the view, it is now worth only $1.5 million. Based on that scenario, the government owes the Karans $500,000. Multiply that by the hundreds if not thousands of property owners who may demand similar payment for lost views, and you can see why the case is so important -- and why the governor is so agitated. If the government -- municipal, state, or federal -- must pay every property owner along the shore for lost ocean views, either the cost of coastal protection will skyrocket or a lot less of the coast will be protected from the next storms, which are growing in frequency and intensity as a result of climate change. Common sense would dictate that any award for just compensation would reflect the value of the protection offered by that same view-blocking dune. Isn't it better to have an intact house after the next storm, even one with an obstructed view of the surf, than no house at all. Not according to two lower courts. They reasoned that the dunes provide what courts call "general benefits" to the community, not "special benefits" limited to the Karans. Therefore, no offset is permitted. Relying primarily on an obscure 1889 case, the courts held that the jury in setting just compensation was not even allowed to hear evidence of the protection afforded the Karans by the dunes. But that dune was paid for with public tax dollars, and because of it the Karans escaped largely unscathed from Sandy. In contrast, Sandy wreaked havoc in dune-free communities like Ortley Beach -- where the dunes were bulldozed to make way for a boardwalk -- ripping the first row of houses off their foundations. In other words, without sand dunes, whether natural or engineered, the first rows of houses facing the ocean act like dunes, taking the brunt of wave and wind, dissipating the storm's energy, and often being washed away. In short, there is a "special benefit" to the first row of houses, such as the Karan's. The dunes spare those houses the full fury of a hurricane. For this reason, the high court could well decide that even with the rigid binary categories handed down from an 1889 court ruling -- special vs. general benefits -- the Karan's house and other first-row dwellings do enjoy special benefits. Better yet, the justices could use this case to announce a new rule of law on these "partial-taking" cases. It seems only fair that when the government shells out millions of dollars to protect life and property, that evidence of the benefits directly conferred on property owners who lose ocean views should at least be heard by the jury when setting the value of the taking. After all, just compensation must do justice both to the property owner and to the public paying to protect that same property owner.

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Court Back to Pleas, Not Fleas By Shawna Morrison [email protected] 381-1665 It's taken three weeks, three treatments and the removal of a hidden animal carcass, but the fleas are almost gone from the Pulaski County Courthouse. Employees there began complaining in early June that the tiny critters were all over the place, Assistant County Administrator Robert Hiss said. "They just called it the way it was," he said. "They said, 'We have fleas.' " The pests were biting employees and visitors, he said, to the point that they were disrupting work. "For a while it was a serious nuisance," Hiss said. The problem was mostly confined to the first floor, which holds offices, including court clerks' offices, and the general district courtroom. The county had an exterminator flea-bomb that floor twice. But even after those treatments, Hiss said, "we had not seen a great reduction. They were still coming back." The county decided to thoroughly search the building to try to find the source of the infestation. During the search, a maintenance worker noticed a strong, foul odor coming from underneath the first floor, Hiss said. The worker climbed into a crawl space between the first floor and the basement. There he found the source of the problem: a dead opossum covered in fleas. "It wasn't a very positive experience for him," Hiss said. But at least they had found the problem. After the opossum was removed about a week and a half after the problem started, the entire building was flea-bombed and an exterminator dusted a chemical substance in the crawl space and in other problem areas around the courthouse. The problem has greatly diminished since then, Hiss said. "Even though I haven't heard many complaints," he said, "we're seriously considering doing at least one more treatment, just to be on the safe side." That treatment might be done this weekend, he said. County officials will talk with the exterminator first to see what is recommended to make sure the fleas are gone for good. A cost estimate of the flea control wasn't available Tuesday. Although it's rare, fleas can transmit disease, including plague and typhus, through biting, according to the Centers for Disease Control and Prevention. Also, a secondary skin infection can occur from scratching itchy bites, according to the National Institutes of Health. They can also cause an allergic reaction. Hiss credited courthouse employees for patiently working through the infestation. "It was an uncomfortable situation for the employees," he said. "They did a good job of continuing to work like that." Hiss said he has heard of bats getting into buildings and causing problems, but never a flea infestation from a dead animal. "This can happen to anybody," he said, "and it just happened to us this time." (c) 2008 Roanoke Times & World News. Provided by ProQuest Information and Learning. All rights Reserved.

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Off the grid: Estes Park utility superintendent accused of stealing copper wire to fund party, bonuses for staffTodd Steichen arrested for investigation of felony embezzlementBy Pamela DickmanPosted: 12/06/2012 01:34:20 PM MSTESTES PARK — The former light and power superintendent is accused of salvaging $5,795 worth of copper wire and spending the money on a party and bonuses for contract employees.Todd Steichen, 48, has been released on $10,000 bond on a charge of embezzlement of public property, a felony. He is accused in 8th Judicial District Court, but a court date has not yet been scheduled, according to electronic court records.Officials allege that he sold leftover copper wire salvaged from an Estes Park Light and Power project in August and used the money to pay for a party and for bonuses for non-town employees who were working for the utility. Todd Steichen Instead, he should have sent the copper to a specific recycling center that has a contract with the town, and the money should have gone into the Estes Park Light and Power utility enterprise fund, said Kate Rusch, spokeswoman for the town. She said Steichen, a 21-year utility employee, knew the policy and what he should have done.“Selling it and using it at his discretion is not an option,” Rusch added.The wire was left over from an ongoing project to replace transmission lines throughout the district, which includes Estes Park and extends as far east as Glen Haven.The lines are being replaced in phases, and this particular stretch is outside the city limits.Advertisement That is why Estes Park Police called the Sheriff’s Office to investigate.A warrant was issued Monday, and Steichen turned himself in at the Loveland Police Department, 810 E. 10th St., the same day, according to the Sheriff’s Office.Town officials placed Steichen on administrative leave Nov. 1, and he resigned his position Nov. 5.Print Email Font ResizeReturn to Top RELATED

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Vouchers head to court again Plaintiffs want a circuit judge to find that Florida school vouchers conflict with the state's Constitution. By ALISA ULFERTS, Times Staff Writer © St. Petersburg Timespublished July 10, 2002 TALLAHASSEE -- Two weeks after the U.S. Supreme Court upheld the constitutionality of school vouchers, the issue was back before a Florida judge who was urged to declare them unlawful. At issue is a provision in the Florida Constitution prohibiting the use of public money to aid a religious institution directly or indirectly. That should prohibit vouchers, according to a lawsuit brought by a handful of parents and teachers along with the state teachers union, with legal backing by the American Civil Liberties Union. But the state argued that vouchers don't violate the state Constitution because parents, not the government, choose where to send their children. "The vouchers in this case go directly to the parents or the guardians," said Barry Richard, the Tallahassee lawyer who represented George W. Bush during his Florida election fight in 2000 and now is defending the state's voucher law. "There is nothing that requires or encourages them to use it for religious schools," he said. The plaintiffs have asked Circuit Judge Kevin Davey to toss out Florida's law, but all they got Tuesday was a promise to "issue a decision in quick order." Davey was scheduled to hear the case earlier this year but waited to hear from the U.S. Supreme Court, which decided June 27 that vouchers do not violate the separation of church and state. John West, the attorney representing the voucher opponents, told Davey that parochial schools are an "extension of the religious ministries of the churches that operate those schools." That means vouchers can't be used at religious schools, he said. Voucher opponents lost the first round in April 2001 when the Florida Supreme Court upheld an appeals court ruling that the law did not violate the state Constitution by spending public dollars on private schools. Now the case focuses more narrowly on the question of public dollars going to religious schools. Florida's voucher law is a cornerstone of Republican Gov. Jeb Bush's education reform, which includes grading schools based on students' standardized test scores and awarding vouchers to students in failing schools. The case is so important to Bush and state education officials that they hired Richard to argue the case instead of the Attorney General's Office, which normally defends the state in lawsuits. "We're glad to have him on board," said Jim Peters, who represented the Attorney General's Office even though he didn't argue the case. Lt. Gov. Frank Brogan, who sat in on Tuesday's hearing, said Richard "made more than a compelling case that opportunity scholarships are constitutional." Richard argued Tuesday that if Davey tossed out Florida's voucher law he would also invalidate other state programs in which Floridians have choice in schools, such as college financial aid programs. He also said the question of whether Florida's voucher program is constitutional should not center, as West suggested, on whether the law "indirectly" benefits religious institutions but rather whether the program was intended to be "in aid of" them, in violation of the state Constitution. Because parents decide where to spend their vouchers, opponents can't argue that the law was intended to benefit certain schools, Richard said. He also argued that a voucher program that excluded religious schools would be unconstitutional because it would prohibit the free exercise of religion. The case is expected to eventually wind up at the Florida Supreme Court. Both sides have said they plan to appeal if Davey rules against them. Back to State news Lucy Morgan

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Privacy Policy Home Privacy Policy The Privacy and Personal Information Protection Act 1998 requires NSW Government agencies to treat information about known individuals with special care. The Act has requirements in relation to the collection, storage, use and disclosure of such personal information. The Act acknowledges that particular agencies will have important roles to carry out on behalf of the public that may require these restrictions on personal information to be departed from or modified. In such cases, a Privacy Code of Practice can modify the Act to allow the agency to carry out its function. The Department of Education has in place a Privacy Code of Practice to allow for the work of schools and TAFE NSW colleges - broadly, it covers the following domains: Investigative functions Parents/caregivers Counsellor records Child protection Safe and disciplined learning environment Legal purposes Board of Studies The Privacy Code of Practice can be found here.

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Supreme Court approaching decision on US immigration law Visa Bureau is not affiliated with the Australian Government but is an independent UK company. Australian visas are available from the Australian Government at a lower cost or for free when you apply directly. Our comprehensive visa and immigration services include immigration advice from registered migration agents, a 100% success rate, document checking and expedited visa processing. The Supreme Court could be ready to pass their ruling on Arizona's controversial US immigration law, SB 1070, with many reports claiming the news could be bad for immigration advocates. The United States Supreme Court is reportedly preparing to pass its judgement on Arizona's controversial US immigration law. US immigration law SB 1070 has been the subject of a Supreme Court case after the Obama administration sued the state of Arizona over claims the law exceeded its jurisdiction in enforcing federal law. The proposed law permits the stop and search of anyone law enforcement officials suspect of being in the country illegally and requires all foreign nationals to carry registration documents with them at all times. Failure to carry the required documents constitutes a misdemeanour crime under the law. At the time of its passing, SB 1070 represented the strictest immigration law in recent US history and has prompted significant controversy. The law's opponents, which include the federal government, claim the law supports racial profiling yet supporters insist the law prohibits the use of race as justification for investigation. While other states have since proposed similar laws, including Alabama's HB 56 which is considered even stricter and is undergoing similar legal challenges, the Supreme Court's decision on SB 1070 is expected to have a nationwide impact on immigration policy. The Supreme Court still has two other cases to rule on before SB 1070 but justices have indicated a ruling will be passed this month and with several justices appearing to remain unconvinced of the government's arguments, the law's opponents are reportedly already planning new legal challenges. The court's ruling is expected to have far reaching ramifications, particularly during an election year when immigration is such a vital issue to both President Barack Obama and his Republican rival Mitt Romney. Support for the law is likely to be a blow to the president, whose administration is responsible for the challenge and who has promised large scale reform to the immigration system in order to take a softer approach to the issue. Mr Romney, who as previously labelled SB 1070 as a 'model for the nation', could be encouraged to continue his firm stance on the issue. The American Visa Bureau is an independent migration consultancy specialising in helping people from Visa Waiver Program (VWP) countries make their ESTA application. The American Visa Bureau is a division of Visa Bureau Ltd, an independent UK company specialising in visa and immigration services to America. Terms of UsePrivacyContact Us NewsNew York tourism sees record growth - 09 Jul 13Poland edges closer to US Visa Waiver Program deal - 22 May 13Polish Ambassador hopeful of joining US Visa Waiver Program - 18 Apr 13Israeli access to US Visa Waiver Program still faltering - 15 Apr 13Senator calls for Niagara Falls inclusion on US tourism list - 11 Apr 13More news

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Colorado Movie Theater Massacre 10/21/2013 Defense: Holmes was coerced into discussing bombs CENTENNIAL, Colo. (AP) – Attorneys for Colorado theater shooting defendant James Holmes argued Monday that police coerced and misled him into talking to them about bombs that were found in his apartment after the shootings, and they said his statements shouldn’t be used against him. Prosecutors scoffed at the claim and said police had to ask Holmes about the bombs because they were a threat to human life. Prosecutors and the defense are debating what evidence can be used against Holmes when he goes on trial next year on charges of killing 12 people and injuring 70 in the July 2012 attack. Prosecutors are seeking the death penalty. Holmes pleaded not guilty by reason of insanity, and during pretrial hearings this month, the two sides are grappling over evidence that could be used to undermine the insanity claim. That includes statements Holmes made to police when they questioned him about the explosives in his apartment. Law enforcement officers have testified they found intricately planned bombs meant to divert police from the theater while the shootings were going on. None of the bombs exploded. Prosecutors could use that alleged diversionary tactic to argue Holmes knew the theater attack was a crime – a blow to the insanity defense, which requires a defendant be unable to distinguish between right and wrong. Holmes was questioned about the bombs before he was allowed to speak with an attorney, even though police have acknowledged he had asked approximately 13 hours earlier to see a lawyer. Defense attorney Kristen Nelson said Thursday that Holmes felt pressured to talk to police because he was held “in a room where he was cut off from the rest of the world,” and because the officers implied they wanted to know about the bombs to protect people’s lives, not to build a case against him. Nelson also said Holmes was displaying signs of mental illness, playing with evidence bags, fidgeting or suddenly sitting stone-still. Police should have allowed a lawyer to be present “to protect this mentally ill man from being the instrument of his own conviction and execution,” she said. Prosecutor Rich Orman said court precedents allowed police to question Holmes without an attorney present because of the threat they posed. “It is the functional equivalent of a gun to their heads. A bomb that is going to go off in the city of Aurora,” Orman said. Attorneys are also arguing over evidence from Holmes’ apartment, car, phone and computers, as well as telephone and banking records. The judge hasn’t said when he will rule. Even if much of the evidence is thrown out, prosecutors still have a strong case, because defense attorneys have acknowledged Holmes was the shooter. However, losing the evidence would make it harder for prosecutors to persuade jurors that Holmes was sane. If jurors find he was insane, Holmes could not be executed but would be committed indefinitely to the state mental hospital. DAN ELLIOTT

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Georgia.gov Office of Attorney General Chris Carr Search this site * About the OfficeBiography of the Attorney General Organization of the Office Press RoomArchived Releases2015 CareersApplication Forms Honors Fellowship Program OpinionsOfficial Opinions Unofficial Opinions Obsolete and Modified Opinions Key IssuesConsumer InformationConsumer Protection Notice of Adoption of Rules Garnishment Exemption Placing A Credit Freeze On Your Credit Report Qui Tam Case Review and Approval Finding a Private Attorney Lawsuit Against Western Sky Financial Tobacco Manufacturer and Brand Compliance Review of the sale of Non-profit HospitalsRecent Submissions Crime & Crime Victims Firearm InformationFirearm Permit Reciprocity FAQ on New Gun Laws Human TraffickingHuman Trafficking 101 Slideshow Human Trafficking Red Flags Immigration Reports Medicaid Fraud Mortgage and Foreclosure Information Open GovernmentThe Law HB 397 - Georgia's Updated Sunshine Laws How to Make an Open Records Request Open Government Mediation Program File an Open Government Complaint Outside Counsel Fee Information Prescription Drug AbuseVideo ContestRules Press RoomArchived Releases Key IssuesConsumer Information Firearm Information Archived Releases2015 Home » Press Releases » FEDERAL AND STATE LAW ENFORCEMENT SNARE HUNDREDS OF TELEMARKETERS IN NATIONWIDE UNDERCOVER OPERATION PRESS ADVISORY FEDERAL AND STATE LAW ENFORCEMENT SNARE HUNDREDS OF TELEMARKETERS IN NATIONWIDE UNDERCOVER OPERATION December 17, 1998Washington, DC - A two and a half year operation, in which undercover agents taped telephone solicitations by telemarketers, has resulted in criminal charges against nearly 1,000 individuals, including the arrest of 40 telemarketers today, the Justice Department, FBI and National Association of Attorneys General (NAAG) announced. The operation, code-named "Operation Double Barrel," involved close cooperation between the FBI, state attorneys general, and federal prosecutors to attack telemarketing fraud through both coordinated federal-state prosecutions and federal regulatory agency actions. Over the past 30 months, federal authorities have charged 795 individuals in 218 federal criminal cases, and state authorities have charged 194 individuals in 100 state criminal investigations. In addition to the undercover activities, telemarketing experts trained federal and state law enforcement on how to investigate and prosecute telemarketing schemes, and federal and state authorities worked together to coordinate their prosecutions. During the operation, which the FBI coordinated, undercover agents posed as individuals who were previously victimized by telemarketing fraud. Because the names of previous victims are sold to telemarketers, these individuals are often called repeatedly. To bolster resources, the FBI also trained and supervised senior citizens, recruited through the AARP, who posed as previous victims as well. Using consensual tape recordings, the agents and senior citizens gathered evidence about telemarketing fraud schemes and provided tapes to federal and state law enforcement, federal regulators, and even foreign law enforcement for possible legal action. "This holiday season will have a few less scams and a lot more cheer, thanks to Operation Double Barrel," said Attorney General Janet Reno. "Operation Double Barrel took aim at those telemarketers who sought to reach out and con you." Reno noted that over the past four years, there has been a rise in the number of bogus investments and other telemarketing schemes. FBI Director Louis J. Freeh said, "These crimes leave a trail of tragic consequences. Life savings are lost. Financial devastation is common. This coordinated, multi-level approach has once again demonstrated the benefit of a seamless, local, state and federal effort that has the broad support and help of both senior citizens and private organizations." Georgia Attorney General Thurbert Baker said, "This joint campaign is tightening the vise on the phone rip-off artists who target older Americans and many other citizens. State Attorneys General, the FBI and others at the Justice Department share the common goal of finding these criminals, prosecuting them, and putting them in prison. We are sending a strong message across the country that you can no longer commit these crimes with impunity." The following is a typical case of those involved in Operation Double Barrel: · Kentucky Attorney General Albert "Ben" Chandler III announced the indictments of two magazine telemarketers who operated a magazine telemarketing business and promised prizes to those who purchased magazine subscriptions. Persons who purchased the subscription reportedly received neither the magazines nor the prizes. Attorney General Chandler announced the indictment of each defendant on three felony counts of theft and one misdemeanor count of theft. In bringing these indictments, Attorney General Chandler relied on the assistance of the U.S. Attorney in Los Angeles, as well as the FBI field office in Riverside, California, which provided the state with investigation material about the defendants, their operation, and Kentucky-based victims of the scheme. One Kentucky victim of the scheme stated, "I may be 77, but I am ready for a fight." The operation involved 20 U.S. Attorneys' Offices. Twenty-one FBI field offices and 35 state attorney general's offices, as well as the Postal Inspection Service, the Federal Trade Commission, the Securities and Exchange Commission, the Commodity Futures Trading Commission, and the Fraud Section of the Department's Criminal Division. Attorneys General in the following states participated in the operation: Arkansas, Arizona, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nevada, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia and Wisconsin. "Operation Double Barrel is our coordinated response to this ruthless assault on senior citizens and others by telemarketing," said Reno. "The operation represents the highest level of cooperation between law enforcement authorities at every level of government to combat telemarketing fraud." Reno, who was joined by Ted Jackson, Deputy Assistant Director of the FBI's Criminal Investigative Division, and Georgia Attorney General Thurbert Baker, said that in the last 60 days 139 subjects had been charged in 48 federal cases, 60 individuals had been arrested, and 28 searches had been executed. Approximately 20 search warrants were executed today alone. Operation Double Barrel grew out of an earlier nationwide undercover operation called Operation Senior Sentinel, which Reno announced in December 1995. That operation involved the first nationwide use of consensual recording of conversations between telemarketing solicitors and undercover agents or cooperating senior citizens. As in Double Barrel, specially trained volunteers from AARP, law enforcement agents and retired agents tried to catch telemarketers who had bought lists of phone numbers of previous telemarketing victims. To date, more than 12,000 tape recordings of illegal solicitations have been compiled. From 1993 to July 1996, Senior Sentinel resulted in the conviction of 598 individuals, the execution of 104 search warrants and the investigation of 180 telemarketing "boiler rooms." Since 1995, federal authorities have been dismantling concentration of large-scale "boiler rooms" that conducted telemarketing in areas such as Buffalo, Chattanooga, and Las Vegas. As a result, authorities noticed that telemarketers were moving away from large-scale "boiler rooms" that conducted deceptive telemarketing and into other types of operations. One of the newer scams is the so-called "rip and tear" operation. In that scam, small groups of telemarketers typically call previous victims and falsely represent that they can help them receive some of their losses. In many rip and tear operations, the telemarketer pretends to be with a federal law enforcement agency, such as the FBI, the IRS or the U.S. Customs Service. "Anyone who calls you, tells you they're from the FBI, and asks you to pay a fee so they can get your money back, is lying," said Attorney General Reno. "No federal law enforcement agency will ever charge fraud victims a dime when they try to get money back for victims." Reno urged anyone who receives such a call to contact the nearest FBI office. Another type of telemarketing is the bogus investment scheme. In these scams, telemarketers craft their sales "pitches" to make would-be investors believe they will get high returns on their investment if they wait for long periods of time. "Unfortunately, by the time that the investors realize that the investment may not be legitimate, the people who ran the scheme may be long gone," said Reno. To enhance the capabilities of federal and state prosecutors and investigators to work together on telemarketing fraud investigations, federal and state law enforcement authorities held a series of joint training sessions. The Department and FBI conducted training for federal prosecutors and agents, and NAAG. Also, the American Prosecutors Research Institute, under a grant from the Department's Bureau of Justice Assistance, conducted similar training sessions for state and local prosecutors and investigators. Reno urged consumers to resist high-pressure sales tactics and to take their time about putting money into investment opportunities with which they were unfamiliar. She indicated that individuals seeking more information about telemarketing fraud can click onto the Department's Web site, which has Web pages on telemarketing fraud at [English] and [Spanish]. Reno also noted that consumers can contact the FTC's Consumer Response Center at 1-202-FTC-HELP (1-202-382-4357) to get information about fraud or file complaints. The public can find the web page for the Attorney General in their state by visiting the NAAG Web site at . A criminal charge is not evidence of guilt, and each person arrested is entitled to a presumption of innocence until guilt is established by trial or by plea. Attorney General of Georgia

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SEC names assisstant US attorney Paul Levenson its new chief in Boston - The Boston Globe SEC names head of Boston office By Beth Healy The Securities and Exchange Commission appointed Paul Levenson, an assistant US attorney, as the new head of its Boston office. Levenson is currently chief of the Economic Crimes Unit at the US attorney’s office for the District of Massachusetts. He will join the SEC in late October, succeeding David Bergers, who left in May for a job in the private sector. “Paul has served with great distinction as a supervisor and prosecutor of securities and other white-collar cases,” said George S. Canellos, codirector of the SEC’s Division of Enforcement. “We are thrilled that he will be bringing his formidable legal skills, vast experience, and judgment to the SEC as leader of our Boston regional office.”Levenson has coordinated criminal cases with the SEC’s civil investigations during his tenure, the SEC said. He joined the US attorney’s office in 1989 and served in the civil division and the Economic Crimes Unit, which he has led since 2007. There, he helped investigate and prosecute white-collar crimes including securities fraud, tax and bank frauds, and corruption. Levenson earned his bachelor’s degree and his law degree from Harvard University. He began his legal career as a law clerk to Judge Stanley A. Weigel of the US District Court in San Francisco. Beth Healy Beth Healy can be reached at [email protected]

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You are hereHome Nyakana v. NEMA and others In this case, the plaintiff was the owner of a title to construct a residential house on his land plot. After that he obtained all the necessary approvals, he started the construction work. But after a field inspection, the National Environmental Management Authority (NEMA) found out that the construction was within a wetland and issued a restoration order requiring the petitioner to comply with the conditions stated therein within a period of 21 days. As the plaintiff failed to do so, his unfinished building was demolished. The plaintiff challenged the constitutionality of the Articles 67, 68 and 70 of the National Environmental Management Act which were used by the NEMA to ground its decision to order the restoration of the site and later the demolishment of the unfinished building. The plaintiff alleged that those provisions were in contradiction with the right not to be discriminated, the right to property, and the right to a fair trial provided by Article 21, 26 and 28 of the Constitution. The defendant argued that the law was not used to deprive the plaintiff of his ownership over the land and that his right over the land was not absolute and had to be used in accordance with the land legal framework, in particular about legislations related to environmental issues. The Constitutional Court held that the plaintiff’s constitutional rights had not been violated and that the safeguards contained in the National Environmental Management Act were sufficient to accord the plaintiff a fair hearing and gave him the possible to assert his rights. As a result the court dismissed his petition. Country: UgandaType of document: National - higher courtCourt name: Constitutional CourtCourt jurisdiction: ConstitutionalReference number: Constitutional Petition No.03/05Link to full text: http://www.judiciary.go.ug/Number of pages: 16Justice(s): A.E. Mpagi-Bahigeine (JA), A. Twinomujui (JA), C.N. B. Kitumba (JA), C.K. Byamugisha (JA), S.B. Kavuma (JA)ECOLEX subject(s): Land & soilEnvironment gen.Files: Nyakana v. NEMA and others.pdfInforMEA keyword(s): constitutional lawproperty rightwetlandSeat of court: KampalaDate of entry: Wed, 20 April 2016Date of modification: Wed, 20 April 2016Status: UnknownDate of text: Wed, 20 April 2016Region: AfricaECOLEX Keywords: constitutional lawhuman rightsland tenureproperty rightswetlandsData source: InforMEASource language: English The accuracy of the information is the responsibility of the contributing source. In case of discrepancies / technical issues the information at the source prevails. Please help us improve this site – report issues

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Middle District of Florida Meet the U.S. Attorney ProgramsCommunity Outreach LECC/Training Project Safe Childhood Project Safe Neighborhoods Victim Witness Assistance ResourcesReport a Crime You are hereU.S. Attorneys » Middle District of Florida » News Justice News Friday, May 31, 2013 Real Estate Developer Pleads Guilty To Mortgage Fraud Conspiracy TAMPA, FL - United States Attorney Robert E. O'Neill announces that Joseph Daniele (42, Tampa) pleaded guilty this week to conspiracy to commit wire fraud affecting a financial institution. Daniele faces a maximum penalty of thirty years in federal prison. Daniele’s three co-conspirators, also real estate professionals, previously pleaded guilty for their roles in the conspiracy. Misty Rudd, a realtor, Michael Jordan, a mortgage broker, and Adam Ort, the owner of a title company owner, are currently awaiting sentencing. According to the plea agreements, Daniele moved from Ohio to Florida in 2002. Directly and through a series of companies, he bought numerous houses, primarily in Pinellas County, for the purpose of “flipping” them. “Flipping” is generally a practice whereby property is bought and then sold for more than the amount for which the purchaser acquired it. In total, the conspiracy involved approximately 400 mortgage transactions. Rudd helped Daniele to flip the properties by soliciting investors to buy the houses. As a part of the scheme, Rudd and others claimed that these "investments" would require no money from investors to buy the houses. In reality, to obtain these loans, the lenders required the borrowers to contribute money toward the transactions. In the documents submitted to the lenders, the banks were told that the borrowers were paying the down payments and funds-to-close. In fact, the conspirators concealed the actual source of the money from the banks. In some cases, the borrower's contribution was netted out of the transaction. That is, it was taken out of the money the seller (Daniele or his companies) was supposed to receive. This required the direct involvement of the title agents closing the loans. Most of the loans were closed by title companies run by Ort. In other cases, the borrower's contribution was paid by a check from one of Daniele's companies. Frequently, the borrower's contribution came from a company called Premiere Financial, a company run by Ort and Jordan. Premiere Financial would fund the borrower’s contribution and then, on the seller’s side of the transaction, the money would be paid back to Premiere Financial, along with a small fee. This concealed the fact, from lenders, that the borrower had not made a financial contribution to the deal. In addition, mortgage brokers, including Jordan, facilitated the scheme by adding false information to the mortgage loan applications. Applications were falsified to make the borrowers appear to have the financial ability to make the down payment and qualify for loans which they could not really afford. This case was investigated by FBI. It is being prosecuted by Assistant United States Attorney Thomas N. Palermo. USAO - Florida, Middle Updated January 26, 2015 Follow @usao_mdfl on Twitter. Twitter URL: Follow us on Twitter... Making sure that victims of federal crimes are treated with compassion, fairness and respect. Training and seminars for Federal, State, and Local Law Enforcement Agencies.

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