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Field Sobriety Test Definition - What does Field Sobriety Test mean? A field sobriety test is a set of three tests an individual suspected of driving under the influence of alcohol or drugs (DUI/DWI) is asked by law enforcement to perform during a traffic stop. It is used to determine whether the individual is intoxicated. The three tests that constitute the standard field sobriety test are the one-leg stand test, the walk-and-turn test, and the horizontal gaze nystagmus (HGN). Justipedia explains Field Sobriety Test In all 50 states, the crime of driving under the influence of alcohol or drugs (DUI/DWI) is defined as driving a vehicle while having blood alcohol concentration (BAC) level of 0.08% or higher. When a law enforcement officer suspects that an individual is driving under the influence, they are generally unable to conduct a blood or urine test on the spot to determine the individual's BAC. The field sobriety test was established by the National Highway Traffic and Safety Administration (NHTSA) to help law enforcement officers determine a driver’s intoxication level. While the walk-and-turn and one-leg stand tests are "divided attention" tests that require a suspect to perform simple physical tasks while following the officer's instructions, the HGN test measures involuntary jerking of the suspect’s eyeball while tracking an object using peripheral vision. Share this: One-Leg Stand Test Walk and Turn Test Horizontal Gaze Nystagmus Driving While Impaired (DWI) Blood Alcohol Concentration (BAC) DUI: What to Expect Stopped by Police? Here's What to Do A Guide to Fighting a Traffic Ticket in New York What is the walk-and-turn field sobriety test for DWI? CriminalAuto AccidentsDUI / DWICriminal DefenseAlcohol and Drugs

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Trademark Menu Bankruptcy Candy Crush Embarks on a Trademark “Saga” Posted by Stone Law, P.C. on Jan 24, 2014 in Trademark If you have not played Candy Crush Saga, you probably know someone who has. In light of the enormous popularity of the game, the developer of the game, King, sought to protect the name of the game through trademark law. Specifically, King has sought to protect both the words “Candy” and “Saga.” Some people believe these terms are too generic for trademark protection and King has received a fair amount of criticism over its trademark filings. The situation merits a closer look to see what would motivate a company like King to seek trademark protection the way it did. King filed for a mark for the word “Candy” in the European Union. The application was approved on January 15 of 2014 and other parties have 30 days to oppose the trademark. The mark was listed in many categories such as games, game accessories, merchandise, and paper hats. In the United States, this application may have been rejected by the United States Patent and Trademark Office, but you can never truly predict what the office examiners will do. King also filed a trademark application for the word “Saga” in the United States back in 2011. Meanwhile, another game company named Stoic Studio filed a trademark application for the name of... Learn More Trademark Infringement in The Dark Knight Posted by Stone Law, P.C. on Jun 3, 2013 in Trademark Trademark infringement suits happen every day and Hollywood is no exception. On May 16th of 2013, the United States District Court for the Northern District of Indiana decided a lawsuit against Warner Bros. for the Clean Slate program in The Dark Knight Rises. For those who may not remember, in the movie the Clean Slate program that could erase a person’s entire history. This of course is not to be confused with Tony Stark’s Clean Slate program to destroy his Iron Man suits. Warner Bros. was sued by Fortres Grand Corporation. Fortres Grand started selling a real life Clean Slate in 2000 and registered a trademark for it in 2001. The nonfictional program protects computer networks by erasing all evidence of user activity so later users see none of the previous user’s activity. Fortres Grand sued Warner Bros. for trademark infringement for not only the movie but two websites Warner Bros. made for Rykin Data, the fictitious company which developed Clean Slate in the movie. Fortres Grand claimed Warner Bros. committed trademark infringement by using a fictional product that was similar to their real product. Warner Bros. responded with a motion to dismiss the case. The Court analyzed Fortres Grand’s reverse confusion theory that Warner Bros. saturated the market... Learn More Is ‘Redskins’ Too Offensive to be Trademarked? Posted by Stone Law, P.C. on Mar 20, 2013 in Trademark The Trademark Trial and Appeals Board, the TTAB, has recently heard a case to determine if the Washington Redskins name is disparaging, and therefore should be stripped of its protected trademark status. This has been a long disputed issue. The case was organized by Suzan Shown Harjo, president of the advocacy group the Morning Star Institute. The lead plaintiff is Amanda Blackhorse, a young Native American, who believes the term ‘redskin’ to be a racial slur. Harjo was famously the lead plaintiff on Pro-Football, Inc. v. Harjo, a series of cases which was first brought in 1992, and wasn’t fully decided until the Supreme Court decided not to hear the case in 2009. see Harjo v. Pro-Football Inc., 1994 TTAB LEXIS 9, 30 U.S.P.Q.2d 1828, 1831 (TTAB 1994); Harjo v. Pro Football Inc., 50 U.S.P.Q. 2d 1705, 1749 (TTAB 1999); Pro-Football, Inc. v. Harjo, 415 F.3d 44 (D.C. Cir. 2005); Pro-Football, Inc. v. Harjo, 567 F. Supp. 2d 46 (D.D.C. 2008) ; Pro Football, Inc. v. Harjo, 565 F.3d 880 (D.C. Cir. 2009); certiorari denied by Harjo v. Pro-Football, 2009 U.S. LEXIS 8206 (U.S., Nov. 16, 2009). That 17 year long series of cases was ultimately decided on a technicality, the doctrine of laches, and the courts had not... Learn More Loss of Trademark Rights: Embracing Negative Trademarks Posted by Stone Law, P.C. on Mar 8, 2013 in Trademark Red Sox fans, Mets fans, and baseball fans of any team other than the Yankees will tell you that the Yankees are evil. Now, so have a panel of federal judges. Last month, the Yankees successfully blocked a trademark application by Evil Enterprises for the phrase “Baseball’s Evil Empire”. Evil Enterprises initially applied for a trademark back in July of 2008, and it’s been the source of a five year fight between the baseball club and the t-shirt makers since. The phrase originated back in 2002 when an executive of the Boston Red Sox first used it to disparage the Yankees. Since then, it has been popularly used in articles, sports columns, and TV highlight shows as a label for the Yankees. The Yankees have never used the phrase themselves, however, and that is why this is such an interesting trademark case. The team argued that they have “implicitly embraced” the “Evil Empire” theme as a “badge of honor” by playing music from Star Wars during their home games. The team does not necessarily want to make t-shirts with the phrase on it, yet they still wish to block others from doing so. The Yankees had not registered the trademark for itself. But, nonetheless, they now own the trademark.... Learn More Trademark Abandonment: When Enforcement Conflicts With Other Obligations Posted by Stone Law, P.C. on Mar 8, 2013 in Trademark Texas A&M quarterback Johnny Manziel won the Heisman Trophy last year as a freshman, and is widely considered one of the best football players in the country. His nickname, Johnny Football is very popular in College Station, Texas. Fans of the Aggies are clamoring for t-shirts that read Johnny Football. But, the freshman phenom is forbidden by NCAA rules from profiting. If Johnny Football were to set up a t-shirt company and start selling apparel, he would lose his scholarship, under NCAA regulations. But, if he were to allow others to make Johnny Football t-shirts, and fail to stop them, he could lose the trademark forever. This paradox was solved by forming a corporation, JMAN2 Enterprises. JMAN2 has registered the trademarks of “Johnny Football” and “Johnny Manziel”. JMAN2 has begun sending cease and desist letters to any entrepreneurs marketing his name or likeness, and even filing suit against those who do not. This is an awkward combination of policing others from using a mark, and yet not using it themselves. Johnny Football may inspire a roar of the crowd inside Kyle Field, but in the metaphorical marketplace, the name inspires a deafening silence. This is the awkward truce between the NCAA rules and trademark law. The NCAA does not... Learn More International Trademark Registration – Madrid Protocol Posted by Stone Law, P.C. on Jul 31, 2012 in Trademark The Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, also known as the Madrid Protocol, is an international trademark treaty that allows for residents of any member country to file a single international trademark application. The treaty only covers trademark registration, however, and does not guarantee the trademark’s effectiveness across the variety of member states’ legal systems. The primary advantage of the Madrid Protocol is that an applicant can file a single form with one set of fees through a single office. As of November 2, 2003, the Madrid Protocol took effect in the United States. Under the Madrid Protocol, U.S. trademark owners can submit international applications to the International Bureau in Geneva, Switzerland through the United States Patent and Trademark Office. Foreign parties can also seek protection for their trademarks in the United States. Through the Madrid Protocol, a trademark holder can register their trademark in 84 member countries or contracting parties. To submit an application through the USPTO, a trademark holder must file an application or register a trademark with the Office and have a domicile or industrial or commercial establishment in the United States. The international application requires a basic or U.S. application, and both the mark itself and the owner must... Learn More Follow Us! Trademark

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Meeting of May 8, 2013 - Wellness Programs Under Federal Equal Employment Opportunity Laws Written Testimony of Jennifer Mathis Director of Programs, Bazelon Center for Mental Health Law On Behalf of the Consortium of Citizens with Disabilities Chair Berrien and Commissioners Barker, Feldblum and Lipnic: Thank you for inviting the Consortium of Citizens with Disabilities (CCD) to testify at this public meeting. CCD is a coalition of national disability-related organizations working together to advocate for national public policy that ensures full equality, self-determination, independence, empowerment, integration and inclusion of children and adults with disabilities in all aspects of society. My organization, the Bazelon Center for Mental Health Law, is a member organization of CCD, and I submit this testimony on behalf of CCD. While CCD believes that wellness programs can be useful tools to promote health and well-being, we have significant concerns about their potential to discriminate against individuals with disabilities.1 As you know, the employment rate of people with disabilities is far lower than that of any other group tracked by the Bureau of Labor Statistics, and people with disabilities have been disproportionately impacted by the economic downturn. Against this backdrop, we are concerned that employer-based health programs which penalize people with disabilities for not being as "well" as others - and for failing to disclose disability-related information that the Americans with Disabilities Act (ADA) permits them to keep confidential in order to avoid discrimination - make it even more difficult for individuals with disabilities to obtain employment on fair and equal terms. As these programs become more widespread, it is imperative that the Commission issue regulations or guidance to help employers and employees understand the ADA's application in this area. Moreover, the need for clarity about the ADA's application has become even more urgent in order to avoid confusion as the Departments of Labor, Health and Human Services, and Treasury finalize their regulations implementing the Affordable Care Act's provisions concerning wellness programs. The ADA Imposes Requirements on Employer-Based Wellness Programs in Addition to those Imposed by Other Federal Laws The Commission has recognized that the ADA imposes requirements on employer-based wellness programs in addition to those imposed by other federal laws, such as the Health Insurance Portability and Accountability Act (HIPAA), the Genetic Information Nondiscrimination Act (GINA), and the Affordable Care Act (ACA). The Commission's regulations implementing GINA state that nothing in the GINA regulation concerning inducements to participate in wellness programs "limits the rights or protections of an individual under the Americans with Disabilities Act (ADA) . . . ." 29 C.F.R. § 1635.8(b)(2)(iv) (providing examples of circumstances in which the ADA requires employers to make reasonable accommodations to avoid disability discrimination in wellness programs). The ADA's separate application to wellness programs was also recognized in the wellness programs review sponsored by the Departments of Labor and Health and Human Services in anticipation of their proposed rule implementing the ACA's wellness program provisions ("The Affordable Care Act does not, however, supersede other federal requirements relating to the provision of incentives by group health plans, including requirements of the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act (ADA))."2 Congress chose to enact the ACA's provisions concerning wellness programs without stating that these provisions applied "notwithstanding any other provision of law." Indeed, Congress considered and rejected amendments concerning wellness programs that would have provided, for example, that: Nothing in the Americans with Disabilities Act of 1990, title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, or the Genetic Information Non-discrimination Act of 2008 shall be construed to prohibit a covered entity from adopting, sponsoring, administering, or providing products or services in connection with, or relating to, programs of health promotion or disease prevention that requests individuals to participate in medical examinations, answer medical inquiries, or complete health risk assessments or questionnaires, if such requirements are otherwise authorized under this Act. Congress' decision to pass the ACA without such language demonstrates its intent that the ADA have separate and concurrent applicability to wellness programs. The ADA's Requirements Concerning Wellness Programs 1) The ADA requires reasonable accommodation of employees with disabilities in wellness programs. The ADA prohibits covered entities from discriminating based on disability in fringe benefits and other terms, conditions and privileges of employment. 42 U.S.C. § 12112(a)-(b), 29 C.F.R. § 1630.4. Among other things, it requires employers to reasonably accommodate employees with disabilities to ensure that they have rights and privileges in employment equal to those of nondisabled employees, including the right to participate equally in workplace activities like wellness programs. 42 U.S.C. § 12112(b)(5). The ADA's reasonable accommodation provisions apply to both participatory wellness programs (programs that do not require an individual to meet a health-related standard in order to obtain a reward, or do not offer a reward at all) and health-contingent wellness programs (programs that require an individual to meet a health-related standard in order to obtain a reward or avoid a penalty). Health-contingent wellness programs: Health-contingent wellness programs pose the most significant concerns for people with disabilities. These programs reward individuals for meeting health targets or penalize them for failing to meet those targets. There is no logical difference between imposing a penalty and offering a reward; offering a reward only to those individuals who meet a health standard means denying the reward to those individuals who do not meet the standard - that is, penalizing the latter individuals. The Commission has already recognized that reasonable accommodations are required to afford employees with disabilities equal opportunity in wellness programs: . . . if an employer offers a financial inducement for participation in disease management programs or other programs that promote healthy lifestyles and/or require individuals to meet particular health goals, the employer must make reasonable accommodations to the extent required by the ADA, that is, the employer must make "modifications or adjustments that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities" unless "such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of its business." 29 CFR 1630.2(o)(1)(iii); 29 CFR 1630.9(a). 29 C.F.R. §1635.8(b)(2)(iv). We urge the Commission to clarify that an employer who offers its employees a health-contingent wellness program must ensure that if an employee cannot meet the standard due to a disability, the employee is afforded the reasonable accommodation of having the opportunity to meet an alternative standard that is feasible for the individual to meet given his or her disability - or waiver of the standard if there is no feasible alternative standard (unless the employer demonstrates that doing so is an undue hardship).3 In addition, health targets that actually define a disability (for example, high blood glucose levels that indicate diabetes) should not be permitted to be used as the basis for penalties or rewards; doing so would mean using participants' disabilities as the basis for adverse treatment. Participatory wellness programs: We recommend that the Commission clarify that employers must also make reasonable accommodations to avoid disability-based discrimination in participatory wellness programs. Regardless of whether rewards or penalties are attendant upon the outcome of the program, reasonable accommodations may be necessary to afford equal opportunity to people with disabilities. For example, an employer-based wellness program offering reimbursement for membership at a fitness center that does not offer physical accessibility or universally designed fitness equipment, or that does not permit a person with a disability to bring a personal attendant without an extra admission fee, may need to make accommodations in order to provide equal opportunity to participants with disabilities. A wellness program must also ensure effective communication with participants - for example, by providing print materials in alternative formats, providing sign language interpreters when required by deaf and hard-of-hearing individuals, and ensuring that websites meet current accessibility standards. 2) The ADA limits disability-related inquiries by participatory and health-contingent wellness programs. As you know, the ADA sets out careful limitations on disability-related inquiries pre-employment as well as post-employment. 42 U.S.C. § 12112(d). The purpose of these limitations is to guard against discrimination and ensure that disability-related inquiries are limited to those where there is a need to know for purposes of determining whether an individual can do the job (that is, inquiries that are job-related and consistent with business necessity).4 As the Commission noted in its guidance concerning disability-related inquiries of employees: Historically, many employers asked applicants and employees to provide information concerning their physical and/or mental condition. This information often was used to exclude and otherwise discriminate against individuals with disabilities -- particularly nonvisible disabilities, such as diabetes, epilepsy, heart disease, cancer, and mental illness -- despite their ability to perform the job. The ADA's provisions concerning disability-related inquiries and medical examinations reflect Congress's intent to protect the rights of applicants and employees to be assessed on merit alone, while protecting the rights of employers to ensure that individuals in the workplace can efficiently perform the essential functions of their jobs.5 The ADA exempts workplace wellness programs from these limitations to the extent such programs include "voluntary medical examinations, including voluntary medical histories." Id. at § 12112(d)(4)(B). The Commission has stated in guidance that medical exams or inquiries conducted as part of workplace wellness programs are not "voluntary" under the ADA where they are mandatory or include penalties for failing to complete such exams or inquiries.6 Some employers have wellness programs that use "health risk assessments" offering significant financial rewards for providing disability-related information that the ADA would otherwise prohibit the employer from requesting. Other employers have required all employees to provide disability-related information as part of such "health risk assessments" - whether or not they choose to participate in a wellness program - or face financial penalties. Still others use health risk assessments that ask disability-related questions (for example, questions about the participant's mental health) that seem to be unrelated to any actual wellness services provided to wellness program participants. The Commission should address the ADA's application to such practices. First, the Commission should address what constitutes a "voluntary" wellness program. If a wellness program imposes financial penalties for not participating in the program, the program is not voluntary. Similarly, the program is not voluntary if individuals who choose not to participate are denied financial rewards. If a voluntary wellness program includes a health risk assessment that asks disability-related questions, an individual cannot be penalized for refusing to answer those questions or given financial rewards for answering them. In addition, the Commission should address the circumstances under which disability-related questions may be considered part of a wellness program. If disability-related questions are asked as part of a health risk assessment, in order to be part of a wellness program, those questions must be necessary for the wellness services actually provided. For example, a health risk assessment that asks questions about a participant's mental health should not be considered part of a wellness program that focuses on management or improvement of other health conditions and does not offer mental health services. Second, there must actually be wellness services offered; a voluntary wellness program cannot simply consist of a health risk assessment. While one court rejected an ADA challenge to an employer's imposition of penalties on employees who failed to answer disability-related questions as part of a "wellness program" consisting only of a biometric screening and a health risk assessment questionnaire,7 we believe that court's analysis was incorrect. That court held that the ADA imposed no liability because the wellness program fell within the ADA's "safe harbor" for bona fide benefit plan terms that are based on underwriting or classifying risks. The court did not consider, however, the differences between wellness programs -- which are designed to promote health or prevent disease - and underwriting practices. Finally, the Commission should also clarify that information obtained as a result of a workplace wellness program's voluntary medical exam, health risk assessment or other inquiry - whether in a participatory or health-contingent wellness program - must be "collected and maintained on separate forms and in separate medical files and [] treated as a confidential medical record" in accordance with the ADA. 42 U.S.C. § 12112(d)(3)(B), (d)(4)(C). Thank you for the opportunity to provide testimony on this important issue. The Consortium of Citizens with Disabilities appreciates the Commission's interest in this issue and stands ready to assist the Commission in any effort to provide further guidance concerning the ADA's application to wellness programs. 1 Wellness programs also raise concerns under Title VII and the Age Discrimination in Employment Act, which are addressed by other witnesses and commenters. 2 Soeren Mattke et al., RAND Health, "A Review of the U.S. Workplace Wellness Market," at 7, available at http://www.dol.gov/ebsa/pdf/workplacewellnessmarketreview2012.pdf. 3 While the ACA permits individuals to request an alternative standard when their medical conditions make it "unreasonably difficult" to meet a health standard, it is unclear how this language will be interpreted. In any event, it does not limit the ADA's reasonable accommodation mandate. 4 Typically health risk assessment inquiries concern participants' health rather than their ability to do the job, and are therefore not job-related. 5 EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA at ¶ 22 (July 27, 2000) (available at www.eeoc.gov/policy/docs/guidance-inquiries.html). 7 Seff v. Broward County, 691 F.3d 1221 (11th Cir. 2012).

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ETD@PUK The impartial and independent composition of the international arbitral tribunal : a critical survey vanzyl_lerouxpa.pdf (2.827Mb) Van Zyl, Petrus Albertus Le Roux Globally the resolution of disputes is known for expensive costs and lengthy periods of time before a court reaches a decision. This position becomes even more complex where a person has to resort to a foreign country with a foreign legal system to resolve a dispute. International commercial arbitration provides a practical alternative to resolve disputes in the world of international trade. lnternational commercial arbitration can shortly be described as a private method of dispute resolution, chosen by the parties themselves as an effective way of putting an end to disputes between them, without recourse to the courts of law. It is especially aimed at resolving disputes in a manner which is fast, effective and less costly. Due to South Africa's recent re- entry to international trade, the field of international commercial arbitration is relatively new from a South African perspective. In the light of South Africa's continuous economical expansions and participation in international trade, the role of international commercial arbitration will become increasingly important. Some of the advantages of international commercial arbitration include that the parties to the dispute can choose the rules and procedures to apply in resolving the dispute. Fundamental to the enforcement of an international commercial arbitration award is the requirement that the arbitrators be independent and impartial. The independency and impartiality of arbitrators within the international context is also linked with the vested international and domestic right to a just and fair trial. Should there not be adhered to the requirements of independency and impartiality, one opens the door to a variety of risks within the international commercial arbitration process. The most important risk is that of the award not being enforced in a court of law due to a lack of either independency or impartiality. Within the framework of international commercial arbitration, there exist various rules and guidelines with regard to the process and procedures to be followed. The international commercial arbitration instruments include the UNCITRAL Rules of Arbitration of 1996, the UNCITRAL Model Law of 1985, the ICC Rules of 1998 and the LCIA Rules. All of these rules require the independent and/ or impartial composition of the arbitration tribunal especially with regard to the enforcement of the award. In the light of the increasing importance of international commercial arbitration, this study is concerned with the thought of the above mentioned international instruments' failure to provide clear and concise guidelines and measurements with regard to the effective establishment of an arbitral tribunal deemed to be independent and impartial. In this mini- dissertation it is aimed to provide some insight with regard to possible methods on which parties can rely to ensure that arbitrators appointed by them will be deemed to meet the expected requirements of independency and impartiality, despite the vagueness encountered in most of the international arbitration documents. ETD@PUK [6592]

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- Professor Charles Koch Delivers 2009 St. George Tucker Lecture MyLaw HomeNewsNews Archive2009 Professor Charles Koch Delivers 2009 St. George Tucker Lecture 2009 St. George Tucker Lecture Dean Davison M. Douglas (at left) presented Professor Charles H. Koch, Jr., with an award in recognition of his St. George Tucker Lecture on November 5, 2009. Photo - of -Hide Caption Page Menu by Ami Dodson | December 2, 2009On November 5, 2009, William & Mary Law School Woodbridge Professor of Law Charles H. Koch, Jr. spoke on "Poor Europe: Why Weren't They Smart Enough Just to Copy Us" as the 2009 St. George Tucker Lecturer. Professor Koch specializes in administrative law, European Union law, federal courts, and comparative constitutional law. From 1989 to 1996, he was editor-in-chief of the Administrative Law Review. He is currently Assistant Chief Reporter for an American Bar Association project to develop greater understanding of the EU among U.S. lawyers and chair of the ABA Task Force on Global Administrative Law. He also serves on the ABA United Nations Affairs Coordinating Committee. Professor Koch described how the European Economic Community (EEC) came into being in 1957 as a simple treaty between six nations. It has mushroomed, now encompassing 27 nations and half a billion people. It is likely to continue expanding. It is now called the European Union. As its original name implies it was understood as an economic organization but today it has evolved into a sovereign state (but not a nation state). In doing so, it has chosen some rules and structures fundamentally different from the United States. The lecture examined some of the more salient differences in “constitutional” choices in order to better understand federalism, supranational government, and sovereignty in general. For that purpose, it compared the role of the U.S. states with that of the EU constituent nations, “member states.” It focused on the choice between the written versus unwritten basis for human rights; the ceding of state sovereignty to a federal judiciary; and hieratical versus network approaches to policymaking. Despite the title of the talk, Koch did not advocate one set of choices over the other but rather suggested each community might well learn from the other. The St. George Tucker Lecture Series was established in 1996 to recognize the scholarly achievements of a senior member of the William & Mary law faculty each year. The series is made possible through the generosity of Law School alumni. St. George Tucker was the second professor of law at William & Mary and a pioneer in legal education. He drafted a formal description of the requirements for a law degree at the College, which included an exacting schedule of qualifying examinations in history, government and related pre-law subjects. Tucker's course material was published as the first American edition of Blackstone's Commentaries on the Laws of England. For a generation, Tucker's volume was considered the leading authority on American law. HomeNewsNews Archive2009

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Major Labels Sue Usenet for Copyright Infringement Several major record companies have filed a suit against Usenet.com, a file-sharing network, for copyright infringement. What else? Labels like Arista, Sony BMG, Capitol Records, Elektra Entertainment, Interscope, LaFace and more, are alleging at Usenet is enabling the anonymous replication and distribution of copyrighted content. Through usenet's newsgroups, messages and files that are uploaded and hosted on usenet's servers can be accessed by others, which can then download music files. The suit specifically states that these online newsgroups are used especially for copyright infringement, as the newsgroups are moved from the usenet network to its servers, whereupon access is sold to the newsgroups for hosting purposes. The music and film industry seem to have stepped up their suing rampage, going after video-sharing networks like YouTube and Dailymotion, as well as individuals like Jammie Thomas. The case, which included some of those listed in this case against usenet, was a precedent in regards to individual responsibility and the intent to distribute copyrighted content. With Thomas having had appealed the court ruling that found her guilty, and new cases being brought to court, it's clear that this war isn't over just yet. [via billboard] social software, web

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| United States v. Harris United States v. Harris UNITED STATES OF AMERICA, Plaintiff,v.MACK EDWARD HARRIS, Defendant. SUSAN P. WATTERS, District Judge. On March 10, 2013, police officers forced their entry into an apartment located at 1301 Industrial Avenue, Billings, Montana. The police believed that the apartment was the scene of an ongoing domestic assault. Once inside, a protective sweep revealed the Defendant Mack Harris hiding beneath the kitchen sink. After placing Harris under arrest and taking him to a patrol car, officers located a handgun concealed underneath a bedroom dresser. That handgun formed the basis of Harris's subsequent Indictment. On January 23, 2015, Harris moved to suppress any evidence found within the apartment. Harris argues that the forced entry did not comport with the Fourth Amendment. Harris also contends that even ifthe police legally entered, they did not obtain valid consent to search the apartment. On February 18, this Court held a hearing. At the hearing, the Court heard testimony from Officer Paul Lamantia, [1] Sergeant Patrick Curry, Officer Corey Kirkpatrick, Officer Jared Lausch, Officer David Raschkow, Officer Gearald McComb, and Leanna Devad. The Court has also reviewed recordings of body microphones attached to Officer Lamantia, Officer McComb, Officer Kirkpatrick, Officer Lausch, and Officer Raschkow. The Court finds that law enforcement permissibly entered the apartment. The Court further finds that law enforcement obtained valid consent to search the apartment. For those reasons, the Court denies the Motion to Suppress. Around 9:30 PM on March 10, 2013, Officer Lamantia was on routine patrol in a marked police vehicle when he received a dispatch to a disturbance at an apartment complex in Billings, MT. Dispatch relayed to Officer Lamantia that residents at the complex could hear a physical altercation between a male and a female inside an apartment. The residents reported hearing the occupants mention a gun. The residents also believed that they heard the sounds of strangulation coming from within the apartment. Officer Lamantia arrived at the apartment complex and observed people gathering outside of the apartment building. On the second floor at 1301 Industrial Avenue, Apartment #36's windows were open and onlookers could hear the apartment's occupants arguing. Officer Lamantia entered the apartment building and walked up the stairs to the apartment's door. Outside the door, Officer Lamantia heard what appeared to be an intense verbal altercation between a male and a female. Officer Lamantia knocked on the door and identified himself as police. Nobody answered the door. Soon after, an onlooker told Officer Lamantia that a male was attempting to jump from the apartment's window. Officer Lamantia went to the bottom of the stairwell, exited the building, and attempted to place himself in a position to watch both the apartment's door and the window. Eventually, Sergeant Curry, Officer Raschkow, Officer Lausch, Officer Kirkpatrick, and Officer McComb arrived as backup. While Officer Lamantia stood at the bottom of the stairwell, a woman, later identified as Devad, began speaking to Officer Lamantia through the apartment's open window. Officer Lamantia told Devad to open the apartment's door. Devad told Officer Lamantia that everything was alright and said she was not going to answer the door. Devad also said that she was alone. Officer Lamantia asked Devad several more times to open the door. Devad ended up closing the window and walking away. Officer Lamantia knew that Devad was likely lying about being alone. Both the onlookers and Officer Lamantia heard distinct male and female voices arguing within the apartment. Also, once Officer Lamantia knocked on the door, onlookers reported that a male was attempting to jump out of the apartment's window. Based on his training and experience, Officer Lamantia knew that victims of domestic violence are frequently untruthful to law enforcement out of fear of their abuser. An officer called the apartment's maintenance man to unlock the apartment's door. The maintenance man arrived shortly with a key, and Officer Lamantia attempted to unlock the door. The key made several revolutions within the lock, yet the door would not open. The maintenance man noticed that there was a secondary lock located above the primary lock. This secondary lock was placed in violation of the apartment complex's rules. Police called Devad's phone, but she did not answer. Sergeant Curry decided to make a forced entry into the apartment. The officers lined up on the door while Officer McComb prepared to forcibly open the door with a sledge hammer. Devad asked the police to not forcibly open the apartment door and asked "Why are you doing that?" Officer McComb disregarded that request and knocked the door open. The door opened up, but it quickly recoiled back closed. Officer Lamantia saw that a couch was placed in front of the door. The officers asked Devad to move the couch. With the officers pushing on the door and Devad pulling the couch, the door eventually opened wide enough to allow the officers into the apartment. The officers entered the apartment with their firearms drawn. At least one officer had a shotgun. Upon entrance, an officer told Devad to "sit down in the comer and don't move." (Doc. 48, Gov't Ex. 2, [2] Officer Kirkpatrick's body microphone at 27:20). The officers immediately performed a primary sweep of the apartment and cleared the apartment's rooms and closets. The apartment was small, with only a living room, a kitchen area, a bedroom, and a bathroom. The officers did not locate a male on the primary sweep. During the secondary sweep, Officer Lausch found Harris hiding in a cupboard under the kitchen sink. The officers removed Harris at gunpoint and made him lay down on the floor. An officer told Harris to cooperate and made him aware that there was "a 12 gauge at the back of [his] head." (Doc. 48, Gov't Ex. 5, Officer Lausch's body microphone at 07: 15). Harris calmly told police that he had a knife in his pocket and that he did nothing wrong. The police told Harris that they would find his gun, with one officer claiming that they were "going to literally tear this place to pieces." (Officer Kirkpatrick's body mic at 30:10). Harris was handcuffed, read his Miranda rights, taken outside and placed into a patrol car for eventual transport to the Yellowstone County Detention Facility. While the officers performed the protective sweeps, Sergeant Curry spoke to Devad. Devad was visibly shaken, and Sergeant Curry tried to calm her down. After the officers found Harris underneath the sink, Devad asked for an officer to bring her water bottle from the bedroom. Sergeant Curry retrieved Devad's water. In answering questions from Sergeant Curry, Devad spoke softly. Sergeant Curry believed that Devad was afraid of Harris hearing her answers. What happened next is disputed by the parties. According to Sergeant Curry, he asked Devad for consent to search her apartment for a gun. Sergeant Curry claims that Devad initially shook her head affirmatively. Sergeant Curry asked Devad to respond out loud, and Devad quietly said "yes, yes." Based on Devad's consent, Sergeant Curry claims that he told the officers to begin searching the apartment. In contrast, Harris claims that Devad never consented to the search. At the hearing, Devad testified that when Sergeant Curry asked her for permission to search, she responded with "Why are you asking me? You're already doing it." Devad claims that she never nodded her head or said "yes." Devad testified that The Court finds Sergeant Curry more credible and finds that Devad consented to the search of her apartment. The Court acknowledges that there is no recording of Sergeant Curry asking Devad for consent. Sergeant Curry was not wearing a body microphone, and the other officers' body microphones did not pick up Sergeant Curry's questions. In addition, Sergeant Curry did not have Devad sign a written consent form, despite the form's availability and the Billings Police Department's policy of getting written consent whenever possible. Finally, none of the other officers heard Devad consent. However, Sergeant Curry's testimony is corroborated by the evidence. About the time that Sergeant Curry claims to have asked Devad for consent, Devad is heard softly saying "yes, yes." (Doc. 48, Gov't Ex. 3, Officer Raschkow's body mic at 44:08). While Sergeant Curry's questions are inaudible, the body microphones portray a busy scene with multiple voices overlapping each other. It is difficult to make out what people are saying in the recordings. In addition, aside from Sergeant Curry, the officers were focused on securing Harris, so it is understandable that none of them recall hearing Devad consenting to the search. The Court does not find Devad's testimony credible. There are multiple instances where Devad's testimony is contracted by the evidence. Devad claims that the incident started when she took too many prescription pills called "gabbies." Devad said she became irritated and the pills made it hard to breathe. According to Devad, she became upset over pork chops that were being cooked for dinner. Devad claims that she threw a pork chop down, tore up the kitchen, and began yelling at Harris. Devad testified that Harris tried calming her down, and that she was the only one yelling. Devad denied anybody mentioning a firearm during their argument. Devad's statements to the police portray a different scene. After the police removed Harris, an emotional Devad told Officer Lamantia that the incident started when Harris began baking a cake. (Doc. 45, Def.'s Ex. 1, Officer Lamantia's body mic at 8:50). Devad told Officer Lamantia that her prescription pills made her sleepy, and she did not help Harris with the cake. (Id.). Harris started yelling at Devad because of her refusal to help him. (Id.). The onlookers also contradict Devad's claim that she was the only aggressor. In the 911 call, the onlookers reported hearing Devad mention a gun under a mattress. (Doc. 48, Gov't Ex. 2 at 00:55). The 911 caller also reported hearing both a male and female arguing within the apartment. (Id.). Officer Lamantia also heard both a male and a female intensely arguing when he first arrived at the door. This all contradicts Devad's testimony that she was the only one yelling over a pork chop incident. At the hearing, Devad denied telling Officer Lamantia that Harris told her not to open the door. Yet, Devad did tell Officer Lamantia that Harris told her not to answer the door and that he barricaded the door with the couch. (Officer Lamantia's body mic at 5:20). Devad also testified that she did not tell Officer Lamantia that there was a history of domestic abuse between her and Harris. However, Devad did tell Officer Lamantia about at least one previous instance of abuse by Harris. (Id. at 1:20). A very emotional Devad cried while describing to Officer Lamantia that despite her previous cooperation, the police could not prevent Harris from inflicting further abuse. (Id.). Devad expressed apprehension at giving a recorded statement, because she feared that Harris would eventually hear it. (Id. at 3:10). Finally, when asked on cross-examination about the firearm that was eventually found in the apartment, Devad responded twice with "I don't know what you're talking about." The Court finds it incredible that Devad does not know anything about the gun. It was located within her apartment, and she was present when the gun was found. Further, Devad likely knows why Harris is facing federal charges. In sum, the Court believes that Devad lied at the hearing in an attempt to protect Harris. The Court does not find her version of the incident credible. The Court finds that Devad granted Sergeant Curry permission to search the apartment. The officers began searching after Devad consented. After several minutes, Officer Kirkpatrick found a handgun wrapped in a white shirt concealed beneath a dresser in the bedroom. The officers later discovered that Harris worked in North Dakota for weeks at a time and came to Billings to stay with Devad on his time off. Both Harris and Devad confirmed that they were engaged to be married. The government later learned that on July 31, 2012, about nine months prior to the incident, Harris pied guilty to Negligent Endangerment in the Yellowstone County Justice Court. He received a 12 month suspended sentence. As a condition of his suspended sentence, the Justice Court ordered that Harris "shall have no unreasonable contact with Leanna Devad." (Doc. 47-2 at 3). Harris was indicted on charges of Felon in Possession of a Firearm and Possession of a Firearm by a Person Convicted of a Misdemeanor Crime of Domestic Violence. (Doc. 1). Harris now moves to suppress the firearm found in Devad's apartment. He argues that no exceptions justified the warrantless entry and search of the apartment. Harris contends that even ifDevad consented to the search, the consent was not granted voluntarily. The government argues that exigent circumstances and the emergency doctrine justified the entry into the apartment. The government also argues that Harris does not have "standing" to challenge Devad's consent. Alternatively, the government contends that Devad voluntarily granted Sergeant Curry consent to search the apartment. The Court will address each argument in turn. II. The entry into the apartment The Fourth Amendment prohibits "unreasonable searches and seizures." Warrantless searches of a home are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586 (1980). However, because the touchstone of the Fourth Amendment is "reasonableness, " there are several warrant exceptions. Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006). One such exception is when "the exigencies of the situation make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment." Mincey v. Arizona, 437 U.S. 385, 394 (1978) (internal quotations omitted). To justify a warrantless search under the exigency exception, two requirements must be met: "first, the government must prove that the officer had probable cause to search the house; and second, the government must prove that exigent circumstances justified the warrantless intrusion." United States v. Johnson, 256 F.3d 895, 905 (9th Cir. 2001). Probable cause exists when the facts and circumstances within an officer's knowledge are sufficient to warrant a reasonable person to believe that the suspect has committed an offense. United States v. Smith, 802 F.2d 1119, 1123 (9th Cir. 2005). Exigent circumstances are "those circumstances that would cause a reasonable person to believe that entry... was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts." United States v. Martinez, 406 F.3d 1160, 1164 (9th Cir. 2005). In a factually similar case, the Ninth Circuit found that exigent circumstances justified the warrantless entry into a hotel room when the officer responded to a report of domestic abuse. United States v. Brooks, 367 F.3d 1128 (9th Cir. 2004). In Brooks, a hotel guest called the police after hearing what she believed were the sounds of a woman being beaten in the neighboring room. Id. at 1130. An officer arrived and knocked on the hotel room door, and a man answered. Id. The officer explained that he received an emergency call regarding a domestic disturbance. Id. The man said, "I knew you were coming. She was very loud." Id. With the door open, the officer noticed that the room was in "total disarray." Id. The officer asked to speak to the woman, and the man said she was in the bathroom. Id. When the man turned and asked the woman if she wanted to talk to the police, the officer let himself into the room and closed the door. Id. The officer never received permission to enter the room. Id. Once inside, the officer eventually discovered evidence of a recent bank robbery. Id. While the officer entered without a warrant, the Ninth Circuit concluded that exigency justified the entry. Id. at 1136-37. As noted above, the Ninth Circuit needed to find that both probable cause and exigent circumstances existed. Id. at 1133. As to probable cause, the Ninth Circuit found that the neighboring guest's phone call, the man's statement about the woman being very loud, and the observation that the room was in disarray gave the officer probable cause for his entry. Id. at 1134. As to the exigent circumstances, the Court found that the officer's objectively reasonable belief that a woman might be injured provided sufficient exigency. Id. at 1135. The same facts supporting probable cause also supported the finding of exigent circumstances. Id. The Court rejected the argument that the officer should have first spoken to the woman before entering by stating: Considering the tendency of victims of domestic abuse to be less than forthcoming about the harms to which they were or will likely be exposed at the hands of an aggressor who remains on the scene, [the officer] was entitled to search inside the hotel room, which in the total circumstances was an objectively reasonable way to address the exigency. Id. at 1136. The finding of exigent circumstances was "anchored by [the officer's] legitimate concern for the safety of a woman reported to be in danger of domestic abuse." Id. Here, the Court finds that exigent circumstances justified the officers' forced entry into Devad's apartment. Similar to Brooks, the police were alerted to a domestic physical altercation by a neighbor. This report was corroborated when Officer Lamantia heard a male and a female engaging in an intense argument within the apartment. When Devad spoke to Officer Lamantia, she denied the presence of any male. Officer Lamantia knew this was false. Based on his training and experience, Officer Lamantia knew that domestic abuse victims frequently falsify information to police out of fear of retaliation from their attacker. Devad then declined to open the door for the police. Based on these facts, the police reasonably believed that there was a "fair probability or substantial chance" that an assault had occurred. Id. at 1134. The same facts also support the finding of exigent circumstances. The officers reasonably believed that entry into the apartment was necessary to prevent physical harm to Devad. In addition to the intense arguments, the onlookers reported hearing strangulation sounds and a discussion about a gun located within the apartment. Given the totality of the circumstances, sufficient exigency justified the entry into the apartment. The warrantless entry is not unreasonable just because Devad told the police not to enter her apartment and said everything was fine. As Brooks observed, domestic assault victims are frequently untruthful, especially when the offender remains on the scene. Id. at 1136; see also Fletcher v. Town of Clinton, 196 F.3d 41, 52 (1st Cir. 1999) ("In domestic violence situations, officers may reasonably consider whether the victim is acting out of fear or intimidation, or out of some desire to protect the abuser, both common syndromes"); and Hanson v. Dane Cnty., Wis., 608 F.3d 335, 338 (7th Cir. 2010) ("Many victims of domestic violence fear that the danger they face will increase if they assist police or prosecutors"). As the officers had probable cause that Devad was a victim of a domestic assault and that the offender remained within the apartment, exigent circumstances justified the warrantless entry into the apartment. III. Harris's "standing" to challenge Devad's consent Before addressing the merits of Harris's arguments regarding consent, the government argues that Harris does not have standing to challenge Devad's consent. The government cites to Article Ill. § 2 of the Constitution to discuss when a party has standing to assert a claim in federal court. The Court is not persuaded. The Supreme Court did away with the concept of "standing" when a criminal defendant moves to suppress evidence in Rakas v. Illinois, 439 U.S. 128 (1978). In Rakas, the Court rejected a standing analysis and held that the proper inquiry is whether the defendant had "his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge." Id. at 133. The analysis of suppression issues is "more properly placed within the purview of substantive Fourth Amendment law than within that of standing." Id. at 140. Accordingly, the proper inquiry is "whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect." Id. Harris had a reasonable expectation of privacy in the apartment. An overnight guest at a house has an expectation of privacy in that house. Minnesota v. Olson, 495 U.S. 91 (1990). Similarly, a visitor to an apartment who may have occasionally stayed overnight has an expectation of privacy in the apartment. Jones v. United States, 362 U.S. 257 (1960). However, there is no reasonable expectation of privacy for somebody who enters an apartment for only a short period of time to conduct a commercial transaction. Minnesota v. Carter, 525 U.S. 83 (1998). Harris stayed occasionally at Devad's apartment. While he worked and mainly lived in North Dakota, Harris occasionally traveled back to Billings to stay with Devad, his significant other. This is sufficient to give him an expectation of privacy under Olson and Jones. The government points to a recent Third Circuit case that held that a person does not have a reasonable expectation of privacy in a home if a restraining order makes his presence unlawful. US. v. Cortez-Dutrieville, 743 F.3d 881, 884 (3d Cir. 2014). In Cortez-Dutrieville, police searched a woman's ("Newell") house after a package of heroin was delivered to the residence. Id. at 883. In the house, the police arrested defendant Dutrieville, who was previously in a relationship with Newell. Id. Police found heroin in the master bedroom and found incriminating evidence in the Dutrieville's luggage. Id. The police later discovered that the defendant was the subject of a Protection From Abuse Order, which provided that: (1) Dutrieville was not to contact Newell except to make child custody arrangements; (2) Dutrieville was "completely evicted and excluded from" Newell's residence; (3) Dutrieville had "no right or privilege to enter or be present on the premises of [Newell]"; (4) the protection order would remain in effect until October 7, 2013; (5) Newell's consent could not override the express terms of the order; and (6) Dutrieville could be arrested without a warrant for violating the terms of the order. Id. at 883. Dutrieville was indicted for possessing heroin, and he moved to suppress the evidence found in the police's search of Newell's house. Id. The District Court ruled that Dutrieville did not have an expectation of privacy in Newell's house because the restraining order barred him from the home. Id. The Third Circuit affirmed. The Third Circuit recognized that an overnight guest generally has a reasonable expectation of privacy in a home. Id. at 884. However, Dutrieville did not have a reasonable expectation of privacy while he was in Newell's home because of the restraining order. Id. Important to the Third Circuit was that Newell's consent could not override the terms of the protection order. Id. Consequently, "like a trespasser, a squatter, or any individual who occupies a piece of property unlawfully, Dutrieville's presence in the home was wrongful, and therefore any expectation of privacy he may have had was not one that society is prepared to recognize as reasonable." Id. at 884-85 (citations and quotations omitted). Cortez-Dutrieville is distinguishable because Harris was not entirely forbidden from being in Devad's apartment. In Cortez-Dutrieville, the Third Circuit noted that pursuant to the applicable state law, Dutrievelle's mere presence in Newell's house was illegal. Id. at 884. In contrast, Harris's probation condition only specified that he could not have "unreasonable contact" with Devad. Harris's presence by itself in Devad's apartment was not illegal. Since Harris could have permissibly been in Devad's apartment, he maintained an expectation of privacy. Whether he subsequently engaged in illegal conduct as alleged by the govermnent does not impact that expectation of privacy. Further, a third party can challenge another person's consent as voluntarily given. For example, in Bumper v. N Carolina, 391 U.S. 1788 (1968), a grandmother consented to a search of her house. The police subsequently found evidence that implicated her grandson in a prior crime. The Supreme Court found that the grandmother's consent was involuntarily given, and the evidence was suppressed from introduction against her grandson. Id. at 550. The Ninth Circuit has similarly analyzed whether a third party's consent to search was voluntarily given. See United States v. Reid, 226 F.3d 1020 (9th Cir. 2000); United States v. Patayan Soriano, 361 F.3d 494, 497 (9th Cir. 2004); United States v. Furrow, 229 F.3d 805, 809 (9th Cir. 2000) overruled on other grounds by United States v. Johnson, 256 F.3d 895 (9th Cir. 2001); and United States v. Brown, 563 F.3d 410, 413 (9th Cir. 2009). Since Harris had an expectation of privacy in Devad's apartment, he can challenge whether the search comported with the Fourth Amendment. IV. Devad's consent to search the apartment Harris first argues that Devad never consented to the search of her apartment. As discussed above, the Court finds that Devad did consent to the search. Harris alternatively argues that even ifDevad gave permission to the police to search her apartment, the consent was not voluntarily given. Voluntarily-given consent is a recognized exception to the Fourth Amendment's protection against unreasonable searches. Schneckloth v. Bustamante, 412 U.S. 218, 219 (1973). Five factors are used to determine whether consent was voluntary: (1) Whether defendant was in custody; (2) whether the arresting officers have their guns drawn; (3) whether Miranda warnings have been given; (4) whether the defendant was told he has a right not to consent; and (5) whether defendant was told a search warrant could be obtained. United States v. Russell, 664 F.3d 1279, 1281 (9th Cir. 2012). No factor is dispositive, and the totality of the circumstances must be considered. United States v. Washington, 490 F.3d 765, 775-76 (9th Cir. 2007). The government bears the burden of showing that the defendant freely and voluntarily consented. Russell, 664 F.3d at 1281. A review of the factors favor a finding that consent was voluntarily given. The first factor favors the government, as Devad was not in custody. The second factor also favors the government. While the officers had their guns drawn, they were not directed at Devad. Instead, the officers had weapons pointed at Harris until he was ushered to the police car. An officer may have briefly pointed a weapon at Devad immediately after gaining entry into the apartment; however, it would have been incidental and not an attempt to coerce Devad into consenting to a search. The third factor is inapplicable. Washington, 490 F.3d at 776. Since Devad was not the subject of a custodial interrogation, Miranda rights were not required. When Miranda rights are not required, their absence does not favor either party. Russell, 664 F.3d at 1281. The fourth factor favors Harris, as nobody informed Devad that she could refuse to consent to the search. However, an "officer is not required to inform the person being searched that he has a right to refuse consent; doing so simply weighs in favor of finding consent." United States v. Vongxay, 594 F.3d 1111, 1120 n. 6 (9th Cir. 2010) (emphasis in original). The fifth factor favors the government, as Sergeant Curry did not tell Devad he could simply obtain a search warrant if she refused consent. Russell, 664 F.3d at 1282. Finally, the totality of the circumstances shows that Devad voluntarily consented to the search. Once inside the apartment, the officers did not treat Devad like a suspect. Instead, Sergeant Curry treated Devad like a victim and retrieved a water bottle for her. Devad did not have reason to believe that Sergeant Curry was coercing her into consenting. Instead, the officers acted in Devad's best interests by searching her apartment. Based on the above discussion, the Court finds that Devad voluntarily consented to the search of her apartment. The police did not apply coercion or otherwise render Devad's consent involuntary. For the reasons stated above, IT IS HEREBY ORDERED that Harris's Motion to Suppress (Doc. 43) is DENIED.

法律

2017-04/0403/en_head.json.gz/10770

192 U.S. 217 - Thomas Bedford v. United States Homethe United States Reports192 U.S. 192 US 217 Thomas Bedford v. United States 192 U.S. 217 48 L.Ed. 414 THOMAS C. BEDFORD and Emma Bedford, Appts.,v.UNITED STATES Argued December 9, 1903. The appellants were owners of land on the Mississippi river in the state of Louisiana, amounting to 5,000 or 6,000 acres, upon which were cabins, other buildings, and fences. They brought suit in the court of claims for damages to their lands, alleged to have resulted from certain works of the United States. The damages consisted, as found by the court, of the erosion and overflow of about 2,300 acres of the land. The works of the government, and their operation, are described by the court in the following findings: 'Prior to the spring of 1876 the Mississippi river flowed around a narrow neck of land known as De Soto point; and, in going around this point, flowed by the city of Vicksburg in a southwesterly direction. In the spring of 1876 De Soto point became so narrow by erosion that the river broke through, leaving De Soto point as an island, thereby shortening the distance of the stream about 6 miles, and taking its course immediately to the south with great velocity against the Mississippi bank at what is known as the cut-off of 1876. The result was that the city of Vicksburg was left some miles away from the main channel of the river, and the old channel in front of the city was continually filled up, making the approach from the river to the docks along the river difficult, if not impossible. 'Between 1878 and 1884 the United States constructed about 10,700 feet of revetment along the banks of the Mississippi river at Delta point, Louisiana, for the purpose of preventing the further erosion of that point. The revetment consisted of willow mattresses weighted down by stones, and were placed on sand banks below high-water mark. The revetment was neither upon nor in contact with the claimant's land. The object of the construction was to prevent the navigable channel of the river from receding farther from the city of Vicksburg, which had been left some distance from the main channel of the river by the cut-off of 1876, as aforesaid. The revetment was repaired slightly in 1866 and 1889, and more extensively in 1894, all of which work was paid for from time to time out of the appropriations made therefor by Congress, as found in 20 Stat. at L. 363, 366, chap. 181; 21 Stat. at L. 181, chap. 211; 21 Stat. at L. 470, chap. 136; 26 Stat. at L. 450, chap. 907; 26 Stat. at L. 1116. 'In making the improvement aforesaid, the defendants did not recognize any right of property in the claimants in and to the right alleged to be affected, and did not assume to take private property in and by the construction of the revetment, but proceeded in the exercise of a claimed right to improve the navigation of the river. 'After the cut-off at De Soto point in 1876, and the construction of the revetment, as aforesaid, the channel and current of the Mississippi river were gradually directed toward the lands of the claimants, situated about 6 miles below said cut-off, and did about the year 1882, reach said lands and thereafter erode and overflow about 2,300 acres of their lands, which overflow has ever since continued. About 400 acres of their lands so eroded and overflowed was prior to the death of said George M. Bedford, through whom the claimants claim title, and about 900 acres of which were overflowed thereafter and prior to said judicial sale, and the residue after said sale. Of the lands so overflowed about 1,300 acres thereof were cleared and in cultivation, of which about 700 acres were so cleared prior to May 2, 1895. 'The damage to the claimants, and each of them, by reason of the washing away of their lands during their respective ownership, as aforesaid, is an excess of $3,000. 'The cause of the deflection of the river upon the claimants' land was the cut-off, which shortened the distance of the stream 6 miles, and thereby increased the velocity of the current, and forced the current to turn, when it struck the Mississippi bank, at an abrupt angle. The revetment did not change the course of the river as it then existed, but operated to keep the course of the river at that point as it then was. If the revetment had not been built, the cut-off would have continued to widen toward the Louisiana bank, and the channel would have continued to move in the same direction. With the widening of the cut-off and the shifting of the channel the angle of the turn below the cut-off would have gradually become less abrupt, and the deflection of the stream upon the claimants' land would have grown less, and the consequent injury to the claimants' land would have been decreased. To what extent the injury would have been decreased is conjectural. The injury done to the claimants' land was an effect of natural causes; the injury caused by the government was by interrupting the further progress of natural causes, i. e., the further change in the course of the river, and is also conjectural.' The court deduced from the facts that the claimants were not entitled to recover, and dismissed their petitions. 36 Ct. Cl. 474. Messrs. John C. Chaney, E. T. Brook shire, and Dabney & McCabe for appellants. Assistant Attorney General Pradt and Mr. William H. Button for appellee. Statement by Mr. Justice McKenna: Mr. Justice McKenna delivered the opinion of the court: There is no dispute about the power of the government to construct the works which, it is claimed, caused the damage to appellants' land. It was alleged by appellants that they were constructed by the 'United States in the execution of its rights and powers in and over said river, and in pursuance of its lawful control over the navigation of said river, and for the betterment and improvement thereof.' And also that the works were not constructed upon appellants' land, and their immediate object was to prevent further erosion at De Soto point. In other words, the object of the works was to preserve the conditions made by natural causes. By constructing works to secure that object, appellants contend there was given to them a right to compensation. The contention asserts a right in a riparian proprietor to the unrestrained operation of natural causes, and that works of the government which resist or disturb those causes, if injury result to riparian owners, have the effect of taking private property for public uses within the meaning of the 5th Amendment of the Constitution of the United States. The consequences of the contention immediately challenge its soundness. What is its limit? Is only the government so restrained? Why not as well riparian proprietors, arel they also forbidden to resist natural causes, whatever devastation by floods or erosion threaten their property? Why, for instance, would not, under the principle asserted, the appellants have had a cause of action against the owner of the land at the cut-off if he had constructed the revetment? And if the government is responsible to one landowner below the works, why not to all landowners? The principle contended for seems necessarily wrong. Asserting the rights of riparian property, it might make that property valueless. Conceding the power of the government over navigable rivers, it would make that power impossible of exercise, or would prevent its exercise by the dread of an immeasurable responsibility. There is another principle by which the rights of riparian property and the power of the government over navigable rivers are better accommodated. It is illustrated in many cases. The Constitution provides that private property shall not be taken without just compensation, but a distinction has been made between damage and taking, and that distinction must be observed in applying the constitutional provision. An excellent illustration is found in Gibson v. United States, 166 U. S. 269, 41 L. ed. 996, 17 Sup. Ct. Rep. 578. The distinction is there instructively explained, and other cases need not be cited. It is, however, necessary to refer to United State v. Lynah, 188 U. S. 445, 47 L. ed. 539, 23 Sup. Ct. Rep. 349, as it is especially relied upon by appellants. The facts are stated in the following excerpt from the opinion: 'It appears from the 5th finding, as amended, that a large portion of the land flooded was, in its natural condition, between high-water mark and low-water mark, and was subject to overflow as the water passed from one stage to the other; that this natural overflow was stopped by an embankment, and in lieu thereof, by means of flood gates, the land was flooded and drained at the will of the owner. From this it is contended that the only result of the raising of the level of the river by the government works was to take away the possibility of drainage. But findings IX. and X. show that, both by seepage and percolation through the embankment and an actual flowing upon the plantation above the obstruction the water has been raised in the plantation about 18 inches; that it is impossible to remove this overflow of water, and, as a consequence, the property has become an irreclaimable bog, unfit for the purpose of rice culture or any other known agriculture, and deprived of all value. It is clear from these findings that what was a valuable rice plantation has been permanently flooded, wholly destroyed in value, and turned into an irreclaimable bog; and this as the necessary result of the work which the government has undertaken.' The question was asked: 'Does this amount to a taking?' To which it was replied: 'The case of Pumpelly v. Green Bay & M. Canal Co. 13 Wall. 166, 20 L. ed. 557, answers this question in the affirmative.' And further: 'The Green Bay Company, as authorized by statute, constructed a dam across Fox river, by means of which the land of Pumpelly was overflowed and rendered practically useless to him. There, as here, no proceedings had been taken to formally condemn the land.' In both cases, therefore, it was said that there was an actual invasion and appropriation of land as distinguished from consequential damage. In the case at bar the damage was strictly consequential. It was the result of the action of the river through a course of years. The case at bar, therefore, is distinguishable from the Lynah Case in the cause and manner of the injury. In the Lynah Case the works were constructed in the bed of the river, obstructed the natural flow of its water, and were held to have caused, as a direct consequence, the overflow of Lynah's plantation. In the case at bar the works were constructed along the banks of the river, and their effect was to resist erosion of the banks by the waters of the river. There was no other interference with natural conditions. Therefore, the damage to appellants' land, if it can be assigned to the works at all, was but an incidental consequence of them.

法律

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276 F. 2d 169 - United States v. Zambardi HomeFederal Reporter, Second Series 276 F.2d. 276 F2d 169 United States v. Zambardi 276 F.2d 169 UNITED STATES of America, Appellee,v.Vincent ZAMBARDI, Defendant-Appellant. No. 143, Docket 25862. Argued Dec. 1, 1959.Decided March 16, 1960. Herbert S. Siegal, New York City, for defendant-appellant. Samuel Sheres, Asst. U.S. Atty., S.D.N.Y., New York City (S. Hazard Gillespie, Jr., U.S. Atty., and Kevin Thomas Duffy, Asst. U.S. Atty., New York City), for appellee. Before CLARK, WATERMAN, and MOORE, Circuit Judges. CLARK, Circuit Judge. After trial to the court Judge Palmieri found the defendant guilty of conspiring to violate the narcotics laws in contravention of 21 U.S.C. 173, 174. At the same time the judge found him not guilty on a substantive count charging him with having sold narcotics and having facilitated such a sale. This acquittal resulted from a finding of reasonable doubt as to whether defendant's participation in the sale may not have resulted from entrapment. The only error assigned on appeal is that this finding required a similar finding on the conspiracy count. The resolution of this issue necessitates a summarization of the testimony adduced at the trial. The alleged entrapment was effected by one Bova, a previous acquaintance of defendant. Bova represented that a companion was interested in purchasing narcotics. Unknown to defendant, Bova was a special employee and his companion an agent of the Bureau of Narcotics. They were introduced by defendant to one Maimone, a codefendant below who entered a plea of guilty prior to trial. The agent expressed a desire to purchase a large quantity of heroin, but sought to buy a sample before entering into such a transaction. Negotiations for the sale of an ounce of heroin were concluded at a second meeting and this transaction was subsequently consummated. A third meeting involved arrangements for the purchase of a quarter kilo of heroin, for which Maimone demanded half payment in advance. But before this sale was transacted, Maimone and defendant became aware of the agent's identity. So much is clear; the remaining evidence was largely conflicting. Bova testified that the defendant readily agreed to assist in arranging the transaction, while defendant asserted that he initially refused before finally succumbing to Bova's entreaties. Defendant also denied participation in all negotiations apart from the introduction, testifying that he was present only at the first meeting. But the agent asserted that defendant not only was present at all three meetings, but also offered assurance that Maimone 'was all right, that he (defendant) stood behind him a hundred per cent.' This alleged testimonial was offered at the third meeting to assuage the agent's misgivings in regard to the advance payment requirement. Although defendant was not present during the physical transfer of narcotics, there was conflicting testimony as to whether he received payment from Maimone for his part in the transaction. There was also testimony that at the first meeting defendant named his brother-in-law as an alternative source of narcotics, but at subsequent meetings stated that he had not yet been able to locate this relative. The resolution of this conflicting testimony necessarily turned upon an assessment of credibility and thus was a matter for the trial court sitting as trier of fact. From this we conclude that the evidence did not establish entrapment as a matter of law on either count. Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859, affirming United States v. Masciale, 2 Cir., 236 F.2d 601; Lyons v. United States, 98 U.S.App.D.C. 276, 235 F.2d 223. And in acquitting on the first count the court found only a reasonable doubt, not an assured fact, on the evidence. Indeed, we do not understand defendant to assert the contrary. The point now urged is merely that conviction on the second count is inconsistent with acquittal on the first count. But the same conclusions if reached by a jury would clearly be unimpeachable. It is true that this court has recently decided that a trial judge, sitting as the trier of fact, is held to a more exacting standard, so that inconsistency, if established, requires reversal. United States v. Maybury, 2 Cir., 274 F.2d 899. But we do not find that principle applicable to the present circumstances. Here the trial court was faced with the question whether defendant's actions were the product of government inducement or a matter of independent volition. Sherman v. United States, 356 U.S. 369, 374, 78 S.Ct. 819, 2 L.Ed.2d 848. On the substantive count the court considered only the evidence of the initial meeting and was not convinced beyond a reasonable doubt of the absence of entrapment. But when evidence of the subsequent meetings and defendant's active participation therein was also considered, such reasonable doubt was dispelled. Since the testimony of government agents was probative of the voluntary nature of defendant's participation, we are unable to see the alleged inconsistency. In fact at the trial defendant denied such participation, instead of asserting that it was the product of entrapment. The two findings of the trial judge seem therefore perfectly logical and consistent, as well as well supported by the evidence. Conviction affirmed. WATERMAN, Circuit Judge (concurring). I concur in the result reached by the majority. However, I wish to add a little to their analysis, for I do not believe they deal sufficiently with one problem raised by Sherman v. United States, 1958, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848. In Sherman, 356 U.S. at page 374, 78 S.Ct at page 822, the Court stated that entrapment is a defense not only to the initial act of tainted inducement but also as to subsequent acts which are the product of the original overture. It seems clear to me that here the acts on January 9th would not have occurred but for the acts occurring on January 7th, acts which Judge Palmieri has held to constitute entrapment. Thus, although defendant has not established entrapment as a matter of law as to either count as the majority opinion points out, there is an inconsistency in Judge Palmieri's disposition of the defense of entrapment on the two counts. The majority hold that United States v. Maybury, 2 Cir., 274 F.2d 899, is inapplicable here because they find no inconsistency in the disposition of the two claims of entrapment. I, on the contrary, find there is inconsistency; but, even so, Maybury does not hold that there must be reversal in all cases where the trial judge, sitting as trier of fact in a criminal case, renders an inconsistent decision. Maybury requires reversal when there is an inconsistent appraisal of the credibility of evidence necessary to sustain the count upon which the defendant has been convicted. In this case we know that Judge Palmieri found the Government's evidence as to defendant's conduct on January 9th to be credible because it was on the basis of this evidence that Judge Palmieri refused to allow the defense of entrapment as to the conspiracy count (R. 150). Had Judge Palmieri considered defendant's conduct on January 9th as bearing on defendant's character on January 7th, a matter which Sherman, supra, 356 U.S. at pages 372-373, 78 S.Ct. at pages 820-821, states to be of crucial importance in evaluating a defense of entrapment, quite likely he would have refused to allow the defense of entrapment to the substantive count. Thereby, to be sure, the inconsistency would have been avoided, but defendant would remain convicted just the same on the substantive count. Hence, on a substantially different rationale than that of the majority, I, too, would hold that Maybury is inapplicable here.

法律

2017-04/0403/en_head.json.gz/10772

432 F. 2d 781 - Cross Country Leasing Corporation v. Ryder Truck Rental Inc HomeFederal Reporter, Second Series 432 F.2d. 432 F2d 781 Cross Country Leasing Corporation v. Ryder Truck Rental Inc 432 F.2d 781 CROSS COUNTRY LEASING CORPORATION, Appellee,v.RYDER TRUCK RENTAL, INC., Appellant. Argued June 4, 1970.Decided Oct. 20, 1970. Appeal from the United States District Court for the Western District of Virginia, at Abingdon; Johnson J. Hayes, Judge. Richard C. Rakes, Roanoke, Va. (Gentry, Locke, Rakes & Moore, Roanoke, Va., on the brief), for appellant. S. Strother Smith, III, Abingdon, Va., for appellee. Before HAYNSWORTH, Chief Judge, BRYAN, Circuit Judge, and WIDENER, District Judge. We affirm the District Court's construction and application of the truck rental agreement here under interpretation. The lessor is Cross Country Leasing Corporation, chartered in Alabama with its principal place of business there. The lessee is Ryder Truck Rental, Inc., a Florida corporation. Both are licensed in Virginia. The subsidiary facts were uncontested. Cross Country brought this action for $11,079.00 in the United States District Court for the Western District of Virginia against Ryder to recover the cost and incidental expenses in repairing one of its trucks extensively damaged in North Carolina while operated by Ryder under the lease. Its terms stipulated that the lessee would not be liable for collision impairment beyond $250.00 unless the injuries occurred while the vehicle was used or driven in violation of the contract. The defendant was held at fault because of such misuse of the conveyance, and the plaintiff was given judgment for $7,204.68, plus interest and attorney's fees, in a jury-waived trial. There is no contest in the computation of the claim. The sole issue is the entitlement to an adjudication of any liability at all beyond the limitation of $250.00. At trial the plaintiff's evidence was directed to the acts of the defendant said to constitute breaches of the contract and creating liability on the part of the defendant. The District Judge stated his fact findings, legal conclusions and decision fixing Ryder's liability with precision, clarity and comprehension. We adopt them as our opinion. Cross Country Leasing Corp. v. Ryder Truck Rental, Inc., 302 F.Supp. 1274 with appendix, 317 F.Supp. 622 (W.D.Va.1969). The judgment on review is approved. HAYNSWORTH, Chief Judge (dissenting): Finding no justification for holding Ryder liable for the full amount of the damages to the rented vehicle, I respectfully dissent. The vehicle in question was a heavy duty tractor which Ryder obtained from Cross Country as an emergency replacement for one of its own tractors which had broken down in mid-trip. When the trip was completed, Ryder arranged to have the rented tractor towed from its terminal in Augusta, Georgia, to Cross Country's terminal in Abingdon, Virginia by one of its own tractors which was scheduled to pick up the disabled Ryder tractor which had been left near Erwin, Tennessee. During the trip to Abingdon, the towing device, called a Towmaster, failed and the rented tractor ran off the road and overturned. The standard form rental contract provided by Cross Country makes detailed provision for the allocation of liability for losses from accident or theft and for various other costs and expenses which might arise during the rental period. In general, the lessee, in this case Ryder, is required to bear the financial burden. However, the contract provides the lessee with protection against the risk of liability for certain losses. Except for claims not fully covered by the liability insurance furnished by Cross Country, the lessee is not responsible for claims for death or injury to persons or damage to property arising out of the use of the rented vehicle. Similarly, although the lessee agrees to indemnify the owner for all loss or damage to the vehicle during the rental period, his actual liability is expressly limited to $250. And even that limited liability can be avoided in the case of collision damage to the vehicle by payment of an additional fee. The provisions are comparable to those familiar ones contained in standard contracts for short-term leases of passenger vehicles. It seems clear to me that the protection against risk of damage to the vehicle is a form of collision insurance, with a $250 deductible clause, and should be treated as such. By the terms of the rental contract, this collision coverage is forfeited only if the vehicle is used, operated or driven in violation of any of the provisions of the contract. The reasoning of the District Judge, which my Brothers have adopted, was that Ryder had no authority, express or implied, under the rental contract to tow the rented tractor, and that Ryder violated the contract by towing the tractor back to Cross Country's terminal. I cannot agree that Ryder violated the contract by choosing to tow, rather than drive, the rented vehicle from Augusta to Abingdon. It is well settled in insurance law that a party undertaking to protect another party from specified risks of loss has the obligation to state with reasonable clarity the circumstances under which the protection will be withheld. Doubts as to the existence of such circumstances should be resolved against the insurer and in favor of coverage. See, e.g., Mutual Life Ins. Co. of New York v. Hurni Co., 263 U.S. 167, 174, 44 S.Ct. 90, 68 L.Ed. 235; Stroehmann v. Mutual Life Ins. Co., 300 U.S. 435, 439, 57 S.Ct. 607, 81 L.Ed. 732. Although the rental contract contains several limitations on the use of the rented vehicle, including an express prohibition against using the rental vehicle to tow any other vehicle, it contains no specific prohibition against towing the rental vehicle itself. In fact, the contract takes note of the fact that it might be necessary at times to tow the vehicle and allocates the cost of doing so to the lessee. The contract does prohibit operation of the vehicle 'outside the scope of the driver's employment and the usual course of business of RENTER,' but I do not see how that restriction denies Ryder the authority to tow the vehicle as it did. It was necessary for Ryder to get the rented tractor from Augusta to Abingdon, a distance of some three hundred miles, and it could do so either by having it driven or by having it towed or hauled. The evidence was that Ryder frequently towed its own trucks by means of a Towmaster and that was the method it decided to employ in this case. It was certainly the logical and economical method to use. One of Ryder's tractors equipped with a Towmaster was being sent from Augusta in the general direction of Abingdon to pick up the disabled Ryder tractor. There was no reason why the same tractor and driver could not tow the Cross Country tractor to Abingdon first. By doing so, Ryder was able to avoid the expense and inconvenience of assigning another driver to drive the rented tractor to Abingdon and getting him back to Augusta. Ryder did not show that the particular method of towing it regularly employed was the customary method of truckers in general, but it did show that it was its standard practice and that its drivers did it in the regular course of their employment. Utilization of that method was not contrary to the rental agreement's prohibition against operation of the vehicle outside the usual course of Ryder's business.1 Nor, can it be said that towing was in any way inconsistent with Ryder's obligation to pay for 'the mileage covered by the VEHICLE' during the period of the rental contract. Ryder was making no secret of the fact that it was towing the tractor back to Abingdon. Its conduct was as open as it could be, and there is no evidence that Ryder intended to cheat Cross Country out of the $48 in mileage charges for the trip from Augusta to Abingdon. Ryder having done nothing to forfeit the $250 deductible collision coverage purchased as part of the rental agreement, I would limit its liability accordingly.2 The record does not contain proof of any general industry practice. Ryder's may or may not have been consistent with it, but the exclusion is referable to Ryder's business, not to industry practice. The District Judge did not rely upon any assumed industry practice; he found that towing the tractor was outside the usual course of Ryder's business, but all of the evidence contradicts the finding. The further finding that the contract contemplated only operation of the tractor on highways under its own power is irrelevant to the insurance question, of course, if towage was not a violation of a positive insurance condition The District Court was obviously impressed with the fact that the damage to the tractor was occasioned by the failure of Ryder's towing equipment and was not the result of any fault on the part of Cross Country. Damage to a leased vehicle is much more likely to be attributable to the fault of the lessee in possession than to that of the lessor, but the lessee is entitled to the protection of collision insurance he purchases from the lessor regardless of fault, unless the coverage was forfeited under some positive provision of the contract

法律

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Law Society of Singapore vs Gopalan Nair Ladies and Gentlemen,The following is the defense that I had sent to the Law Society of Singapore in defence to the charges. You notice that I have not wasted much time in answering these, because it is a waste of time. We are facing Lee Kuan Yew's kangaroo court here and I don't believe kangaroos expect me to write much since they have already decided on the case anyway. Would anybody want to bet otherwise. I say Gopalan Nair will be found guilty and disbarred in Lee Kuan Yew's Singapore courts.Defense to Charges before the High CourtThursday, June 16, 2011 5:40 AMFrom: "Gopalan Nair" Add sender to ContactsTo: [email protected], [email protected]. 1.As for the first charge that I had uttered abuses to police officers on July 4th 2008in Singapore, I deny the charge. 2. As for second charge that on the same day I had behaved in a disorderly manner, I deny the charge3. As for the 3rd charge that I had insulted Singapore judge Belinda Ang Saw Ean in 2008, in my blog Singapore Dissident, I deny the charge. It was valid criticism and there was no insult. 4. As for the 4th charge that I had defied an undertaking given to a Singapore judge in 2008, the undertaking was unenforceable as the undertaking was obtained under coercion and duress and therefore without any lawful basis.5. As for 5th charge in respect of criticism of Judge Judith Prakash for her actions in court in 2008, the criticism was justified and valid. Gopalan NairFremont, California, USAJune 15, 2011 Singapore. Fattening the goose for the kill Singapore. Lee Kuan Yew's failure Singapore. Lee Kuan Yew's hopeless struggle to inc... Singapore. Gangster chiefs beget petty thugs Singapore. New York Times calls Lee Kuan Yew and h... Singapore's dilemna, what to do with the Singapore... Singapore, a country with Lee Kuan Yew's law, not ... Singapore, a country where you say one thing at on... Singapore has no sportsmen Singapore Attorney Generel does not answer Singapore foreigner population exceeds native born... Singapore. State Sanctioned Racial Discrimination Law Society of Singapore, undertaking Law Society of Singapore vs Gopalan Nair, hearing ... Singapore's problem, noone wants to have children Singapore. Alan Shadrake's letter to Lee Kuan Yew'... Singapore. Alan Shadrake's book Singapore. How the Lee Kuan Yew government run the... Singapore. Machiavelli, Lee Kuan Yew and Chee Soon... Singapore. A look at their castrated opposition. K... Singapore. A look at their castrated opposition. D... Singapore. How Lee Kuan Yew family maintain their ... Singapore. A people in denial Singapore. It is a dictatorship, not a democracy Singapore. Time to buy a boat Singapore. Democracy should be a daily occurance, ... Where has the Singapore Democratic Party gone

法律

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SmallBusiness.com/WIKI Home WIKI Welcome Corporation - SmallBusiness.com: The free small business wiki sourcebook Welcome to the SmallBusiness.com WIKI The free sourcebook of small business knowledge from SmallBusiness.com Currently with 29,126 entries and growing. WIKI Welcome Page Local | Glossaries | How-to's | Guides | Start-up | Links | Technology | All Hubs About · Help Hub · Register to Edit · Editing Help Twitter: @smallbusiness | Facebook | Pinterest | Google+ In addition to the information found on the SmallBusiness.com/WIKI,you may find more information and help on a topicby clicking over to SmallBusiness.com and searching there.. SmallBusiness.com: The free small business resource 1 Legal status 1.1 Ownership and control 2 Types of corporations 2.1 Public corporations 2.2 Private corporations 3 Corporate taxation 4 Other commercial entities In legal terms, a Corporation is a legal entity (i.e., not a person) that often has similar rights in law to those of a person. In colloquial usage, "Corporation" usually refers to a business or commercial entity set up in accordance with a governmental framework. [edit] Legal status A Corporation enjoys many of the rights and obligations of individual citizens, such as the ability to own property, sign binding contracts, pay taxes, have certain constitutional rights, and otherwise participate in society. (Note that corporations do not possess all the rights appertaining to individuals: in most jurisdictions, for example, a Corporation cannot vote.) To become a legal entity, a corporation must go through a process called incorporation Two of the most distinct distinct features of incorporation include: Limited Liability: Unlike in a partnership, shareholders of a Corporation hold no liability for the corporation's debts and obligations. As a result their "limited" potential losses cannot exceed the amount which they paid for the stock. Not only does this allow Corporation to engage in risky enterprises, but limited liability also forms the basis for trading in corporate stock. Perpetual Lifetime: The assets and structure of the corporation exist beyond the lifetime of any of its shareholders, officers or directors. [edit] Ownership and control Humans and other legal entities (such as trusts and other Corporations) can hold shares. Typically, a board of directors governs a corporation on the stockholders' behalf. The board has a fiduciary duty to look after the interests of the Corporation. The corporate officers such as the CEO, president, treasurer, and other titled officers are chosen by the board to manage the affairs of the corporation. Corporation can also be controlled (in part) by creditors such as banks. In return for lending money to the corporation, creditors can demand a control interest analogous to that of a shareholder, including one or more seats on the board of directors. Creditors are not said to "own" the corporation as shareholders do, but can outweigh the shareholders in practice, especially if the corporation is experiencing financial difficulties and cannot survive without credit. [edit] Formation Historically, corporations were created by special charter of state governments. Today, corporations are usually registered with a state, and become regulated by the laws enacted by that state. Registration is the main prerequisite to the corporation's assumption of limited liability. As part of this registration, it must designate the principal address of the corporation (where to contact it in the event of legal process), and often an agent or other legal representative of the corporation. Generally, a Corporation files articles of incorporation with the government, laying out the general nature of the corporation, the amount of stock it is authorized to issue, and the names and addresses of directors. Once the articles are approved, the corporation's directors meet to create bylaws that govern the internal functions of the Corporation, such as meeting procedures and officer positions. The law of the state in which a Corporation operates will regulate most of its internal activities, as well as its finances. If a corporation operates outside its home state, it is often required to register with other governments as a foreign corporation, and is almost always subject to laws of its host state pertaining to employment, crimes, contracts, civil actions, and the like. [edit] Types of corporations [edit] Public corporations The institution most often referenced when the word "corporation" is used is a public or publicly traded corporation, the shares of which are traded on a public market (e.g., the New York Stock Exchange or Nasdaq) designed specifically for the buying and selling of shares of stock of corporations by and to the general public. Most of the largest businesses in the world are publicly traded corporations. [edit] Private corporations The majority of corporations, especially those considered to be small businesses, are said to be closely held or privately held, meaning they are owned and managed by a small group of businesspeople or companies who do not buy and sell the company's shares daily in a stock market. The affairs of publicly traded and closely held corporations are similar in many respects. The main difference in most countries is that publicly traded corporations have an additional burden of complying with securities laws, which (especially in the U.S.) grant further rights to shareholders to protect them from fraud or unfairness in connection with the sale and purchase of stock. The publicly traded corporation must usually follow much more stringent disclosure requirements, and sometimes additional procedural obligations in connection with major transactions (e.g. mergers) or events (e.g. elections of directors). [edit] Corporate taxation In the United States, business corporations owe taxes according to two basic categories. A "C corporation" must pay corporate taxes, while "S corporations" pay no corporate taxes but instead pass profits and losses directly to their owners (the shareholders) who declare such profits and losses as part of their personal taxable income. An S corporation must generally have no more than 100 stockholders, who must be natural persons (not other corporations or entities), must reside in the United States, and must consent to the classification; moreover, the S corporation can only issue a single class of stock. As a result of these restrictions, all publicly traded corporations and many larger close corporations have C corporation status. Certain kinds of investment companies are also exempt from corporate income taxes, provided they distribute almost all of their income to shareholders in the form of dividends or capital gains distributions. [edit] Other commercial entities Several other forms of business entities exist under the laws of various countries. These include: Limited partnership (LP) Limited liability partnership (LLP) Limited liability company (LLC) [edit] See also [edit] External links This entry includes content from the following Wikipedia article: CorporationTemplate:Glossary-intro Link to this page: "http://smallbusiness.com/w/index.php?title=Corporation&oldid=19918" Categories: Legal glossaryStarting a businessLegal Navigation menu Create accountLog inLog in / create account with Google | Yahoo! | AOL | OpenID Namespaces WIKI Contents Local Resources WIKI Business Basics WIKI Business How-to WIKI Business Glossary WIKI WIKI Community Portal WIKI Editing Tutorial WIKI Help Hub Follow us on Twitter @smallbusiness Share on facebookShare on emailShare on favoritesShare on print|More Sharing ServicesMore Thanks to our users who helped create this page that has been read 31,096 times.

法律

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No service tax on entrance fee collected by club from its members | October 2, 2015 1 Comment Share this on WhatsApp Q : Whether there is any liability of service tax on entrance fee collected by Club from its member ? service tax on entrance fee Where collection of entrance fee by club from its members : (a) did not confer members any access to services, facilities or advantages; and (b) was to meet expenses necessary for sustenance and survival of club and maintenance of its assets, then, entrance fee, not being a consideration, was not chargeable to service tax Analysis of Full Judgement on the issue of service tax on entrance fee collected by club from its members :- CESTAT, MUMBAI BENCH Cricket Club of India Ltd. Commissioner of Service Tax S.S. GARG, JUDICIAL MEMBER AND C.J. MATHEW, TECHNICAL MEMBER ORDER NO. A/3117/2015/STB APPEAL NO. ST/20/2009 Vipin Kumar Jain and Rashil Nichani, Advocates, for the Appellant. K.S. Mishra, Addl. Commissioner (AR) for the Respondent. Assessee Club paid service tax on entrance fee under Protest :- C.J. Mathew, Technical Member – This appeal of M/s Cricket Club of India, Mumbai (CCI) relates to payment of service tax of Rs. 96,06,434, along with interest of Rs. 4,86,855, on the entrance fee of Rs. 9,41,80,745 collected from new members during the period from 16 June 2005 to 30 January 2006. This amount was remitted ‘under protest’ on 27 February 2006 following letters issued by Superintendent of Central Excise (Tax Group XIV), Mumbai in early 2006 consequent upon introduction of levy of tax for rendering of “club or association service” under section 65 (105) (zzze) of Finance Act, 1994 with effect from 16th June, 2005. Refund of this amount was sought in application dated 7th June 2006 claiming that the entrance fee was not liable to tax. The Assistant Commissioner of Central Excise, Division II, Service Tax Commissionerate, Mumbai rejected the claim vide order-in-original no AKS/R02/2008 dated 18th January 2008 and, the Commissioner of Central Excise (Appeals), Mumbai Zone-I, in order-in-appeal YG(19)/STC/2008 dated 29th October 2008, upheld the rejection of claim while modifying the tax levy to the extent Rs. 9,34,244 on the ground that the taxable value was to be reduced as service tax had not been collected from members. Aggrieved by the rejection of their refund claim the appellant is before us. 2. The appellant is a company limited by guarantee having no share capital and was incorporated in 1933 under Indian Companies Act, 1913; these, till recently, were governed by the provisions of section 25 of the Companies Act, 1956 and now under section 8 of Companies Act, 2013. For this reason it is claimed to be a members’ club as opposed to the other category of clubs, viz., proprietary clubs. While both accord facilities to its members, the former are run by the members themselves through appropriate management bodies and the latter by promoters in the business of running clubs. Statutorily, in the event of winding-up, the assets of the appellant devolve on its members who are also liable to make good any deficits during the existence of the club. Appellant sought refund of service tax on entrance fee :- 3. The appellant had sought refund of the tax paid by them for the above period on the ground that they were not liable to tax on the amounts collected as entrance fee for admission of new members. The claim was based on the principle of mutuality which was well-settled in law relating to income tax and sales tax and, in accordance with which, club and members being indistinguishable, the scope of transactions between the former and the latter was held to be beyond the scope of taxation. The decision of the Tribunal in Breach Candy Swimming Bath Trust v. CCE [2007] 6 STT 275 (Mum.) which relied upon the principle of mutuality as applied to clubs by the Hon’ble Supreme Court in Chelmsford Club v. CIT[2000] 243 ITR 89/109 Taxman 215 (SC), CIT v. Bankipur Club Ltd. [1997] (22G) HR 97 (SC), that of Hon’ble High Court of Delhi in CIT v. National Sports Club of India [1998] 230 ITR 777 (Delhi), CIT v. Delhi Gymkhana Club Ltd. [1905] 155 ITR 373 (Delhi) and that of Hon’ble High Court of Andhra Pradesh in CIT v. Merchant Navy Club [1974] 96 ITR 2GI (AP) was cited by the appellant. It was further contended that entrance fees are not subscription and hence beyond the scope of definition of taxable service in section 65(105)(zzze) of Finance Act, 1994; that this amount could not be correlated to any service rendered by the appellant thereby eliminating it from scope of levy of service tax as held by the Tribunal in Cochin International Airport v. CCE 2007 taxmann.com 43 (Bang. – CESTAT) and Euro RSCG Advertising Ltd. v CST [2008] 16 STT 232 (Bang. – CESTAT). Anticipating the resort to “unjust enrichment” for denying the refund claim, the appellant also intimated the lower authorities that no amount over and above the stipulated entrance fee had been collected and that the amount remitted as tax, under compulsion from the jurisdictional Central Excise officer, was from the funds of the club. These contentions and citations did not impress the authority competent to sanction refunds who rejected the claim on the ground that the cited decisions on mutuality, pertaining as they did to income tax and other taxes, could not be extended to service tax and that the decision in re Breach Candy Swimming Bath Trust (supra) was not applicable to M/s Cricket Club of India. Further, it was held that entrance fees were tantamount to advance payment for facilities of the club and that the charging section relating to taxation of “clubs or associations” was extendable beyond subscriptions to include any other amounts collected from members. The same were reiterated in the proceedings before the first appellate authority who has, however, endorsed the findings of the Assistant Commissioner. 4. Ever since “clubs or associations” were brought under the ambit of section 65(105)(zzze) of Finance Act, 1994, the extent and reach of the levy has been the subject of dispute on various counts at different forums. Geographically, such disputes have not been restricted to our borders having received judicial response in England and elsewhere and, historically, the dispute in India dates further back in time to the 1950s under other tax laws. The distinctive features of clubs have, thus, been deliberated upon threadbare and articulated in judgments at the highest level in India and other countries with similarly strong traditions of jurisprudence. That such disputes have arisen, and that they attracted juristic attention, is not surprising considering that clubs and clubbing have been culturally ingrained in human life across space and time. Fulfilling as it does the basic human need for socializing, any curbs or restrictions cast on these by tax officials, in particular, have been resisted with fervour by recourse to judicial intervention. All these disputes have arisen because of presumption of legislative intent. Most often, this presumption emanates from ignorance, compulsion, ideology or philosophy; none of which should ever have crept into the discharge of statutory duties on the part of tax administrators. As per appellant No service tax on entrance fee as it only a fee paid for acquiring membership which does not assure any other facility without further payment :- 5. Certain developments in relation to service tax liability of clubs, in the inter regnum between the issue of the impugned order and the present hearing, are brought to our attention by learned Counsel for the appellant. The decision of the Hon’ble High Court of Jharkhand in Ranchi Club Ltd. v. CCE & ST [2012] 36 STT 64 (Mag)/22 taxmann.com 217 (Jharkhand) has drawn a distinction between members’ clubs and proprietary clubs while holding that, in accordance with the principle of mutuality, the two entities required to complete a taxable transaction are not in existence in relation to the former. Referring to this decision, Hon’ble High Court of Gujarat has, in Sports Club of Gujarat Ltd. v. Union of India [2013] 40 STT 486/35 taxmann.com 557 (Guj), in which the cases of Rajpath Club Ltd and Karnavati Club Ltd. (supra) were also tagged, decided against Revenue to hold the levy of service tax on transactions of clubs with its members to be ultra vires. Besides seeking the application of this decision in their dispute with the service tax authorities, it is also canvassed on behalf of the appellant that the entrance fee is not a consideration for any service; that it is a fee paid for acquiring membership which is not only not a service but does not, of itself, assure any other facility without further payment. This is a fundamental issue raised on behalf of the appellant that goes beyond the principle of mutuality. 6. The contention of the appellant in this case is that they were made to deposit a tax which is not leviable. According to them, the amount collected as entrance fee was not a consideration for rendering of any service and, even if deemed to be a consideration, it is not taxable being a transaction with members who are not distinguishable from the club itself. The latter flows from the fundamental premise that transactions with or restricted to oneself is beyond the ambit of taxability as enunciated by the Hon’ble Supreme Court in Jt. CTO v. Young Men’s Indian Association AIR 1970 SC 1212. It was also brought to our notice that attention of the lower authorities had been drawn to the decisions of the Tribunal in India International Centre v. CST [2007] 9 STT 473 (New Delhi – CESTAT) and Dehradun Club Ltd. v. CCE [2007] 10 STT 114 (New Delhi – CESTAT) all of which uniformly relied on the principle of mutuality to set aside the taxes demanded and that these arguments and the judicial pronouncements did not appear to find favour at the adjudication and first appellate stages despite the ruling of the Hon’ble High Court of Bombay in CIT v. Smt Godavaridevi, Saraf Tumsar [1978 (2) ELT (J624) (Bom.)] about the binding nature of judicial pronouncements. 7. The learned Authorized Representative submits that appeals against the cited decisions relating to service tax have been filed in the Hon’ble Supreme Court and further countered the claim of the appellant that entrance fee is not subscription with a reference to the use of the phrase ‘for a subscription or any other amount’ in section 65(25aa) of Finance Act, 1994. 8. The principal of mutuality applies squarely to the appellant as a members’ club and the ruling of the Hon’ble High Court of Gujarat would settle the case in favour of the appellant. Nevertheless, the fundamental question raised by the appellant calls for a response from this Tribunal for two reasons: firstly, the pendency of the appeals before the Hon’ble Supreme Court is likely to be construed as sufficient cause for continuing to not only demand service tax on clubs and associations but also to adjudicate thereon without acknowledging the mutuality principle and secondly, the incorporation of Explanation 3 in section 65B(44) of Finance Act, 1994 is likely to be interpreted as extending latitude to overcome the impediment of mutuality. Accordingly, we turn our consideration to this primary contention put forth by the appellant that it was never the intent of the legislature to tax the entirety of payments received by a “club or association” from its members. 9. Our jurisdiction to entertain this plea exists only in a limited sphere in the context of the general supposition that legislation will not ever stray beyond the bounds of constitutionality (Principles of Statutory Interpretation – Justice GP Singh pp 44-45, Thirteenth Edition 2012) and is derived from that supposition. This does not, however, rule out the possibility of the tax administrator assuming a jurisdiction beyond legislative intent; all too often, this is the outcome of ignorance of or the assumption that the statute administered by them is not bound by the limits embodied in the parent statute – the Constitution – to circumscribe legislative and executive authority. While Chapter V of Finance Act, 1994 is unambiguously clear about the objectives and scope of the tax, the provisions therein often resorted to without regard to the nature of the tax. This occurs when provisions of the statute are selectively read. 10. Chapter V of Finance Act, 1994 is intended to tax services. The relevant charging section, therefore, cannot and should not be read beyond the transaction that is intended to be taxed. Plainly expressed, only services can be taxed. Habituated to tax on tangible goods, the concept of tax on services may not be easily appreciated for the very reason of its intangibility. The form of the transaction not being apparent until its benefit is perceived in the hands of the recipient and signified by readiness to recompense the provider, the tendency to seize upon the tangibility of the flow of compensation to presume the existence of a service becomes irresistible. And that is when the tax determination exceeds legislative intent. service tax on entrance fee should not be imposed as there is no recipient :- 11. Owing to its inherent intangibility, a service transaction becomes recognizable only if a benefit accrues to a recipient and that explains the use of the phrase “provided or agreed to be provided” to determine taxability. It is taxable only if and when any, or a particular, service is rendered to a recipient. Consideration is, undoubtedly, an essential ingredient of all economic transactions and it is certainly consideration that forms the basis for computation of service tax. However, existence of consideration cannot be presumed in every money flow. Without an identified recipient who compensates the identified provider with appropriate consideration, a service cannot be held to have been provided. In a taxation scheme that specifies the particular targets of taxation, tax liability will arise when a provider conforming to the relevant description in the charging section performs an activity that conforms to the relevant description in the charging section on the request, and for the benefit, of a recipient conforming to the relevant description in the charging section. Service, its taxability and the provision of the taxable service to a recipient, in that order, are necessary pre-requisites to ascertaining the quantum of consideration on which ad valorem tax will be levied. This fundamental will not alter in the scheme of the negative list too; a service that is clearly identifiable has to be provided or agreed to be provided before it can be taxed. The factual matrix of the existence of a monetary flow combined with convergence of two entities for such flow cannot be moulded by tax authorities into a taxable event without identifying the specific activity that links the provider to the recipient. 12. For that very reason, mere capacity to deliver a service cannot be equated with providing or agreeing to provide a service; such service has to reach the recipient in exchange for the consideration or the consideration is made over in exchange for a schedule of delivery of the service. In a combined human activity, contribution of, or agreement to contribute, funds cannot, therefore, be construed as consideration to be taxed under Finance Act, 1994 unless attributable to an activity or performance or promise thereof on the part of an identified provider to an identified recipient. Unless the existence of provision of a service can be established, the question of taxing an attendant monetary transaction will not arise. Contributions for the discharge of liabilities or for meeting common expenses of a group of persons aggregating for identified common objectives will not meet the criteria of taxation under Finance Act, 1994 in the absence of identifiable service that benefits an identified individual or individuals who make the contribution in return for the benefit so derived. 13. The activities of the appellant need to be considered in this light. A “club or association” is the aggregation of a group of individuals for fulfilment of social instinct of human beings. The formality of the structure assumed by this aggregation is not relevant. Such an aggregation may have the wherewithal to provide services —and some of them taxable – but such capacity does not render the “club or association” liable to tax merely for that reason. Neither can monetary contribution of the individuals that is not attributable to an identifiable activity be deemed to be a consideration that is liable to be taxed merely because a “club or association” is the recipient of that contribution. The definition of “taxable service” in section 65(105), in relation to every entry appurtenant thereto is preceded by the phrase “services provided or to be provided” which when read, in the context of the appellant, at (zzze) i.e. “to its members, or any other person, by any club or association in relation to provision of services, facilities or advantages for a subscription or any other amount” and with section 65(25aa) defining “club or association” i.e. “any person or body of persons providing services, facilities or advantages, primarily to its members, for a subscription or any other amount, but does not include……” precludes any alternative interpretation of legislative intent. Accordingly, every fee or charge payable by members to a “club or association” does not, ipso facto, become taxable. 14. “Clubs or associations” generally charge entrance fees as well as periodical subscriptions. They may and, often do, provide facilities for recreational, social and victualing requirements of its members. Such facilities may or may not entail an identifiable charge but, most often, do – certainly they do so for the latter two facilities. To the extent that any of these collections are directly attributable to an identified activity, such fees or charges will conform to the charging section for taxability and, to the extent that they are not so attributable, provision of a taxable service cannot be imagined or presumed. Recovery of service tax should hang on that very nail. Each category of fee or charge, therefore, needs to be examined severally to determine whether the payments are indeed recompense for a service before ascertaining whether that identified service is taxable. No service tax on entrance fee as no access to services, facilities or advantages is being offered by the club or association is solely dependent on the entrance fee :- 15. The entrance fee is a one-time payment that is visited upon members of “clubs or association”. It affords their inclusion into the restricted group that constitutes membership of the club or association. Such entrance fees do not usually confer access to services, facilities or advantages for which membership of the club or association is keenly sought. Membership is contingent upon tendering prescribed subscription at prescribed intervals. Therefore, a provision of service is not perceptible as a quid pro quo for payment of entrance fees. Unless access to services, facilities or advantages offered by the club or association is solely dependent on the entrance fee, there is no logical reason to assume that such fees can be considered as “other amount” as defined in section 65(105)(zzze) of Finance Act, 1994. Learned Counsel for the appellant has drawn attention to the manifold assets that have been acquired by the appellant since its establishment and that a proportional share of the value of the asset would devolve on members should the establishment be wound up. Being the present value of a future distribution of sale proceeds and bringing naught other than acknowledgement as a member of the club or association, it is not attributable to a service rendered by the appellant. This contention is convincing in the absence of an alternative explanation for the charging of entrance fee and we, therefore, conclude that service tax is not leviable on such entrance fees. 16. ‘Clubs or associations’ are entities that need funds to exist in the form that they have assumed or evolved. Wages of employees and costs of running the establishment, such as energy charges, maintenance and repairs etc., are necessary expenses for such sustenance. Implicit in membership of clubs and associations is the obligation to share in such expenses. These are required for maintaining the assets of the club or association for which a service provider may or may not be contracted but the contributing members are not the direct beneficiaries of such services. Contribution to expenses cannot, by any stretch, be deemed to be consideration for any identified service rendered to individual members by access to the facilities or advantage that is within the wherewithal of the “club or association”. However, to the extent that it is possible to identify the facilities, advantage or services of the “club or association” utilized without further payments specifically attributable to such facility, advantage or service, the subscription will be taxable. Appellant is eligible for refund of service tax on entrance fee:- 17. In the instant case of the appellant, the principle of mutuality laid down in the cited decisions supra and the findings above on the entrance fee would render the rejection of their contention of non-taxability by the lower authorities to be contrary to law. The appellant is, therefore, eligible for refund of such tax collected without authority of law. 18. We observe that tax was paid on the entrance fee without collecting the tax amount from the new members. Though the first appellate authority has granted the benefit of a cum-tax computation of the entrance fee, it must be borne in mind that the tax liability was discharged before the re-computation allowed in the impugned order. It, therefore, does not alter the origin of the funds utilized for discharge of tax liability, viz. from the common funds of the appellant without recourse to the members who paid nothing more than the entrance fee. Moreover, entrance fees are fixed in the bye-laws without reference to tax leviable, if any, thereon. For both these reasons, it can be concluded that tax burden has not been transferred to the members from whom entrance fees were collected. Clearly, the service tax so paid does not carry the taint of unjust enrichment. 19. Consequently, the appeal is allowed with consequential relief. Share this on WhatsApp Category: Service Tax Tags: service tax on entrance fee ← Interest on FDRs made out of customer advances was not income Net worth does not include non refundable share application money pending allotment → One thought on “No service tax on entrance fee collected by club from its members” Pingback: Service Tax Interest Rates w.e.f 14.05.2016 | Tax Heal Leave a Reply Cancel replyYou must be logged in to post a comment. Can not find what you are looking ? Try Google Search…. Subscribe Enter your email address:Delivered by FeedBurner

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Home » Archives » 2009 » February » Tips on Hiring a School Board Attorney Tips on Hiring a School Board Attorney By Naomi Dillon Of the 40 years Sam Harben has been a school attorney, he spent eight representing a rural Georgia district. While there, he successfully kept the board out of any significant legal disputes, despite the resolve of one particular member. “He had a social agenda he firmly believed in,” Harben says of the board member. “He was very conservative.” But apparently the board member was wise enough to heed sound legal advice, even if it ran contrary to some of his own ideas about education. Such was not the case in Dover, Pa., where a costly debacle erupted in the fall of 2004 when the school board voted to alter its science curriculum and require administrators to recite a four-paragraph prelude to all units that discussed evolution. The prelude stated that Darwin’s theory of evolution “is not a fact” and said intelligent design is “an explanation of the origin of life.” Parents were outraged, and joined the American Civil Liberties Union in a lawsuit known as Kitzmiller et al. v. Dover Area School District. The lawsuit received national attention. What did not was the number of warnings that preceded the board’s decision. Most came from the district’s lawyer, who resigned when it became clear his words were falling on deaf ears. Dover ultimately lost the lawsuit, shelling out more than $1 million in legal fees and damages, and none of the board members who voted for the change were reelected. It’s a cautionary tale of what can happen when a school board ignores the advice of its attorney. “A good litigator’s goal is to keep districts out of court,” says Harben, who notes that a school attorney must be able to spot potential legal trouble before it occurs. Hiring a knowledgeable attorney with a strong network can save your district a lot of money and a lot of embarrassment. But, as Dover illustrates, what good is professional advice if it’s never heeded? Fortunately we’re here to help, by providing tips and insight to guide you in hiring the perfect attorney. Would you like to continue reading? Subscribers please click here to continue reading. If you are not a subscriber, please click here to purchase this article or to obtain a subscription to ASBJ. Increase Font

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Spanking law has to go, doctors' editorial argues Criminal code 'sends wrong message' and offers excuse for poor parenting, CMAJ says In a strongly worded editorial, the Canadian Medical Association Journal has called for repeal of a section of the Criminal Code that allows parents and teachers to physically discipline a child, arguing that any physical punishment is detrimental and an excuse for poor parenting. (iStock) Spanking debate Spanking debate 2:09 Spanking may be linked to later mental disorders Read the CMAJ editorial The Canadian Medical Association Journal says it's time to do away with the Criminal Code's so-called spanking law. A strongly worded editorial in the journal Tuesday calls for the repeal of Section 43 of the Criminal Code, which gives parents and teachers a legal defence when they physically discipline children. "It is time for Canada to remove this anachronistic excuse for poor parenting from the statute book," editor-in-chief John Fletcher wrote in a signed editorial. 'To have a specific code excusing parents is to suggest that assault by a parent is a normal and accepted part of bringing up children. It is not' —Canadian Medical Association Journal editorial The editorial will likely reignite debate on a controversial topic that has inflamed opinion for decades. The Supreme Court of Canada upheld the Criminal Code provision by a 6-3 margin in a landmark 2004 ruling. The high court ruled that the provision did not infringe a child's right to security of the person under the Charter of Rights and Freedoms and does not constitute cruel and unusual punishment. Several private members' bills to ban corporal punishment have failed in the House of Commons and Senate, most recently in 2008. In the editorial, Fletcher argues that parents need to be educated on how to discipline their children. He said the Criminal Code needs to be amended because it tells parents that physical punishment is an acceptable way to discipline children. "Although it is not necessary to make spanking a crime to encourage alternative approaches to parenting, Section 43 of the Criminal Code of Canada sends the wrong message, stating, '... a parent is justified in using force by way of correction ... if the force does not exceed what is reasonable under the circumstances'." Police have discretion The editorial said that police already have discretion to decide when an assault is trivial, but argued that "any bias" should be aimed at vulnerable children. "To have a specific code excusing parents is to suggest that assault by a parent is a normal and accepted part of bringing up children. It is not. While Section 43 stands, it is a constant excuse for parents to cling to an ineffective method of child discipline when better approaches are available." A Library of Parliament analysis of the issue concluded that there was no national consensus on this issue. It noted that the Supreme Court and the United Nations committee on the rights of the child have divergent views on Section 43. The UN panel called for the removal of the section. In 1984, the Law Reform Commission of Canada recommended the repeal of Section 43 as a defence for teachers, but said it should remain for parents, "primarily out of concern that the criminal law would otherwise unduly encroach on family life for every trivial slap or spanking," the analysis said. The library also found that public opinion on the topic has also been divided. It said that a 2003 poll found 69 per cent of Canadians favoured repealing Section 43 for teachers. But only 51 per cent said it should be removed for parents. © The Canadian Press, 2012 Report Typo or Error

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Criminal LawCommon CrimesPublic Nuisance CrimesDisorderly Conduct Disorderly Conduct in New Hampshire by Ave Mince-Didier Share on Google Plus There is great variation among state laws and municipal regulations governing disorderly conduct, also called disturbing the peace and breach of the peace. However, in general, disorderly conduct laws criminalize behavior that is likely to upset, anger, or annoy others. In New Hampshire, this can mean everything from fighting to funeral picketing, and from playing loud music to falsely reporting a bomb threat. For more general information on the crime of disorderly conduct, see Disorderly Conduct Laws and Penalties. Under New Hampshire’s laws, a person commits the crime of disorderly conduct by: purposely creating a hazardous condition in a public place without good reason fighting or engaging in other violent or threatening behavior in public in a public place, directing to someone else obscene or offensive words likely to provoke a violent reaction blocking traffic on a road or sidewalk blocking access to a public building doing anything that substantially interferes with a criminal investigation or an official response to an emergency refusing to comply with a police officer’s order to leave a public place entering an area that is closed due to criminal activity, an emergency, or a disaster making loud and unreasonable noises that disturb others disrupting business in a public or government facility in a way that disturbs others, or disrupting a lawful meeting or gathering. Generally, in order to be convicted of disorderly conduct, the defendant’s behavior must disturb or bother members of the public. For example, merely calling a police officer a rude name during an arrest might not be sufficient to constitute disorderly conduct, if no one else can hear. However, screaming and kicking at a police officer on a public street, in view of other people, could be considered disorderly conduct. A politician who yells at a meeting, refuses to sit down or leave, and interrupts others could also be convicted of disorderly conduct. Playing music in your car so loudly that it bothers people on the street might also be considered disorderly conduct. (N.H. Rev. Stat. Ann. § 644:2.) Defendants in New Hampshire have claimed that the state’s law against disorderly conduct is so broad and vague that it infringes on their federal constitutional right to free speech under the First Amendment. Generally, courts have rejected this argument. In New Hampshire, a person commits the crime of participating in a riot by, along with two or more other people, engaging in violent conduct that alarms or risks alarming the public. It is also a crime to meet with two or more other people in order to engage in violent conduct, or commit a crime against people or property, or refuse a police officer’s order to disperse. Riot is punished more severely if: anyone is injured there is substantial property damage, or the defendant is armed or throws things at a police officer. For example, a person who throws rocks at a police officer during a political demonstration could be prosecuted for riot. False Alarms and Funeral Picketing Under New Hampshire’s laws, it is also a crime to falsely report a fire, explosion, biological or chemical weapon, or other emergency; or picket a funeral. Almost every state has a law criminalizing funeral picketing. These laws were enacted after extremist and hate groups began protesting at funerals. (N.H. Rev. Stat. Ann. §§ 644:2-b, 644:3, 644:3-a, 644:3-b.) In New Hampshire, public intoxication is not a crime, but that does not mean that it is without consequences. Police can take people in New Hampshire who are intoxicated or incapacitated into protective custody. While the person is not under arrest, he or she can be taken to jail. For more information, see New Hampshire Public Intoxication Laws. Disorderly conduct is a violation, punishable by a fine of up to $1,000, unless the person has been asked by anyone to stop, in which case the crime is a misdemeanor, punishable by up to one year in jail and a fine up to $2,000. If a person participates in a riot that causes injury or property damage or is armed or throws anything at an officer, then the crime is a class B felony, punishable by three years and six months to seven years in prison and a fine of up to $4,000. Otherwise, riot is a misdemeanor. Funeral picketing is class B misdemeanor, punishable by a fine of up to $1,200. Depending on the circumstances, false alarm may be a misdemeanor or a class B felony. (N.H. Rev. Stat. Ann. §§ 644:1, 644:2, 644:2-b, 644:3, 644:3-a, 644:3-b, 651:2.) Obtaining Legal Assistance A conviction for disorderly conduct or a similar crime can have serious consequences, even if the charges arise from seemingly trivial misbehavior. Consequences of a criminal conviction can include time in prison or jail, a fine, and a criminal record that can make it difficult to get a job. If you are charged with any crime in New Hampshire, you should contact a criminal defense attorney immediately. An attorney will be able to tell you how your case is likely to fare in court and how to best prepare your defense and protect your rights. Share on Google Plus

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About Jack El-Hai The Nazi & The Psychiatrist The Lobotomist Jack El-Hai Writer and speaker Home Search Articles & Essays Jack has written more than 500 articles and essays for The Atlantic, Scientific American Mind, Wired, American Heritage, The History Channel Magazine, The Washington Post Magazine, Minnesota Monthly, and many other publications. Read his articles and essays here. Jack El-Hai's Books The Lobotomist: A Maverick Medical Genius and His Tragic Quest to Rid the World of Mental Illness Non-Stop: A Turbulent History of Northwest Airlines Lost Minnesota: Stories of Vanished Places The Nazi and the Psychiatrist: Hermann Göring, Dr. Douglas M. Kelley, and a Fatal Meeting of Minds at the End of WWII Follow Jack on Twitter From Jack's Blog America's First Pop Psychologist Is There Any Truth to Truth Serum? The Nazi Brain Removal Caper SundayJul012012 U.S. Supreme Court Decides Whether the Tomato is Fruit or Vegetable Jack El-Hai All of last week’s attention on the U.S. Supreme Court reminded me of an earlier decision that was downright pedestrian compared with the court’s judgment on healthcare law. The big legal question in Nix v. Hedden (1893) was whether federal law should view tomatoes as vegetables or fruits.Fruit or vegetable? The Supreme Court had an opinion. How the tomato — that luscious outgrowth of the plant in the nightshade family known to botanists as Solanum lycopersicum — made it to the docket of the Supreme Court is a juicy saga that begins in the early decades of the 19th century. Southern tomato growers had built a lucrative trade in shipping their produce to customers in the northern states. When the Civil War interrupted this commerce, Northerners began importing tomatoes, as well as other vegetables, from Bermuda and the Bahamas. After the war ended, Southern growers wanted their business back. They pressured the federal government to slap a tariff on imported vegetables, and in 1883 Congress at last complied. The Tariff Act of 1883 imposed a tax on imported “vegetables in their natural state, or in salt or brine, not specially enumerated or provided for in this act, ten per centum ad valorem.” Specifically exempted from the 10 percent importation duty were “fruits, green, ripe or dried.” While the new law pleased the tomato cultivators, it upset importers. In 1886 prominent produce wholesalers John Nix and Company of New York City cooked up a plot to make pulp of the tariff law. Seeds of dispute That spring, Nix ordered a shipment of green tomatoes from Bermuda. The company paid the importation tax and began drawing up a lawsuit against the U.S. government official responsible for enforcing tariff duties at the Port of New York. When Nix filed its lawsuit in 1887, the case began its catsup-slow progress through the legal system that would culminate in the Supreme Court’s decision. This was the same fruit of the vine formerly known as the “love apple,” was it not? The lawsuit made an early stop in the court of Emile Lacombe, a judge of the U.S. Circuit Court for the Southern District of New York. The plaintiffs asserted that since tomatoes were fruits by botanical definition — the ovary, with seeds, of a flowering plant — the Tariff Act should not apply in this case. In support, the Nix attorneys read into the record a variety of dictionary definitions of “fruit” and “vegetable,” which established that vegetables were horticulturally considered the edible leaves, stems, and roots of plants. Next came testimony from New York City produce sellers — undoubtedly Nix friends and associates — who agreed with the dictionary definitions. “I understand that the term ‘fruit’ is applied in trade only to such plants or parts of plants as contain the seeds,” one swore. Concluding the plaintiff’s case, the Nix lawyers read to the court dictionary definitions of “tomato.” This was the same fruit of the vine formerly known as the “love apple,” was it not? The U.S. attorneys representing Port Collector Hedden continued on a similar note. They read aloud dictionary definitions of “pea,” “eggplant,” “cucumber,” “squash,” and “pepper” — all examples of produce commonly regarded as vegetables even though botanists consider them fruit. Should the court then exempt them from the provisions of the Tariff Act of 1883? The dictionary pages kept rustling. The plaintiffs counter-argued that no botanical confusion existed for the vast majority of vegetables, and proceeded to read out the definitions of “potato,” “turnip,” “parsnip,” “cauliflower,” “cabbage,” and “carrot.” By the end of these presentations, everyone in court must have wanted to break for salad. After stewing over the testimony and evidence, Judge Lacombe issued his ruling on May 14, 1889. He cited earlier cases in which technical definitions of terms were determined to be different from commonly accepted meanings. He found that “the word ‘vegetable,’ in its popular and received meaning, is used to cover a class of articles which includes tomatoes, and the word ‘fruit,’ irrespective of what the dictionaries may lay down as to its botanical or technical meaning, is not in common speech used to cover tomatoes. For these reasons I shall direct a verdict in favor of the defendant.” It was a serious setback for Nix, not to mention to the science of botany. The company vowed to appeal the decision. In doing so, it added fuel to a conflict that still rages today: the clash between botanical, horticultural, and cultural definitions of foods. Overlapping categories Fruits and vegetables, as it turns out, are not mutually exclusive categories. “The tomato is unquestionably a fruit botanically, but it is also considered a vegetable,” says Craig Andersen, extension horticulture specialist for vegetables at the University of Arkansas in Fayetteville. Tomatoes, as well as cucumbers, squash, peppers, and other produce botanically classified as fruits, are dual citizens — vegetables by custom and tradition. The fruit-vegetable divide, however, exists only in our minds, not in nature. Which was exactly the point the U.S. Supreme Court focused upon after Nix appealed its case all the way to the highest court in the land. Nix v. Hedden reached the Supreme Court during the 1892-93 session. Citing a case from 1889, Robertson v. Salomon, Justice Horace Gray wearily noted that the Court had been down this road before. In that decision, Justice Joseph Bradley had written an opinion establishing that for the government’s purposes, beans were vegetables, not seeds.A stereoscopic view of the Old Senate Chamber — home of the U.S. Supreme Court in 1893 To resolve Nix v. Hedden, Gray believed, the botanical description of tomatoes was irrelevant. Furthermore, dictionary definitions offered no legal evidence. What mattered to Gray were the commonly understood meanings of “fruit” and “vegetable”: the definitions likely to be in the minds of the congressional representatives who passed the Tariff Act of 1883. “These [dictionary] definitions have no tendency to show that tomatoes are ‘fruit,’ as distinguished from ‘vegetables,’ in common speech, or within the meaning of the tariff act.” In other words, although tomatoes may scientifically be fruits, there is an alternative world of common perception in which they are more accurately considered vegetables. Thus the Supreme Court went on the record as a classifier of tomatoes, and it refused to overturn the decision of Circuit Court Judge Lacombe. The Nix scheme to sink the tariff failed. Recent tomato controversies The provisions of the Tariff Act of 1883 long ago faded from practice and memory. Yet the decision of the Supreme Court justices in Nix v. Hedden, as well as Justice Gray’s written opinion, still resonates — even though botanists continue to regard tomatoes as fruits. In 2003, the New Jersey Legislature convulsed in controversy when a representative proposed to make the Jersey tomato the state fruit. A better-organized contingent rallied around the high-bush blueberry, which eventually won the designation. Two years later, tomato advocates tried again, this time advancing the tomato as the state vegetable. Supporters of Assembly Bill No. 3766 specifically cited Nix v. Hedden in their assertion that it was no mistake to call the tomato a vegetable. (Arkansas avoided this horticultural row by designating the tomato the state fruit and vegetable.) So by legislative act and the opinions of some of America’s distinguished legal minds, it is safe to call the tomato a vegetable. Botanists still remember this slight. “They took and applied the culinary usage and totally ignored the science purely to get more tax money,” horticulture specialist Andersen complains. “Somebody did not grease the right palms.” [Much of this essay previously appeared in an article I wrote for The History Channel Magazine.] Post a Comment → Share Article → tagged Horace gray, US supreme court, fruit, nix v. hedden, tomato, vegetables | in History View Printer Friendly Version Article Title: Article URL: Article Excerpt (optional): Site Name: Site URL (optional): Author Name: « Four Top History Blogs | Main | Godfather of the Lobotomy: Egas Moniz » Copyright © 2013, Jack El-Hai. All rights reserved.

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Representing Daniel Donovan in an appeal of a Tax Court decision to the First Circuit, he did not do well at all: Taxpayer, in his income tax return, reported gambling winnings, and, at the trial, admitted to further winnings in an unstated amount. The court held that the Commissioner was entitled to tax the taxpayer's entire reported gambling winnings. The burden of proving deductions is on the taxpayer. The court was not obliged to find that taxpayer's estimated gambling losses, of which he kept no records, exceeded his additional unreported winnings. That paragraph is not an excerpt from the decision. It is the entire decision. Bailey might have reflected on that in his own case. He actually won on a couple of at least moderately complex legal issues but he got absolutely creamed on substantiation. That one sentence "The burden of proving deductions is on the taxpayer" is something that Bailey should have remembered. The other 1966 tax case, which was in Tax Court (F. Payson Todd, TC Memo 1966-212) was rather more complicated and ended up being a split decision. Payson, who wrote an investment newsletter, had received 2,000 shares of stock in a mining company for helping them arrange the sale of some ore. The stock was worth over $30,000, which was a lot of money in 1956. He had not reported it. In 1957, he received another 2,000 shares. His newsletter began pumping the stock and between 1956 and 1957, he bought 17,000 shares for less than the stock was trading for. The Tax Court ruled that he was taxable on the 4,000 shares he received for free, but not on the bargain purchases. Bailey shows up in a couple of other tax cases after that. I have compiled the complete record here. So Bailey tried his hand at tax law and then won a very high profile criminal trial and moved on. One wonders what would have happened if Sam Sheppard had been reconvicted ? You can follow me on twitter @peterreillycpa.

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Judge rejects recall effort against Everett School Board Wed Apr 10th, 2013 4:24pmNews By Sharon Salyer Herald Writer A Snohomish County Superior Court judge has turned down a request to launch a recall against all five Everett School Board members. The request was made by Rodman Reynolds, who asserted in legal documents filed with the Snohomish County Auditor’s Office that the school board should be recalled for failing to have an auditing committee as required by law. School board President Jeffrey Russell said there is an auditing committee, which is composed of all members of the board. Superior Court Judge Anita Farris ruled Tuesday that there was insufficient evidence to allow the launching of a recall effort. In addition, the state Auditor’s Office, in response to a request from Reynolds, said in an April 3 letter to him that the board has the ability to establish an auditing committee composed of the entire board. “The district is not in violation of the law since the whole board is the audit committee,” Casey Dwyer, auditor manager, states in the letter. Russell said the school board is grateful that the court dismissed Reynolds’ petition. “We feel this is a vindication of the practice of this school board and how it carries out its auditing duties,” he said. “We consider financial oversight of the district a critical duty that each board member takes seriously.” Even if the ruling had allowed the recall to move ahead, recall petitions would have had to be signed by 25 percent of the number of voters who cast ballots in the elections when each board member was elected, according to the county auditor’s office. Reynolds, who ran for the school board in 2011, said he has the right to appeal the judge’s ruling to the state Supreme Court but at this time has no plans to do so. “Just because there won’t be a special recall election doesn’t mean they won’t have to answer to the voters,” Reynolds said. Board seats held by Ed Petersen and Carol Andrews are up for election in November, he said. And a bond issue of up to $200 million is expected to be put on the ballot next year, he said. “They’ll have to convince the voters to trust them with that sum of money with the amount of oversight that they’ve demonstrated.” Sharon Salyer: 425-339-3486 or [email protected]

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Encyclopedia > Social Sciences and the Law > Economics, Business, and Labor > Businesses and Occupations utility, public Introduction utility, public, industry required by law to render adequate service in its field at reasonable prices to all who apply for it. Public utilities frequently operate as monopolies in their market. In the United States, public utilities are most commonly involved in the business of supplying consumers with water, electricity, telephone, natural gas, and other necessary services. Such an industry is said to be "affected with a public interest" and therefore subject to a degree of government regulation from which other businesses are exempt. Opinions differ as to the characteristics that an industry must possess to merit classification as a public utility, since all industries in a sense serve the public. By its nature a public utility is often a monopoly and as such is not prevented by competing companies from charging exorbitant prices. It usually operates under a license or franchise by which it enjoys special privileges, such as the right of eminent domain. Finally, it may supply an essential service, such as water or light, the unavailability of which would injuriously affect public health and welfare. From an early period there was public regulation of canals, turnpikes, toll roads and ferries, inns, gristmills, and pawnshops. Docks, sleeping cars, commodity exchanges, warehouses, insurance companies, banks, housing, milk, coal mines, and (in the 20th cent.) broadcasting, are other types of goods and services held to be affected with public interest. Important utilities that satisfy the vital needs of large populations include water, gas, and electric companies; transportation facilities, such as subways, bus lines, and railroads; and communication facilities, such as telephones and telegraphs. In most European nations such industries have often been owned by the state, although many have been privatized in recent years. In the United States, however, many public utilities are privately owned. Sections in this article:IntroductionRegulation of UtilitiesBibliography The Columbia Electronic Encyclopedia, 6th ed. Copyright © 2012, Columbia University Press. All rights reserved.See more Encyclopedia articles on: Businesses and Occupations

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Man faces five years in prison for releasing balloons on beach as a romantic gesture J. D. Heyes March 13, 2013We’ve seen it in the movies and perhaps even witnessed it in person, but most of us never realized it was an offense punishable with lots of prison time.When Anthony Brasfield released a dozen heart-shaped balloons into the sky over Dania Beach, Fla., for his his sweetheart, all he wanted was to create the perfect atmosphere of romance. What he created instead was a court date. According to the Sun-Sentinel newspaper, Brasfield’s act of love was witnessed by a Florida Highway Patrol trooper. What he saw was not an act of love but a felony.Massive jail time for – balloons?The 40-year-old Brasfield was with his girlfriend, Shaquina Baxter, in the parking lot of a Motel 6 on Dania Beach Boulevard when he released the 12 shiny, red and silver mylar balloons into the sky and watched them float away in the Sunday morning breeze.But the trooper saw nothing more than probable cause for a crime against the environment. Apparently, lawmakers in the Sunshine State think it’s appropriate to treat what should have been, at most, simple littering (to which courts would have issued a fine, maybe?), into a major crime against Mother Nature. As if Florida jails weren’t full enough.The trooper arrested Brasfield and charged him with polluting to harm humans, animals, plants and everything else living under the Florida Air and Water Pollution Control Act.“Endangered marine turtle species and birds, such as wood storks and brown pelicans, seek refuge in John U. Lloyd State Park, about 1.5 miles east of the motel,” said the paper.As you might imagine, the law is rarely used. According to the Sun-Sentinel, just 21 arrests were made under the environmental statute between 2008 and 2012.What is amazing, however, is the severity of the crime – it is a third-degree felony that is punishable by up to five years in prison. Just as one example, in other parts of the country, people who intentionally or actively work to harm the environment get about the same jail time. (http://articles.orlandosentinel.com)Granted, it was a violation of the law, but…It’s too early to tell if a Florida court will actually sentence Brasfield to that much time but the fact that someone could be thrown in prison for five years for such a low-level environmental crime is difficult to fathom, especially given what seems to be an obvious fact: That Brasfield was not purposefully demonstrating malice or contempt for the law.And while ignorance of the law is no excuse, we have a little provision of superseding law in American known as the Eight Amendment to the U.S. Constitution, which forbids “cruel and unusual punishment.”Environmental preservation is important, of course, but there are real criminals committing real crimes in America that have dramatically more far-reaching and harmful effects on society than do individuals releasing balloons as a gesture of romance. Shouldn’t we save our harshest punishment for the really serious environmental polluters?

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Legal privilege and the challenge of technology Are modern tech tools putting your company’s privilege in danger? By Anne-Laure BroeksMay 16, 2013 Legal privilege, or attorney-client privilege, is a principle well established in common law countries, especially in Canada and the U.S. However, transnational business, new work methods and recent financial scandals have altered its importance. This three-article series will clarify where we stand today with respect to the protection of legal privilege by focusing on the following issues: Legal privilege in the wake of corporate scandals; legal privilege applied to modern litigation, with an emphasis on e-discovery; and the influence and impact of Europe’s views on legal privilege. Read part one here. There was a time when maintaining legal privilege in attorney-client communications was somewhat easy: communications were either oral or written by exchanging letters directed to a specific recipient at a physical address. Today, the rapid evolution of technologies has largely modified the way attorneys and, more specifically, in-house counsel work: With our laptops and cellphones, we work from anywhere, turn on our computers at any time and send communications everywhere. Since preserving confidentiality has traditionally been upheld as the basic prerequisite to legal privilege, we have to wonder how it can be well-preserved in light of new technological practicalities. First of all, frontiers between what falls within the workplace and what becomes private can be tenuous. Since email typically makes us less cautious about communications we send over the Internet, the risk of inadvertently waiving legal privilege has never been so high: the Dublin v. Montessoricase is a good illustration of that possibility. In this case, a school board member had sent an email to the school’s designated attorney to discuss certain labor issues, using the email account of her husband, who was not a board member himself. Though the communication was ultimately considered privileged in that case, the decision raises questions as to the spectrum of circumstances under which legal privilege can (easily) be waived. Cloud computing is another interesting example of potential threat to legal privilege. Cloud computing consists of the use of computing resources delivered as a service over the Internet. Typically, most email services (Gmail, Yahoo! Mail, etc.) are now offered as cloud computing services, which makes one wonder whether information going through the cloud actually remains confidential. So far, the courts seem to apply a fairly reasonable standard: privilege will not be waived simply because communications were sent over the Web. What will really drive a court’s decision is whether the client could reasonably expect the communication to remain private, in light of the circumstances surrounding the exchange of electronic communications. This pragmatic approach should be applauded for two reasons. First, it shows that the courts are willing to consider the fact that technology evolves—for one thing, business globalization requires people to be able to communicate internationally, rapidly and efficiently. Second, the approach supports the idea that a client should not be sanctioned for something he has little to no control over. Can privilege legitimately be deemed waived due to an inadvertent disclosure of information? At first, it seems that it should be the case. An individual is expected to be diligent regarding his own communications. His lack of diligence would therefore open the door to discovery. However, the complexity brought by the use of new technologies urges us to think again about what was communicated inadvertently and what was merely impossible to safeguard, even under the disclosing party’s best efforts. According to the express waiver theory, privilege can only be waived by the client’s express consent. Though the principle seems to allow for more flexibility, it is reasonable to consider that when the client took judicious precautions to preserve the confidentiality of his communications with his lawyer, the circumstances surrounding the exchanges should not likely have an impact on the right to invoke the privileged character of the communication. Advancing electronic technology means a constantly increasing volume of data which needs to be dealt with. An increasing amount of information undoubtedly multiplies the risks of inadvertent disclosure of privileged information. As such, privilege reviews now necessitate being even more meticulous, which in turn requires a greater investment in both human and financial resources. Even with best efforts, preserving complete confidentiality of electronic information can almost be seen as a lost battle. Electronic files are mechanically duplicated on hard drives and on servers, and it can be difficult to delete every single copy of a communication, even with extensive computer knowledge. In light of those difficulties, most courts adopt a balanced approach to examining the reasonableness of the precautions taken to prevent disclosure of information. Although it seems to be a fairer solution, it still requires a case-by-case analysis, as the circumstances will determine whether a client took reasonable precautions or not. Also, this solution leads to great uncertainty. As pointed out in an article published in the New York Law School Review, courts have sometimes reached dramatically opposing decisions in similar cases, sometimes considering that privilege had been waived, and sometimes declaring the exact opposite. Courts have tried to overcome this issue by encouraging parties to enter into confidentiality agreements during the discovery phase. Yet, confidentiality agreements do not protect disclosure of information to third parties, or disclosure in the course of other litigation. The only way to extend the scope of a confidentiality agreement would be for the courts to issue non-waiver orders. However, those decisions can be regarded as a threat to the other judges’ action fields. Besides, in the U.S., non-waiver orders are valid only to the extent that they are “not a waiver in any other federal or state proceedings,” according to Federal Rule of Evidence 502 (d). In the modern world, attorneys and their clients cannot be expected to stop using computing technologies as they exchange information. Though the courts are undoubtedly trying to follow and consider the pace of technology in their decisions, the need for a uniform course of action still exists, as technology continues to evolve and volumes of data continue to increase. Litigation 3662 Innovation 1457 Cybersecurity & Privacy 1312 E-Discovery 653 technology 513 transformative leadership 500 Yahoo! 86 cloud computing 63 Join the Conversation

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njhome | my new jersey | people | business | government | departments REMARKS OF SEEMA M. SINGH, ESQ. RATEPAYER ADVOCATE PRESENTED BY SUSAN McCLURE, ESQ. ASSISTANT DEPUTY RATEPAYER ADVOCATE DIVISION OF THE RATEPAYER ADVOCATE In the Matter of the Petition of Aqua New Jersey Inc for Approval to Acquire the Assets of Berkeley Water Company and Other Required Approvals BPU Docket No. WM0412676 Berkeley Township, New Jersey June 28, 2005 Good afternoon, my name is Susan McClure. I am an attorney representing the New Jersey Division of the Ratepayer Advocate. The Division of the Ratepayer Advocate (“Ratepayer Advocate”) represents the interests of all utility customers, including residential, small business, commercial and industrial ratepayers. The Ratepayer Advocate is a party in every case where New Jersey utilities seek changes in their rates or services. The Ratepayer Advocate also gives customers a voice in setting long-range energy, water and telecommunications policy that will affect utility services well into the twenty-first century. On December 29,2004, Aqua New Jersey, Inc. (“Aqua” or “Company”) filed a Petition with the New Jersey Board of Public Utilities (“Board” or “BPU”) seeking approval to acquire the assets of the Berkeley Water Company (“Berkeley”) and other required approvals. Aqua is a regulated public utility organized and operating under the laws of the State of New Jersey and providing water service to approximately 42,300 customers in 16 municipalities in Warren, Hunterdon, Mercer, Burlington, Monmouth, Camden Gloucester Counties, New Jersey. Aqua is a wholly owned subsidiary of Aqua America, Inc. Aqua America, Inc. is the nations largest U.S. based publicly traded water utility, providing water and wastewater services to approximately 2.5 million residents in New Jersey, Pennsylvania, Ohio, Illinois, Texas, Indiana, Virginia, Florida, North Carolina, Maine, Missouri, New York and South Carolina. On November 17, 2004, the Company submitted a sealed bid of $4,210,000 for the assets of Berkeley. The Company was notified on November 17, 2004, that its bid was the winning bid for Berkeley. Berkeley was incorporated in 1959 to provide water service to portions of Berkeley Township. Berkeley serves approximately 4,000 residential and commercial customers in the Bel Air section of Berkeley Township, Ocean County. The Company asserts that the proposed transaction will have no adverse impact on existing Berkeley rates or employees. Aqua will operate Berkeley under its existing tariffs and rate structures until such time as the Company files a Petition with the BPU to revise its tariffs and rate structure. The Company asserts that the proposed acquisition will also not have an adverse impact on the provision of safe, adequate and proper utility service in fulfillment of its obligations under New Jersey law. Our office represents the public in changes of control cases. As necessary, we work with a team of accountants and lawyers to analyze these cases. We are currently conducting a complete and thorough investigation of this Petition to evaluate whether and to what extent this acquisition will be of a benefit to the ratepayers of both Aqua and Berkeley. To that purpose, we have requested and are currently reviewing detailed information from Aqua about the acquisition. In our investigation of this case, the Ratepayer Advocate has focused on the following issues: Acquisition Adjustment—The Company has requested that the Board approve an acquisition adjustment of not more that $900,000 in this proceeding, for use in setting the Company’s rates in the future. The Ratepayer Advocate will work to ensure that this proposed net acquisition adjustment does not inappropriately, negatively effect Aqua’s ratepayers. Acquisition Benefits: Our office will consider: Whether the proposed acquisition will result in tangible and quantifiable benefits to the ratepayers of Aqua and Berkeley. How will Aqua and Berkeley ratepayers receive these tangible and quantifiable benefits and how will these benefits be allocated among the various rate classes. Ultimately, whether the proposed acquisition will affect Aqua’s ability to provide safe, reliable water service at the lowest possible rate to the customers of both systems. We expect to question company witnesses about these concerns and to raise them at any settlement meetings. However, the ultimate decision regarding this matter will be made by the Board of Public Utilities. The purpose of this public hearing tonight is for you, the customer, to voice your opinion, relate your experiences and offer your concerns. Berkeley’s customers may offer comments about Berkeley’s rates and any service problems you may be experiencing. It is important that you express your views, as they become part of the record on which the Board of Public Utilities makes its decisions. The Ratepayer Advocate also wants to hear your views. We strongly encourage your participation, which will help us evaluate the Company’s proposal and prepare for the hearings. This hearing is being transcribed and your comments will become part of the record. Mr. Quirolo of the Board of Public Utilities, the hearing officer here today, will instruct you to give your name and address before you speak. I would like to reiterate the importance of this so that there will be a clear record of your concerns and interests. On behalf of the Ratepayer Advocate, I would like to thank you for attending this hearing. contact us | privacy notice | legal statement | accessibility statement ratepayer advocate: home | electric | gas | telco | water/wastewater | news & info. | press releases | case matters | publications | consumer info. | links statewide: njhome | business | government | departments | search Copyright (c) State of New Jersey, 1996 - 2003 New Jersey Division Of The Ratepayer Advocate 31 Clinton Street 11th Fl.

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N.Y. / Region|For Detained Youths, No Mental Health Overseer N.Y. / Region For Detained Youths, No Mental Health Overseer By JULIE BOSMANFEB. 10, 2010 Edwina G. Richardson-Mendelson has been the administrative judge of the New York City Family Courts for nine months, in charge of the judges responsible for the detention of dozens of young people charged with crimes, the vast majority of whom suffer from some form of mental illness.But it was not until last September that she was informed of what struck her as a startling fact: The State of New York does not have a single full-time staff psychiatrist charged with overseeing the treatment of the 800 or so young people who are detained in state facilities at any given time.“There wasn’t one human being on-site overseeing all the mental health needs of the population,” Judge Richardson-Mendelson said in an interview. “When we place these children in these facilities, we expect their needs to be met, especially their mental health needs.”Yet all 17 psychiatrists at the detention facilities in the state’s deeply troubled juvenile justice system work on contract and part time. Weeks often pass between their visits with each troubled youth, and state officials say their turnover rate is very high. Continue reading the main story “Those people turn over so quickly that there are often huge chunks of time when there is not even a contracted psychiatrist available to evaluate the youngster or provide needed follow-up services,” said Judge Monica Drinane, the supervising judge in Family Court in the Bronx. Gladys Carrión, the commissioner of the Office of Children and Family Services, the state agency that administers the juvenile prisons, declined to be interviewed.Edward Borges, an agency spokesman, said, “The commissioner has said that we need more mental health professionals, that we need psychiatric help, and it’s something that she’s recognized.” Ms. Carrión is in the process of hiring a “chief psychiatrist,” who will work on salary or on contract, Mr. Borges said.For now, then, the oversight of the mental health treatment of the young people in state facilities falls to several dozen psychologists who visit them for consultations, and staff members at the jails who run group therapy sessions despite often having no qualifications beyond a high school degree.Aspects of the lack of mental health services throughout New York’s juvenile prison system were described last August in a withering report from the federal Department of Justice that examined conditions at four notorious state juvenile prisons.The report criticized the state for failing to properly diagnose juveniles’ mental health problems, administering medication inappropriately and making inadequate treatment plans. Young people are frequently assigned several different diagnoses at the same institution, resulting in confused and ineffective treatment.“One psychiatrist described his role as ‘an outsider’ and expressed frustration because, ‘I have to beg, borrow and steal information,’ ” the report said.The proposed state budget released by Gov. David A. Paterson in January included an additional $18.2 million to improve services in the juvenile prisons, particularly mental health care. And officials from the Office of Children and Family Services said they had begun more consistent screening of children for mental health issues, reducing the use of physical restraints in the facilities and hiring an additional 37 mental health professionals to work in state-run juvenile residential centers.But Commissioner Carrión recently told a number of Family Court judges, who decide which children should be sent to prisons, that the conditions at many isolated facilities upstate made it hard to recruit psychiatrists to work there. Lawyers for the Legal Aid Society said they had many examples of mentally ill children who had been mistreated while in prisons. One 16-year-old boy received a diagnosis of moderate mental retardation, took powerful psychotropic medication and functioned on a first-grade educational level. Last July he was placed in a state residential facility by a Family Court judge who had ordered that he receive mental health services.However, he was not placed in a mental health unit until five months later, after being harassed, taunted and restrained at least five times by the prison staff, according to the Legal Aid lawyers.A 15-year-old girl with attention deficit hyperactivity disorder, conduct disorder and adjustment disorder was sent to a juvenile prison last February. Since then, she has not received proper mental health treatment, and has been restrained by the staff more than 15 times, her lawyers said.Surveys of youth prisons indicate that about two-thirds of the nation’s juvenile inmates — about 92,800 in 2006 — have at least one mental illness.“The system just isn’t equipped to deal with children with serious mental health issues,” said Tamara A. Steckler, the lawyer in charge of the Juvenile Rights Practice of Legal Aid. “We need to find another mechanism to treat those children.”A task force led by Jeremy Travis, the president of the John Jay College of Criminal Justice, recently examined conditions at state juvenile prisons.“I think it’s clear that for these young people to succeed while they’re in these facilities and for them to succeed when they’re coming home, many of them need extensive mental health services,” Mr. Travis said. “And it’s clear that the current services fall far short of professional standards.”The problem of ineffective psychiatric care in juvenile prisons stretches back decades. Michael A. Corriero, a recently retired judge who spent 16 years as an acting State Supreme Court justice presiding over Manhattan’s courts that dealt with youth offenders, recalled sentencing a 15-year-old who had sodomized an 11-year-old boy. He placed the teenager in a juvenile prison, sentenced him to a term of two to six years, and recommended that he receive intensive counseling. “I said, ‘You’re going to have to get this kid appropriate psychiatric care, and it has to be one-on-one,” Mr. Corriero said. “And the answer was, ‘We don’t have a psychiatrist.’ ” A version of this article appears in print on February 11, 2010, on Page A1 of the New York edition with the headline: For 800 Youths Jailed by State, Not One Full-Time Psychiatrist. Order Reprints| Today's Paper|Subscribe

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Learn More About Maritime And Admiralty Law in Naperville, Illinois Homemaritime and admiralty lawillinoisnaperville Naperville is a city in DuPage and Will Counties in the U.S. state of Illinois, within the Chicago metropolitan area. As of the 2000 census, the city had a total population of 128,358. A special census taken in 2008 showed the population to be 144,560. Naperville is the fifth largest city in the state, behind Chicago, neighboring Aurora, Rockford, and Joliet. Approximately 100,000 Naperville residents live in DuPage County, while about 50,000 reside in Will County. Naperville was one of the ten fastest growing communities in the United States during the 1990s. Once a farming town, Naperville has evolved into a wealthy city due in part to a migration of professionals in the 1990s seeking jobs and globally renowned public schools. A number of high-tech companies are located in the city, including Nalco Holding Company, Tellabs, Alcatel-Lucent and the BP North American Chemical Headquarters. In 2008, Fortune ranked Naperville as among the "best places to live and launch" a business in the United States, ranking 29th out of 100. In 2006, Money magazine listed Naperville as #2 on its annual list of America's best small cities to live in. The city took the #3 position on the 2005 and 2008 lists. Maritime And Admiralty Law Lawyers In Naperville Illinois Answers to maritime and admiralty law issues in Illinois Federal court opinions concerning maritime and admiralty law in Illinois 711 F2d 279 Carter/mondale Presidential Committee Inc v. Federal Election Commission 979 F2d 557 Vershaw v. Northwestern National Life Insurance Company Homemaritime and admiralty lawillinoisnaperville

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Worcester cyber café resets to meet new rules By Lee Hammel TELEGRAM & GAZETTE STAFF Around the time a state law went into effect Nov. 1 banning sweepstakes “cyber cafés,” a business opened at 560 Lincoln St.Net Play Cyber Café and Sweepstakes had been there until it closed some time ago. The state considered similar businesses illegal and tried to close them.Net Play opened in the same place in the past week with customers sitting at what looked to be gaming machines similar to those used by the previous business. But instead of a sign reading “Sweepstakes,” the signs on the 40 machines there now say “Skills Games.”Asked if it's the same Internet café that had been there earlier, an employee said now it's a “game of skill” rather than a sweepstakes. Winners get gift cards instead of the cash they got before, she said.Under the outlawed business model, customers bought Internet time — which Attorney General Martha Coakley said was a ruse — and then got to play the electronic games with cash prizes. On Monday, the old machines sat darkened and unused near the new “games of skill.”The employee refused to say how long the business had been open and told a reporter to leave. She would not allow him to play any of the games, saying the business does not want to be in the newspaper.She referred any further questions to a manager who she said would be there the next day. The next day, Christine, who said she was a manager but did not give her last name, said she had no comment, would not say who at the company would comment, and wanted nothing in the newspaper.The law that passed Aug. 1 and went into effect this month more carefully defines the “sweepstakes” operations that it bans and increases penalties to a fine of up to $250,000 per machine or up to 15 years in prison or both. Responding to the games that flourished in Worcester and across the state last year in which owners said that prizes were awarded based on chance only and were not influenced by anything a player did at the game machine, the definition now includes “a simulated game terminal as a representation of the prizes associated with the results of the sweepstakes.”Meanwhile, another sweepstakes business, City Cyber Café, at 120 Stafford St., closed when the new law went into effect. A sign at City Cyber Café directs customers to “come visit us now at 560 Lincoln St.”Corporation papers on file with the secretary of state have been changed, listing Robert S. Murphy Jr., a lawyer at Bacon Wilson in Springfield, as the resident agent for BMG Operations, whose office is at 560 Lincoln St. Mr. Murphy was a lawyer for Rejean Theberge, the licensee for City Cyber Café on Stafford Street and who also offers sweepstakes games in Springfield and Holyoke. Mr. Murphy has since become a judge in the state's district courts.Matthew Durand of Wilmington, N.C., listed as BMG's manager, said yesterday that he sold the business at least six months ago, but he refused to say who bought it.A sign at City Cyber Café on Stafford Street said that state regulations persuaded management “to temporarily cease and desist operations.” It thanked customers for their patronage and support and said their accounts “will stay validated until we solve this problem through legal venues.”“We hope to resolve all issues through our court systems and re-open as soon as possible.” It promised, “We will be back better than ever.”William T. Breault, an opponent of sweepstakes cafés, is grateful for the state new law and was unhappy to learn that the Lincoln Street operation had reopened.“What they were offering was a rip-off,” said Mr. Breault, chairman of the Main South Alliance for Public Safety. “If they're basically doing the same thing under the color of something else, I hope the AG will look at it and do something.”The attorney general's office did not answer questions about the Net Play Cyber Café. “Our office continues to investigate Internet cafes and other operations that appear to be in violation of Massachusetts law,” the AG's office said in a statement.“Those who continue to operate in violation of the law could face criminal prosecution or civil penalties and should cease operation. In many instances, local law enforcement is investigating unlawful gaming activities, and we continue to work with local officials to take action where appropriate.”Even under the law before Nov. 1, the attorney general took sweepstakes operations to court, civilly and criminally. In August a former Fall River city councilor, Leo Pelletier, 66, and Linda Pelletier of Spring Hill, Fla., pleaded guilty to gaming charges. They were given two years' probation, and their company, New England Internet Cafes, was ordered to forfeit $100,000 in connection with Internet cafes they operated in Fall River and Fairhaven.In July, NEIC and Internet Marketing Group, LLC , doing business as “The Ship” of Lynnfield, agreed to pay $750,000 for allegedly facilitating illegal gambling.In June 2011, the License Commission voted 3-0 to reject entertainment licenses for City Cyber Café and two other planned sweepstakes cafes. Then-chairman Peter M. Lukes said the commission would not give a license to a business that was illegal, although Mr. Murphy said his clients' businesses were not illegal.In any case, the License Commission said it has no jurisdiction over such businesses and withholding the entertainment license only prevented playing televisions and radios there. The city previously granted Net Play Cyber Café an entertainment license before it understood the nature of the business there.

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Malloy's legal counsel nominated to high court Published December 27. 2012 1:00PM | Updated December 28. 2012 12:14AM Johanna Somers Andrew J. McDonald, longtime friend and legal adviser to Gov. Dannel Malloy, was nominated to the state Supreme Court on Thursday. An attorney for more than 20 years, he has never served as a judge."Andrew possesses an exceptional ability to understand, analyze, research and evaluate legal issues," Malloy said at a Friday morning press conference. "These are the skills that have served him well in his careers previously."These same skills will make him a "great jurist," he said.State Sen. Minority Leader John McKinney, R-Fairfield, and pro-tempore state Sen. Minority Leader Len Fasano, R-North Haven, also approved of the nomination."While Andrew and I have had considerable political differences over the years, I have always respected his commitment to public service and the law," McKinney said in a press release. "He is qualified and I am confident he will uphold the state constitution and carry out his responsibilities as a Supreme Court justice."McDonald, 46, will be the first openly gay public jurist in Connecticut if confirmed by the General Assembly. At the press conference, McDonald thanked Malloy for his part in putting an end to the "name game." Charles Grey went from being McDonald's friend to partner to companion until 2009 when Malloy performed their marriage. Malloy said the Connecticut Supreme Court's decision to recognize marriage equality was a "heroic and historic decision" and that he was happy to support them."In making this appointment, we embrace Connecticut's great diversity, and I am proud to be able to do that," Malloy said.Before serving as Malloy's general counsel, McDonald served on the state legislature as deputy majority leader and chairman of the Senate Judiciary Committee for eight years, where he weighed in on bills dealing with gay marriage, the death penalty, gun control and transgender rights.McDonald was also at Malloy's side from 1999 to 2002 as the director of legal affairs and corporation counsel for the city of Stamford when Malloy was mayor. He has also spent much of his career as a litigation partner for Pullman & Comley LLC."As I have said to anyone who would listen, I believe I now work in the greatest job a lawyer could have in the executive branch of government, working for the best governor in our lifetime," McDonald said. "I wouldn't leave it or his administration but for the finest opportunity to contribute to the growth and understanding of the law in our state."McKinney said he was not concerned about McDonald's lack of experience as a judge. McKinney said he served as a law clerk for state Supreme Court Justice Richard Palmer, who was appointed to the bench without judicial experience."Justice Palmer is one of our best and most respected Supreme Court justices," he said.McDonald said he was humbled the first time he argued before the Connecticut Supreme Court."The notion that one day I might sit as a member of that court is something I could not have imagined," he said.If confirmed, McDonald will replace Justice Lubbie Harper Jr., who reached the mandatory age of retirement, 70, last month.Another nomination to replace Justice C. Ian McLachlan will take place in the next few days, Malloy said.There are about 27 judges set to retire, but Malloy said he would not be filling all of the positions."We will continue to show some restraint in that area in the hopes that we are not hurting the court system, but at this time I don't believe that we should be filling all of those vacancies," he [email protected] Insider nomination

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Supreme insensitivity Sometimes one wonders what goes through the minds of Supreme Court justices. I was reminded of how off base their views of the world can be by comments made by several of them during oral arguments this week. The court is considering a case that weighs so-called "freedom of speech"...opinionOctober 10, 2009 - 12:00am A time for truth on abortion Former Alaska Gov. Sarah Palin missed a great opportunity to personally kick off an issue of enormous importance to her state and to the nation. She was scheduled to appear with me at an Alaska Family Council event in Anchorage to launch Alaska's Parental Involvement Initiative,...opinionSeptember 2, 2009 - 12:00am House passes second abortion bill in 2 days BISMARCK -- The North Dakota House passed a bill Tuesday that sets the state up to challenge the 1973 U.S. Supreme Court ruling that legalized abortion. Rep. Dan Ruby, R-Minot, the sponsor of House Bill 1572, said the bill defines human life as beginning at fertilization of a woman's...February 18, 2009 - 11:35pm Dickinson puts brakes on traffic fines after N.D. Supreme Court ruling DICKINSON - The city of Dickinson has slashed most of its traffic fines in half following a North Dakota Supreme Court ruling, said City Attorney Matt Kolling. The ruling, which was announced Tuesday, was part of a federal lawsuit filed against Fargo by a woman who complained the...March 27, 2008 - 12:00am

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Ethics Allegations 'Unfounded,' Whitfield Says Soring Gaited Horses Equine Welfare & Legislation Horse Industry News Print Email Whitfield said the complaint has nothing to do with whether or not the PAST Act will move out of the House committee and to the full House floor for a vote before Congress ends session December. Editor's Note: This article was updated on Aug. 1 to reflect additional information obtained by TheHorse.com. U.S. Representative Ed Whitfield (R-Kentucky), the primary sponsor of a measure that would ban the use of performance packages on Tennessee Walking Horses in training and competition, said ethics allegations against him are unfounded and have nothing to do with congressional review of the legislation. Introduced last year HR 1518, or the Prevent All Soring Tactics (PAST) Act, would amend the Horse Protection Act of 1970 to forbid the use of action devices, including metal chains, stacks, and pads (known as performance packages). In addition, the PAST Act would increase federal penalties for anyone who sores a horse and would require the USDA to assign a licensed inspector if a Tennessee Walking Horse show management indicates its intent to hire one. Whitfield's bill remains pending in the U.S. House Committee on Energy and Commerce. In a July 25 written statement, the U.S. House of Representatives Committee on Ethics indicated it had received an ethics complaint against Whitfield on July 10. The complaint alleges that Whitfield's wife, Constance Harriman Whitfield, a consultant for the Humane Society of the United States (HSUS), unfairly influenced the congressman regarding the legislation. “The ethics complaint alleges that I would not have introduced the bill were it not for her, and that she unethically lobbied my office in favor of the PAST Act,” Whitfield said. “None of that is true.” Stephanie Twining, HSUS spokeswoman, declined to comment on the complaint, Whitfield said the ethics complaint was filed by 13 PAST Act opponents, including Mike Inman, CEO of the Tennessee Walking Horse National Celebration, among others. “They filed the complaint because they were scared that we were going to pass it (the legislation),” Whitfield opined. In a July 31 written statement, Inman said Whitfield's claim concerning the formal complaint filing is untrue. “The release from Whitfield's office saying myself or others filed a formal complaint with the House Ethics Committee is blatantly false and I have no idea what motivation they had to produce such a lie,” Inman's statement said. Further, in a July 30 press release, the Performance Show Horse Association (PSHA) said the organization sent a letter to House Ethics Committee Chairman Representative K. Michael Conaway (R-Texas) and to Representative Linda T. Sánchez (D-California), a ranking member of that committee, on Dec. 23, 2013. That letter was sent in response to Whitfield's comments during a November 2013 subcommittee hearing, the release said. The release states that Conway and Sánchez are members of the House Ethics Committee, but are not representative of the Office of Congressional Ethics, which is where a formal complaint must be filed. That letter was signed by the same 13 individuals cited by Whitfield, the release said. In its letter, the PSHA did allege that Whitfield's wife inappropriately lobbied in support of the PAST Act. Further, the PSHA release said the signers requested advice “on the proper process and procedures to file a complaint.” But the release states that Conway and Sánchez did not respond to the letter and a formal complaint was never filed. “The PSHA stands behind the statements in the letter, but it did not intend (to) nor did it file a formal complaint,” the release said. Meanwhile, Whitfield said he as hired a attorney to answer the complaint. “The Ethics Committee has their way to handle a complaint when one's filed, (and) I have an attorney representing me,” Whitfield said. The committee said in its statement that it will announce its course of action in this matter on or before Nov. 10. In the meantime, Whitfield said the complaint has nothing to do with whether or not the PAST Act will move out of the House Committee on Energy and Commerce and to the full House floor for a vote before Congress ends session December. “That would be all up to the Republican leadership if they want to bring the bill to the floor,” Whitfield said. The PAST Act remains pending. National Forest Trail Bill Approved by House Committee The Horse, TheHorse.com Win Media Awards Pay Homage to War Horses This Veteran's Day 2010: A Year in Review

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Justice Alito headlines conference Bar Associations/Foundations, Courts, Government Marion County Bar Association opposes judicial selection bill Legislature continues support of We the People program Innovative networking tool connects lawyers across practices Artwork honoring Shepard has 'stalled' Shepard, Hamilton honored for support of civic education Indiana makes gains in permanent placement Relations between courts and Congress have been strained lately, and a contingent of both are meeting in Indianapolis today to explore the reasons, examine how judicial independence fits in, and try to lay groundwork for improving relations. The Indiana State Bar Association is sponsoring the "Relations Between Congress and the Federal Courts" conference at the Indiana University School of Law - Indianapolis, which began at 8:30 a.m. and features U.S. Supreme Court Justice Samuel A. Alito Jr. as a key speaker. More than 100 judges and attorneys are attending the daylong conference, including all five Indiana Supreme Court justices and an array of other state and federal jurists. "We're here for a reason .... That there's a feeling, one that's not yet ripened into a conclusion, that something isn't right with relations between Congress and the federal courts," said law professor Gerard Magliocca, who talked about the needed dialogue between the branches. "It's calm but tense. We have a reason to be concerned." Justice Alito noted issues to be concerned with most are judicial pay, growing caseloads, and ambiguous statutes written by lawmakers. "I'm concerned about the future of the federal judiciary," he said. "We need to bridge that gap of communication." He suggested more understanding is needed between branches, both need to exercise self-restraint in encroaching on each other's authority, and that judges and lawmakers must rise above the public's cynicism about government and courts. Magliocca noted the issues exist with District and Circuit courts, rather than with the Supreme Court, and agreed that congressional inaction is largely to blame regarding ways for elected officials to better communicate with the judiciary. He suggests exploring a type of interbranch committee that could review and suggest policy, and a system where the Chief Justice or member of the judiciary could regularly testify before Congress, similar to how the Federal Reserve Chairman currently does on monetary policy twice a year. Prior to Justice Alito's keynote address, a trio of Hoosier congressmen - U.S. Reps. Mike Pence, Baron Hill, and Brad Ellsworth - also weighed in on various legal issues, such as judicial salaries and compensation, cameras in courts, and how the relationship between the branches can be strengthened. All expressed worry about the line between congressional oversight of the judiciary and independence. "The greatest threat to the judiciary in the 21st century is elitism," Pence said, noting that can be found in situations such as the nation's highest courts displaying the Ten Commandments, and having prayer to open legislative and judicial proceedings, "... where in Winchester, Indiana, you can't do those things. That tears at the fabric of credibility within the judiciary." While the conference focuses on serious concerns, Justice Alito offered some humor by noting that he hopes his visit to Indiana will "earn him some credit" with Chief Justice John G. Roberts, who grew up in Indiana. "I'd told him when I first joined the court that I'd never been to Indiana," Justice Alito said. "He thought that was a huge gap in my background. Maybe this will earn some credit, maybe help on opinion assignments."This afternoon, a panel of judges will talk about these same issues from their perspectives. The panel includes Indiana Chief Justice Randall Shepard, U.S. District Chief Judge Larry McKinney in the Southern District, U.S. District Chief Judge Robert Miller Jr. in the Northern District, and U.S. District Judge Sarah Evans Baker in Indianapolis who is also president of the Federal Judges Association.

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Local Drunk driver sentenced to 30 months for crash which paralyzed friend By: Mike McIntyre Posted: 11/19/2012 12:30 PM | Comments: Tweet Post Reddit ShareThis Print This article was published 19/11/2012 (1519 days ago), so information in it may no longer be current. A Winnipeg man has been sentenced to 30 months in prison for a drunken crash that left his friend permanently brain damaged.Daniel Dupuis was convicted earlier this year of impaired driving causing bodily harm for an April 2009 tragedy. He returned to court today for sentencing. The Crown was seeking four years in prison. Dupuis, 41, asked for a penalty of two years behind bars."If I could change places with David... I will always have a guilty conscience for what happened to David," an emotional Dupuis told court during sentencing submissions earlier this month.The 48-year-old victim, David Catellier, suffered serious injuries when the car Dupuis was driving hit a patch of ice and slammed into a sign on St. Anne’s road in the early morning hours of Apr. 4, 2009. They included a fractured spine, losing part of his scalp and several crushed ribs."I thank God I’m alive," the victim wrote in a statement read aloud in court by the Crown. He is now under 24-hour daily care at a personal care home and will never make a full recovery. He still struggles with basic tasks such as walking and talking and lost his ability to work as a welder.The victim and Dupuis had spent the previous evening sandbagging, then went out to a mutual friend’s home where they consumed several drinks before heading home. Dupuis had a blood-alcohol reading of nearly three times the legal limit at the time of the crash. He was also travelling 100 km-h in a 60 km-h zone, court was told."I made a very bad choice. I drove and I shouldn’t have," Dupuis told court. He also was injured in the crash and had to be cut out of the wreckage of his crumpled car.Dupuis has an extensive criminal past including a prior drunk driving conviction, several breaches of court orders and fraud-related offences. Read more by Mike McIntyre.

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Lawyers for Deceased War Criminal Ask Ohio Appeals Court to Reinstate Citizenship Lawyers for the late John Demjanjuk, the Ukrainian-born convicted Nazi war criminal, have petitioned the Sixth Circuit Court of Appeals in Cincinnati to restore his citizenship. As we reported in this Immigration Visa Lawyer Blog, an Ohio immigration judge declined to restore Demjanjuk’s citizenship in late 2011 after a German court convicted him as accessory to the murders of 27,900 Jews at three prison camps in Poland and Germany during World War II. The 91 year-old Demjanjuk died on March 17, 2012 in a nursing home in Germany, where he was awaiting the appeal of his conviction. His lawyers now argue that the government withheld documents that would have helped his immigration case. The brief, filed on behalf of Demjanjuk’s estate on April 12, appeals the December 2011 refusal to reinstate his citizenship by denying a Rule 60 motion. Rule 60 of the Federal Rules of Civil Procedure allows a court to correct or vacate a prior order based, among other grounds, on newly-discovered evidence that was not previously available. Demjanjuk’s lawyers allege that the government violated its discovery obligations and committed fraud on the court by failing to reveal relevant documents, pursuant both to Demjanjuk’s discovery requests and prior court sanctions. This deprived Demjanjuk’s lawyers of materials needed to mount his defense. Documents from the mid-1980’s, declassified by the FBI in 2010 or 2011, reportedly described some of the critical evidence used against Demjanjuk as likely forgeries of the KGB. Demjanjuk’s lawyers claim to have found hundreds of recently-declassified files containing material, exculpatory documents. Demjanjuk faced prosecution for his involvement in the Holocaust for several decades in multiple countries. He first immigrated to the United States in 1952, and became a naturalized citizen in 1958. The U.S. revoked his citizenship in 1981 based on evidence that he provided false or misleading information on immigration applications regarding his past involvement with the Nazi Party. An Israeli court sentenced him to death in 1988 after witnesses identified him as “Ivan the Terrible,” an infamous guard at the Sobibor and Treblinka death camps. That sentence was overturned in 1993 based on evidence that government officials withheld evidence, and that witnesses mistook Demjanjuk for a different guard. Demjanjuk returned to the United States. Another prosecution, commenced in Germany in 2001, alleged that Demjanjuk served as a guard during World War II at the Majdanek and Sobibor camps in Poland and the Flossenburg camp in Germany. The United States deported Demjanjuk to Germany in 2009, and he was convicted on 27,900 counts of accessory to murder in May 2011. He appealed his conviction and five-year prison sentence, but the court did not rule before his death. Demjanjuk’s appeal is based on purely procedural grounds, arguing that the United States never should have revoked his citizenship in the first place because it did so on flawed or incomplete evidence. An interesting technicality of German law may help his estate’s case. Because the courts never heard his appeal before his death, his conviction was never finalized, so he is “technically presumed innocent.” Ohio immigration visa lawyer Gus Shihab helps people understand and navigate the U.S. immigration system, which includes the constantly-changing politics of our immigration laws. For a free and confidential consultation, contact us through our website or at 877-479-4USA (4872). Web Resources: Brief of Appellant (PDF), United States v. Estate of Demjanjuk, Sixth Circuit Court of Appeals, April 12, 2012 Immigration Judge Declares Former Salvadoran Politician Deportable Under Human Rights Law, Immigration Visa Lawyer Blog, March 8, 2012 Judge Orders Deportation of Accused Liberian Warlord, Immigration Visa Lawyer Blog, February 9, 2012 Controversial Arizona Sheriff Stripped of Authority to Conduct Immigration Screening, Immigration Visa Lawyer Blog, January 11, 2012 Photo credit: ‘John Demjanjuk 3,’ see page for author [Public domain], via Wikimedia Commons By Gus Shihab Posted in: Citizenship and Removal Proceedings April 17, 2012 Updated:

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example: life, funny (comma separated)example: Einsteinexample: one small step for manSearch HelpAdvanced Search “Both of these bills will put a stop to that abuse of eminent domain. They will still be able to take dangerous properties, abandoned properties — all of the things that people would look at and say, 'That property is blighted.' But they will no longer be able to take perfectly fine, functioning homes and businesses because some other glitzier home and business could be built there.” Dana Berliner “I don't agree that it shouldn't all be in the public domain. In fact I think it all should be in the public domain... it's private land, not public land, which means that if we're gonna get it back, and I'll use that term advisedly, it has to be purchased rather than just change the law on how it's gonna be managed. .. It should be all of it. There may be different solutions for different particular places, but it should all be treated together. Be unreasonable. You can do it.” Brock Evans Government Takeover Northern Forests Campaign “The bill does very little to solve the problem of abuses of eminent domain in Missouri.” Bruce Hillis “This bill places unprecedented limits on eminent domain abuse. The one glaring shortcoming is the temporary exceptions for Pittsburgh and Philadelphia, but even that does not dampen the near total victory this bill provides.” Shortcoming “It's kind of ironic. This bill encourages the use of eminent domain, and in most states just the opposite is happening.” Terry Mackin Encourages “With 38 states either limiting eminent domain abuses or currently in the process of doing so, this is a grassroots movement of epic proportions. There is a real opportunity to change the law, and state legislators from both parties are taking notice.” Scott Bullock Limiting “We were able to identify another piece of property and stop the eminent domain proceedings. Much of that is a result of citizens coming to us to consider other sites.” Dale Graham

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Lenders Use a New Dirty Trick to Jail You For Small Debts By Martha C. White Aug. 28, 2012 Share Darrin Klimek / Getty Images Email Debt collectors can call you, hound you and make you feel like a lowlife, but here in America, they can’t throw you in jail over your unpaid bills. Or can they? A sneaky tactic called “body attachment” is a new twist on this ultimate form of intimidation by creditors, and people who have committed no greater offense than managing their finances poorly are finding themselves thrown in jail with hardened criminals. The St. Louis Post-Dispatch reports that debtors in St. Louis County are being preyed upon by payday lenders and the collection agencies to which they sell their debts. Those lenders and agencies are then using the taxpayer-funded court system to put the screws to people who owe money. Here’s how it works: The creditor goes to court and gets a judgement against the debtor. In many cases, this action is successful only because the debtor never shows up to defend him or herself, sometimes because they’ve been the victim of “sewer service” and never received the paperwork telling them when to show up to court. (MORE: 50 Percent Interest and Jail Time For Credit Card Debt?) Once the creditor has obtained this judgment, they ask the judge for an “examination.” In theory, this process is intended to assess whether or not the indebted person has bank accounts or other assets that can be seized to pay their debts. The Post-Dispatch says creditors are exploiting this process, filing multiple requests for examinations that force people to return to court over and over. And if they don’t appear in court, then the creditor asks for a “body attachment,” which forces the imprisonment of the debtor until the next hearing — or until they cough up bail money that’s often the same amount as the debt, and often is turned over directly to the creditors. In this way, the creditor often gets payment on the original debt as well as on all sorts of add-on interest and penalties. One woman profiled in the article was squeezed for $1,250. Her original debt? A $425 payday loan. Another woman was thrown in jail over a $588 debt. Creditors say they need to use these methods to make sure people show up for their court dates, but not everybody buys it. “Don’t the county police have something better to do?” asks one Legal Aid lawyer interviewed by the newspaper. In neighboring Illinois, governor Pat Quinn signed off on a law last month that prohibits the use of body attachments in debt suits. (MORE: 5 Steps To Settling Your Debts For Less Than You Owe) This law is a step in the right direction, but it’s an exception. The scary prospect of being jailed over a three-figure debt isn’t limited to Missouri. An investigation by the Star Tribune of Minneapolis-St. Paul found that a growing number of creditors have gotten judges to issue arrest warrants to people who owe as little as $250. For people in debt, the main lesson is to pay attention to any notices you receive about court appearances, and make sure you respond and show up as necessary. Many people never show up for hearings against them, perhaps out of intimidation, but it’s worth the effort: Those who do come to court often can successfully argue against the debt, since the burden of proof is on the creditor or company bringing the suit to prove that the person owes the amount being sought, and that the creditor has the right to collect the debt.

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Home'Portland Observer : PO-20140127Contentswww.spec.com.au MAGISTRATES’ COURT Addict sentenced to rehab A PORTLAND man with a selfconfessed drug problem sentenced to three months’ rehab for breaching a community has been order and driving offences. Anthony Bamblett, 20, of Fern St, pleaded guilty in the Portland Koori Court on Tuesday to breaching a community corrections order, driving whilst disqualified and exceeding the speed limit by more than 30km/h. At 6.20pm on September 21, 2013, on the Princes Highway north of Portland, Bamblett was detected by police radar travelling at 98km/h through a 60km/h zone in place for road works. Bamblett was intercepted by police who performed a licence check. When asked by police why he as driving with a suspended licence, Bamblett said he received a letter from VicRoads informing him he had one remaining demerit point, but didn’t know he’d lost it. On June 25, 2012, Bamblett was convicted of criminal damage and was ordered to pay $150 to the court fund and failed to pay the amount. Defence counsel Katerina Kappos said her client had been battling drug addiction, which prevented him from making the payment. Ms Kappos said her client was serious about getting clean but couldn’t do it alone, and would enter a drug rehab clinic based in Gippsland for three months. Magistrate Peter Mellas ordered treatment at the clinic be part of a good behaviour bond, with updates provided to the Koori Court “to see if you’re as good as your word,” he told Bamblett. Bamblett’s licence was suspended for a further six months. Driver questions police conduct A TOURIST who was issued a $280 fine for a minor driving offence has taken the matter to court to call out the conduct of local police. At 8.40am on May 5 last year, John Portelli, 50, of Warracknabeal, was given an on the spot fine for failing to stay left of the dividing line on Bentinck St, when he turned right onto the street. Portelli told the Portland Magistrates’ Court a car towing a boat in front of him did the same illegal manoeuvre in front of police, so he followed suit. Portelli said the officer who stopped him and issued the fine behaved unprofessionally. “The police officer said ‘I saw you on Border Security’. ‘That was eight months ago’ I said, ‘how did you remember that?’ And she said ‘How could I forget an ugly face like that.’ That’s not good enough for a police officer.” Magistrate Peter Mellas fined Portelli $200 plus $73.70 in statutory costs, knocking $6.30 off the fine. Anger management ordered A PORTLAND woman who smashed four windows of a car and house because she believed the owner stole her medication has been ordered to undertake anger management. Melissa Hill, 39, of Bolwarra Ct, pleaded guilty in the Portland Koori Court to breaching a community corrections order and criminal damage. At 12.50pm on March 7, 2013, Hill and a co-accused visited the victim’s Portland home with the intention of recovering medication for paranoid schizophrenia which she told police was stolen. Hill approached a Subaru station wagon parked in the victim’s driveway and smashed the front and rear windows with a piece of timber. She then approached the home and banged on the front door yelling abuse before smashing another two windows at the rear of the house, leaving shards of glass in the home’s living room. The following day Hill was arrested and interviewed by police and made full admissions. Defence counsel Katerina Kappos said her client had been diagnosed with anxiety and depression and had issues with anger and controlling her impulses. Ms Kappos said her client cooperated fully with police and made admissions at the earliest possible stage. Magistrate Peter Mellas ordered Hill to complete outstanding community work exceeding 40 hours and to undertake alcohol and drug treatment and an anger management course, with a progress report to be submitted to the Koori Court in July. 20 months off the road A PORTLAND man who gave a blood alcohol reading of 0.2 has lost his licence for 20 months. Benjamin McKinna, of Edgar St, pleaded guilty in the Portland Magistrates’ Court to exceeding the prescribed concentration of alcohol after he was breath tested on Cliff St at 9.04pm on October 6, 2013. McKinna told police he’d drunk full-strength beer and bourbon on the night. Representing himself, McKinna told the court he believed the reading was excessive for how much he drank that night. The loss of licence was back dated to the time of the offence and McKinna was fined $500. ROSS MOIR TAFE open day THE Portland campus of South West Institute of TAFE will be hosting an open day on Wednesday, giving people of all walks of life a chance to learn more about the available courses and teachers. A spokesman for South West Institute of TAFE Portland campus said there was something for people from all walks of life this year. The open day begins at 2pm, although Mixx FM will be doing a live broadcast from the campus from noon to 3pm. The spokesman said a barbecue and soft drinks will be on offer from 2pm and visitors were welcome to wander the campus and see the facilities. This year courses in children’s services, community service, age care, automotive, engineering, agriculture and wool, marine, environment, event tourism and education would be showcased, with information available and teachers on hand. “We have a lot of popular courses on offer,” the spokesman said. “There something for people from all walks of life.” Information will also be available about courses for people with disabilities or doing VCAL and people will also be able to learn more about off-campus courses and courses which provide pathways into university. For those unable to make the 2pm session, which is expected to run for about an hour, another open session will be held at 6pm. PORTLAND OBSERVER Monday January 27 2014 5 Healthy barbecue workshop on Thursday A FREE healthy barbecue workshop and cooking demonstration will be held Portland’s Discovery Hospitality Centre on Thursday. It will be held by the Get Active Glenelg2Grampians team. All service clubs and community organisations delivering barbecue catering to the community are invited to attend the session, which will be held from 5.30pm to 7pm. The Get Active Glenelg2Grampians project aims to increase capacity within the community to promote, support and facilitate increased healthy eating and physical activity within the Glenelg and Southern Grampians shires. The workshop aims to equip participants with a variety of cost effective barbecue recipes and cooking techniques to assist in providing healthy food choices to the community. The project is fully funded by the Commonwealth Government through the Healthy Communities Initiative Program. It will be delivered by local chefs and health professionals. The hospitality centre is adjacent to the Portland Secondary College at the corner of Must and Fawthrop streets. People interested in attending the session should RSVP to Carol Stewart by phone on 55222279 or 0407293224 or by email at CStewart@glenelg,vic.gov.au. OCA27248423 LinksArchivePO-20140124PO-20140129NavigationPrevious PageNext Page

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| Mathias v. Baltimore & O.r. Co. Mathias v. Baltimore & O.r. Co. ILLINOIS APPELLATE COURT — FIRST DISTRICT, FOURTH DIVISION. MORGAN J. MATHIAS, PLAINTIFF-APPELLEE,v.THE BALTIMORE AND OHIO RAILROAD COMPANY, DEFENDANT-APPELLANT. Appeal from the Circuit Court of Cook County; the Hon. WILLIAM M. BARTH, Judge, presiding. Reversed and remanded. MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT. Rehearing denied April 19, 1968. Defendant appeals from a jury verdict and judgment for $30,000 for personal injuries. Plaintiff's complaint filed November 21, 1960, under the Federal Employers' Liability Act (45 USCA § 51) alleged that on November 21, 1957, while working for defendant at Willard, Ohio, plaintiff was injured by a ladder striking him on the head when it was knocked over by another employee pushing a wagon. Defendant's answer denied the allegation of the complaint and affirmatively defended on the ground that on March 10, 1958, in consideration of the sum of $1,500 plaintiff released defendant of all claims and demands. Plaintiff's reply to defendant's answer set out fraud and misrepresentation in the procurement of the release and a mutual mistake of fact as to the nature and extent of the injuries. During the trial defendant admitted liability for the accident and the trial proceeded on the issue of the validity of the release. On appeal defendant contends: 1. That the court erred in not directing a verdict in favor of defendant; 2. That it was error not to allow the showing of defendant's surveillance movies; 3. That the court erred in submitting a special interrogatory on mutual mistake and refusing to submit a special interrogatory on fraud; and 4. That the court committed other trial errors. Testimony of Plaintiff On November 21, 1957, while working for defendant at Willard, Ohio, he was struck on the forehead by the top of a falling ladder. He fell to the ground bleeding profusely from a one and one-half inch cut; he received first aid but was sent home by Dr. Drury and told to take the rest of the day off and apply ice packs. He did not return to work until November 27 but worked from then until January 10, 1958; he had bad headaches and saw Dr. Drury three or four times during that period and received pain pills. His first fainting spell occurred on December 7, 1957, and the spells lasted until March; he was ordered to go to Willard Municipal Hospital for X rays in December of 1957, where he received pain pills and diathermy and was advised to have heat treatments. On January 10, 1958, Dr. Drury told him to stay off work for a week. He saw Dr. Book at Willard Hospital and was directed to go to Chicago St. Luke's Hospital for examination by Dr. Harry Mock and two other specialists where he received spinal, brain wave and X-ray tests and had water injected into his ear. He was kept in traction from February 5 until February 21, 1958. He was told by Dr. Mock that there was nothing the matter with him and he believed it. On March 10, 1958, he had a conversation with Mr. Leaman (District Claim Agent for defendant) at his office; Mr. Leaman told him that he would have to sign a release to obtain his back wages and they would "come up with fifteen hundred dollars." Mr. Leaman told him that he couldn't come back for more money if he signed that release ". . . but they would play fair with me if [sic] any future doctor bills or if I had to go back to the hospital or anything like that they'd take care of it, and at that time I thought he meant wages also if I was off any more." He signed the release and received $1,500 less the $329 which had been paid to him prior to that time as sick benefits. He returned to work the next day, March 11, 1958. The defendant paid $325 in doctor bills after the settlement; however it stopped paying in April 1959. When he continued to suffer from dizziness and pain in his neck, he called in sick on May 25, 1960, and that was his last day of work on the railroad. He lost no time from work between March 1958 and May 1960. He saw Dr. Drury 156 times after the B. & O. stopped paying, receiving diathermy treatments, pain pills and circulation pills for dizziness. He still suffers from dizziness, pain and severe headaches for which he took the pain and circulation pills prescribed by Dr. Drury and applied heat. The pills helped but caused extreme pain in his left eye. The defendant refused all medical expenses after August of 1959. Prior to the accident he had no complaints of dizziness or pain in the back of his neck and no doctor had told him he had arthritis. (Defendant's Exhibit 12 showed that in a complaint filed for a disability allowance with the Veterans Bureau in 1930 he listed symptoms of "dizziness, frequent urination, pains in back and through chest, severe headaches, nervousness.") Dr. Drury was the only doctor actively treating him; the others were only examining him. He had a little dizziness between the time of the accident and the time he signed the release but he didn't know at the time of the signing that he would suffer from fainting spells and pain in the back of the neck. The dizziness grew worse after the release, and he found it difficult to work around moving equipment now. Testimony of Milton Leaman, witness for defendant He was the claim agent who negotiated the release from plaintiff for $1,500. The amount of plaintiff's lost wages was $776.96. In addition to the $1,500 settlement, $886 was paid by defendant for plaintiff's medical expenses. He told plaintiff that he could not come back at any later date and receive anything; that defendant would take care of future medical bills so long as the medical department went along with it; that Leaman knew that plaintiff was receiving "future medical," and that he was going to Dr. Drury, and that this was the reason he (Leaman) felt the company would go along with this as long as there was a relation between the accident and the condition. Defendant first contends that a verdict should have been directed in its favor at the close of all the evidence. Defendant admits its responsibility for injuries caused by the accident but argues that there was insufficient evidence to support the finding of mutual mistake or fraud necessary to set aside the release. In Dice v. Akron, C. & Y.R. Co., 342 U.S. 359, 361, the court held that the "validity of releases under the Federal Employers' Liability Act raises a federal question to be determined by federal rather than state law." In Graham v. Atchison, T. & S.F. Ry. Co., 176 F.2d 819, the testimony of the plaintiff was similar to that of the instant plaintiff. In Graham the court stated at page 825: The plaintiff testified definitely that he did not, at the time the release was signed, believe that he had this injury to the spine; that he believed that his injuries were not serious and that, as urged by Dr. Morrison, he could and should go back to work as quickly as possible. The jury might well have believed that he would not have entered into this release had he been informed of the true nature of the injury which he had suffered and of its permanency. There is evidence in the record that the injury is traceable to the accident and that it is of a permanent nature, requiring surgery to correct. The plaintiff had the right to have submitted to the jury, for their determination, these facts. The following factors negative defendant's contention that a verdict should have been directed in its favor: (1) Plaintiff's testimony that he was told shortly before he signed the release by Dr. Harry Mock (to whom he was sent by defendant and who was paid by defendant) that there was nothing the matter with him. (2) Plaintiff's doctor's testimony that there was causal connection between the trauma caused by the injury and plaintiff's condition. (3) The affirmative testimony of some of the doctors called by defendant as to the existence of calcification of the fifth, sixth and seventh vertebrae, the relationship between this calcification and the plaintiff's dizziness and headaches and the effect of the accident on this condition. (4) Plaintiff's testimony that he was told by defendant's claim agent that defendant would pay for his future medical expenses. The court's refusal to direct the verdict was proper. Defendant next contends that the court committed prejudicial error in refusing to admit surveillance movies into evidence. The movies depicted plaintiff doing maintenance work around his home, carrying a large post and riding atop his lawn mower. The validity of serveillance movies as evidence at a trial is well settled. McGoorty v. Benhart, 305 Ill. App. 458, 27 N.E.2d 289. In that case the court relied on Boyarsky v. G.A. Zimmerman Corp., 240 App. Div. 361, 270 NYS 134, which held that it was reversible error to refuse to allow the projection of motion pictures showing the physical capabilities of plaintiff. There plaintiff also claimed to have been hit on the head with resulting total disability and inability to work. (The object hitting him was a bolt two and one-half inches long and one and one-quarter inches across.) In the instant case plaintiff testified that he takes care of the maintenance of his house; that he mows the lawn which was four acres until he sold some of it. Previously he stated that he found it difficult to work around moving equipment. Plaintiff's doctor testified that in his opinion plaintiff could not have continued working around moving machinery because of "episodes of dizziness or blackout and of recurrent difficulty in pain with the neck and head area." Dr. Drury, plaintiff's treating physician for over eight years, testified that in his opinion from the time he ordered plaintiff back to work in 1958 until March 1966 there were no objective findings which would prevent plaintiff from returning to work. Other doctors, testifying for defendant, found that plaintiff's prior arthritic condition was affected slightly, if at all, by the trauma of the accident. Dr. Miller, after examining plaintiff in March 1966 had an opinion that a man in plaintiff's condition "could return to his usual occupation consistent with his age." In view of the conflicting testimony on plaintiff's capacity to work, we believe the court erred in not allowing the motion pictures to be shown. The next issue presented by defendant relates to the special interrogatories. Defendant requested the court to give two: one, asking whether there was any mutual mistake as to the nature and extent of plaintiff's injury and the other, asking whether Mr. Leaman (defendant's agent) was guilty of any fraud when he procured plaintiff's release. The court gave the first one (which was answered in the affirmative by the jury) but refused to give the second. In Todd v. Borowski, 25 Ill. App.2d 367, 375, 166 N.E.2d 296, the court said: Special interrogatories are used for the purpose of testing the general verdict against the jury's conclusions as to the ultimate controlling facts — the statute expressly provides that the answer to the special interrogatory controls the general verdict when inconsistent, and it may not be nullified by disregarding its mandate. (Citing cases. Emphasis supplied.) In determining whether the special interrogatory as to mutual mistake was proper, the trial court had to consider at the time it was presented to him, whether the answer to that interrogatory if inconsistent with a possible verdict would control that verdict; e.g. if the general verdict was in favor of plaintiff, a negative response to the interrogatory about mutual mistake would not control the general verdict because the jury might have believed defendant guilty of fraud. *fn1 We therefore believe that the giving of the one special interrogatory did not relate to an ultimate controlling fact upon which the rights of the parties directly depended and the court erred in giving it. Defendant urges twenty-six other trial errors. Since we have decided to reverse the judgment and remand the case for a new trial we deem it unnecessary to answer these points. We hope that the experience of the trial and the appeal will serve to acquaint the parties with these problems and lead to a more expeditious presentation of the evidence and instructions in the new trial. The judgment of the Circuit Court is reversed and the cause remanded for a new trial. McCORMICK, P.J. and ENGLISH, J., concur.

法律

2017-04/0403/en_head.json.gz/12686

| Diehl v. Twin Disc Diehl v. Twin Disc MAURICE DIEHL, INDIVIDUALLY, AND BERNIE LEIGH, INDIVIDUALLY AND ON BEHALF OF A CLASS OF ALL OTHERS SIMILARLY SITUATED, AND INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA AND ITS LOCAL 765, PLAINTIFFS-APPELLANTS,v.TWIN DISC, INCORPORATED, DEFENDANT-APPELLEE. Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 94-C-50031 Before CUMMINGS, ESCHBACH, and FLAUM, Circuit Judges. FLAUM, Circuit Judge. Philip G. Reinhard, Judge. DECIDED DECEMBER 12, 1996 In this appeal, we are called upon to decide whether Twin Disc promised certain insurance benefits for the duration of its retired employees' lives and, if so, to examine the nature of these benefits. When the company unilaterally changed the retired employees' coverage in 1993, the plaintiffs initiated this class action suit, which alleges that Twin Disc broke its promise. The district court believed that Twin Disc had reserved the right to change or discontinue the benefits at issue, and therefore granted summary judgment in favor of the company. We now vacate the district court's judgment and remand for further proceedings. In January 1986, Twin Disc announced that it would cease manufacturing operations at its Rockford, Illinois plant and lay off almost all of the plant's bargaining unit employees. Negotiations promptly ensued between the company and Local 765 of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (the "Union"), the union with which Twin Disc had bargained for more than thirty years. These negotiations produced the Shutdown Agreement at issue here, Paragraph 9 of which concerns retirees' insurance benefits: 9. (a) All persons retired prior to the date of termination of the [Retirement] Plan . . . shall, notwithstanding any provision of the Insurance Agreement between the Company and the Union, as extended (hereinafter the "Insurance Agreement") be entitled for the lifetime of the pensioner (including the surviving spouse until death or remarriage) to the life insurance and hospitalization, medical and surgical expense benefit coverages as provided under the Extension of Coverages and Integration of Benefits provisions of Sections 5 and 6 of the Insurance Agreement. Other arguably relevant provisions of the Shutdown Agreement are the integration clause representing that the "Shutdown Agreement constitutes the complete agreement between the parties on the subject of the cessation of operations" and the termination clause providing that the Shutdown Agreement "shall terminate . . . in no event later than the end of the twelfth calendar month following the calendar month in which the last bargaining unit employee engaged in production is terminated." The termination provision, according to Twin Disc, took effect in 1990, one year after the last bargaining unit employee was discharged. The 1983 Insurance Agreement to which the Shutdown Agreement refers was the latest in a series of such agreements dating back to 1961. Roughly every three years after 1961, Twin Disc and the Union had renegotiated collective bargaining agreements consisting of four separate agreements: a Basic Agreement, an Insurance Agreement, a Pension Agreement, and a Supplemental Unemployment Benefit Agreement. The insurance agreements, in turn, generally provided in Section 1 that benefits would be determined with reference to the "insurance program . . . as set forth in the insurance section of the company's Employee's Manual," and that this program of benefits was subject to the amendments set forth in Section 2 of the insurance agreement. *fn1 Twin Disc emphasizes that the benefits of past retirees were always subject to renegotiation during collective bargaining sessions, and that, in fact, the Company and the Union decided in 1977 and 1980 to modify benefits received by previously retired employees. Both parties agree, however, that under the regime established by the successive insurance agreements and the Shutdown Agreement, retirees were covered under one of three different health insurance plans depending upon the individual retiree's date of retirement. It thus appears that although the benefits of previously retired employees were subject to renegotiation every three years, the Union and the Company maintained a certain continuity of coverage. As a result of this course of dealings, one could determine a particular retirees' benefits in any given year only by examining both the applicable insurance "booklet" and the modifications imposed by the insurance agreement then in effect. Through 1986, therefore, any changes to the insurance benefits of previously retired employees were implemented as a result of bilateral negotiations that occurred approximately every three years between Twin Disc and the Union. As the above-quoted Paragraph 9 of the Shutdown Agreement indicates, Sections 5 and 6 of the 1983 Insurance Agreement must be consulted in order to ascertain the coverage to which retirees are entitled. We will discuss these sections in more detail, but suffice it to say for the moment that Section 6 permits Twin Disc to modify coverage to avoid duplication of Medicare benefits and that Section 5 provides that employees who have retired between certain dates shall be entitled to the coverage provided under the "program." The "program," as we have seen, is the description of benefits provided in the insurance section of the employees' manual, which apparently took the form of an "insurance booklet" that could be inserted to update the manual. The diligent reader who has followed our document-to-document scavenger hunt in search of clarity will be distressed to learn that the 1983 insurance booklet, like earlier versions of the same document, includes the following clause: "Your Employer hopes to continue the Plan indefinitely but, as with all group plans, the Plan may be changed or discontinued." The issue is further complicated by the plaintiffs' claim that this 1983 insurance booklet "pertained only to the active employees and not to those who had retired under an earlier insurance agreement." After 1986 but before the actions at issue here, Twin Disc made certain unilateral changes in the retired employees' insurance coverage. These changes, according to the company, indicate that the plaintiffs were aware of, and initially accepted, the company's power to modify their insurance benefits. In October 1989, Twin Disc mailed a letter to retirees that "suggested ways to minimize the number of claim submissions" in order to reduce processing fees, as Charles Gibson, Twin Disc's vice president in charge of employee relations, later explained to Union representative William Penn, who wrote to Gibson to protest the changes. In addition, Twin Disc's October letter informed retirees of a toll-free number through which they would be required to pre-certify inpatient hospital care. Later, in April 1991, Twin Disc sent to employees, retirees and surviving spouses, a new insurance booklet. The letter accompanying the booklet explained, "There may have been few if any changes in your coverages. However, it's been our experience that some have lost or misplaced their original booklets and periodic replacements are appreciated." Though Twin Disc points to these two mailings as evidence of the parties' understanding that retirees' benefits could be modified unilaterally by the company, it remains to be seen whether actions by Twin Disc taken in 1989 and 1991 can shed any light on the intentions of the company and the Union when they negotiated the 1986 Shutdown Agreement. In January 1993, Twin Disc replaced Aetna with Blue Cross as its insurance carrier and effected the changes to the retirees' insurance benefits that provoked this lawsuit. Given that these changes form the basis for this suit, it is a rather remarkable aspect of this appeal that the parties are rather vague when it comes to the extent of the changes. The plaintiffs insist that the "changes increased the amount of money that the retirees had to contribute toward their health insurance benefits, and dramatically decreased the amount of the Company's contributions," while Twin Disc, for its part, explains that "[t]he primary change . . . modified the manner in which health insurance benefits coordinated with Medicare"--a change that Twin Disc would have been entitled to make under Section 6 of the 1993 Insurance Agreement. In the appendix to their brief, the plaintiffs have reproduced a chart prepared by Penn and purporting to outline the differences between benefits, preand post-1993. The record also contains a summary of the changes compiled by A. Christine Fieldbinder, Twin Disc's Manager of Compensation and Benefits. Twin Disc points out that the content of the plaintiffs' chart is still in dispute and explains that the non-Medicare-related changes "were relatively minor." In any event, Penn's chart, which the plaintiffs admit "may not be all inclusive," is of little aid to this court in determining the effect of the changes. Although the plaintiffs may overstate the effect of the changes, it is fair to infer that the 1993 changes went beyond a simple coordination with Medicare benefits. Twin Disc's representation as to the nature of the "primary" change can leave little doubt that this was not the only change. Moreover, an internal company document suggests that Twin Disc itself distinguished between coordination with Medicare and other changes effected in 1993. In February 1992, Gibson drafted an internal memorandum discussing the planned changes, which were spurred in part by new accounting rules that would increase insurance costs. Gibson made the following observation with respect to retirees: My first concern is making these changes applicable to current retirees. Whereas the change to a carveout integration method for Medicare should be accomplished in a low-profile manner, the increase in deductible and out-of-pocket will most likely create some unrest with existing retirees. Although I am not aware of any written documentation that commits the Company to preserving forever current retiree health insurance coverage, I would not be surprised if we were legally challenged by some disgruntled retirees. *fn2 These were prescient remarks. The plaintiffs filed their four-count complaint on December 30, 1993, asserting claims of breach of contract under Section 301 of the Labor-Management Relations Act, 29 U.S.C. sec. 185, breach of an employee benefit plan under Section 1132 of ERISA, 29 U.S.C. sec. 1132, violation of fiduciary duties under Section 1104 of ERISA, 29 U.S.C. sec. 1104, and promissory estoppel. The district court granted the plaintiffs' motion for class certification as to all but the promissory estoppel claim, but ruled that plaintiff Maurice Diehl was not a proper class representative. *fn3 Both parties then moved for summary judgment, *fn4 and the district court granted Twin Disc's motion in its entirety. The district court reasoned that the reservation-of-rights clause in the insurance booklet, indicating that "the Plan may be changed or discontinued," had been unambiguously incorporated into the Shutdown Agreement, and that Twin Disc therefore had the right to modify the retirees' insurance coverage. The question before us is essentially one of contract interpretation, for the insurance benefits at issue here are "welfare" benefits, which, unlike pension benefits under ERISA, do not automatically vest in the absence of an agreement providing for lifetime entitlement. Bidlack v. Wheelabrator Corp., 993 F.2d 603, 604-05 (7th Cir.), cert. denied, 510 U.S. 909 (1993). We therefore apply federal principles of contract construction, meaning that we will give contract terms their "ordinary and popular" sense and avoid resort to extrinsic evidence when faced with unambiguous language. See GCIU Employer Retirement Fund v. Chicago Tribune Co., 66 F.3d 862, 865 (7th Cir. 1995). We have noted that contractual disputes lend themselves to resolution on summary judgment. Id. at 864. The plaintiffs are entitled to all of the advantages usually accorded the non-moving party appealing from a district court's grant of summary judgment; but a contract's meaning is a matter of law, id., and where there is no contractual ambiguity, there is no resort to extrinsic evidence, hence no factual dispute to preclude summary judgment. Of course, we cannot interpret "the contract," until we identify the contract that we would interpret. Before we do so, however, there is some question as to whether we need reach the central issue briefed by the parties, whose positions could not be more starkly opposed. The plaintiffs contend that the Shutdown Agreement secured for retirees a lifetime entitlement to the exact same insurance benefits they enjoyed in 1986, while Twin Disc insists that it retained the right to discontinue benefits at any time, or at least after 1990, when the Shutdown Agreement expired. In fact (to hear Twin Disc tell it) whatever insurance benefits the plaintiffs continue to receive are a mere gratuity, the result of the company's beneficence. In light of the extreme stances reflected in the parties' briefs and presentations at oral argument, it would be easy to forget that this suit does not involve a termination of benefits, but rather modifications to benefits that were made in 1993. It is conceivable that we could discuss the propriety of these modifications without any reference to the duration of retiree benefits. Yet we have considered and rejected such an approach under similar circumstances, see Bidlack, 993 F.2d at 610 (opinion of the court); id. at 614 (Easterbrook, J., dissenting), and we reject it again today. Given the district court's holding that the retirees do not have a right to lifetime benefits, and the fact that Twin Disc presses the point so forcefully on appeal, we believe that it is incumbent upon us to resolve the question. "If [the retired employees] have no contractual guaranty of benefits, they had better start shopping around for other medical insurance." Bidlack, 993 F.2d at 610. For the sake of clarity, we will divide our discussion somewhat artificially into two parts. In Part II.A., we ask whether the retirees' have a vested right to benefits. Because we conclude that they do, we go on in Part II.B. to examine the scope of this right. We begin by observing that the language upon which the plaintiffs base their claim to lifetime insurance benefits stands apart from language we have considered in similar cases in recent years. We are more commonly asked to find an intent to create lifetime entitlements despite terms that are ambiguous or completely silent on the issue. For example, in Senn v. United Dominion Industries, Inc., 951 F.2d 806 (7th Cir. 1992), we determined that "the relevant Collective Bargaining Agreements and plan documents incorporated therein . . . [were] void of any language that would provide the basis for finding an ambiguity in regard to a vestment of lifetime welfare benefits," id. at 815, and therefore held that the plaintiff retirees could not overcome the presumption that " 'entitlements established by collective bargaining agreements do not survive their expiration or modification,'" id. at 816 (quoting Merk v. Jewel Cos., Inc., 848 F.2d 761, 763 (7th Cir.), cert. denied, 488 U.S. 956 (1988)). In Bidlack, we held that because "the agreements are not silent on the issue, . . . [but] merely vague," 993 F.2d at 608, the plaintiffs were entitled to have a factfinder determine whether they were receiving welfare benefits "as a matter of grace or of right," id. at 610. Involving silence, ambiguity, or vagueness with respect to vesting of benefits, it was natural that these cases should provoke discussions about the presumptions that should guide a court when asked to find an entitlement to lifetime coverage. See Bidlack, 993 F.2d at 607; id. at 611-12 (Cudahy, J., concurring); Senn, 951 F.2d at 816; see also Murphy v. Keystone Steel & Wire Co., 61 F.3d 560, 565 (7th Cir. 1995) ("Murphy's claims rest almost entirely on extrinsic evidence so we must consider its proper place in our inquiry."). Here, by contrast, it is not obvious that we need resort to such presumptions. The plaintiffs can point to an explicit and seemingly unambiguous provision that vests welfare benefits--Paragraph 9 of the Shutdown Agreement, which provides that the retired employees "shall, notwithstanding any provision of the Insurance Agreement . . ., be entitled for the lifetime of the pensioner . . . to the life insurance and hospitalization, medical and surgical expense benefit coverages as provided under the Extension of Coverages and Integration of Benefits provisions of Sections 5 and 6 of the Insurance Agreement." If the rule that contractual provisions are to be given their ordinary and popular sense has any guiding force, we believe that the language just quoted must mean what it says: the retired employees shall be entitled to welfare benefits for their lifetime. Twin Disc objects that Paragraph 9 of the Shutdown Agreement, by its own terms, incorporates Section 5 of the Insurance Agreement, which in turn incorporates the reservation-of-rights clause contained in the insurance booklets. The district court agreed, reasoning that "the shutdown agreement unambiguously incorporated the change or discontinuation of the employee manuals and that such incorporation unambiguously gave defendant the right to change or discontinue the health care benefits." We respectfully do not believe that the Shutdown Agreement can be read to have incorporated unmodified the "change or discontinue" language contained in the insurance booklets. What the interpretation urged by Twin Disc ignores is that the Shutdown Agreement itself was an independent contract, supported by separate consideration and capable of modifying or supplanting prior contractual arrangements. It is true that when potentially conflicting provisions coexist within the same document, or within a single contract formed of several documents, the rule that contractual provisions be read as parts of an integrated whole will lead a court to seek an interpretation that reconciles those provisions. See In re Unisys Corp. Retiree Medical Benefit "ERISA" Litigation, 58 F.3d 896, 904 (3d Cir. 1995) ("[T]he court found that seemingly inconsistent provisions, such as those permitting modification of the plan and those indicating that benefits last for life, must be construed to be harmonious.") (discussing DeGeare v. Alpha Portland Indus., Inc., 652 F. Supp. 946 (E.D. Mo. 1986), aff'd, 837 F.2d 812 (8th Cir. 1988), vacated and remanded on other grounds, 489 U.S. 1049 (1989)). At times, this may compel a rather forced construction, such as the following explanation offered by the Third Circuit in the Unisys case: "An employer who promises lifetime medical benefits, while at the same time reserving the right to amend the plan under which those benefits were provided, has informed plan participants of the time period during which they will be eligible to receive benefits provided the plan continues to exist." In re Unisys Corp., 58 F.3d at 904; see also Chiles v. Ceridian Corp., 95 F.3d 1505, 1512 n.2 (10th Cir. 1996) ("[T]he weight of case authority supports the Unisys approach, that a reservation of rights clause allows the employer to retroactively change the medical benefits of retired participants, even in the face of clear language promising company-paid lifetime benefits."). Although a layperson untrained in the nuances of the law might greet this explanation with a quizzical expression, we do not mean to impugn the logic of our sister court. Statements such as the one we have just quoted merely reflect a court's understanding of what it takes to overcome the presumption that welfare benefits do not vest, combined with the court's reluctance to interpret a contract as being at war with itself. Fortunately for us, we need not undertake such interpretive gymnastics. In this case, we have an agreement (the Shutdown Agreement) that refers to an earlier agreement (the 1983 Insurance Agreement) that granted a certain level of benefits to retirees based upon their respective dates of retirement. Twin Disc is correct that we cannot understand exactly what those benefits were without looking to the insurance booklet (or booklets). Indeed, it is possible to view the Insurance Agreement and the insurance booklet "thereafter issued" in 1983 as components in a single contract. Were the year 1984, for example, and were we called upon to interpret the 1983 Insurance Agreement in the first instance, we might need an interpretive strategy that would permit us to reconcile Twin Disc's supposed right to "change or discontinue" coverage with the company's apparent promise of threeyears' coverage. This is not true for the Shutdown Agreement, which unambiguously granted lifetime benefits to the retirees and then referred to the 1983 agreement for the purpose of identifying their level of benefits. The Shutdown Agreement was not executed in close temporal proximity to either the 1983 Insurance Agreement or the preceding insurance booklets, nor did the Shutdown Agreement share with this earlier agreement a common underlying consideration. Cf. Central States, Southeast and Southwest Areas Pension Fund v. Kroger Co., 73 F.3d 727, 731 n.2 (7th Cir. 1996) ("Both the CBA and the benefits plan were negotiated by the same parties . . ., they were executed at the same time, they were both supported by the same consideration, and the CBA expressly incorporated the plan by reference."); Murphy, 61 F.3d at 567 ("We disagree [that the Plan cannot be unilaterally amended or terminated] because the terms of the CBA and the Plan were negotiated and executed, and therefore must be read together, . . . and because both the Plan and the CBA rest on the same consideration: the mutual promises set forth in the CBA."). That being the case, we see no reason why the "change or discontinue" language in the insurance booklets should take precedence over the Shutdown Agreement's clear provision for lifetime benefits. To the contrary, the promise of lifetime benefits abrogated whatever right Twin Disc may have had to terminate coverage. On that note, it is worth pausing for a moment to consider the precise language that supposedly provides the basis for Twin Disc's right to discontinue benefits. Upon close examination, it becomes clear that this reservation of rights is itself not as devoid of ambiguity as Twin Disc would have us believe. The relevant clause appears in the insurance booklets, which apparently were prepared by Twin Disc's insurance carrier. The 1983 booklet contains language substantially similar to earlier versions: "Your employer hopes to continue the Plan indefinitely but, as with all group plans, the Plan may be changed or discontinued." The phrase is descriptive, and the possibility of change is announced in the passive voice. ("Changed or discontinued by whom?" one might ask.) Given the fact that the booklet was prepared by the insurance carrier (Aetna, in this case), one plausible reading of the clause would be to regard it as providing notice that the underlying contract between the insurer and the company, of itself, created no rights in the company's employees. In fact, this might very well be the best reading under the 1983 Insurance Agreement, in light of Twin Disc's contractual undertaking to provide coverage for a specific length of time. We need not decide this matter, however, for we have already stated that Twin Disc's right to discontinue, if such a right there was, cannot survive the subsequent promise to provide lifetime benefits. But the unsure foundation of the putative right to discontinue provides an additional reason to hesitate before endorsing Twin Disc's interpretation of the Shutdown Agreement. Twin Disc still has a leg to stand on: Paragraph 18, which provides that the Shutdown Agreement "shall terminate, except with respect to paragraph 16 of this Shutdown Agreement, . . . in no event later than the end of the twelfth calendar month following the calendar month in which the last bargaining unit employee engaged in production is terminated." The company reasons that the last bargaining unit employee must have been discharged no later than August 1989, because in that month the Union disclaimed any interest in representing bargaining unit employees at the Rockford plant. Therefore, according to Twin Disc, the Shutdown Agreement expired pursuant to Paragraph 18 in September 1990, along with the retirees' rights to lifetime benefits. "Sometimes, however, a contract creates entitlements that outlast it." Bidlack, 993 F.2d at 606. As we observed in Bidlack, the presumption that rights do not survive the expiration of a collective bargaining agreement is just that--a presumption--, and we have already explained why that presumption should not apply in this case. Twin Disc, however, observes that Paragraph 18 expressly excludes from its coverage Paragraph 16, which obligated the company, inter alia, to recognize the seniority of former employees should it reactivate the plant within twenty-four months after shutdown. It therefore urges us to invoke the expressio unius doctrine and to find by negative implication that the lifetime promise of Paragraph 9 falls within the ambit of Paragraph 18's expiration clause. We remain unpersuaded. Though its Latin phrasing lends it an authoritative ring, the maxim expressio unius est exclusio alterius ("the expression of one thing is the exclusion of the other") is at best an aid in interpretation, not a hard-and-fast rule, and we do not believe that Paragraph 18 cries out for its application. Cf. Smart v. Gillette Co. Long-Term Disability Plan, 70 F.3d 173, 179 (1st Cir. 1995) ("While this interpretive maxim is not always dispositive, it carries weight; and when, as now, there is absolutely nothing in the agreement's text that hints at some additional item lurking beyond the enumerated list, we see no reason why the maxim should not be controlling."). When the Shutdown Agreement was executed, it was very likely that the time periods applicable to Paragraph 16 and Paragraph 18 would coincide: Paragraph 16's obligations are to be measured from the date that "manufacturing operations are permanently discontinued," while Paragraph 18 looks to the date when "the last bargaining unit employee engaged in production is terminated." It therefore was foreseeable that there might be confusion as to whether Paragraph 18's twelve-month obligation limited the twenty-four-month obligation that Paragraph 16 seemed to create. The obligation created by Paragraph 9, which explicitly extended for life the benefits that the retirees had already been receiving, differs in quality from the duty imposed by Paragraph 16. The exclusion of Paragraph 16 from the Shutdown Agreement's expiration provision therefore tells us nothing about whether Paragraph 9 created a right that survived the Agreement. Cf. Chiles, 95 F.3d at 1512-13 (applying expressio unius doctrine and rejecting alternative reading that would render termination exception superfluous). We hold that Paragraph 9 established vested rights to lifetime insurance benefits. Yet the foregoing analysis can be little more than a prologue (albeit lengthy), for it is one thing to declare that the retirees are entitled to lifetime insurance benefits; it is another to decide precisely what those benefits are. Between the plaintiffs' insistence that the retired employees have a right to the exact benefits they enjoyed in 1983 and Twin Disc's proposed interpretation, that they have a right to lifetime benefits that may be discontinued, lies a range of possibilities. As we stated at the outset, Twin Disc modified but did not terminate the retirees' benefits in 1993. It therefore would be possible for us to conclude that the modifications did not violate the plaintiffs' rights, despite our holding that those rights were vested. Happily, the documents we have examined are clear in at least one respect. As noted earlier, Section 6 of the 1983 Insurance Agreement permits modification of coverage to avoid duplication of certain statutory benefits, including Medicare. There is nothing inconsistent in recognizing both the retirees' lifetime entitlement and Twin Disc's right to make these modifications. Twin Disc maintains that the principal change it introduced in 1993 was to alter the formula by which copayments were calculated for Medicare recipients: the copayment would be a percentage of the entire medical bill, rather than a percentage of the amount left to be paid after deducting for Medicare. Although this change undoubtedly increased co-payments for certain retirees, it put them in no worse a position than they would have been absent Medicare. We therefore see no reason why Twin Disc should not be permitted to alter the copayment formula in this fashion for retired employees receiving Medicare. If this were the only change that had taken place in 1993, we would be at an end. The plaintiffs, however, contend that Twin Disc went beyond this single modification, and, as we indicated earlier, it seems likely that this is the case. We therefore must press on, to determine whether the contract that we are analyzing provides any guidance, apart from the provisions relating to coordination of benefits, with respect to Twin Disc's right to make modifications. The plaintiffs maintain that they contracted for exactly the same insurance coverage that they were receiving by virtue of the 1983 Insurance Agreement. At the other extreme, Twin Disc (given our holding above) presumably would argue that the company's duty to provide lifetime coverage is satisfied so long as the company maintains some insurance coverage, however reduced. The interpretive dilemma that we confront here is one of vagueness rather than ambiguity. We are faced, not with a choice between two reasonable interpretations, but with a continuum of options that lies between these two intuitively implausible results. If Twin Disc were permitted to "modify" coverage until it became all but nominal, the promise of lifetime benefits would begin to look rather illusory. On the other hand, we cast a cold eye on the claim that in 1986 Twin Disc contracted to provide for the life of its retirees the precise benefits described in insurance booklets drafted ten or twenty years previously. It is necessary to return the regime that was established by the 1983 Insurance Agreement. That agreement, after all, is the benchmark to which the Shutdown Agreement refers. In their statement of uncontested material facts offered in support of their motion for summary judgment, the plaintiffs described the status quo as it existed prior to 1993: "Prior to 1993, the certified class of retirees . . . were covered under three different health insurance plans depending upon the date the employee retired: the 'Basic and Major Medical Plan', the [']Basic and Major Medical with dental, Vision and Hearing Benefits [,]' and the [']$100 Comprehensive Plan'." Twin Disc did not contest this synopsis, which was drawn entirely from the affidavit of Fieldbinder, its Manager of Compensation and Benefits. It is not entirely clear how this tripartite framework was established--a potentially significant question. If the 1983 Insurance Agreement contemplated that Twin Disc could dictate the level of coverage merely by issuing new insurance booklets, this understanding would support Twin Disc's right to modify coverage unilaterally. The plaintiffs maintain that the insurance booklet issued in 1983 "pertained only to the active employees and not to those who had retired under an earlier insurance agreement." Under the plaintiffs' view, therefore, the retirees' benefits were based on the booklets in effect at their date of retirement, presumably as modified by amendments in the insurance agreements. There is evidence in the record, however, suggesting that the 1983 insurance booklet, which was adopted following the execution of the 1983 Insurance Agreement, applied to and was sent to all retired employees, as well as active employees. This reading of the facts is reinforced by the language of the 1983 Insurance Agreement, which referred to "the insurance program . . . as set forth in the insurance section of the Employee's Manual hereafter issued." (Emphasis added.) In addition, as Twin Disc is quick to remind us, a new insurance booklet was issued to retirees in 1991. Yet Twin Disc does not do a good job of explaining to us how it was that the company managed to maintain three distinct benefit levels based on date of retirement and, at the same time, to summarize these three plans of coverage within the same insurance booklet. Regardless of how this sorting among retired employees was accomplished, however, the persistence of a certain level of coverage over time strongly suggests that when, in 1986, the Union and the company made reference to the 1983 Insurance Agreement, they had in mind certain substantive insurance benefits. *fn5 By the same token, we see nothing to indicate that the Shutdown Agreement established a right to a particular insurance carrier, or even to a particular plan. Even in its weakest form, as we have seen, the reservation-of-rights clause included in the insurance booklets gave notice that the underlying group contract between Twin Disc and its insurance carrier created no rights to which the retired employees could lay claim. Rather, the Insurance Agreement obligated Twin Disc to secure a certain level of benefits, and Twin Disc presumably remained free to negotiate with various insurance carriers (or to self-insure) and to impose cost-saving measures that did not substantially reduce benefits. But in exercising this discretion, Twin Disc could not have been free to arrange for coverage that would eviscerate the promise of benefits. We therefore would read the Shutdown Agreement as requiring Twin Disc to expend reasonable efforts to secure coverage at a level substantially commensurate with the benefits provided under the 1983 Insurance Agreement. We believe that this understanding most accurately reflects the intent of the parties. It is also consistent with their behavior following the execution of the Shutdown Agreement. Twin Disc notes that the plaintiffs did not sue in 1989 when the company instituted a pre-certification requirement, or in 1991 when it mailed a new insurance booklet that introduced "few if any changes." Under our interpretation, however, it would have been entirely permissible for Twin Disc to make these minor alterations. In November 1992, Twin Disc mailed a letter to retired employees to announce the upcoming modifications in their coverage. This letter explained that the company had chosen Blue Cross to replace Aetna as its carrier and assured the retirees that "[w]e have attempted to duplicate your benefits as closely as possible." If this representation was accurate, then there should be no reason for a court to find that the changes violated the plaintiffs rights under the Shutdown Agreement. Examining the summary of modifications appended to Fieldbinder's affidavit, we might be inclined to agree with Twin Disc that these changes were not so significant as to infringe upon the retirees' vested rights. The plaintiffs, however, insist that the changes were severe, and we cannot so easily dismiss their appeal from the court's grant of summary judgment against them. We therefore believe that the proper course is to remand for a finding as to the precise nature of the modifications that were implemented in 1993. The plaintiffs will bear the burden of demonstrating that the changes brought their benefits below a level reasonably commensurate with the coverage that they had enjoyed theretofore. This may involve a more detailed inquiry, not only into the nature of the changes implemented in 1993, but also into the coverage put in place by the 1983 Insurance Agreement. We caution that it will not suffice for the plaintiffs to demonstrate that the changes have increased payments for some retired employees. The changes should be examined for their effect on the class of retirees as a whole, to determine if they have significantly reduced their general level of benefits. In addition, individual modifications should not be scrutinized in isolation. In other words, the changes must be examined in their totality for their effect upon the class of retirees as a group. We recognize that the interpretation we have laid out today is itself not devoid of vagueness. We nonetheless have confidence in the district court's ability to direct the proceedings below in conformity with our understanding of the Shutdown Agreement. It is also possible that our holding will provide the basis for a new understanding between the parties, one that accommodates both the retirees' understandable concern for the security of their welfare benefits and Twin Disc's legitimate interest in controlling costs whose escalation may have been unforeseen in 1986. Regardless, it is not the business of the courts "to relieve contract parties of their improvident commitments." Bidlack, 993 F.2d at 609. *fn6 The judgment of the district court is VACATED, and the case is REMANDED for further proceedings consistent with this opinion.

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Search Supreme Court Cheat Sheet Day 3: Scalia Unplugged By Liz Halloran Activists gather in front of the U.S. Supreme Court on Wednesday as the court hears a third day of arguments on President Obama's health care law. Kevin Dietsch / UPI /Landov There are no cameras allowed in arguments at the U.S. Supreme Court, but Justice Antonin Scalia was captured on film when he testified before the Senate Judiciary Committee on Oct. 5, 2011. Roger L. Wollenberg / UPI/Landov Originally published on March 28, 2012 3:43 pm On the final morning of its three-day health care law extravaganza, the U.S. Supreme Court wrestled with the question of whether parts of the 2010 federal statute can survive if the justices strike down its central tenet: the individual insurance requirement. In other words, if the nine justices find the insurance mandate unconstitutional when they rule by June, would that mean that the entire law also fails the constitutionality test? Wednesday's morning arguments were as spirited — and divided along ideological lines — as they were during Tuesday's session on the individual mandate. The Cast: Arguing in favor of having the court strike down the entire law was Paul Clement, the former solicitor general, who also argued Tuesday's case against the individual mandate. Edwin Kneedler, the deputy solicitor general, argued in favor of preserving parts of the law, as did H. Bartow Farr III, a veteran Supreme Court advocate. And, as they did Tuesday, members of the court's conservative majority, — and Justice Antonin Scalia in particular — appeared supremely reluctant to allow the law, if gutted of the insurance mandate, to stand. Scalia lived up to his reputation for being one of the court's most voluble and humorous members. He tore into the government's arguments with relish, and joined his conservative colleagues in fretting openly about how a surviving law would affect insurance companies' bottom line. Scalia even mused about the politics of the U.S. Senate. His comments, at times biting, at times drawing laughter from the packed chamber, provide perhaps the best window into the arguments — and what the court's conservative majority might be thinking. Here, then, are our top five Scalia moments from Wednesday morning's arguments: Supreme Torture: On Kneedler's suggestion that justices pick parts of the bill that could survive, Scalia invoked the Eighth Amendment — the one prohibiting cruel and unusual punishment. Scalia: Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages? (Laughter.) And do you really expect the court to do that? Or do you expect us to give this function to our law clerks? Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one? Speaking His Language: Scalia challenged Farr's argument that when Congress said the insurance mandate was "essential" to the law, it meant "useful." Scalia: Is there any dictionary that gives that definition of "essential"? It's very imaginative. Just give me one dictionary. Farr: Well, but I think my point, Justice Scalia, is that they are not using it in the true dictionary sense. Scalia: How do we know that? When people speak, I assume they are speaking English. Deep Pockets: Scalia grew sarcastic about the math involved when Farr asserted that federal subsidies embedded in the health care law could help people afford premiums even without an individual mandate that would drive more people into the insurance market. Scalia: And there is nothing about federal support that is unsustainable, right? That is infinite. Political Realities: Scalia delved into the politics of Congress repealing the health care law if it survives without the individual insurance requirement. Scalia: You can't repeal the rest of the act because you're not going to get 60 votes in the Senate to repeal the rest. It's not a matter of enacting a new act. So you're just put to the choice of I guess bankrupting insurance companies and the whole system comes tumbling down, or else enacting a federal subsidy program to the insurance companies, which is what the insurance companies would like, I'm sure. Heart Of The Matter: Scalia wasn't shy about sharing his thoughts on whether parts of the law can survive without the mandate. Scalia: If you take the heart out of the statute, the statute's gone. That enables Congress do what it wants in the usual fashion. And it doesn't inject us into the process of saying, "This is good, this is bad, this is good, this is bad." Update 4:34 p.m. Wednesday afternoon's arguments on Medicaid also yielded musings from Scalia about whether the government was making states "an offer you can't refuse" and whether "your life or your wife's" was a good example. "I could refuse that one," Scalia noted. Chief Justice John Roberts did not sound amused.Copyright 2013 NPR. To see more, visit http://www.npr.org/. TweetShareGoogle+Email © 2017 KCUR

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2017-04/0403/en_head.json.gz/12754

The Library of Congress > Law Library > Research & Reports > Legal Reports >Legislation on Use of Water in Agriculture: Comparative Summary Law Library of Congress Logo Law Library Home About the Law Library Find Legal Resources Educational & Research Opportunities Visiting the Law Library In Custodia Legis Official blog from the Law Library of Congress Find the Law Library on: Facebook (external link) Twitter (Law Library) (external link) Twitter (Congress.gov)(external link) YouTube (external link) iTunes U (external link) Legislation on Use of Water in Agriculture: Comparative Summary Guide to Law Online | Legal Research Guides | Legal Reports | Guides to Our Collections Back to Legislation on Use of Water in Agriculture Scope of Project Water Ownership Water System Administrators Intercountry Disputes Concerning the Use of Water I. Scope of Project This report summarizes legislation concerning the agricultural use of water in nineteen countries in Latin America, the Middle East, and Central Asia.[1] The individual country surveys provide a brief summary of the laws that govern the agricultural use of water, the government authorities in charge of the administration of water for agriculture, requirements for licenses to use water for this purpose, and relevant guidelines on conservation and quality. In addition, some of the surveys provide information on intercountry disputes over the use of water. Back to Top II. Water Ownership In most of the surveyed countries, water is considered national property. The Water Law of Afghanistan provides that water is owned by the public and the government is responsible for its management and protection. The Constitutions of the republics of Kyrgyzstan, Tajikistan, and Uzbekistan provide that water resources are the inalienable and exclusive property of the state. In Saudi Arabia, sources of water are generally considered public property. Nicaragua’s Civil Code establishes that lakes, rivers, ponds, canals, and freshwater streams are public, and that anyone is allowed to use them within the restrictions imposed by law. According to Iran’s law, all water bodies are public property. Israeli law provides that water sources are controlled by the state and publicly owned. Although most of the surveyed countries’ laws provide for the public ownership of water resources, the following jurisdictions allow individuals to appropriate water: The Turkish Civil Code indicates that waters may be classified as either public waters, which are available for public service and utilization under the government’s direction and possession, or private waters, which are available for personal ownership as private property. Chile’s water is in the public domain under the Water Code, but users may enjoy proprietary rights over it and allocate it for different purposes, including agriculture. In Argentina, the Civil Code provides that practically all water is under public domain, but landowners have exclusive rights over water that rises and ceases in the same property, or rain water that remains in the land where it falls. Conversely, Venezuela’s Water Law of 2007 establishes that waters are public property and may not be appropriated by any individual or entity but water rights can be assigned for specific purposes. Back to Top III. Water System Administrators The surveyed countries generally have one government authority that serves as the main point of contact for the administration of their water systems, although some countries have a number of authorities involved. The following table provides country-by-country details: WATER SYSTEM ADMINISTRATOR(S) Ministry of Agriculture, Irrigation and Livestock in collaboration with other government agencies National Irrigation Secretariat (SENIR) within the Ministry of National Integration manages system for irrigated agriculture General Water Directorate Ministry of Water Resources and Irrigation Ministry of Energy issues permits for agricultural and industrial uses of water Ministry of Agriculture distributes water among farmers and collects water fees Minister of Agriculture determines amount of water allowed for agricultural purposes Governmental Authority on Water issues licenses specifying allowed amount Kyrgyzstan, Tajikistan, & Uzbekistan Responsibilities divided between various national ministries and departments, and local governing bodies Nongovernmental Water User Associations delegated with some authority Lebanon, Iraq, Saudi Arabia, & Yemen Varied government authorities: Ministry of Energy and Water plus four other public establishments manage water in Lebanon Ministry of Water Resources handles water drilling issues in Iraq Public Authority of Agricultural Development National Water Commission (CONAGUA) with the assistance of regional offices, irrigation districts, and other entities Nicaragua National Water Authority (ANA) General Directorate of State Hydraulic Works within the Ministry of Forestry and Water Affairs National Water Authority (ANA) as well as other national, state, and local agencies IV. Licensing and Permits A. Types of Licenses In a number of surveyed countries water is used under licenses issued by water system administrators. Often, the types of licenses issued depend on the intended use of the water. For example, Afghanistan issues licenses for commercial and industrial purposes. In Brazil, certain irrigation projects require the issuance of an environmental license. Libya’s law limits the use of water to drinking, agriculture, and industrial activities. Nicaragua’s Water Authority grants, extends, suspends, and terminates concessions and licenses for using water. Venezuela’s government grants water concessions and assignments for different purposes, including hydroelectric generation and industrial, commercial, and agricultural activities. B. Licenses for Drilling Some country surveys indicate that drilling wells to access water requires government authorization. Afghanistan issues licenses for “digging and installation of shallow and deep wells for commercial, agricultural, industrial and urban water supply purposes.” Libya prohibits drilling wells without authorization from the Public Authority of Agricultural Development. Lebanon, Yemen, Saudi Arabia, and Iraq require that owners obtain permits for drilling wells. C. Special Requirements for Licenses Some of the surveyed countries have special requirements that applicants for water licenses must meet. For example, Argentina’s water laws require applicants for water permits to provide certain information, such as “the extensions of land for irrigation, how many properties are involved or affected, the volume of water to be used, the manner in which water would be delivered [and] works needed to capture water.” In Chile, applicants must demonstrate the absence of legal impediments for granting the concession, provide technical evidence indicating that there are enough water resources at the natural source, and show that the concession does not overlap with other concessionaires. In Israel, water use and production require licensing, compliance with efficiency requirements, and the maintenance of water equipment. Back to Top V. Intercountry Disputes Concerning the Use of Water Eight country surveys provide information on intercountry disputes over transboundary water resources. A. Disputes over Dams Due to Risk of Reduced Water Supply Some of the disputes revolve around dam projects that arguably may cause a risk of a reduced water supply for certain countries. For example, Afghanistan has disputes over water with Pakistan and Iran, who argue that Afghan dam projects on transboundary rivers will seriously affect their water supplies. Reportedly, many Iranians anticipate that Afghanistan’s Khamal Khan Dam project on the Helmand River will severely reduce the volume of water that flows into Iran’s Sistan Balochistan Province. Egypt has a dispute with Ethiopia over the construction of the Renaissance Dam, which the latter is currently building. Egypt claims that this dam will put at risk its water supply by reducing the volume of water flowing into Lake Nasr. Reportedly, a governor from Mali has accused Libyan authorities of building a project on Malian territory aimed at diverting a large amount of water from the Niger River to increase farmland areas. Turkey has had an ambitious plan to construct dams and hydroelectric power plants since 1975, and has been accused by other countries that share the Tigris-Euphrates Basin (including western Iran) of hoarding water. B. Dispute over Water as Part of Broader Negotiations In Israel, a dispute over transboundary water resources is ongoing in a broader context, instead of being a dispute focused only on that issue. Indeed, the distribution and control of water is one of the contested issues between Israel and the Palestinians, and it is subject to the parties’ negotiations on a peace agreement. Much of the water supply in the region flows from a shared aquifer located beneath the West Bank and Israel. The parties disagree on the distribution and control of water, appropriate consumption levels, the development of new water sources, and the treatment of sewage. C. Solutions Pursued by International Water Commissions In some of the surveyed countries, disputes over transboundary water resources are reportedly being addressed by international commissions formed by the parties involved. For example, the International Boundary and Water Commission (IBWC) is a binational entity that comprises a Mexican section and a United States section tasked with the distribution of the waters of the Colorado River and the Rio Grande between both countries. According to the US section of the IBWC, Mexico currently is not setting aside the water allocation that must be delivered every year to the United States, per applicable treaties. It has been reported, however, that the Mexican government is developing regulations that would require setting aside water to meet its obligations to the United States. Furthermore, reports indicate that after the Soviet Union collapsed, conflicts arose between upstream Central Asian countries (such as Kyrgyzstan and Tajikistan) and downstream countries (such as Uzbekistan) over the control and use of common water resources. In an effort to forestall further potential conflicts over water, these countries negotiated several agreements, one of which lead to the establishment of the Interstate Commission for Water Coordination (ICWC). The ICWC is comprised of water officials from all Central Asian countries, who frequently meet to discuss water quotas and allocations, and to resolve disputes. In 2009, Turkey reached an agreement with Iraq and Syria to establish joint water monitoring stations and water education programs in connection with the Tigris and Euphrates rivers. Back to Top Prepared by Gustavo Guerra Senior Foreign Legal Specialist [1] The countries covered are Afghanistan, Argentina, Brazil, Chile, Egypt, Iran, Israel, Kyrgyzstan, Tajikistan, Uzbekistan, Lebanon, Iraq, Saudi Arabia, Yemen, Libya, Mexico, Nicaragua, Turkey, and Venezuela.

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2017-04/0403/en_head.json.gz/12840

251 F. 2d 860 - United Wholesalers v. A J Armstrong Co HomeFederal Reporter, Second Series 251 F.2d. 251 F2d 860 United Wholesalers v. A J Armstrong Co 251 F.2d 860 UNITED WHOLESALERS, Inc., a body corporate, and Michael A. Lombardi, Appellants,v.A. J. ARMSTRONG CO., Inc., a body corporate, Appellee. Argued November 11, 1957. Morton H. Perry, Baltimore, Md. (David A. Rosenberg, Baltimore, Md., on brief), for appellants. Joseph T. Brennan, 2d, Baltimore, Md. (Hilary W. Gans, Baltimore, Md., on brief), for appellee. Before PARKER, Chief Judge, and SOPER and HAYNSWORTH, Circuit Judges. SOPER, Circuit Judge. This suit to recover $10,000 for breach of contract was brought by A. J. Armstrong Company, Inc., a New York corporation, against United Wholesalers, Inc., a Maryland corporation, and Michael A. Lombardi, its president and owner. By written contract dated May 10, 1954, United Wholesalers agreed to assign to Armstrong all of the accounts receivable arising out of its sales of merchandise for the net face amount thereof less a factoring charge of one per cent. United Wholesalers also agreed that the minimum factoring service charge which Armstrong would earn in any one contract year would amount to at least $10,000.00, and further agreed to be responsible for any deficiency. Armstrong on its part agreed to purchase the accounts receivable provided the sale and the terms thereof were approved by it in writing and the merchandise was delivered and accepted by the customer without dispute. Lombardi on his part, in consideration of Armstrong entering into the agreement, guaranteed the performance of the contract by United Wholesalers. In June, by separate agreement, the beginning date of the contract was postponed to July 1, 1954. No steps in the performance of the contract were thereafter taken by either party so far as the evidence shows. No accounts receivable were ever acquired by United Wholesalers, hence none were assigned to Armstrong and no money was advanced. In August 1955, after the expiration of one year from the beginning of the contract period, Armstrong called upon the defendants to pay it the sum of $10,000.00, and payment having been refused the present suit was instituted. Lombardi was in the business of selling sewing machines, electrical appliances and furniture at retail in Baltimore city through the Home Sewing Machine Company, a corporation which he owned. In January 1954, he organized United Wholesalers for the purpose of selling sewing machines and electrical appliances at wholesale to retail dealers, expecting to get the franchise to represent the manufacturers in certain areas. He anticipated that he would do a large business for which he would need substantial funds and on this account entered into the contract with Armstrong. He failed, however, to make any arrangement with the manufacturers and consequently was unable to go into the business of selling their products. For this reason he obtained no accounts receivable from the retail dealers and none were assigned or sold to Armstrong. During the contract year beginning July 1, 1954, there were no communications between the parties to the contract and Armstrong rendered no services under the contract. From time to time during the year, however, the failure of United Wholesalers to offer any accounts for assignment was a subject of discussion amongst officials of the Armstrong Company. The case was submitted to the jury by a charge of the district judge, wherein he emphasized the importance to the business community of recognizing the binding force of contracts in the precise form in which they are written in the absence of fraud or mutual mistake. He pointed out that the finance company had to hold itself in readiness during the whole year to put up as much as $1,000,000.00, but that there was no certainty that United Wholesalers would do a business of that extent, and hence it might be fairly inferred that Armstrong was unwilling to enter into a contract without an assurance on the part of United Wholesalers that such an amount of business would actually be done. Accordingly the judge instructed the jury that the plaintiff was entitled to recover the sum of $10,000 unless they believed certain testimony of Lombardi that the writing, although signed by him in two places, was never intended by the parties to be a binding contract. This qualification of the instruction was due to testimony on the part of Lombardi that the parties agreed that the contract would not become effective until it was signed not only by him but by his wife. The name of the wife was typewritten beneath that of her husband at the end of the agreement of guarantee, but she did not sign the paper. Lombardi's testimony, however, was denied by witness for the plaintiff and the issue was fairly submitted to the jury in the charge of the court and need not be further considered since the jury found a verdict for the plaintiff. The remaining contentions of the defendants are (1) that the contract was invalid because it lacked mutuality and therefore the judge should have directed a verdict in the defendants' favor; (2) that the judge should have submitted to the jury the question whether the contract had been rescinded by mutual abandonment; and (3) that the provisions in the body of the contract in respect to earnings by Armstrong in the minimum sum of $10,000 in one year is invalid because it amounts to the imposition of a penalty and therefore recovery should be limited to the actual damages suffered by the plaintiff. It is first asserted that the contract lacked mutuality because Armstrong was not bound to advance any money under the contract since it reserved the right to reject any account receivable offered by United Wholesalers, and, therefore, Armstrong could have arbitrarily refused to purchase any account whatsoever. This contention, however, cannot be sustained, since the contract does not confer upon Armstrong the absolute option to refuse to accept any assignment at will. An arbitrary or unreasonable refusal on its part would have constituted a breach of its contractual obligation. The validity of contracts which require performance by one party to the satisfaction of the other is well established because there is always the implied obligation upon the party to be satisfied that the privilege be exercised in fairness and good faith. See Williston on Contracts, § 44, p. 129; Restatement of Contracts, §§ 29 and 32. The question of abandonment is more serious. At the trial the defendants prayed the court to instruct the jury that if they should find that the agreement was mutually rescinded by the conduct of the parties, then the verdict should be for the defendants; but this instruction was refused and the jury were told that their verdict should be for the plaintiff unless they should find that the parties agreed to abandon the contract. We do not think that this instruction gave the defendants all that they were entitled to. The complete failure of both parties, so far as the evidence discloses, to take any step to carry out the contract or even to communicate with one another at any time during the year are circumstances of much significance. Lombardi failed to offer any account receivable to the finance company during the entire year and the latter made no inquiry as to this inaction, although the matter was discussed in its home office. Furthermore, so far as the evidence discloses, Armstrong did not find it necessary to take any steps to make preparation to furnish the funds. In Vincent v. Palmer, 179 Md. 365, 372, 19 A.2d 183, it was said that sometimes even circumstances of a negative character such as the failure of both parties to take any steps looking toward performance may amount to a manifestation of mutual assent to rescind. See also Talbert v. Seek, 210 Md. 34, 44, 122 A.2d 469; Dowling-Martin Grocery Co. v. J. C. Lysle Milling Co., 203 Ala. 49, 83 So. 486; 6 Williston on Contracts, § 1826; Restatement of Contracts, § 40(b). There was sufficient evidence to justify the submission of this issue to the jury. If at the trial of the case upon remand the jury finds that the circumstances do not justify the inference that the contract was rescinded, it will become necessary to instruct the jury as to the measure of damages. Plaintiff contends that in such event it would be entitled to a verdict in its favor in the sum of $10,000 notwithstanding the fact that it rendered no service whatsoever under the terms of the contract. The argument is based on the provisions of the agreement and of the guaranty wherein the defendants agreed that Armstrong would earn a minimum service charge of $10,000 annually, and further agreed to be responsible for any deficiency. We do not think, however, that it follows as a matter of course that the plaintiff is entitled to the specified sum of $10,000 merely by showing that the defendants have broken the contract. It can hardly have been the intent of the parties that United Wholesalers would pay Armstrong $10,000 at the end of the year even if no accounts receivable whatsoever were assigned or financed. It is more reasonable to conclude that the purpose was to assure Armstrong that its minimum commissions and net earnings would be the same as if it had purchased $1 million worth of accounts receivable during the year. But in this view the damages suffered by Armstrong in case of a breach would not be the amount of the deficiency of the commissions but the amount of the deficiency in the net earnings. It is true that in cases where prospective damages for a breach of contract are wholly uncertain and impossible of ascertainment, the parties may stipulate in the contract a reasonable sum to be paid as liquidated damages in case of breach; but that situation is not shown in the existing case. There is nothing in the evidence to indicate that when the contract was executed the amount of the profits to be expected from the business could not have been estimated. There is indeed no evidence in the case as to what Armstrong would be compelled to do or what costs it would incur in the course of performance of its part of the contract. In the absence of such evidence, we cannot regard the sum of $10,000 as a reasonable measure of the damages that would necessarily flow from a breach of the contract by the defendant. The jury should be instructed upon the retrial of the case that if they find for the plaintiff, the amount of the verdict should be the difference between $10,000 and what it would have cost Armstrong to service accounts receivable to the amount of $1,000,000.00.

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Geert Wilders Will Face Trial on Charges of Inciting Racial Hatred October 14, 2016 sheikyermami 1 Comment How do you ‘incite racial hatred’ against something that isn’t even a ‘race’? REUTERS — Anti-Islam politician Geert Wilders can be tried on charges of inciting racial hatred, a court in The Hague ruled on Friday, setting the stage for a politically charged test of freedom of speech laws in the Netherlands. Judge Hendrik Steenhuis dismissed Wilders’ lawyers arguments that he was being singled out, saying prosecutors have broad leeway in determining when they think someone has crossed the line from offensive speech to discriminatory speech. Wilders is accused of discrimination and inciting racism for remarks in 2014, televised live, in which he led a roomful of followers in chanting that they wanted “fewer” Moroccans in the Netherlands. Steenhuis set the start date for the three-week trial on Oct. 31, meaning a verdict would be likely in December – well ahead of national elections in March. Wilders’ far-right Freedom Party is neck-and-neck with Prime Minister Mark Rutte’s ruling conservative VVD Party in popularity polls. Wilders response to the ruling was that he was being “prosecuted for what millions (of Dutch people) think.” Via Twitter he also indicated he thinks the process against him is politically motivated. In 2011, he was acquitted of inciting racial hatred charges for calling for the Koran to be banned and for the deportation of “criminal” Moroccans. Judges said that his remarks, while offensive to some, were within the bounds of legitimate political discourse. Many observers felt the trial helped increase his popularity as he was able to showcase himself as a champion of free speech. Previous Post“No change is possible to the shari’a till the Day of Judgement”Next PostEgypt: Muslim holy man calls for genocide: “800 million Buddhists should convert to Islam or die, this is the law of Mohammed” One thought on “Geert Wilders Will Face Trial on Charges of Inciting Racial Hatred” Uncle Vladdi says: October 15, 2016 at 9:35 pm WHEN he’s in charge there, he should JAIL THOSE “JUDGES!”

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2017-04/0403/en_head.json.gz/12915

Singapore is different things to different people. Ladies and Gentlemen,Reading the numerous reports of the state controlled paper The Straits Times, the last one being "Singapore's new home grown legal team" dated April 16, 2008, praising the new Tamil Law Minister K Shanmugam sky high, for all his achievements both true and made up, I am prompted to write this.Singapore is different things to different people. If you are a Singaporean, born and bred in Singapore, educated; a self respecting proud human being; living in Singapore is a pain. A pain because you are, as Lee Kuan Yew correctly put it many years ago when describing Singaporeans, a "digit". To be precise, Lee Kuan Yew's "digit". To live a life according to his terms, not yours. In a country where everything is in Lee's hands; the judiciary, Parliament, Constitution, the extent of your rights, provided you have any; where you live to work at the pleasure of Lee Kuan Yew. In other words a slavish poodle like existence. That is why many educated and discerning people emigrate, never to return. Living in Singapore for them has become intolerable. They no longer are willing to live as "digits".Then there are Singaporeans born and bred in Singapore, highly educated, patriotic; wanting to change Singapore into a better place than what it is. A better place for them and their descendants. These are the brave admirable men and women who suffer great hardships and yet persist in their work to bring democracy to Singapore. Men and women such as Dr. Chee Soon Juan, repeatedly jailed and bankrupted because of his demand for democracy in his country.Others such as Gandhi Ambalam, Yap Keng Ho, Chee Siok Chin, John Tan, Seelan Palay and countless others who have sacrificed a great deal and willing to sacrifice even more for what they believe in, which is freedom. These men and women hate living under tyranny too. But the difference in their case being, they are ready to stay behind and fight for change despite all odds. Great respected men and women. One cannot help but to admire their persistence, courage and tenacity. Admirable indeed.Then there are the expatriates. British, Australians or Germans, whatever. To them Singapore is just a place to make money, either for themselves or for their European multi national companies. It makes no difference to them if they were in Kigali, Belgian Congo, or Singapore. It is all the same. They are not interested in local politics, since it does not concern them. Whether there is democracy, whether there is none; whether they cane people or they do not; whether they hang 20 year old boys for petty drug offenses or they don't; whether they jail innocent street protesters or they don't; none of this bothers them. After all it is not their country.For these European expatriates, Singapore is one of the best places in the world. Many willing Singapore women to be had, a low crime rate, good pay, hot humid weather permitting flimsy clothing especially for women, unlimited alcohol and a friendly people. What more can a European man want; or for that matter any man. Singapore for them is a paradise.Then there are the disgraceful ones like the new Minister for Law K Shanmugam. Like a prostitute who has just undressed ready to be ravished by her paying customer, K Shanmugam is seen with all smiles in the state controlled newspaper, jubilant that the is now the new Minister. He has also prepared himself, just as the prostitute who has stripped and waiting to be ravished; prepared himself to spend an entire career in the service of his master Lee Kuan Yew. Prepared to contort himself into obscene legal positions to please his master; to say that detention without trial is good, even if he thinks it is not; the Dr. Chee Soo Juan is a liar and a cheat after all, even if he thinks he is not; that no permits should be given to the opposition to say or do anything, even if he thinks they should; that freedom of assembly and speech does not exist, even if he thinks it does. All said to please his master Lee Kuan Yew, because his master wants them said.In other words, K Shanmugam, the new Tamil Indian Law Minister stands now, ready and willing to spend an entire career prostituting himself for the pleasure of his master Lee Kuan Yew; just as the woman who had taken her clothes off waiting to be ravaged. And in fact, this man K Shanmugam is even more disgraced than the prostitute waiting for her client to ravish her. She may do it for once and stop. In his case, he is prepared to be abused the remainder of his working life! A shameless unconditional undertaking to Lee Kuan Yew to say or do anything he wants, regardless of how obscenely unconscionable or disgusting the demand may be!In this class of the disgraced people, we can add all the judges in Singapore whose job it is to distort the law for the political ends of Lee; the civil servants who favor the ruling party as against the opposition, the police who carry out the orders of arrest and intimidation against Lee's opponents, and all other manner of people who benefit through nepotism and connections with the establishment. They are all prostitutes who shamelessly sell their conscience for the right price. The sort that K Shanmugam is.To borrow a phrase form David Marshall, the first Chief Minister of Singapore, these "poor prostitutes", the shameless type of the new Tamil Minister for Law, K Shanmugam, like the expatriates, also love Singapore. To prostitute himself for the rest of his working life for the pleasure of Lee Kuan Yew, this Tamil is paid several million dollars a year.Gopalan Nair39737 Paseo Padre Parkway, Suite A1Fremont, CA 94538, USATel: 510 657 6107Fax: 510 657 6914Email: [email protected]: http://singaporedissident.blogspot.com/Your letters are welcome. Please Email your letters to [email protected] if you like what I write, please tell your friends. You will be helping democracy by distributing this widely. This blog not only gives information, it dispels government propaganda put out by this dictatorial regime. Letter from Jonathan, April 30, 2008 Singapore. Children growing in blinkers If Lee Kuan Yew is determined to publicise the abs... Singapore. Burmese hold protest without permits wh... The Refusal of Singapore Police to return cell pho... Letter from Joe Seck, April 26, 2008 In Singapore, democracy has to take root from bott... Letter from Singaporean Paul De Silva, April 24, 2... The Singapore Parliament is a white elephant New Law Minister needs to manage aspirations of lo... Your letters, Sunday April 20, 2008 Singapore. A plan for success Letter from 15 year old Ernest Chen, Saturday 19th... Jayakumar's misplaced praise for Singapore ISD Totalitarian countries such as China and Singapore... Singapore is different things to different people.... You must be lacking self confidence, self respect,... Strike while the iron is hot. For the sake of your children, Singaporeans have t... Young men and women escape from the clutches of Le... Intimidation of peaceful protestors by Singapore P... Singapore. All big things came from small beginnin... Is this Singapore's Chief Justice Chan's confessio... Letter from Daniel Lim, 6th April 2008 In Singapore, in addition to the search for escape...

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Реферат: Congress of the United States Название: Congress of the United States Congress of the United States the legislature of the United States of America, established under the Constitution of 1789 and separated structurally from the executive and judicial branches of government. It consists of two houses, the Senate (q.v.), in which each state, regardless of its size, is represented by two senators, and the House of Representatives (see Representatives, House of), to which members are elected on the basis of population. Among the express powers of Congress as defined in the Constitution are the power to lay and collect taxes, borrow money on the credit of the United States, regulate commerce, coin money, declare war, raise and support armies, and make all laws necessary for the execution of its powers. Although the two chambers of Congress are separate, for the most part, they have an equal role in the enactment of legislation, and there are several aspects of the business of Congress that the Senate and the House of Representatives share and that require common action. Congress must assemble at least once a year and must agree on the date for convening and adjourning. The date for convening was set in the Constitution as the first Monday in December; however, in the Twentieth Amendment to the Constitution the date was changed to January 3. The date for adjournment is voted on by the House and the Senate. Congress must also convene in a joint session to count the electoral votes for the president and vice-president. Although not required by the Constitution, joint sessions are also held when the president or some visiting dignitary addresses both houses. Of common interest to both houses of Congress are also such matters as government printing, general accounting, and the congressional budget. Congress has established individual agencies to serve these specific interests. Other agencies, which are held directly responsible to Congress, include the Copyright Royalty Tribunal, the Botanic Garden, and the Library of Congress. The term of Congress extends from each odd-numbered year to the next odd-numbered year. For its annual sessions, Congress developed the committee system to facilitate its consideration of the various items of business that arise. Each house of Congress has a number of standing (permanent) committees and select (special and temporary) committees. Together the two chambers of Congress form joint committees to consider subjects of common interest. Moreover, because no act of Congress is valid unless both houses approve an identical document, conference committees are formed to adjust disputed versions of legislation. At the beginning of a session, the president delivers a State of the Union address, which describes in broad terms the legislative program that the president would like Congress to consider. Later, the president submits an annual budget message and the report on the economy prepared by the president's Council of Economic Advisors. Inasmuch as congressional committees require a period of time for preparing legislation before it is presented for general consideration, the legislative output of Congress may be rather small in the early weeks of a session. Legislation not enacted at the end of a session retains its status in the following session of the same two-year Congress. In terms of legislation, the president may be considered a functioning part of the congressional process. The president is expected to keep Congress informed of the need for new legislation, and government departments and agencies are required to send Congress periodic reports of their activities. The president also submits certain types of treaties and nominations for the approval of the Senate. One of the most important legislative functions of the president, however, is that of signing or vetoing proposed legislation. The president's veto may be overridden by a two-thirds vote of each chamber of Congress; nevertheless, the influence of the president's potential power may extend to the procedures of Congress. The possibility that a bill may be vetoed gives the president some influence in determining what legislation Congress will consider initially and what amendments will be acceptable. In addition to these legal and constitutional powers, the president has influence as the leader of a political party; party policy both in Congress and among the electorate may be molded by the president. Although the U.S. Supreme Court has no direct relations with Congress, the Supreme Court's implied power to invalidate legislation that violates the constitution is an even stronger restriction on the powers of Congress than the presidential veto. Supreme Court and federal court decisions on the constitutionality of legislation outline the constitutional framework within which Congress can act. Congress is also affected by representative interest groups, though they are not part of the formal structure of Congress. Lobbyists play a significant role in testifying before congressional hearings and in mobilizing opinion on select issues. Many of the activities of Congress are not directly concerned with enacting laws, but the ability of Congress to enact law is often the sanction that makes its other actions effective. The general legal theory under which Congress operates is that legal authority is delegated to the president or executive departments and agencies and that the latter, in turn, are legally responsible for their actions. Congress may review any actions performed by a delegated authority; and in some areas of delegated legislation, such as in proposals for governmental reorganization, Congress must indicate approval of specific plans before they go into effect. Congress may also retain the right to terminate legislation by joint action of both houses. Congress exercises general legal control over the employment of government personnel. Political control may also be exercised, particularly through the Senate's power to advise and consent to nominations. Neither the Senate nor the House of Representatives has any direct constitutional power to nominate or otherwise select executive or judicial personnel (although in the unusual event that the electoral college fails to select a president and vice-president, the two houses, respectively, are expected to do so). Furthermore, Congress does not customarily remove officials. Congress, however, does have the power of impeachment. In such proceedings the impeachment is made by the House of Representatives, and the case is tried before the Senate--a vote of two-thirds of the senators present is required for conviction. The power to levy and collect taxes and to appropriate funds allows Congress considerable authority in fiscal matters. Although the president has the initial responsibility for determining the proposed level of appropriations, once estimates for the next fiscal year are submitted to Congress, a single budget bill is not enacted, but rather a number of appropriation bills for various departments and agencies are passed during the first six or seven months of a session. In its nonlegislative capacity, Congress also has the power to initiate amendments to the Constitution, and it must determine whether the states should vote on a proposed amendment by state legislatures or by special state conventions. Finally, Congress has the right to investigate any subject that affects its powers. Congressional investigating committees may call witnesses and require them to produce information. These committees may also be given the power that persons who deliberately block the legislative process may be charged with contempt of Congress and may be issued warrants for their arrests. Powers of Congress Congress has no general legislative power such as is enjoyed by the British Parliament, and to a lesser degree by the legislatures of the American states; it has only such functions and authority as are expressly conferred on it by the Constitution or are implied in the Constitution. Many of the express powers are defined in Article I, Section 8. Among these are the power “to lay and collect taxes,” “borrow money on the credit of the United States,” “regulate commerce with foreign nations and among the several States,” “coin money,” “establish post offices,” “declare war,” “raise and support armies,” and “make all laws” necessary for the execution of its own powers and “all other powers vested by this Constitution in the government of the United States.” This section also empowers Congress to administer the District of Columbia, which contains the seat of the federal government. Other express powers are conferred on Congress in other articles of the Constitution. Among the implied powers of Congress is the right to establish legislative machinery to give effect to its express powers. In most respects the two houses of Congress have an equal role in the enactment of legislation, but a number of functions are reserved by the Constitution to each house. The confirmation of presidential appointments, by a simple majority of those voting, and the consent to treaties, by a two-thirds majority of those voting, is reserved to the Senate. The Senate also has “the sole power to try all impeachments,” which, however, may be initiated only by the House of Representatives. Only the House may initiate revenue bills. Important limitations on the powers vested in Congress are defined in Article I, Section 9, and in the first ten amendments to the Constitution, known as the Bill of Rights. These limitations are primarily in the form of general prohibitions against the abridgment or destruction of fundamental rights. Apart from these limitations and a number of others found or implied in parts of other articles of the Constitution, two general and important restrictions are placed on the powers of Congress: the presidential veto and the invalidation of legislation as unconstitutional by the U.S. Supreme Court. The veto power of the president is defined in Article I, Section 7. Every bill passed by Congress must be submitted to the president, who, according to the Constitution, has ten days in which to sign or veto the bill. If vetoed by the president, a bill cannot become law unless passed a second time and by a two-thirds majority of those voting in each house. If the president fails to act within ten days, the bill becomes law without the presidential signature, if Congress is in session. If Congress has adjourned in the interim, the bill lapses, and failure of the president to sign it is known as a pocket veto. A stronger restriction than the presidential veto on the power of Congress is the power of the Supreme Court to invalidate legislation that violates the Constitution. Although not specifically vested with this power, the Supreme Court, in the case of Marbury v. Madison in 1803, held for the first time that its right to invalidate legislation as unconstitutional was implied in the Constitution. With occasional exceptions, the power thus assumed by the Supreme Court has been honored ever since that time. The power of judicial review has, however, been used sparingly against Congress. When the Supreme Court invalidates federal laws, Congress may redraft them, eliminating the provisions found objectionable by the Court. Or it may initiate an amendment to the Constitution, establishing its right to enact legislation of the type desired. In this way a Supreme Court decision, holding that a tax on income derived from property had to be apportioned among the states, led to the enactment of the 16th Amendment (1913), giving Congress the power to levy “taxes on incomes, from whatever source derived, without apportionment among the several States … ” It is also within the power of Congress to initiate a constitutional amendment depriving the Supreme Court of its power to invalidate legislation. Although an amendment of this type has been suggested as a means of increasing the power of Congress, none has been adopted. Political Parties and Congress Although not contemplated by the Founding Fathers and not provided for in the Constitution, political parties are important in the functioning of Congress. Party programs, policies, and interests influence the votes of members of Congress. All committees in both houses are composed of members of the majority and minority parties in proportion to their strength. Members of the majority party chair the committees. A majority and a minority leader in each house are chosen by caucuses of their respective fellow party members. As political leaders they are not, in that capacity, officers of Congress, but are influential in scheduling and shaping legislation and in determining the attitude of Congress toward the executive branch of the government. The Constitution leaves to the states the right to fix “the times, places and manner of holding elections for Senators and Representatives.” Each house, however, is the judge of the qualifications and fitness of its members and may punish and expel them for cause. Members of Congress cannot be sued for utterances made in Congress, and, while attending congressional sessions, senators and representatives also enjoy immunity from arrest, except in cases involving “treason, felony and breach of the peace.” Their remuneration is fixed by their respective house. Members of Congress are provided with offices and secretarial and clerical assistance; those who serve for six years or more are eligible to retire on annuity at the age of 62. Congressional Sessions The term of a Congress extends from each odd-numbered year to the next odd-numbered year; the 1st Congress convened in 1789. The 20th Amendment, in effect since 1933, provides for an annual meeting of Congress, called a session, commencing on January 3, unless Congress itself designates another date. By terms of the Legislative Reorganization Act of 1946 (Public Law 601), Congress must adjourn its annual meeting sine die by July 31 at the latest, except in time of war or other national emergency, when the meeting may be extended by the Congress itself. When Congress is not in session, the president is empowered by the Constitution, on “extraordinary occasions,” to call special sessions of Congress or of either house. Thus, at least two, and sometimes more, sessions are held in each Congress. The houses of Congress meet separately in the Capitol, Washington, D.C., but convene in joint session to receive important communications from the president or, occasionally, to listen to an address by a visiting foreign dignitary. Most sessions of Congress are open to the public and are reported by the press, television, and radio; the occasional executive sessions of the Senate are not. Except for material deemed secret because of its crucial importance to the national welfare, the proceedings of Congress are published in the Congressional Record. Once in session, neither house may adjourn for more than three days, or to another place, without the consent of the other house. A disagreement between the two houses over the date of adjournment may be resolved by the president, who is empowered by Article II, Section 3, of the Constitution to “adjourn them to such time as he shall think proper.” No president has ever exercised this power. Each house makes its own rules of procedure, but the Constitution stipulates that a majority in each house constitutes a quorum. If fewer members than a majority are in attendance, they may compel the attendance of a sufficient number, present in the Capitol but not in the chamber, to form a quorum. The Committee System Both houses facilitate business by a committee system, and each has a fixed number of permanent committees, called standing committees, the chief function of which is considering and preparing legislation. Each house may create an indeterminate number of impermanent committees, known as select committees, for investigations of profiteering in war contracts, of election frauds, and of subversive activities. These select committees, which expire when their purposes are fulfilled, are created on the theory that their investigations are useful in framing legislation. Since 1800, Congress has found it expedient to establish a number of joint standing committees. Temporary joint committees are also established occasionally by Congress. A notable one was the Joint Congressional Committee on Labor-Management Relations, created by the Labor-Management Relations (Taft-Hartley) Act of 1947, to observe the operation of that law and to make a final report on it to Congress on January 2, 1949. Differences between the two houses of Congress over legislation, usually in the form of amendments made by one house to bills initiated by the other, are generally reconciled in conference committees consisting of managers appointed by the presiding officers of the two houses. If no agreement is reached by the conference committees, the legislation in dispute fails. Senate one of the two houses of the legislature of the United States, established in 1789 under the Constitution. Each state elects two senators for six-year terms, the terms of about one-third of the Senate membership expiring every two years. The role of the Senate was conceived by the Founding Fathers as a check on the popularly elected House of Representatives. Thus each state, regardless of size or population, is equally represented. Further, until the Seventeenth Amendment of the Constitution (1913), election to the Senate was indirect, by the state legislatures. They are now elected directly by voters of each state. The Senate shares with the House of Representatives responsibility for all lawmaking within the United States. For an act of Congress to be valid, both houses must approve an identical document. The Senate is given important powers under the "advice and consent" provisions (Article II, section 2) of the Constitution: ratification of treaties requires a two-thirds majority of all senators present and a simple majority for approval of important public appointments, such as those of Cabinet members, ambassadors, and judges of the Supreme Court. The Senate also adjudicates impeachment proceedings initiated in the House of Representatives, a two-thirds majority being necessary for conviction. As in the House of Representatives, political parties and the committee system dominate procedure and organization. Each party elects a leader, generally a senator of considerable influence in his own right, to coordinate Senate activities. The Senate leaders also play an important role in appointing members of their party to the Senate committees, which consider and process legislation and exercise general control over government agencies and departments. Sixteen standing committees are grouped mainly around major policy areas, each having staffs, budgets, and various subcommittees. Among important standing committees are those on appropriations, finance, government operations, and foreign relations. At "mark-up" sessions, which may be open or closed, the final language for a law is considered. Select and special committees are also created to make studies or to conduct investigations and report to the Senate--for example, the Select Committee on Ethics and the Special Committee on Aging. The smaller membership of the Senate permits more extended debate than is common in the House of Representatives. To check a filibuster--endless debate obstructing legislative action--three-fifths of the membership must vote for cloture; if the legislation under debate would change the Senate's standing rules, cloture may be invoked only on a vote of two-thirds of those present. There is a less-elaborate structure of party control in the Senate; the position taken by influential senators may be more significant than the position (if any) taken by the party. The constitutional provisions regarding qualifications for membership of the Senate specify a minimum age of 30, citizenship of the United States for nine years, and residence in the state from which elected. Representatives, House of, one of the two houses of the U.S. Congress, established in 1789 by the Constitution. The first Congress had 59 members in the House; membership reached 435 in 1912. Two additional representatives were added after the admission of Alaska and Hawaii as states in 1959, but at the next reapportionment membership returned to 435, the number authorized by a law enacted in 1941. The allocation of seats is based on population within the states; membership is reapportioned every 10 years, following the decennial census. House members are elected every two years from one-member districts of approximately equal population created for this purpose. The House of Representatives shares with the Senate equal responsibility for lawmaking within the United States. As conceived by the Founding Fathers, the House was to represent the popular will, and its members were to be directly elected by the people, rather than indirectly, as originally provided for the Senate. The Constitution vests certain exclusive powers in the House of Representatives, among the most important of which are the right to initiate impeachment proceedings and the right to originate revenue bills. The organization and character of the House of Representatives have evolved under the influence of political parties, which provide a means of controlling proceedings and mobilizing the necessary majorities. Party leaders, such as the speaker and the majority and minority leaders, came to play a central role in the operations of the House. Party discipline is not always strong, however, in a body whose members stand for reelection every two years and who tend to look toward their districts rather than to parties for support. A further dominating element of House organization is the committee system, under which the membership is broken up into smaller groups for such purposes as selecting agenda, preparing bills for the consideration of the whole House, and regulating House procedure. Each committee is controlled by the majority party. Almost all bills are first referred to a committee; the House ordinarily cannot act on a bill until the committee has "reported" it for floor action. There are more than 20 standing committees, organized mainly around major policy areas, each one having staffs, budgets, and subcommittees. They may hold hearings on questions of public interest, propose legislation that has not been formally introduced as a bill or resolution, and conduct investigations. Among important standing committees are those on appropriations, on ways and means, and on rules. Select and special committees are also appointed, usually for a specific project and for a limited period. The committees also play an important role in the control exercised by Congress over governmental agencies. Departmental heads and other responsible officials are frequently summoned before the committees to explain policy. The Constitution (Article I, section 6) prohibits members of Congress from holding offices in the executive branch of government--a chief distinction between parliamentary and congressional forms of government. One important result of population changes in the United States in the decade 1970-80 was the gain under reapportionment of 17 congressional seats in states of the South and West; states of the Northeast lost 9 and those of the North Central region 8. For the first time in the 20th century, the majority in the House of Representatives was not based in the traditional North. The constitutional provisions regarding eligibility for membership of the House of Representatives specify a minimum age of 25, U.S. citizenship for at least seven years, and residence within the state from which a member is elected. The U.S. Library of Congress in Washington, D.C., is probably the largest national library, and its collection of modern books is particularly extensive. It was founded in 1800 but lost many books by fire during a bombardment of the Capitol by British troops in 1814. These losses were to some extent made good by the purchase of Thomas Jefferson's library shortly thereafter. The library remained a strictly congressional library for many years, but, as the collections were notably enlarged by purchases and by additions under the copyright acts, the library became and remained--in effect, although not in law--the national library of the United States. The public has access to many of the collections. Final court of appeal and final expositor of the U.S. Constitution. Within the framework of litigation, the Supreme Court marks the boundaries of authority between state and nation, state and state, and government and citizen. The court was instituted by the Constitution of 1787 as the head of a federal court system with the authority to act in cases arising under the Constitution, laws, or treaties of the United States; in controversies to which the United States is a party; in controversies between states or between citizens of different states; in cases of admiralty and maritime jurisdiction; and in cases affecting ambassadors, other public ministers, and consuls. The size of the court is set by Congress; it varied during the 19th century from 6 to 10 members before stabilizing in 1869 at 9. Appointments to the Supreme Court and to the lower federal courts are made by the president with the advice and consent of the Senate. Tenure is during good behaviour, subject to expulsion by conviction on impeachment. Only one justice has been impeached, Samuel Chase, who was acquitted in 1805. In 1969 one, Abe Fortas, was forced to resign, however, because of his outside financial dealings. In maintaining the constitutional order, the Supreme Court from an early date has exercised the power of declaring acts of Congress or of the state legislatures unconstitutional. Such power of judicial review, however, is not expressly conferred by the Constitution (see judicial review). Executive, administrative, and judicial actions are also subject to review by the Supreme Court. Relatively few cases are brought in the original jurisdiction of the court. The great bulk of the court's business comes to it in its appellate jurisdiction. Depending on the nature of the decision in the state or lower federal court, the route to the Supreme Court is by appeal or certiorari. The difference between the two is that an appeal obliges the court to review the case, whereas a review under certiorari is discretionary. The development of this bifurcated jurisdiction reflects a response by Congress to a long struggle by the court to cope with the volume of cases annually docketed. In 1891 a measure of relief was afforded by the Circuit Court of Appeals Act, which set up intermediate courts with final authority over appeals from federal district courts, save in cases of exceptional public importance. The Judge's Act (Feb. 13, 1925), sponsored by the court itself, carried the reforms further and greatly limited the obligatory jurisdiction, giving the court a large measure of control over its business by placing most classes of cases under certiorari. Any assessment of the unifying forces in U.S. society must ascribe an important role to the Supreme Court. The chief technical instrument employed by the court has been the commerce clause of the Constitution, applied to nullify state laws of taxation or regulation that discriminate against or unduly burden interstate commerce; the clause has also been used to uphold the power of Congress to regulate vast sectors of the economy. While the commerce clause has been the chief doctrinal source of power over the economy, the due process and equal protection clauses have been the principal sources of protection of persons and corporations against arbitrary or repressive acts of government. These clauses were used at first to protect property rights, but by the 20th century they began to be applied to the area of civil liberties, particularly in the extension of Bill of Rights guarantees to state actions. By the mid-20th century the equal protection clause of the Fourteenth Amendment, which had been designed for the benefit of emancipated blacks, began to serve its historic purpose as a barrier to racially discriminatory laws. The opinions of the court have often been the epitome of reasoned elaboration. In conjunction with its long tradition of dissent, it serves to clarify, refine, and test the philosophic ideals written into the Constitution and translate them into working principles for a federal union under law. Beyond its specific contributions, this symbolic and pragmatic function may be regarded as the most significant role of the court in the life of the nation. Acheson, Patricia C. Our Federal Government: How It Works. Dodd, 4th ed., 1984. Burns, James MacGregor and others. Government by the People. Prentice, 13th ed., 1987. Prewitt, Kenneth and Verba, Sidney. An Introduction to American Government. Harper, 5th ed., 1986. Prewitt, Kenneth and Verba, Sidney. USA Government. Harper, 6th ed., 1989. Работы, похожие на Реферат: Congress of the United States

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Health care in court: Obama leading 3-1, but it ain’t over 'til it’s over Save for later A federal appeals court panel in Washinton, D.C., upholds the constitutionality of Obama's health-care reforms, the third to do so. The Supreme Court is scheduled to consider on Thursday whether to take up one or more challenges to the law. By Warren Richey, Staff writer Sen. Jim DeMint, R-SC (c.) joins other conservatives lawmakers to criticize President Obama's national health care plan, Oct. 5, 2011. Obama's plan is leading 3-to-1 in a federal appeals court. J. Scott Applewhite/AP/File View Caption About video ads of Washington — The score in the legal battle over President Obama’s health-care reform law is now 3 to 1.In constitutional challenges to the law before federal courts of appeal, three courts have upheld it, and one has not.The latest ruling affirming the constitutionality of the Affordable Care Act (ACA) was issued Tuesday by a federal appeals court panel in Washington. The decision, authored by Senior Judge Laurence Silberman, dismissed an appeal filed on behalf of four citizens who claimed the ACA’s individual mandate exceeded Congress’s authority under the commerce clause. The centerpiece of the reform law requires that all Americans purchase a government-approved level of health insurance or pay a penalty.Those challenging the law have attacked that provision as an unprecedented expansion of federal power that exceeds constitutional limits.Judge Silberman disagreed. “The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems,” he wrote in a 37-page decision joined by Senior Judge Harry Edwards.The third member of the appeals court panel, Judge Brett Kavanaugh, issued a dissent, saying he believed the appeals court lacked jurisdiction to hear the case and should not have addressed the merits of the arguments.The decision was issued two days before the US Supreme Court is scheduled to consider whether to take up one or more cases testing the constitutionality of the ACA.To date, federal appeals courts in Cincinnati, Richmond, Va., and now Washington, D.C., have upheld the health-care reform law. A federal appeals court in Atlanta declared the mandate unconstitutional.If the Supreme Court agrees to take up the issue, oral arguments would likely be set for next spring with a decision issued by the end of June.Supporters of the health-care reform law praised Silberman’s decision, noting that he is considered a conservative jurist. Some analysts suggested that his opinion might provide a template for conservative justices seeking to uphold the ACA.Other analysts said that as an appeals court judge, Silberman was aware that his opinion would not be the last word on the issue. Most legal analysts believe the high court will agree to hear at least one ACA case and address the constitutionality of the individual mandate. Analysts are in sharp disagreement, however, about how the justices might ultimately resolve that issue. In his decision, Silberman, an appointee of President Ronald Reagan, embraced an expansive view of Congress’s authority under the commerce clause and rejected the argument offered by opponents of the law that Congress’s legislative reach only applies to those who are actively involved in commerce. “No Supreme Court case has ever held or implied that Congress’s commerce clause authority is limited to individuals who are presently engaging in activity involving, or substantially effecting, interstate commerce,” he wrote.Opponents of the law maintain that the commerce power should be limited to regulate only those who are engaged in an economic activity and not those who decline to participate in the health-care market. The mandate has been compared to forcing Americans to buy and eat broccoli regardless of whether they want to buy and eat it.Critics of the law say it creates an unchecked federal power and that the Obama administration, in its legal arguments on behalf of the reforms, has yet to identify a meaningful restriction on that power.“We acknowledge some discomfort with the government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service,” Silberman said. “But to tell the truth, those limits are not apparent to us.” The appeals court judge also wrote: “That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power surely explains why Congress has not used this authority before – but that seems to us a political judgment rather than a recognition of constitutional limitations.”Stephanie Cutter, an adviser to President Obama, praised Silberman’s decision in a blog post on Tuesday. “The ruling is yet another victory for the millions of Americans who are already benefiting from the law,” she wrote.“Those who claim that the ‘individual responsibility’ provision exceeds Congress’ power to regulate interstate commerce are simply wrong,” she said.“People who make a decision to forego health insurance do not opt out of the health care market,” she said. “Their action is not felt by themselves alone. Instead, when they become ill or injured and cannot pay their bills, their costs are shifted to others.”She said $43 billion in uninsured health-care costs were shifted in 2008 to doctors, hospitals, policy-holders, taxpayers, and small businesses. Piece by piece, will Obama's health-care reform law be dismantled? US Supreme Court opens, likely to wade into health care debate Obamacare's mandate: Why it's closer to a Supreme Court ruling Health-care reform law set back, setting stage for Supreme Court showdown

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Wrongful Death, Defamation Lawsuits Filed in Natalee Holloway Case; Dr. Phil Named As Defendant Print Two lawsuits have been filed in the case of a college student who vanished in Aruba nearly two years ago, FOX News has learned. A wrongful death lawsuit has been filed against brothers Deepak and Satish Kalpoe, two of the young men last seen with Natalee Holloway, the Alabama teenager who disappeared in Aruba in May 2005. The suit of Beth Twitty and Dave Holloway was filed in Los Angeles Superior Court as a related case to a defamation lawsuit the Kalpoe brothers filed Wednesday against pop psychologist and talk show host Dr. Phil, CBS and Paramount, among others. "All we want is justice for our daughter," Twitty said in a press release issued about the civil case. "There is no doubt in my mind that Deepak and Satish played a role in my daughter's death and should be held accountable. It's unconscionable that they have not been punished so far." Allegations against the Kalpoes, who are residents of the Caribbean island where the 18-year-old Holloway was traveling on a class trip when she vanished without a trace, say the brothers caused her death by "intentionally, negligently, wantonly ... unlawfully conducting themselves," bringing about injuries that proved fatal. The Kalpoes' suit against Dr. Phil, whose real name is Phillip C. McGraw, maintains that an interview filmed with the brothers "was manipulated and later broadcast by the 'Dr. Phil' show as being accurate and which portrays Deepak Kalpoe and Satish Kalpoe 'as engaging in criminal activity against Natalee Holloway and constitutes defamation per se.'" Holloway was last seen alive with the Kalpoes and a Dutch teen, Joran van der Sloot, in a gray Honda early on the morning of May 30, 2005. The brothers and van der Sloot have all been arrested in connection with her murder — the Kalpoes on two different occasions — and later released, but none have been brought to trial. Holloway's body has never been found and the highly publicized case — which drew swarms of reporters to Aruba for months during the summer of 2005 — has never been solved, despite numerous leads and extensive searches of various corners of the island. FOX News' Catherine Donaldson-Evans and Greta Van Susteren contributed to this report. Advertisement

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The Interstion of Faith, Culture & Politics Tuesday The Justice Department's bank settlement slush fund By George Will Published Sept. 1, 2016 Because truth-in-labeling laws are among the laws from which Washington feels exempt, the titles of congressional legislation often take liberties with the facts (e.g., the Patient Protection and Affordable Care Act). The Stop Settlement Slush Funds Act, however, precisely names the ailment for which it is the remedy. The Justice Department has negotiated "bank settlement agreements" whereby banks make restitution to the government for the damage they allegedly did in connection with the creation and sale of residential mortgage-backed securities in the subprime mortgage crisis. Our subject here is not, however, whether the sums extracted from the banks (e.g., Citigroup $7 billion, Bank of America $16.65 billion, JPMorgan $13 billion) are proportionate to their alleged culpabilities. Rather, our subject is what Justice does with millions of these dollars. Justice allows banks to meet some of their settlement obligations by directing "donations" to various nongovernmental advocacy organizations that serve Democratic constituencies and objectives -- organizations that were neither parties to the case nor victims of the banks' behaviors. These donations are from money owed to the government, money that otherwise would go to the Treasury, money the disposition of which is properly Congress's responsibility. So the donations are, in effect, appropriations of public money. The pesky Constitution, however, says: "No money shall be drawn from the Treasury, but in consequence of appropriations made by law." As a congressman allied with Grover Cleveland once said to a fellow legislator who considered one of his initiatives unconstitutional, "What's the Constitution between friends?" Progressives, who favor expansive notions of executive discretion, and hence the marginalization of Congress, regard the "donations" as just another anodyne manifestation of inherent presidential discretion in enforcing laws. At a May congressional hearing, three constitutional scholars -- Georgetown University law professor Nicholas Quinn Rosenkranz, the Heritage Foundation's Paul Larkin, and C. Boyden Gray, White House counsel to George H.W. Bush -- disagreed. Because everything government does costs money, the appropriation power, Rosenkranz testified, is Congress's "most potent check on executive overreach" -- "the ultimate backstop" against "a willful president." If presidents could disburse money without an appropriation, "the careful constitutional separation of powers would be thrown into disequilibrium." The current president relies on disbursements that circumvent the appropriations clause: The U.S. District Court for the District of Columbia has held that his administration has, in supposedly enforcing the ACA, illegally disbursed billions of dollars to insurance companies without a congressional appropriation. "Congress," Larkin reminded Congress, "does not give the president a credit card or a cashbox that he can use to purchase goods and services or disburse appropriations as he sees fit. Congress identifies precisely who may receive federal funds." With the "donations," Justice rewards congenial groups without any direction from Congress or judicial oversight. Although it is, Larkin said, "a federal offense for a government officer to spend money in excess of the sum that Congress has appropriated," he noted that the donations represent executive lawlessness known at the state level: When Chris Christie headed the U.S. Attorney's Office for the District of New Jersey, he "negotiated a nonprosecution agreement with Bristol-Myers Squibb in which the company agreed, among other things, to make a $5 million gift to Seton Hall University's law school -- Christie's alma mater -- in order to avoid prosecution for securities fraud." Woodrow Wilson, a former New Jersey governor and the Democrats' first progressive president, was the first president to criticize the American founding. He was particularly hostile to the separation of powers, which he considered an anachronistic impediment to executive efficiency. The bank settlement donations are another step nullifying the appropriations clause's 16 words, which buttress the separation of powers. "In the end," Gray testified, "every other constitutional power runs into the appropriations power." This is why presidents have "consistently endeavored to seize the appropriations power from Congress." The Constitution was just 20 years old when, in 1809, Congress felt the need to enact "legislation designed to prevent the president from repurposing appropriated funds from one object to another." Subsequent presidents have obligated funds in excess of appropriations, thereby forcing Congress to choose between appropriating the funds or impairing the country's credit. Congress often has been complicit in its own diminution, as when it empowered the Consumer Financial Protection Bureau to commandeer funding from the Federal Reserve System. Base motives of self-aggrandizement have impelled many presidents to disregard the separation of powers. Progressive presidents do this as a matter of principle, which is worse.

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American Needle settlement to end nine-year litigation Patterson Belknap Webb & Tyler LLP On February 16, American Needle Inc. reached an agreement in principle with the National Football League to settle its claims. A settlement between the parties would mark the end of an antitrust litigation that has been pending since 2004. From the 1960s through the late 1990s, the NFL’s intellectual property association—the National Football League Properties (“NFLP”)—had granted non-exclusive licenses to apparel vendors, including American Needle. American Needle brought suit after the NFLP gave Reebok an exclusive license to manufacture trademarked headwear for all 32 NFL teams in 2000. The NFL suffered several setbacks during the course of the litigation. Most notably, in 2010, the Supreme Court reversed the grant of summary judgment to the NFL, finding that the NFL was not operating as a single entity with respect to its intellectual property rights for purposes of Section 1. Based on that ruling, the Supreme Court held that the NFL’s licensing activities were not categorically beyond the coverage of Section 1. Several months after the Supreme Court’s decision, the NFL announced that New Era would be its new provider of on-field headwear while ’47 Brand would supply headwear for fans. When can we expect a final settlement? The District Court for the Northern District of Illinois seems to expect one in the near future. The Court scheduled a March 17 status conference to take place only in the event that the parties do not file a stipulation of dismissal before that time. Because the settlement terms have not been announced, it remains to be seen whether American Needle’s extended effort to upset the NFL’s antitrust position will net it tangible business gains. Patterson Belknap Webb & Tyler LLP - Stephanie Gyetvan and Robert P. LoBue Filed under Federal District Court finds brand-name manufacturer’s alleged regulatory delay tactics a valid theory of attempted monopolization * Commercial Division Disqualifies Attorney Acting in a Dual Role Pursuant to Advocate-Witness Rule * Closing the Courtroom? Second Circuit Reluctantly Approves, Reminds Lower Courts to Create a Clear Record * Biosimilars in Europe: 2016 Year in Review and What’s Ahead * Supreme Court Grants Cert in Amgen v. Sandoz

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Constitutional Council invalidates new tax offence On December 29 2014 the Constitutional Council issued a decision relating to several provisions of the Finance Bill 2015 which a group of members of the Senate and the National Assembly had argued did not comply with the Constitution (October 4 1958). The Constitutional Council found all provisions submitted to its review to be constitutional, except for Article 79, which created a new offence of facilitating tax evasion and fraud. Article 1729(b) of the General Tax Code provides that a taxpayer is liable for inaccuracies or omissions in a tax return or other document that contains information used to determine taxable amounts or tax payments. In such cases the taxpayer is subject to an additional tax at a rate of 80% if there is an abuse of right, or a rate of 40% if the taxpayer did not initiate the abuse of right or was not its principal beneficiary. Article 79 of the Finance Bill sought to insert a new provision into the General Tax Code in relation to Article 1729(b). The proposed new Article 1740C read as follows: "Any person who, with the intention of having someone evade taxes, intervened, helped or assisted or knowingly engaged in conduct, tactics or concealment leading directly to insufficiencies, inaccuracies, omissions or concealments which have led to reminder notices or tax increases with the tax surcharge set out in Article 1729 b), are liable to pay a fine amounting to 5% of turnover or of gross revenue achieved as a result of the facts punished in this article. The fine may not be lower than €10,000." The senators who petitioned the Constitutional Council regarding Article 79 of the Finance Bill did not challenge the underlying goal to penalise and potentially deter third parties that assist with tax evasion and tax fraud practices. Rather, they argued that Article 79 violated the constitutional right to an effective judicial remedy because: the offence related to facts involving an abuse of right, yet Article 79 did not allow the person concerned to challenge the existence of an abuse of right; and a third party could be punished pursuant to the new provision without any penalties having been imposed on the principal taxpayer for abuse of right. The Constitutional Council agreed that Article 79 did not comply with the Constitution, but did not base its decision on the same rationale. It held that Article 79 did not comply with the constitutional principle that criminal offences and penalties must be defined by law and must be defined sufficiently clearly and precisely. The Constitutional Council established two violations: The new provision did not clearly identify what constituted in rem the de facto punishable conduct. Assuming that assistance was established, it remained difficult to determine whether: a third party commited the offence simply because a tax surcharge was applied against the taxpayer for abuse of right pursuant to Article 1729(b); or commission of the offence implied the burden of proving an abuse of right which the third party could challenge. Further ambiguity was found in the definition of the penalty. The phrasing "a fine amounting to 5% of turnover or of gross revenue achieved as a result of the facts punished in" Article 1729(b) did not indicate clearly whether the relevant turnover or gross revenue was that achieved by the third party or that achieved by the principal taxpayer with the assistance of the third party. According to the Constitutional Council, such vague wording created uncertainty in terms of interpretation as to the actual offence and the related penalties. As such, Article 79 violated a fundamental constitutional principle. Consequently, the government removed the invalidated provision from the Finance Bill, which was signed into law on December 29 2014 and came into force on January 1 2015. For further information on this topic please contact Philippe Blaquier-Cirelli or Sârra-Tilila Bounfour at DLA Piper by telephone (+33 01 40 15 24 84), fax (+33 01 40 15 24 03) or email ([email protected] or [email protected]). The DLA Piper website can be accessed at www.dlapiper.com. United Kingdom budget Constitutional Council (France) A demand for parental leave by telefax does not meet the statutory condition of being in writing * Food and Beverage News and Trends 11 January 2017 * Top 3 privacy predictions for 2017 * Top 5 Internet of Things predictions for 2017 * Retail 2017 - a challenging road ahead?

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Former Jefferson Bank employee sentenced for embezzlement and tax fraud A former employee of Jefferson Bank was sentenced in federal court Thursday for embezzling more than $540,000 from the bank and another former employer as well as for tax fraud. Kelley Lee Steiner, 52, Jefferson City, was sentenced by U.S. Chief District Judge Fernando Gaitan to one year and one day in federal prison without parole. The court also ordered Steiner to pay $664,495 in restitution. Steiner, who pleaded guilty on Feb. 27, 2012, was employed by Jefferson Bank as vice president and secretary to the board of directors from June 14, 1999 to Nov. 12, 2008. Steiner served as personal executive assistant to former bank president Harold Westhues. By pleading guilty, Steiner admitted that she embezzled a total of $487,199 from both the bank and from Westhues' personal checking account. Steiner also admitted that she embezzled $54,000 while employed at Modern Business Systems. By failing to report the embezzled funds as income on her federal tax returns from 2005 to 2008, Steiner caused tax harm to the United States in the amount of $143,623. Steiner had been given authority to write checks on Westhues' personal account and sign his name to those checks in order to pay his personal expenses. During an audit of Westhues' personal checking account, the bank discovered that Steiner had, without authority, diverted funds totaling approximately $378,000 for her personal benefit, which included writing checks to herself and paying her personal credit card bills and her children's college expenses. Steiner also prepared paperwork for the bank to reimburse Westhues for work-related expenses incurred by him which were typically charged to his credit card. Investigation determined that Steiner had diverted approximately $19,070 in valid reimbursement funds from Westhues, and used them to pay on her personal credit cards. Steiner also submitted false documentation to the bank for work-related expenses purportedly incurred by Westhues, which were then reimbursed by the bank, including the re-submission of valid credit card statements which had already been previously reimbursed by the bank. It was discovered that an additional $29,947 had been diverted by Steiner to pay on her personal credit card accounts. Steiner was responsible for paying the board of directors for participating in board meetings, audit meetings, and other special bank meetings. Board members were paid $400 in cash for each meeting they attended. During a review of board fees paid by the bank in 2008, a bank officer identified approximately $60,400 in cash embezzled by Steiner that had purportedly been paid as board fees.

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No contest plea by Sebastopol man in fatal DUI crash THE PRESS DEMOCRAT | October 25, 2013 A Sebastopol man faces up to 15 years in prison after pleading no contest Friday to felony charges stemming from a crash that killed a 34-year-old passenger. Emile Carlitz Smith, also 34, was the driver in the Nov. 23, 2012 crash that killed Selena Ross of Santa Rosa. Smith was driving at a high rate of speed eastbound on Todd Road, west of Phillips Avenue, when his car went off the road and hit a tree, prosecutors said. 11-year sentence in crash that killed Santa Rosa woman Ross, who was riding in the front seat, took the full impact of the crash. She died of her injuries. Smith was initially uncooperative and denied knowing Ross, delaying the investigation, prosecutors said. Toxicology reports showed Smith had a large amount of methamphetamine in his system. He pleaded no contest to vehicular manslaughter with gross negligence while intoxicated and driving under the influence of drugs. His five prior prison commitments add an additional five years to the sentence he will receive on Feb. 5.

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Earl Russell: When the noble Baroness, Lady Turner of Camden, spoke on Second Reading, she said that the jobseeker's agreement was not an agreement. That is the hub of the whole argument. A claimant has to enter into a jobseeker's agreement on pain of losing benefit. If that was an abduction case, that would count as evidence of duress. The penalties of not entering into an agreement are so severe that it seems to me that the claimant will, in effect, have to enter into whatever agreement the employment officer demands. I am not happy about anyone being so completely under the power of another. I am certainly not happy about having conditions which are that fundamental to a person's survival being made that far down the line. I know that the Minister will say that the situation is subject to review by the adjudication officer, and I shall not go into details because we have done so before. However, what worries me is the imposition of unreasonable conditions. I shall give the Committee one example which has actually happened. If someone is homeless, it is part of proving that he is actively seeking work to prove that he is looking for accommodation. That is fair enough; indeed, I do not believe that anyone would argue with it. But what appears to those concerned to be proof that someone is seeking accommodation may vary. There was one case which happened in London this past winter. It involved someone who was homeless and who was ruled not to be looking for accommodation because he had a dog which he would not give up. Because that person would not abandon his dog he was deprived of all right to benefit. I find that absolutely outrageous. It is an exercise of arbitrary power, without 20 Apr 1995 : Column 615 any warrant, which one might successfully appeal against under the present law. But whether one could successfully do so under the new law is something that we simply cannot tell until we know what criteria the adjudication officer is to use. Moreover, as such criteria will be in the regulations, which are not before us, we cannot make a judgment. Here we have someone "drest in a little brief authority" who can sign away someone else's future. Alternatively, because many employment officers are not the type who like to be "drest in a little brief authority", we may have someone who was previously capable of enjoying an excellent relationship with claimants but whose relationship with them is completely ruined by the power that he now has to use. The noble Lord, Lord Acton, told me that his great-grandfather's actual words were: "Power tends to corrupt". It does not always do so, but the risk that it may is very great. The amount of power which is being given to the employment officer is such that I would not give to anyone on earth. I am happy to support the amendment. Lord Dean of Harptree: It seems to me that the jobseeker's agreement is an essential part of the Bill. I would very much regret to see it removed. I take the point just made by the noble Earl, Lord Russell, that the parties to the agreement may not be entirely equal. However, the fact is that there is an agreement. It is a positive matter which strikes me as being more effective than the present signing-on arrangement, which is often a rather negative procedure. At least in this concept there has to be an agreement between the Employment Service—and I assume its good will and intention to do everything it can to assist the unemployed person to find a job—and the person who is seeking employment. As I understand it, the agreement is a continuing one. It seems to me that it has the makings of a great improvement on the present rather negative signing-on arrangement. I hope that my noble friend the Minister will resist the amendment. Baroness Williams of Crosby: The point made by the noble Lord, Lord Dean of Harptree, is exactly the nub of the issue that we are now discussing. If the jobseeker's agreement is indeed a valid and voluntarily entered into agreement between an employment officer and a jobseeker, then, as the noble Lord suggested, it might be a very valuable and constructive way for people to go back into work. I believe that all of us on both sides of the Committee strongly approve of that aim. However, the problem is whether that is the kind of agreement that it will be or whether it will be the kind of agreement referred to by my noble friend Lord Russell—namely, a coercive one with the word "agreement" having Orwellian overtones and not meaning what it stands for. Quite sincerely, that is the point about which a number of us are probing the Minister. On 3rd April, when responding to questions on the issue, the noble Lord, Lord Inglewood, referred to the fact that jobseekers have different paths and different qualities. That was certainly music to many ears because 20 Apr 1995 : Column 616 it is right that jobseeker's agreements should match the individual capabilities, talents and experience of the jobseeker. However, those of us who have read the memorandum from the two departments carefully are more frightened now than we were before about what is constituted within that agreement. For example, it looks as if one of the questions that jobseekers may be asked to respond to is: "What is the lowest wage you will accept for a job?" If that is correct, it would remove the whole basis of a free market because there cannot be an open agreement reached when one side has already had to declare in advance the lowest possible reward that he will accept and the other side has not had to give any information whatever. The memorandum indicates that there will also be provision for just how long someone can insist upon trying to get a job in the area for which they are qualified and trained. We spend thousands of pounds of taxpayers' money on training young doctors, young architects, skilled craftsmen and the like and we are now saying that as little as seven days may be laid down in a jobseeker's agreement as the time within which he can seek jobs for which he is qualified and not be forced to become a dishwasher. A dishwashing job is an honourable job but whether we really want people who have been trained for many years to take such jobs is an open question and yet the jobseeker's agreement leaves that question entirely in the hands of an employment officer. However well disposed he or she may be, this puts a whiphand with the bureaucracy and it amazes me that any Conservative Government, of all governments, should so readily accept that. I find the jobseeker's agreement, if I may say so, the most ambiguous, the strangest and the most misleading of all the parts of this troubling Bill. I hope that Members of this Chamber will consider carefully before dismissing this amendment because we could reframe it in terms of a genuine agreement reached voluntarily by both sides. Such wording would certainly lay many of my fears to rest—like the wording used by the noble Lord, Lord Inglewood, at Second Reading—but certainly the memorandum does not bear out that interpretation and puts a much narrower and much more coercive slant on the whole concept of the jobseeker's agreement. Lord Mackay of Ardbrecknish: This amendment would remove one important part of the jobseeker's allowance proposal that we are bringing before the Committee. It would remove the requirement that jobseekers should draw up and agree a jobseeker's agreement in order to receive a jobseeker's allowance. The agreement is a central feature of JSA. It will ensure that all claimants understand from the outset the conditions of entitlement to JSA. This is not the case at present and too often people are unaware of or misunderstand what is expected of them. The agreement is also a vital step in helping each individual decide, with the Employment Service, the best way for him or her to look for work. Making the agreement a condition of benefit ensures that each jobseeker will get the individual attention that he deserves. 20 Apr 1995 : Column 617 The agreement will improve understanding of the labour market conditions of JSA by bringing them together in one place. It will be a record that the individual and the Employment Service can consult. I was not entirely sure whether the noble Lord, Lord McCarthy, was saying that if only I agreed to make this voluntary, he would be quite happy with that. Indeed I think he mentioned the current voluntary back-to-work-plan which the vast majority of jobseekers already complete, I presume because the vast majority see the benefit in doing so. I believe this amendment would deprive the jobseeker of an opportunity to focus on his best route back to work. This would damage the intention of the reforms, which is to maintain the individual's focus on the labour market. We will discuss more of the detail of this matter when we discuss Clause 7. At the risk of repeating what will be said later, I wish quickly to outline some matters in order to answer one or two of the points that were made by the noble Earl, Lord Russell, and the noble Baroness, Lady Williams. Each agreement will set out what the jobseeker has agreed to do to meet the availability for work and the actively seeking employment conditions of JSA which will be contained in regulations made under Clause 6 of the Bill. If the employment officer and the jobseeker cannot reach agreement—this perhaps answers the point made by the noble Earl—then regulations will provide that the proposed agreement can be referred at the instigation of either party to an independent adjudication officer. That officer will determine whether or not the proposed terms and conditions would allow the jobseeker to meet the availability and actively seeking employment conditions, and if it is reasonable to expect the jobseeker to have to comply with them. If the jobseeker is not content with the adjudication officer's determination, the intention is that the regulations will enable him to ask for his case to be reviewed by a second officer. If he is still dissatisfied, he can appeal to the social security appeals tribunal. Therefore I do not believe that it is quite as coercive a document as perhaps we were being frightened into believing. I believe this document and this agreement are an important part in helping people back to work, which is certainly what we in the Government are trying to do. We are trying to help people find ways back into employment. We believe this agreement does that. I hope that with my explanation the noble Lord, Lord McCarthy, will withdraw his amendment but if we wish to maintain the record of the Committee—we have had two Divisions on the two amendments we have discussed so far—and if we have a Division, I hope that my noble friends will support me.

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Brian Wilson: Bill Walker case leaves a sour taste Bill Walker MSP was found guilty of multiple counts of domestic abuse which spanned decades. Picture: Neil Hanna The prosecution of MSP has heaped further pressure on the role and independence of the Lord Advocate, writes Brian Wilson The case of Bill Walker, the MSP convicted of multiple wife-battering, raises disturbing issues on many levels. Indignant demands for him to be a decent chap and stand down from Holyrood answer none of them and miss the more important question of why that decision will be left entirely in his own hands.For the moment, forget that he is an MSP. It does seem remarkable that any man convicted in Scotland of 23 offences of violence against women can be deprived of his liberty for no more than 12 months with the reality, allowing for parole, to be more like six. How can this be? I am no advocate of long custodial sentences simply in the name of societal retribution. But there has to be some kind of tariff which communicates itself to potential offenders – and the messages sent out by this case and the way it has been treated by the Scottish legal system are truly lamentable. But then we get back to the fact that Walker is indeed an MSP, which is relevant because it cannot be detached from the way his case was dealt with. The Procurator Fiscal in Dunfermline, with complete access to the evidence, opted for prosecution under solemn procedure, which would have meant a jury trial and a maximum five years if convicted.But the final say did not lie with the fiscal. The case was sent upwards to the Lord Advocate and the decision was taken within the Crown Office to over-rule the local view on procedure to be followed. According to a statement issued to the media, including this newspaper, by the Crown Office: “After full and careful consideration of the facts and circumstances of the case... Crown Counsel instructed that it should be tried at summary level.”It would be interesting to know how many recent instances there have been of the Crown Office over-ruling the local PF in cases of this nature. Indeed, with goodwill, there should be no difficulty in bringing that statistic into the public domain. It would also be interesting to know if the number of cases being referred upwards is increasing, as part of Scotland’s general trend toward centralised control. M’learned friends tell me that the involvement of “a notable” would have led to the fiscal’s decision being reviewed at a very high level. To most people, I suspect, the system should work in exactly the opposite direction – the involvement of “a notable” should lead to decisions being taken at the furthest possible remove from the risk of politicisation, with or without a capital P.Whisper it, but this is what happens in England where there is a much clearer separation between the role of the Attorney General – a political figure who also has a duty to offer independent legal advice to his colleagues in government – and the Crown Prosecution Service. The Attorney General has the power to intervene in cases only where national security is at stake. And errant politicians do not threaten national security.In the Walker case, the consequences of the Crown Office’s decision have certainly been political, in both upper and lower case. The difference between summary and solemn translated into 12 months or five years – and also, quite possibly, into the difference between a by-election and no by-election for the good burghers of Dunfermline. A lot of people who believe that justice should both be done and be seen to be done would feel more comfortable if that decision, with its ramifications and consequential messages, had been taken as close to the scene of the alleged crimes as possible, rather than in Chambers Street, Edinburgh, by a department of the Scottish Government. It is not necessary – or indeed possible – to prove that there were political factors involved in the Crown Office decision in order to feel uneasy about the route by which it was arrived at. It is within a context of more and more decisions that were hitherto devolved throughout Scotland now being taken at levels and locations that are closer and closer to government. This is one that has gone badly wrong.The office of Lord Advocate does not need additional controversy, but decisions like this invite it. Historically, the role was occupied by established legal figures who had an association with the party of government. Yet, they were invariably able to challenge party politics and to defend the separation of powers which their office depended upon. The current Lord Advocate and his immediate forerunner were career civil servants within the prosecution service. This was advertised as an underpinning of independence from political bias or interference which had not, previously, been a conspicuous issue. While that sounds high-minded enough, it does not mean that the pressures do not exist or need to be resisted. Transparency remains an essential prerequisite for confidence. Whether he liked it or not, Frank Mulholland has been drawn into political controversy by the Scottish Government on some highly political issues, notably the revelation that “legal advice” on future European Union membership did not actually exist. Then there was the counter-productive and acutely political legislation on singing football supporters for which Mr Mulholland appears to be the sole surviving cheer-leader.Nobody doubts the difficulty of sustaining an independent, non-political role in the face of pressures which undoubtedly surround law officers and everyone else working for the Scottish Government. But it scarcely helps that cause when a case of such obvious sensitivity, which would have been much better left to the local fiscal’s judgment, is pulled in-house with such capricious consequences. The separation of powers is fundamental to any democratic system with the politicians, the civil service and the judiciary as its three corner-stones. In Scotland over the past few years, we have seen the rapid erosion of the first distinction with the civil service transformed into a wing of the political administration without let or hindrance from those who should be defending its independence and integrity.At the same time, there is the paradox that those of us who oppose independence believe that Scotland is big enough to embrace diversity of power centres and decision-making, while its advocates act on the basis of it being so small that every power must be drawn to the centre under their own control. Whoever is in office, the case needs to be argued that there are many decisions best taken at a distance from government, both geographically and politically. The alternative is not attractive.

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Nob Hill Association plans lawsuit against The City over Masonic Center live events S.F. Examiner File PhotoNob Hill Masonic Center By Andrea Koskey on April 5, 2012 12:00 am One neighborhood group that did not agree with allowing Live Nation to host 54 live shows annually at the Nob Hill Masonic Center plans to file legal action against the agreement approved by the Board of Supervisors this week. The agreement, approved under a special permit in January, dropped the number from 68 to 54. It also decreased live events without music from 219 to 176. There is no limit on the number of events attended by fewer than 250 people. But one neighborhood group said the decrease is not enough. Nob Hill Association members appealed the January permit, hoping to put the number of live events back to between 20 and 30 a year.↓ Continue Reading Below At Tuesday’s Board of Supervisors meeting, Live Nation reached an agreement with five of six neighborhood associations to allow the increase, but the Nob Hill Association and its 800 members declined to agree to the terms and as a result plan to file a lawsuit. David Harmer, vice president of the Nob Hill Association, said the group believes the special permit is subject to an environmental impact report. “Once again, The City has probably broken the law,” Harmer said. “Until an EIR is produced, the question is if the city of San Francisco has the authority to issue any kind of special-use permit at all.” Last year, a San Francisco judge ruled that Live Nation must complete an environmental review before any changes to the building can occur. A company spokeswoman has said a report that is in progress is for possible future renovations, not for increasing the number of live events. [email protected]

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Conman used ill-gotten gains on hot air balloon ride A conman who cheated a Tewkesbury customer out of £5,800 spent the money on treats for a dying nephew, a court was told. Stephen Hodgkins, 42, of Chedworth Drive, Warndon, Worcester, used the money to pay for two holidays and a hot air balloon ride for the nephew and his family, Gloucester Crown Court was told. Hodgkins was jailed for two years after he admitted defrauding Roger Woodward, of Tewkesbury, out of £4,500 on August 24 last year and £1,300 the following day. The court heard that Hodgkins was working as a self-employed agent for Severn Valley Home Improvements when he visited Mr Woodward, who wanted a new porch. He persuaded Mr Woodward to pay him cash up front for the porch, telling him that he would be keeping £800 for himself as commission. But he did not pass the order on to the firm and Mr Woodward would have lost his money if the company had not decided to honour the deal and carry out the work, said Giles Nelson, prosecuting. The court was told that Hodgkins had served jail sentences for previous convictions for dishonesty. Recorder Jonathan Fuller QC said: “I am told you spent the money on holidays for your family and for your nephew, who rather sadly died last December. “I do accept that your nephew did die and that you may well have handed over some money, but you did also have a gambling habit. “You must have realised you simply were not to be generous with Mr Woodward’s money. “Whatever you did with the money, Mr Woodward lost it through your fraud. “But it looks as if he won’t lose out in the end by what you did because Severn Valley are prepared to take the loss by doing the work. “That is only right since they failed to discover your record, which would have prevented them from employing you in the first place. “I hope that no one will employ you in future in a situation where you are tempted to go around making money dishonestly from householders.” Simon Emslie, defending, said: “It was the boy’s wish to go on a hot air balloon ride and the trip duly took place in Worcester. “His nephew, his parents and one of his siblings all went. “He also gave money to the family to pay for two holidays – one in Torquay and one in Weston-super-Mare. “He recognises, of course, that this does not excuse his behaviour.”

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Questions Arise Over Appointment of Pilot Flying J Committee Head May 6, 2013 By Evan Lockridge As lawsuits continue to mount against the truckstop chain Pilot Flying J, its board of directors has appointed a head of a special committee overseeing an internal investigation along with what it calls a special independent counsel – but questions are quickly being raised about one of the choices.Pilot Flying J announced it would make the appointments following allegations that the company did not pay the full rebates owed on fuel purchases to some companies, in a scheme that used manual calculations and allegedly targeted "unsophisticated" trucking companies.Brad Martin, retired chairman and CEO of Saks Inc., will serve as the head of a special committee of the board that will work with the independent counsel and receive his eventual report. No date for releasing the report has been announced. Martin is chairman of RBM Venture Company, a private investment firm. He serves on the board of directors of FedEx, First Horizon, Chesapeake Energy, and Dillard’s and will become the interim president of the University of Memphis on June 30.According to published reports, however, Martin has longstanding connections with Pilot Flying J CEO Jimmy Haslam's family that could compromise his objectivity. He is on the board of Pilot Flying J and is an adviser to a European firm that owns about one fifth of Pilot. Martin also sits on two separate corporate boards that have directors involved with Pilot, according to Cleveland.com.The website reports that in 1999, when Martin was head of Saks, the company hired Jimmy Haslam's brother, Bill, to start up online retail operations for Saks in New York. Two years later Bill Haslam got into politics, becoming the mayor of Knoxville in 2003, and in 2010 was elected governor of Tennessee. Bill Haslam is a member of the board of the University of Memphis, which last month appointed Martin as its interim president. Gov. Haslam has repeatedly said he has no involvement in the operations of Pilot Flying J, but still owns part of the company that he says is managed in a blind trust.Attorney Reid Weingarten of law firm Steptoe & Johnson has been named the independent counsel that the company says will “lead, oversee, and validate an internal investigation of recent federal allegations that Pilot Flying J underpaid rebates on diesel fuel purchases owed to some of its trucking company customers.”Weingarten works from Steptoe’s Washington, D.C., and New York offices and has represented individuals and corporations in some high-profile cases. Prior to joining Steptoe & Johnson, he served as a trial attorney for the Public Integrity Section of the U.S. Department of Justice and as a deputy district attorney for Dauphin County, Pennsylvania.In a company statement, Martin said, “We’re pleased to have someone with Mr. Weingarten’s background, credentials, and reputation take on this assignment. He is the perfect person to help us understand the facts and do the right thing during this difficult period.”The federal government made public its investigation into Pilot Flying J on April 15 when agents served a series of search warrants on the company’s Tennessee headquarters and elsewhere, from the FBI and IRS. So far no arrests have been made, but the company has placed some employees on administrative leave.At least three class action lawsuits have been filed against Pilot Flying J by trucking company customers.On April 21 the Pilot Flying J board voted to hire special counsel to "oversee and validate internal inquiries related to the investigation.”In announcing the decision by the board to hire special counsel, Jimmy Haslam, Pilot Flying J CEO and board member said on April 22, “Because there is a federal investigation now, we have to take extraordinary steps to do whatever is necessary to repair any damage done to this company’s reputation and restore the full integrity on which this company was built.”The federal affidavit used to secure the search warrants claims Haslam and other high-ranking company officials were involved in the alleged scheme. Haslam has denied any wrongdoing by himself or other company employees. Tags: Pilot Flying J, Truckstops Pilot Flying J Reviews 2016 Expansion Safety Council Head to Advise DOT on Automation Highway Angel Makes Special Delivery at Truck Stop Noregon Names VP of Sales, COO

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Will you read these words on this day? Discussion in 'Politics' started by Reasoning, Jul 4, 2010. IN CONGRESS, July 4, 1776. The unanimous Declaration of the thirteen united States of America, When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.--Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world. He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them. He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only. He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures. He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people. He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within. He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands. He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers. He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries. He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures. He has affected to render the Military independent of and superior to the Civil power. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: For Quartering large bodies of armed troops among us: For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States: For cutting off our Trade with all parts of the world: For imposing Taxes on us without our Consent: For depriving us in many cases, of the benefits of Trial by Jury: For transporting us beyond Seas to be tried for pretended offences For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies: For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments: For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever. He has abdicated Government here, by declaring us out of his Protection and waging War against us. He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people. He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation. He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people. Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends. We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor. The 56 signatures on the Declaration appear in the positions indicated: Button Gwinnett Lyman Hall George Walton North Carolina: South Carolina: Thomas Heyward, Jr. Thomas Lynch, Jr. Arthur Middleton Massachusetts: William Paca Charles Carroll of Carrollton Thomas Nelson, Jr. Francis Lightfoot Lee Carter Braxton Benjamin Rush George Clymer George Ross Delaware: Caesar Rodney William Floyd Philip Livingston Francis Lewis New Jersey: Francis Hopkinson John Hart New Hampshire: William Whipple Rhode Island: Connecticut: Matthew Thornton radical moonbat lefty's imho..... methinks they wrote it on hemp too Gawd knows how many they smoked before the final cut eh?..... ~S~ Reasoning said: I'm embarrased to say that this is the first time I've studied this portion of the Declaration. Thank you for posing it.Click to expand... P F Tinmore It was 7:00 A.M. and Sarah had been driving aimlessly for the last few hours. She could not sleep after what Para had told her last night. She decided to hold a press conference and she wanted to e-mail a photo with the announcement. She was still wearing the light brown suite with a knee length skirt that she changed into last night for the photo. A burnt orange tie tied in a bow with the tails hanging down decorated a plain white blouse. A U.S. flag pin was displayed on the left lapel. Sarah drove down a street in a middle class neighborhood that was showing signs of decline. Some of the houses needed repair. Some of the cars were past their prime. A few houses were empty and had for sale signs in the yard. One house had a pickup truck out front with a trailer full of lawn mowers. When a landscape company mows a lawn in a middle class neighborhood, it is a sign of foreclosure. Sarah saw a convenience store on the corner. She stopped in for a cup of coffee. There was a newspaper rack by the door. She picked one up and looked at it. There was the photo that she sent in last night. The headlines read “Elena Tant to Hold Press Conference.” It was three days until the conference and she still did not know what to say. She placed the paper on the counter and asked the clerk for coffee. The clerk was a brown skinned, middle aged woman. “The coffee is over there.” She said in a mid-eastern accent as she pointed to the coffee machine. Sarah fixed a large coffee, picked up two donuts, and went back to the counter. The woman was looking at Sarah’s picture then she looked at Sarah. “This is you. Isn’t it?” Sarah nodded. The woman continued. “I saw you on TV when you got out of the hospital. I hope that you are feeling better.” “Yes.” Sarah answered. “I have been feeling better every day. Thank you.” The woman was handing Sarah her change when she said. “Ten years ago I lived in a country where people did not have any rights. It is getting to be the same way here. Many people fear the government more than they fear the criminals.” Sarah stepped up onto the small stage in a hotel conference room. Several people had TV cameras on their shoulders. A table over to the side provided video and audio feeds for the broadcast media. Rows of folding chairs held the correspondents that she had invited. A few of the politicians that Sarah had invited were in attendance. Still cameras filled the room with repeated flashes. Sarah began her speech. “We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances…the right of the people to keep and bear arms, shall not be infringed…the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized…no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…nor be deprived of life, liberty, or property, without due process of law…the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” “There are those who remind us that our constitution was written over two hundred years ago. They remind us to say that our constitution was written for different times. They say that the circumstances we have in our country today could not have been imagined when our constitution was written. They say that we have to bend our constitution to fit the times.” Sarah paused a moment, then she emphasized. “They want to be able to mold our constitution to fit whatever they believe our rights should be. Our founders wrote the Bill of Rights to nail down the rights of the people. They knew that without the Bill of Rights, our rights would float on the political whims of the times.” “Many believe that our constitution is a government document that grants rights to the people. It is not. It is the people’s document that grants power to the government. The first three words of our constitution are ‘We the People’ are they not?” “The Bill of Rights is not there to create rights for the people. These rights were possessed by the people before the government existed. It is there to tell the government that it has not been given the authority, and in fact, has been specifically denied the authority to abridge these rights. The government simply does not have the authority to abridge constitutional rights.” “Where are we now? Look back at what our country was fifty years ago. Or even thirty years ago. Unfortunately, most people are not old enough to remember those times. Have the hundreds of laws that the government has made in disregard of our constitution made our country better than it was fifty years ago? Do we feel safer on our streets? Do we feel safer in our homes? Do we have a more peaceful society with these new laws? I think not. Look around you. Do you like what you see?” “Every one of you here today is considered to be among the thinkers of our time, highly educated, closely involved with our social and political climate. But, how many of you have seriously studied our constitution and contemplated the meaning of those words that were so arduously debated by our founders?” “It is said that hindsight is 20/20. Ladies and gentlemen, our constitution was written with the benefit of hindsight. The provisions in our constitution are not arbitrary. Each and every provision of our constitution is there to address an abuse that was thrust upon the colonies. Are we to ignore our history? Are we to ignore our constitution? Are we to thrust these same abuses upon our fellow citizens for the same reason as the king-to make the people subservient to the power of the government.” “Many of our ancestors have died securing our rights as citizens. Are we to repeat our history? The abuses have already begun. The first shot has already been fired. The shots are echoing through our country as I speak to you today. Are we to continue down this path where we shall surely find war?” ~ Paul Francis Tinmore

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AT&T Is back in Court Posted: Thu 10:49 PM, May 27, 2004 | Updated: Thu 10:49 PM, May 27, 2004 The ink is barely dry on an order from a circuit court judge in Tallahassee and AT&T is asking the court to modify or clarify restrictions on what it can say to people who call and complain about their bill. Under the order, the company cannot try and sell additional services to people who call with billing issues. The restriction began when AT&T put the hard sell on people it had wrongly billed. Frank Poland got the hard sell from AT&T when he tried to get a refund on a monthly recurring bogus charge the company was adding to his phone bill. Instead of getting the refund the Largo resident ended up buying something. "She said do you want AT&T to be your carrier again, your long distance service. I said I don’t know about that. She said well you might need it, and I said oh okay go ahead," says Frank. It was testimony like Mr. Poland’s that convinced Circuit Judge Niki Clark to order AT&T to stop putting the hard sell on people who call with a billing issue. Last week in court AT&T agreed not to put the hard sell on anyone, customer or not, if they called with a billing complaint, but now the company says that’s not what they intended to do. The phone giant says it never meant to stop selling to everyone who called, just non-customers. Now, it wants the judge to change the order. Brandi Brown, AT&T spokesperson, says, "You know they want to call and say I just got married and I need to change my name on my bill. We can’t say we can’t give them options that may save them money." But Florida’s solicitor general says AT&T is just trying to continue what he calls the company’s unethical selling practices. Christopher Kise, Solicitor General, says, "They tell them you need to sign up for something with AT&T so that we can solve their problem. You need to purchase more services, and the customer gets a run around. We are trying to stop the run around." More than a million people, many of them not even AT&T customers, began receiving bogus monthly bills in January. The judge will consider the case Friday afternoon.

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More B.C. introduces tougher animal cruelty lawsKim Pemberton, Vancouver Sun 05.12.2011The bodies of 52 of the estimated 100 sled dogs culled by a dogsledding outfit last year have been exhumed from a mass grave site near Whistler.Vancouver Sun / Vancouver SunShareAdjustCommentPrintLegislation was introduced today to give B.C. one of the toughest animal cruelty laws with maximum penalties rising to $75,000 from $10,000 and 24 months imprisonment instead of the current six months.The legislation would also extend the statue of limitations for prosecution under the Prevention of Cruelty to Animals from its current six months to three years.B.C.'s Minister of Agriculture Don McRae said all of the amendments originated from the reported mass killing of the 100 Whistler sled dogs.The slaughter of the dogs, owned by Outdoor Adventures, brought world-wide condemnation. However, under the current legislation time has run out to bring charges in connection with the killings.Charges are currently being contemplated under the Criminal Code."Animal welfare is an issue that touches all of us," said McRae in a press release. "These proposed amendments to the Prevention of Cruelty to Animals Act demonstrate that B.C. is reacting quickly and decisively to show that acts of cruelty against animals will not be tolerated in this province."Former premier Gordon Campbell appointed a provincially led Sled Dog Task Force which reported earlier in April there was a need to update animal protection laws in B.C.Under the new legislation, the government would have the power to regulate specific activities pertaining to the use, care and protection of animals -- including sled dogs and service animals such as dogs and horses used by police.The province recently proclaimed April 23, 2011 as Animal Abuse Prevention Day. This is one of two days the killings happened a year prior at the isolated dog compound for Whistler Outdoor Adventures in Pemberton. xShareB.C. introduces tougher animal cruelty laws

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The 2013 Base Year values contained herein have been provided by the Office of Property Assessments. The values are for the property as it stood on January 1 of the current year. The website is updated on a weekly basis to reflect changes due to appeals, permits, corrections and/or catastrophic loss. Base Year values are subject to ongoing maintenance throughout the year. In accordance with the County's Administrative Code and State statutes, values may be adjusted for the following reasons: The Office of Property Assessments can adjust Base Year values through the administrative change process for factual, mathematical or clerical errors. Base Year values can also be adjusted due to a change in the physical nature of the property with building permits for additions or demolitions, or due to recorded subdivision plans. The Board of Property Assessment Appeals and Review and the Board of Viewers are separate entities from the Office of Property Assessments with the authority to hear appeals and make decisions that can change assessed values. The property owner and the taxing bodies are notified and the appeal decisions are regularly posted on the website. All property data have been provided by the Office of Property Assessments and do not include minor, detached structures such as garages, swimming pools and sheds that may be assessed to the parcel. Sales prices are for the latest recorded sale and may not reflect invalid sales such as sheriff sales, love and affection sales or multiple parcel transactions. In the case of newly constructed buildings, the amount of the sale may reflect only the purchase of the vacant land. Therefore, sale-to-assessed-value comparisons can be misleading. Local and County values may differ due to various abatement programs. To see information on the abatement programs for which you may qualify, please go to the Property Assessments Home Page.

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The Arc Blog ... Press Releases ... Governor Quinn Earns Top National Honor as a “Champion” for People with Disabilities About the BlogAbout the Blog ← Supreme Court Must Act to Save Georgia Man with Disability from Imminent Execution The Arc Applauds Stay of Execution of Warren Hill, Vows to Continue Legal Advocacy Efforts → Governor Quinn Earns Top National Honor as a “Champion” for People with Disabilities Posted on July 15, 2013 by The Arc Illinois’ Rebalancing of the Disability System Cited as a “Model for the Nation” CHICAGO – Governor Pat Quinn is being recognized by The Arc of the United States for his work to offer people with intellectual and developmental disabilities the opportunity to live in a community of choice. The Advocacy Matters! Award is The Arc’s most prestigious honor and presented to those who demonstrate the ability to promote and protect the civil and human rights of people with disabilities and increase resources, services and supports that promote their full inclusion and participation in the community. Governor Quinn has been a long time advocate for people with disabilities, and this award acknowledges his leadership in closing state institutions and shifting resources to offer people with disabilities the opportunity to live more independently and thrive in their communities. The nominating petition further credited Governor Quinn for signing a Consent Decree that will move 3,000 individuals with disabilities off the state’s waiting list and provides the choice of small community living options to the 7,000 people who live in Intermediate Care Facilities for people with Developmental Disabilities (ICFDD’s). “Everyone in Illinois – regardless of the challenges they face – deserves the opportunity to reach their full potential,” Governor Quinn said. “We are changing the status quo in our state from an over-reliance on outdated institutions to investing in community, in people and in their potential. It is an honor to receive this recognition as we keep working on our mission of improving care for people with disabilities, so they can lead more independent and fulfilling lives.” The Arc of Illinois nominated Governor Quinn in May citing his tireless efforts to “bring Illinois out of the dark ages” and set the tone for “best practices to make life better for people with intellectual and developmental disabilities.” “This is a Governor that does things for the right reasons and is relentless in his determination to put people with disabilities before politics,” says Tony Paulauski, executive director of The Arc of Illinois. “Governor Quinn’s vision in rebalancing the disability system is a model for the nation and one that all Illinoisans can be proud of.” In 2009, the Governor began collaborating with disability advocates throughout the state to develop a person-centered plan to help people with disabilities reach their full potential by providing funding and resources for them to live in the community with the proper supports and services. Two years later he announced his Rebalancing Initiative, including plans to close state institutions and provide community living options for more than 900 people. Two state institutions have been closed to date and Murray Developmental Center in Centralia is scheduled to close later this year. In May, the General Assembly passed House Bill 2591, a bill that will make Illinois an Employment First state, a priority outlined in Governor Quinn’s 2013 State of the State Address. Governor Quinn will be signing the bill into law Tuesday at an event celebrating the 23rd anniversary of the Americans with Disabilities Act. This entry was posted in Press Releases and tagged Community-Based Care, Pat Quinn, The Arc of Illinois, Waiting Lists. Bookmark the permalink. 3 State Chapters Making a Difference – Let’s hear it for Alabama, Illinois and Virginia! Feb 14, 2012 The Arc’s Reaction to the Department of Justice and Commonwealth of Virginia Settlement Regarding Institutions Jan 26, 2012 The Arc of Illinois, Making Headlines! Sep 30, 2011 What Happens When Care Runs Out? Jan 25, 2011 About The Arc

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What is the “Monsanto Protection Act”? Question Submitted By: beckster17 from San Francisco, California ** Questions submitted to GMO Answers appear as written at the time of submission. Notification Preferences A:Expert Answer By: Professor Drew Kershen, Earl Sneed Centennial Professor of Law (Emeritus), University of Oklahoma, College of Law on Friday, 7/26/2013 7:14 pm You are likely referring to the Farmer Assurance Provision included in the 2013 federal government Appropriations bill that was passed in March 2013. The provision was put in place to minimize some of the potential effects of burdensome litigation that has been used in the past to work around the well-established regulatory process of the U.S. Department of Agriculture and put a significant economic burden on farmers. Ironically, this provision directly protects farmers, not seed companies―but you wouldn’t know it by how it has been renamed in the media and online by anti-GMO groups. Here is how the provision breaks down: The USDA has well-established review processes for any new GMO to gain the authorizations needed to enable commercialization. You can read more about thespecifics on this process here.Once a GMO is approved by these regulatory bodies (in addition to USDA, FDA and EPA have regulatory review processes for GMOs), it is available to farmers who choose to purchase it. Today, roughly 90 percent of corn, soybeans and cotton grown in the United States are GM varieties. On two occasions, groups that do not support the use of GMOs sued the secretary of agriculture, claiming that USDA regulators didn’t follow the proper procedures when conducting environmental assessments of these crops. These groups also challenged USDA’s issuance of permits to authorize plantings of herbicide-tolerant sugar beet seedlings. The U.S. District Court hearing the case granted an injunction that ordered the destruction of the seedlings. On appeal, the ruling was overturned and the permits were allowed. Using authority under existing laws, the secretary of agriculture stepped in to allow farmers with crops in the ground to cultivate and harvest them under strict supervision. For alfalfa, the nation’s fourth-largest crop, a court-ordered injunction blocked planting of herbicide-tolerant alfalfa while a lengthy and duplicative environmental review was completed. As a result, farmers were barred from planting alfalfa with the trait for nearly four years. Despite the Supreme Court's later decision 7–1 that the injunction was unnecessarily burdensome, the livelihood of farmers was still at the mercy of individual rulings. The provision in the 2013 Appropriations bill, Farmer Assurance Provision, would mandate the secretary to allow for the cultivation and harvest of a previously assessed and approved GM trait while USDA conducts any additional procedural assessments ordered by the court. Without this provision, farmers, not seed companies, would be in jeopardy of losing their crops, their farms and their livelihoods. Several key farm groups support the Farmer Assurance Provision including the American Farm Bureau Federation, the American Soybean Association, the American Sugarbeet Growers Association, the National Alfalfa & Forage Alliance, the National Association of Wheat Growers, the National Corn Growers Association and the National Cotton Council of America. It is important to note that the provision does not restrict in any way the agency’s ability to take action against a product shown to pose a food, feed or environmental risk. Here are links to some additional reporting on the provision: http://www.agprofessional.com/news/There-is-no-Monsanto-Protection-Act--200676131.htmlhttp://www.biotech-now.org/food-and-agriculture/2013/04/dont-misrepresent-the-farmer-assuranceprovision Topic: Other 5 Comments | Add Comment Log in or register to post comments Your question may not immediately appear on the site. Questions go through a spam filter and Community Manager review before appearing on the site. Click here to learn more about the independent & company experts answering your questions. Welcome to the GMO Answers community! Please remember to vote on the questions you'd like to see answered first. Professor Drew Kershen Earl Sneed Centennial Professor of Law (Emeritus), University of Oklahoma, College of Law Professor Drew Kershen teaches courses on agricultural law, legal history, professional responsibility, and water rights at the University of Oklahoma, College of Law. In 1973, he was named a fellow in law and humanities at Harvard University. Kershen is coauthor of Farm Products Financing and Filing Service, written in 1990 with J. Thomas Hardin. Kershen is a member of the Oklahoma Water Law Advisory Commission and the Order of the Coif; he is a past member of the Board of Directors and past president of the American Agricultural Law Association.

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Image licensed under CC BY 2.0 Current Event Debate: Is It Fair to Send People to Jail for Not Paying Fines? Sending someone to jail because they can’t pay a debt is against the law. But often courts in the United States imprison people who cannot pay court fines. For example, homeless people can be ticketed for sleeping in a park and then put into prison for not paying the fine. The city of Colorado Springs is stopping this practice. The city is also paying people who have previously been held in jail under these circumstances. Listen to hear more about this new policy and debate the pros and cons with your students. Skip School, Go to Court In most states when students miss or skip school their parents are called or the school intervenes. In Texas, students who have repeated absences are sent to court. Dallas County has an automated process that sends students to be tried in adult court after just three unexcused absences. The Department of Justice has been called in to investigate if the school system is violating the civil rights of students with the practice. Last year 20,000 truant students in Dallas County went to court. Listen to learn how this system works and how some students and communities are disproportionately affected. 50 years ago President Lyndon Johnson declared an “unconditional war on poverty in America.” The President and Congress created Medicare, Medicaid, Head Start and other programs for low-income Americans. But did we win the war on poverty? Listen to this story and then explore the question with your class.

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Home Debates 2010 September 20th Debates of Sept. 20th, 2010 The word of the day was funding. Question PeriodVacanciesBoard of Internal EconomyMessage from the SenateCorporate Accountability of Mining, Oil and Gas Corporations in Developing Countries ActCombating Terrorism ActFirearms RegistryLake WinnipegOld Rivière-Bleue Train StationChinese CanadiansFirearms RegistryHonorary Naval CaptainBattle of BritainNutrition North ProgramLobbying ActMultiple SclerosisThe EconomyStatus of WomenThe EconomyThe Conservative GovernmentLiberal Party of CanadaFirearms RegistryGovernment SpendingFirearms RegistryEmployment InsuranceForeign TakeoversCensusNational DefenceCensusEmployment InsurancePublic SafetyGovernment AdvertisingHealthGovernment SpendingPensionsHealthVeterans AffairsGovernment CommunicationsShale GasInternational Co-operationLobbying ActPoints of OrderConflict of Interest and Ethics CommissionerLand Claim AgreementsGovernment Response to PetitionsCommittees of the HousePetitionsQuestions on the Order PaperStarred QuestionsQuestions Passed as Orders for ReturnsRequest for Emergency DebateCombating Terrorism Act International Co-operationOral Questions Paul Dewar Ottawa Centre, ON Mr. Speaker, world leaders are meeting this week to review progress on global poverty goals. The U.K. and other countries are keeping their commitments despite tough economic times. Sadly, Canada has been called out as a laggard. Conservatives have frozen aid and decided not to honour our commitment to help end global poverty. It should not be this way. The Prime Minister has an opportunity to change this trend at the UN this week. Will he lift the freeze on our foreign aid budget, or will he just cop out? Kootenay—Columbia Jim Abbott Parliamentary Secretary to the Minister of International Cooperation Mr. Speaker, I am very proud of Canada's record on the international stage. Canada is playing a part in advancing the millennium development goals. Canada met its commitment to double international assistance to Africa from 2003-04 levels to $2.1 billion in 2008-09. We have forgiven more than $1 billion in debt to the world's poorest country and we are on track to make our commitment to double our international assistance from the 2001-02 levels. This is a record that our government is proud of and I know all Canadians are, too. Lobbying ActOral Questions Paul Calandra Oak Ridges—Markham, ON Mr. Speaker, today the President of the Treasury Board announced that members of Parliament, senators and staff in the opposition leader's office are no longer exempt from the lobbying rules that apply to ministers and senior public servants. Could the minister tell the House why this is such good news for Canadian democracy? Okanagan—Coquihalla President of the Treasury Board and Minister for the Asia-Pacific Gateway Mr. Speaker, we brought changes into the Lobbying Act so Canadians can be assured that all members of Parliament and senators and the staff who go with the offices of the leader of the opposition in the Senate and the House of Commons are subject to the concerns and views of their constituents and not to the concerns of special interest groups. That is why the law now applies to everybody. It is a new era of ongoing openness and transparency in this particular area. We brought this act in and we are continuing to improve it. Member's Remarks on Firearms RegistryPoints of OrderOral Questions Cypress Hills—Grasslands SaskatchewanConservative Parliamentary Secretary to the Minister of Natural Resources and for the Canadian Wheat Board Mr. Speaker, I rise today on a point of order with regard to the question of privilege raised by the NDP member for Sackville—Eastern Shore on November 3, 2009, during the second session of the 40th Parliament and the subsequent finding of a prima facie case of privilege by you. The case revolved around a ten percenter that was sent into the member's riding, which talked about the long gun registry. It has a picture of a duck hunter on it and it says, “The failed long-gun registry. Hard on farmers and hunters. Useless against real criminals”. It talked about how the local MP had worked to support the registry. It asked the question, “Is that the support you expect you’re your local MP?”. The House may recall that on November 3, 2009, the member for Sackville—Eastern Shore rose in the House with a great deal of indignation. On page 6568 of Debates , the member loudly protested the ten percenter that was sent into his riding that suggested, heaven forbid, that he might support keeping the wasteful and ineffective long gun registry. He called such a suggestion “outright fabrication of the facts”, and— Order, please. I need to hear— An hon. member It was a question of privilege. It was not a question of privilege. It was a point of order. I want to hear what this has to do with the rules of the House. I have heard absolutely nothing on that subject yet. This is a point of order that we are hearing. It has to have something to do with procedure. Householders may have been a question of privilege, but they are not procedure. I would like to hear what the procedural point is. Cypress Hills—Grasslands, SK Mr. Speaker, I would like to lay out a bit of introduction and then I will certainly get to that. The member positively stated that he had worked to get rid of the long gun registry for twelve and a half years. He claimed his reputation had been deliberately impugned and that the situation was intolerable. Based on his statements, Mr. Speaker, you found there was a prima facie case of privilege in regard to his question of privilege and referred the matter to the Standing Committee on Procedure and House Affairs. At committee the member testified, and once again— Order, please. The member is reviewing the history of a case that may have gone to a committee and may have made a decision. I have no recollection. It does not appear to me to be a point of order affecting the proceedings of the House. Accordingly, I do not think there is a point of order here. I will proceed with tabling of documents. Conflict of Interest and Ethics CommissionerRoutine Proceedings Pursuant to section 28 of the Conflict of Interest Code for Members of the House of Commons, it is my duty to present to the House the report of the Conflict of Interest and Ethics Commissioner on an inquiry in relation to the hon. member for St. Catharines. Land Claim AgreementsRoutine Proceedings Saint Boniface Shelly Glover Parliamentary Secretary to the Minister of Indian Affairs and Northern Development Mr. Speaker, under the provisions of Standing Order 32(2) I have the honour to table, in both official languages, copies of three annual reports for 2007-08, including: the annual report of the implementation committee on the Gwich'in Comprehensive Land Claim Agreement; the annual report of the implementation committee on the Sahtu Dene and Métis Comprehensive Land Claim Agreement; and the 2007-08 annual report of the Inuvialuit Implementation of the Inuvialuit Final Agreement Coordinating Committee. Government Response to PetitionsRoutine Proceedings September 20th, 2010 / 3:05 p.m. Regina—Lumsden—Lake Centre Tom Lukiwski Mr. Speaker, pursuant to Standing Order 36(8) I have the honour to table, in both official languages, the government's response to 64 petitions. Public AccountsCommittees of the HouseRoutine Proceedings Shawn Murphy Mr. Speaker, I have the honour to present, in both official languages, the following four reports of the Standing Committee on Public Accounts: the 15th report on selected departmental performance reports for 2008-09 Department of Industry and Department of Transport; the 16th report on chapter 2, “Risks of Toxic Substances” of the fall 2009 report of the Commission of the Environment and Sustainable Development; the 17th report on chapter 1, “Evaluating the Effectiveness of Programs” of the fall 2009 report of the Auditor General; and the 18th report of the committee on chapter 8, “Strengthening Aid Effectiveness - Canadian International Development Agency” of the fall 2009 report of the Auditor General of Canada. Pursuant to Standing Order 109 of the House of Commons, the committee requests the government table a comprehensive response to these four committee reports. Procedure and House AffairsCommittees of the HouseRoutine Proceedings Carleton—Mississippi Mills Gordon O'Connor Minister of State and Chief Government Whip Mr. Speaker, there have been discussions among all parties and I believe you would find unanimous consent for the following motion. I move: That the membership of the Standing Committee on Procedure and House Affairs be amended as follows: Mr. Rodney Weston, Saint John, for Mr. Guy Lauzon, Stormont--Dundas--South Glengarry. « Prev12...89101112...3132AllNext »

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← Hollywoodland is Here! The House(s) That Jack Built Part V → The House(s) That Jack Built Part IV Posted on May 18, 2011 by Steve And now the continuation of the amazing story of Jack Donovan and The House(s) That Jack Built. This is Part IV. If you’d like to read the first parts just click on them here: Part I, Part II, and Part III. Part V will follow on Friday and the concluding Part VI, will appear here Sunday. The Fascinating Jeanette G. Donovan… The Murray/Donovan battle had an all-star cast including Agnes Ayres (who testified for Donovan) and former California First Lady Fannie Gage. Mae Murray certainly cut quite a figure on the stand! The epic battle between Jack Donovan and Mae Murray over “The House That Jack Built” at 13047 San Vicente Boulevard dragged on for five long years and seesawed back and forth with Jack winning the case on appeal, but with Murray prevailing before the California Supreme Court. In the end, however, neither really won, with the costs of the litigation far exceeding any judgment related to the sale of the house. But this was never really about a house, it was about pride, something both Murray and Donovan had to a fault. At one point the battle became so intense that both the disputed Murray house and Jack and Jeanette Donovan’s own house at 136 Georgina Avenue were sold by the Los Angeles County Sheriff to satisfy liens. Murray’s $25,000-$50,000 home went for $500 and the $80,000 Donovan home went for $2,000. Murray had let 13047 San Vicente go on purpose after having refused to pay the mortgage, Donovan however had not. He had no intention of selling his beloved home, and in one of the most bizarre ironies of this case, as he and his mother watched helplessly on the courthouse steps, their home was sold to none other than Mae Murray who, through her attorney, had been the only bidder. Like most everything else in this saga, however, the sale was not what it at first seemed. It was a technicality arising from the first lawsuit and the Donovans were given one year to find the funds to reclaim the house, which in the end somehow they did. How they did it is unknown, but the ever resourceful Donovans had once again pulled another rabbit out of the hat and were to remain at 136 Georgina for the next twenty years. Donovan may have been able to get the needed cash by a sudden uptick in his movie career. During his peak years as an architect in the early 1920’s, he had neglected his once promising start as an actor, appearing only occasionally in pictures. But the costs of the Murray litigation no doubt gave him a new interest in acting (i.e. a quick and lucrative income) and in 1927 he signed a deal with Fred J. McConnell to appear in a series of westerns released through the Pathe Exchange. Even with such rousing titles as Hoof Marks; The Bullet Mark and Lady Luck, the Donovan/Pathe westerns did not exactly burn up the screen and the series quickly faded into the sunset. Brief as it was though, the income the westerns generated must have been manna from heaven for the cash-strapped Donovan allowing he and his mother to continue to live in the style that for so long they had been accustomed. It may just be me, but Jack never quite looked comfortable in his cowboy duds. Throughout the remainder of the 1930’s, Donovan would make occasional forays back into films, but his heart never seemed to be fully into it and he ultimately left only a passing mark in celluloid history. At one point, even his mother Jeanette stepped before the cameras, having been asked to dance in a grand ball sequence in the Fred MacMurray, Gladys Swarthout picture Champagne Waltz (1937). Mrs. Donovan was selected, according to the press, to add some regal authenticity having “waltzed in her youth in Vienna at a grand ball.” Throughout this saga, Jeanette G. Donovan has appeared as a supporting player, but she is, in fact, a star in her own right. Both she and her son were amazing people and Jeanette deserves a little of the spotlight at this time. “Lordy, what a life I’ve had,” laughed 92-year-old Jeanette G. Donovan when asked the story of her life. And she wasn’t kidding either. Born in Mercer, Pennsylvania the year America was thrust into civil war, Jeanette was sent in her youth to a convent where she was taught to play the harp. When a group of wealthy men came down from New York on a visit, Jeanette was enlisted to entertain them with a concert, “because they might give the convent some money,” she related. One of them, John Francis Donovan, did more than that, becoming immediately entranced by the beautiful young lady at the harp (From birth to death, Jeanette was a strikingly beautiful woman) and in short order they were married. Eight years later, the assumedly much-older Donovan died leaving a young widow, two children and a million dollars in cash. It was then that Jeanette took Jack and his sister Catherine to Europe where for the next few years they immersed themselves in European culture and society. In 1910 after having first settled in St. Louis, the Donovans headed west to Los Angeles. Breathtakingly beautiful, cultured, charming and with lots of cash to throw around, the Merry Widow Donovan was instantly accepted into the upper echelons of Los Angeles society, becoming intimate with all the local bluebloods who welcomed her into their “salons.” Having seen the real salons of Europe, the cosmopolitan Jeanette must have been amused by nouveau Los Angeles society, but she fit right in, becoming the particular pet of former California Governor Henry T. Gage and his wife Fannie. Jeanette also shrewdly became involved in the L.A. real estate market, investing some of her fortune into business buildings on South Main Street downtown. But her biggest real estate splash occurred when she became the very first resident of the newly developed Windsor Square tract. Still considered today one of Los Angeles’ premier residential districts, Windsor Square has long been a bastion of old L.A. society with names such as Van Nuys, Janss, Banning, Chandler, O’Melveney, Hellman and Getty counted among the residents of its grand mansions. In 1912, Jeanette paid $10,500 for one of the choicest parcels in the new district and expended a further $20,000 in the construction of an elegant Neoclassical Revival mansion. Completed in 1913 from plans by Pasadena architect Parker O. Wright Jr., Jeanette G. Donovan’s stately residence at 419 South Lorraine Boulevard helped set the tone for the district and it remains today one of Windsor Square’s most distinctive and beloved landmarks. In 1973, it was made Los Angeles Historical and Cultural Landmark No. 115 by the City of Los Angeles. With its eighteen-foot wide center hallway, double staircase and grandly proportioned rooms opening out to garden terraces, the Donovan home in Windsor Square was built for large-scale entertainments and Jeanette made certain the house fulfilled its intended purpose. From intimate little soirees to grand balls, the Donovan home was regularly filled with music and laughter and the best that Los Angeles society had to offer. But unlike most other society folk of her day, Jeanette held no prejudices against actors and the rapidly growing film colony starting out up in Hollywood. After all, Jeanette was an artist herself, an accomplished singer, harpist and painter and she adored being around fellow creative types. “I knew them all – all the great ones,” she later declared and she most certainly did. The Donovans had arrived in L.A. at just around the same time the infant movie industry was making its first toehold in the area. When not making her way around the social circuit, Jeanette found diversion in decorating sets for the nascent film companies, making many friends among the early Hollywood crowd. It was in this exciting and glamorous atmosphere that Jack was raised and it is no wonder he turned out the way he did. The Donovans 1915 summer cottage. During these early pre-air conditioner years, Jeanette, Catherine and Jack, now a student at USC, would head out to Santa Monica where Jeanette would engage a cottage for the summer. Of course, a “cottage” to Jeanette was the Bishop Conaty house at 144 Adelaide Drive, one of Santa Monica’s finest residences on Santa Monica’s finest street. 144 Adelaide, which later gained some Hollywood notoriety by being the longtime residence of Mary Miles Minter and her indomitable mother Charlotte, remains today much as it did in the mid-teens when it was the summer retreat of the Donovans. Although they lived in a spectacular house in Windsor Square and later another fine home, the Canary Cottage, up in Hollywood, the Donovans collective hearts were won over by Santa Monica and from the time they built Chateau de la Paix in 1924 at 1525 San Vicente Boulevard, the Donovans became proud Santa Monicans, which they were to remain even long after Santa Monica ceased to be proud of them. Be sure and stay tuned for Friday’s continuation of The House(s) That Jack Built, Part V. “From Casa Grande to the Chewing Gum and Ash Tray Palace.” This entry was posted in Architects, Interesting People, Santa Monica, Windsor Square and tagged 13047 San Vicente Boulevard, 136 Georgina Avenue, 144 Adelaide Drive, 419 South Lorraine Boulevard, Champagne Waltz (1937), Fred J. McConnell, Henry T. Gage, Jack Donovan, Jeanette G. Donovan, Mae Murray, Parker O. Wright Jr.. Bookmark the permalink. ← Hollywoodland is Here! 7 Responses to The House(s) That Jack Built Part IV Philip Mershon says: May 19, 2011 at 01:02 Okay, I’m now officially drooling for parts V and VI! There is a book in these people and you are the guy to write it! Reply Pingback: The House(s) That Jack Built Part V | Paradise Leased Pingback: The House(s) That Jack Built – Part VI – Conclusion | Paradise Leased Mary P. McConnell says: May 4, 2013 at 01:02 Steve: I am the great grand daughter of Jeanette Donovan. This is great work you have done. There is a photo of a woman in Part IV sitting by a harp but no caption underneath. Is this Jeanette as a young woman? If so, can I ask where you got the picture? It is one that I have never seen. She was an accomplished harpist and singer and was taught at a private school for girls in Wheeling, WV. Mary Reply Steve says: May 4, 2013 at 01:02 Hi Mary: How great to hear from you! I’ve been meaning to get ahold of Katie and Greg for ages, but I’ve been all over the place. Hope everyone is doing great. Alas, that picture is actually not of Jeanette. I just found an old photo that I thought would represent her as there were no pictures in her youth I was able to find. It does resemble her though, it would seem. In fact, Greg and Katie thought it was her too. Amazing lady. Amazing family! Would love to talk more with you about the Donovans if you ever have time. Best, Steve Reply Mary P McConnell says: May 4, 2013 at 01:02 Steve: Thanks for your prompt reply. The picture does resemble what she might have looked like as a young woman. Disappointed that it isn’t her. Katie and I have been in contact. I just found her a couple of years ago after searching for some time. I knew about her brother and sister but not her. We found each other because we were both researching Jeanette’s time as a young woman at the Mount de Chantal in Wheeling, WV. I was visiting with the nuns there and they told me someone else had been looking for Jeanette’s records too and I tracked Katie and Greg down from the info the nuns gave me. So fun. You did a remarkable job with this story. I knew some of it from my mother who was Jack’s niece (his sister Catherine’s daughter) but learned a lot more. Would love to talk more too. I have a number of photos of Jack when he was a teen and much younger man which I can provide to you. My last memory of him is driving me along the coast in a big convertible in the late 1950s or early 1960s. So fitting. Love your blog by the way! Mary [email protected] says: May 24, 2015 at 01:02 I love this wonderful and fascinating story of a man and his mother. Thank you. Sonya

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Principal Must Defend Section 1983 Retaliation Claim By Hassan Kanu Sept. 2 — Claims alleging that a public employee was retaliated against because he or she made a discrimination complaint may now be brought against government officials and supervisors under the Civil Rights Act of 1871 (42 U.S.C. § 1983), the U.S. Court of Appeals for the Second Circuit ruled Sept. 2. The court revived race bias and retaliation claims brought by Carlos Vega under Title VII of the 1964 Civil Rights Act and Section 1983. Vega, a Puerto Rican teacher, alleged that his principal and Hempstead Union Free School District in New York tried to force him to teach only the Hispanic student population and retaliated against him when he complained that this was discriminatory. Section 1983 is the vehicle for enforcement of certain rights guaranteed under the 14th Amendment's equal protection clause. It provides for actions against government officials, in contrast to Title VII, which allows for claims against employers. “We acknowledge that there has been considerable confusion surrounding the viability of retaliation claims under § 1983, and we now clarify that retaliation claims alleging an adverse action because of a complaint of discrimination are actionable under § 1983,” Judge Denny Chin wrote for the court. He concluded it was error to dismiss Vega's retaliation claims against his principal, and found that he pleaded sufficient facts to proceed with his race discrimination claim against the school district. Judges Robert Katzmann and John Walker joined the opinion. Classroom Referred to as ‘University of Puerto Rico.' Vega, who is fluent in English and Spanish, has taught math in the school district for at least 24 years, the last 16 years at the district's high school, according to the opinion. He alleged that he never received a negative performance evaluation since he started teaching at the high school. Chy Davidson was principal from 2006-2011, and Dagoberto Artiles succeeded him. Vega alleged that a number of discriminatory actions were taken against him beginning in 2008, including that: • he was assigned an increased percentage of Spanish-speaking students who didn't speak English, which meant the students needed translation services and Vega had to do twice the work, without extra compensation; • he was prevented from using his regular classroom on one occasion and was forced to teach in a noisy media center with no blackboard; • he was “assigned a classroom with a ‘University of Puerto Rico' banner above the door”; • Davidson attempted to transfer him, but later rescinded the action after Vega objected and informed the assistant superintendent that he had a higher percentage of passing students than most of his colleagues; • the district granted Vega a transfer to the Academy of Math and Sciences, whose principal was Hispanic, even though he never requested the transfer. Vega also alleged that district officials took retaliatory actions after he filed a formal discrimination complaint. Vega also claimed that the district purposely assigned him during the 2011-2012 school year students with very poor attendance records, causing his rate of excessively absent students to jump from 20 percent to 75 percent. Vega sued in December 2012. He received his first negative review in 16 years in early 2013. Section 1983 Pleading Standards Clarified The court acknowledged that it has “sent conflicting signals” with respect to the viability of retaliation claims under Section 1983. It explicitly denied such a claim in Bernheim v. Litt, 79 F.3d 318 (2d Cir. 1996), saying it wouldn't break new constitutional ground. Lower courts, including the one in the current case, relied on Bernheim to dismiss these claims, Chin noted. The court's subsequent decision in Hicks v. Baines, 593 F.3d 159, 108 FEP Cases 577 (2d Cir. 2010), however, “squarely recognized that an employer's retaliatory action in response to an employee's participation in discrimination investigations and proceedings constituted an ‘impermissible' reason to treat an employee differently” under the equal protection clause, Chin wrote. Additionally, the U.S. Supreme Court ruled that “retaliation is a form of discrimination” in Jackson v. Birmingham Bd. of Education, 544 U.S. 167, 95 FEP Cases 669 (2005), a case brought under Title IX of the Education Amendments of 1972. That “reasoning applies with equal force to the employment context,” Chin said. He found that the lower court applied an erroneous standard to Vega's pleadings on his bias claim. “At the pleadings stage of the litigation, Vega was not required to plead a prima facie case of discrimination.” Rather, he only had to meet the “minimal” burden of plausibly alleging facts that provide some support for the proposition that the employer was motivated by discriminatory intent, the court held. Scott Michael Mishkin, PC represented Vega. Ingerman Smith, LLP represented the school district parties. To contact the reporter on this story: Hassan Kanu in Washington at [email protected] To contact the editor responsible for this story: Peggy Aulino at [email protected] Text of the opinion is available at http://www.bloomberglaw.com/public/document/CARLOS_VEGA_PlaintiffAppellant_v_HEMPSTEAD_UNION_FREE_SCHOOL_DIST.

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Supreme Quotes - Page 6 I can and do aspire to be greater than the sum total of my experiences, but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate. Far be it for the public schools to teach this, but the U.S.A. was founded on basic Judeo-Christian principles. Don't believe me - take a trip to Washington D.C. and tour the Supreme Court building. There you will see a sculpted copy of the Ten Commandments on the wall. Once the Supreme Court in 1973 decided that infanticide could be legal, it not only ended America's 'inalienable right to life,' it threw the Golden Rule right off the shores of this continent. Michael Moriarty Legal, If the court is a political institution making important political decisions, then the public should debate the politics of Supreme Court decisions. Marvin Ammori If you're a Supreme Court justice, the American people have elevated you to one of the highest offices in the land out of the goodness of their heart and out of deference to your legal wisdom. You get a lifetime appointment, limitless prestige, a great office, and what I have to assume is a very comfortable chair. At least 80 percent of American prisoners are grossly over-sentenced. The Supreme Court knows this, but shows scant concern for this human side of criminal justice. I was interested in politics very much when I was growing up, and that's what I think I really wanted to be - either a senator, or a Supreme Court Justice, and I always wanted to be a lawyer. Michael Riedel In my own experience, I plotted and planned my life when I was getting out of law school to know by what year I'd make it to the Supreme Court. That didn't work out the way I planned. Lloyd Blankfein What five members of the Supreme Court say the law is may be something vastly different from what Congress intended the law to be. Benjamin Franklin Fairless The supreme happiness of life is the conviction that we are loved; loved for ourselves, or rather in spite of ourselves. Old age is the supreme evil, for it deprives man of all pleasures while allowing his appetites to remain, and it brings with it every possible sorrow. Yet men fear death and desire old age. How does a pansy, for example, select the ingredients from soil to get the right colors for the flower? Now there's a great miracle. I think there's a supreme power behind all of this. I see it in nature. The Western media tends to place a lot of emphasis on official institutions in Ukraine such as its supreme court, the central election commission, and the parliament. In reality, the people of Ukraine now control their destiny. Bob Schaffer Destiny, To the rest of us the supreme vindication of the scholar's view lies in their invincible allegiance to the Jewish heritage - a steadfastness that has been matched only by that of their rescuers. Henrietta Szold To mankind in general Macbeth and Lady Macbeth stand out as the supreme type of all that a host and hostess should not be. We want to bear witness today that we know the relation between corporate greed and what goes on too often in the Supreme Court decisions. The supreme good of life is vitality. And vitality is always seeping away. The Supreme Court has insulted you over and over again, Lord. They've taken your Bible away from the schools. They've forbidden little children to pray. They've taken the knowledge of God as best they can, and organizations have come into court to take the knowledge of God out of the public square of America. The wonderful thing about being a New York Times columnist is that it's like a Supreme Court appointment - they're stuck with you for a long time. Despite two decisions, in 2008 and 2010, by the U.S. Supreme Court unequivocally affirming that the Second Amendment to the Constitution guarantees an individual right to keep and bear arms against infringement by the government, state legislatures continue to do just that - enact laws that significantly infringe this fundamental human right. As the law minister, I had ensured that the government's right to natural resources was protected. The result was evident. The honourable Supreme Court gave the landmark decision in RIL vs RNRL case that the government is the owner of all natural resources. Veerappa Moily Every writer knows that unless you were born gifted with either supreme confidence or outsize ego, handing in your work holds, in some cases, admitted terror. If that's too strong, at least fairly high anxiety. The opera is like a husband with a foreign title - expensive to support, hard to understand and therefore a supreme social challenge. Cleveland Amory Taste is the fundamental quality which sums up all the other qualities. It is the nec plus ultra of the intelligence. Through this alone is genius the supreme health and balance of all the faculties. Comte de Lautreamont Where quality is the thing sought after, the thing of supreme quality is cheap, whatever the price one has to pay for it. War is the supreme drama of a completely mechanized society.

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The Carmack Amendment: A Uniform System Of Liability For Interstate Transportation Carriers Counsel seeking recovery on behalf of their clients for damage or loss incurred as a result of the interstate shipment of goods typically file complaints alleging various state law claims such as breach of contract, negligence and fraud. What Plaintiff's counsel does not know is that such state law claims are preempted by a federal law known as the Carmack Amendment. The Carmack Amendment is a uniform national liability system for interstate carriers which provides certainty to both carrier and shipper. It specifically allows a carrier to require that all claims for loss or damage by a shipper be made in writing within nine months from the date of the loss. It also allows a carrier to limit its liability if all prerequisites have been met. The Carmack Amendment Preempts State Law ClaimsThe Carmack Amendment is presently codified at 49 U.S.C. Section 14706 et seq. The courts have uniformly held that the Carmack Amendment preempts all state and common law claims and provides the sole and exclusive remedy to shippers for loss or damage in interstate transit. Hughes Aircraft v. North American Van Lines, 970 F.2d 609, 613 (9th Cir. 1992). The preemptive effect of the Carmack Amendment also applies to claims of damage or loss relating to storage and other services rendered by interstate carriers. Margetson v. United Van Lines, Inc., 785 F.Supp. 917, 919 (D.M. 1991).The preemptive scope of the Carmack Amendment was first noted by the United States Supreme Court in Adams Express Co. v. Croninger, 226 U.S. 491 (1913). Despite the then non-exclusive language in the Carmack Amendment, the Court ruled that all state and common law causes of action relating to services under the Carmack Amendment were preempted by the liability provisions within the Carmack Amendment. Id. at 505-06. The Court stated:That the legislation supersedes all the regulations and policies of a particular state upon the same subject results from its general character . . . Almost every detail of the subject is covered so completely that there can be no rational doubt that Congress intended to take possession of the subject, and supersede all state regulation with reference to it.Id.The result of Croninger has been uniformly followed throughout the Circuits. See Hughes v. United Van Lines, Inc., 829 F.2d 1407 (7th Cir. 1987) (causes of action for negligence, breach of insurance contract, breach of contract of carriage, conversion, intentional misrepresentation, negligent misrepresentation, and negligent infliction of emotional distress are all preempted by the Carmack Amendment); R.H. Fulton v. Chicago, Rock Island and Pacific Railroad Co., 481 F.2d 326 (8th Cir. 1973) (actions for failure to properly perform or negligence performance of an interstate contract for carriage is preempted by the Carmack Amendment); Schultz v. Auld, 848 F.2d 1497 (D. Idaho 1993) (causes of action for state consumer protection violations, negligence, breach of contract, intentional misrepresentation, fraud, and conversation are all preempted by the Carmack Amendment).The Ninth Circuit has specifically stated that common law causes of action are preempted by the Carmack Amendment. Hughes Aircraft, 970 F.2d at 613. There, the contract called for the interstate transportation of household products and included a $.60 per pound limitation of liability. Hughes Aircraft, the shipper, argued that its state law claims for breach of contract and negligence were not preempted where the common carrier was operating on a contract basis. The Court, relying on its decision in Croninger stated that Hughes Aircraft's argument was "completely meritless" and ruled that the Carmack Amendment preempted all of Hughes Aircraft's state law causes of action. Id. at 613.The purpose of the Carmack Amendment was to provide. . .a uniform system of carrier liability that would provide certainty to both carrier and shipper by enabling the carrier to asses its risk and predict its potential liability for damages.Pietro Culotta Grapes v. Southern Pacific Transportation, 917 F.Supp. 713, 716 (E. Dist. Cal. 1996).In Pietro Culotta, the plaintiff attempted to assert fraud, misrepresentation and interference with economic advantage claims against a common carrier relating to services rendered under the Carmack Amendment. The court, in analyzing a motion for judgment on the pleadings, ruled that "plaintiff's state causes of action would be inconsistent with the uniformity goal of the Carmack Amendment. Id. at 716. Accordingly, the motion for judgment on the pleadings was granted. Id. at 717. A Carrier May Require That Claims Be Made In Writing Within Nine MonthsGiven that the Carmack Amendment provides a shipper with the sole remedy for interstate moves, all conditions precedent to bring a civil action under the Carmack Amendment must be satisfied. In particular, a carrier may, by contract, require that a claim be made to it by a shipper within nine (9) months of the shipment and that a civil action be instituted within two (2) years after the denial of such a claim. 49 U.S.C. Section 14706(e). The nine (9) month limitation is a condition precedent to bringing a civil action. Consolidated Rail Corp. v. Primary Industries Corp., 868 F.Supp. 566, 577 (S. D. NY 1994). A cause of action will simply not accrue absent strict compliance with the claims limitation. Id.The purpose of a claim period is to provide the carrier with knowledge that the shipper will be seeking reimbursement. Taisho Marine & Fire Insurance Co. v. Vessel Gladiolus, 762 F.2d 1364 (9th Cir. 1985). There, the court held that the carrier's actual knowledge of damage to the property did not negate the requirement that written notice be given within the nine (9) month period. The court granted the carrier's motion for summary judgment on the ground that the shipper did not comply with the requirement regarding timely notice. Id. at 1369. The main policy behind the nine (9) month claim period is to allow the carrier the chance to investigate the claim so as to protect its interest. Taisho, at 1368. A Carrier Can Limit Its LiabilityThe Carmack Amendment also provides that a carrier may limit its liability "to a value established by written declaration of the shipper or by a written agreement." 49 U.S.C. §14706(f). In order to effectively limit its liability, the carrier must:Maintain a tariff in compliance with the require-ments of the Interstate Commerce Commission;Give the shipper a reasonable opportunity to choose between two or more levels of liability;Obtain the shipper's agreement as to his choice of carrier liability limit; and,Issue a bill of lading prior to moving the shipment that reflects any such agreement. Hughes Aircraft v. North American Van Lines, 970 F.2d 609, 611-612 (9th CirAlthough the filing of a tariff alone will not limit a carrier's liability, the above requirements are satisfied when a shipper is given a "reasonable opportunity" to accept or deny the carrier's proposed limitation. Hughes Aircraft, 970 F.2d at 612. A "reasonable opportunity" means that the shipper had both reasonable notice of the liability limitation and the opportunity to obtain information necessary to make a deliberate and informed choice. Id. In Schultz v. Auld, 848 F.Supp. 1497, 1505 (Idaho 1993), the court held that a signature on the contract evidencing an acknowledgment and receipt of the contract and its terms was sufficient evidence of a reasonable opportunity to select among liability limitations. Id. at 1505. In fact, one court has gone so far as to say that a signature on the bill of lading is not actually required in order to limit the shipper's liability, but the shipper's mere acceptance of the contract is sufficient. Johnson v. Bekins Van Lines Company, 808 F.Supp. 545, 548 (E.D. Tex. 1992). ConclusionCounsel representing interstate common carriers should immediately move to dismiss all state law claims at the outset of the litigation. This will typically result in the reduction of a shipper's available damages. Counsel should also analyze whether the shipper has complied with the nine month written claim requirement and whether the carrier has effectively limited its' liability. This may form the basis for an earlier motion for summary judgment or partial summary judgment providing the carrier with an expedient resolution to litigation.

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HomeRules for Religious Charities Drawing Fire NewsRules for Religious Charities Drawing Fire Nacha CattanOctober 3, 2003 New White House regulations could force needy people seeking help from religious charities to sit through religious services before they can receive aid, Jewish civil-rights groups are charging. The civil rights groups say the new rules, which bar charities from forcing recipients of government aid to participate “actively” in activities such as reciting prayers, do not have any provisions prohibiting religious charities from requiring their clients to listen to or sit through religious prayers or speeches in order to receive federally funded services. “It’s the government underwriting forced proselytization as a condition for vulnerable people to get social services to which they are entitled,” said Marc Stern, legal affairs director of the American Jewish Congress. “The regulations don’t have a guarantee against forced passive participation in a religious exercise.” The sweeping regulations, announced last week, are the broadest push so far for President Bush’s “faith-based initiative,” which seeks to increase access to federal funding for religious social service agencies. The rules, issued as an executive order that circumvented Congress, give religious organizations access to almost $30 billion in federal money. Orthodox groups endorsed the move last week, but liberal Jewish civil rights organizations harshly criticized the rules as another administration attempt to lower the wall separating church and state. The rules also allow faith-based organizations to discriminate in hiring on the basis of religion. Among the groups raising objections to various aspects of the rules are the American Jewish Committee, Religious Action Center of Reform Judaism, Anti-Defamation League and National Council of Jewish Women. The lack of safeguards against requiring passive involvement in religious activities is “a very real concern,” said Mark Pelavin, associate director of the Religious Action Center. Pelavin described a hypothetical scenario in which a federally funded soup kitchen may require a hungry client to listen to a prayer offered at the table before eating. “That is deeply disturbing, the idea that someone has to sit through a prayer they might find anathema before receiving government social services,” he said. “By not engaging Congress in this issue, the administration seems to be signaling that it’s not interested in finding solutions to some of these questions, but rather barreling ahead,” Pelavin continued. “It’s a very clear statement from the administration that they’re going to do what they want to do when they want to do it.” But Jim Towey, director of the White House’s Office of Faith-Based and Community Initiatives, defended the rules. “When you talk to the poor who come from the street the least of their problems is hearing a prayer in a soup kitchen,” he said. “These are the concerns of activists who want to sanitize the public square of any possible religious influence, and further they want to force faith-based providers to completely secularize their operation.” The government regulations include some language prohibiting discrimination based on a recipient’s “refusal to actively participate in a religious service” and on the basis of “religion and religious belief.” The rules mention objections raised by opponents but conclude that “language in the rule prohibiting faith-based organizations from requiring program beneficiaries to participate in religious activities is sufficiently explicit.” Critics say the language does not go far enough. “There are some safeguards provided for,” said Richard Foltin, legislative director and counsel of the AJCommittee. “But there is always the problem that people can be made to feel they ought to be participating or sitting through religious activities they don’t want to be present for.” “There are a number of programs funded at the state level where objections have been raised about what is expected of people receiving social services,” Foltin said. Stern of the AJCongress raised the same objection to a grant application circulated by the Department of Labor for a mentoring program for youths with disabilities. But a Labor Department official defended the grant, saying it requires charities to sign a certification barring religious discrimination. “If I’m offering computer-training classes through the grant and in addition the church offers lunch-hour Bible study, I cannot condition computer training on a person’s” decision whether or not to go to Bible class, said Brent Orrell, director of the department’s Center for Faith-Based and Community Initiatives. “Good enough,” Stern retorted. “But what if before the computer class itself you have Bible comments or a prayer, or something.” The new regulations define the criteria for faith-based organizations competing for $8 billion in grants that the Department of Housing and Urban Development will make available for social services delivered by nongovernmental institutions. The White House also announced that the Department of Health and Human Services completed rules giving religious groups access to almost $20 billion in grants. It also announced that the service department awarded $30.5 million to 81 organizations that will use the money to provide services or make grants to religious charities and community organizations in 45 states. The money is from the Compassion Capital Fund, which Bush created. Last year, $24 million was awarded. Jewish groups took issue with the principle of acting “without congressional authority to facilitate the distribution of federal funds to houses of worship and other sectarian institutions,” in the words of the ADL’s national director, Abraham Foxman. Jewish organizations also criticized the new rules for allowing faith-based organizations to discriminate in hiring on the basis of religion and for permitting taxpayer dollars to be channeled to religious entities for construction, although not for construction or rehabilitation of a “principal place of worship.” Stern said he was disappointed that the White House declined to address the questions and comments that AJCongress and other Jewish groups raised when the regulations were first presented in March. One such concern articulated by the groups, Stern said, was that equality be ensured for Jews and Jewish institutions in giving and receiving federally funded social services. Another was ensuring the availability of a viable secular alternative to the service provided by a religious organization. “There were specific points that we made,” Stern said, which the White House did note in its report on the new executive orders, “but these questions were either not answered or answered in ways that say: ‘We are not going to tell religious groups what they can or cannot do.’” With Reporting by Ori Nir in Washington* Nacha Cattan Rules for Religious Charities Drawing Fire

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Indebtedness As Capital For An EB-5 Investment by Joseph Whalen People are always asking me if an alien can get a loan and invest the proceeds from that loan into a project and have that count for EB-5 purposes. My initial reaction is extremely practical. I first ask, who in their right mind would make a "loan" of $500,000.00 or a full one-million dollars to be used as an "at risk" investment? I then tell them that it would be easier for someone to give the money as an outright "gift" to the intending EB-5 immigrant. The persistent folks will always have "solutions". I then have to remind them of the fundamentals of EB-5. The investment has to be a real investment and not some bogus arrangement merely contrived in order to obtain an immigrant visa. With that main point laid out on the table, I point out that USCIS is geared towards detecting and fighting against fraud. Therefore, anything that looks fake will be attacked as fake even if it is not truly "legally and technically" fake. The reliance on a presumption accorded by law or merely meeting the bare minimum presentation of initial evidence or a prima facie showing leaves open the potential for legitimate challenges to the proof offered in support of the petition. See Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). This "legitimate challenge" is often overstated by zealots as a required "burden shifting". It is not. There is no burden shifting requirement when the initial evidentiary showing is not met in the first place. A prima facie showing is a presumption which may be challenged it is not necessarily a showing of full eligibility and it never was. Corroborating evidence and substantiation through the production of probative and credible evidence, viable and reasonable explanations, and valid legal arguments laid out in a brief may be demanded when valid concerns are raised by USCIS. In the paper-based and faceless adjudications performed at USCIS Service Centers, these inquisitorial adjudications are akin to the "arguments on briefs" approach relied upon in the courts when rendering summary judgments. Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). The following excerpt is a handy summation of how a court would handle a case that could be decided without the need for a hearing or trial. An appeal of a decision reached through summary judgment is always reviewed de novo. AAO always retains the plenary power to review any decision under the de novo standard and likens its relationship to USCIS Field Offices (especially Service Centers) as being similar to the relationship between a Court of Appeals over a District Court. Summary Judgment Standard[1] In deciding a summary judgment motion, the court, or judge, reviews the pleadings, any depositions, any answers to interrogatories, any admissions on file, and any affidavits. Summary judgment should be granted only when there is no genuine issue as to any material fact. A material fact is a fact that could affect the outcome of the case. An issue of fact is genuine if the evidence would justify a verdict for the party opposing the summary judgment motion. All inferences drawn from the evidence presented and all ambiguities must be resolved in favor of the party who opposes the summary judgment motion. [Emphasis added.] AAO often cites to the various above principles in its current decisions such as a relatively recent H1-B petition appeal for example as follows. "Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972))."[2] Specifically in the EB-5 context, and in recognition of Congressional intent as it relates to the qualifying requirements for a valid capital investment, INS explained in the first final rule to address it, published in 1991, as follows. "... To qualify as capital, indebtedness must be secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the [indebtedness][3] . This requirement is designed to ensure that, by investing capital, the alien entrepreneur has placed funds or other capital assets directly at risk." 56 FR at 60902 (November 29, 1991) Under the holdings in Izummi, INS [now USCIS] put the EB-5 community on notice of many strict requirements when it come to what will count as an investment. That decision addressed redemption agreements, reserve funds, and promissory notes among other things but many of the same concepts will leak into the "loan proceeds as an investment" approach. (10) Under 8 C.F.R. § 204.6(e), all capital must be valued at fair market value in United States dollars[4] , including promissory notes used as capital. In determining the fair market value of a promissory note, it is necessary to consider, among other things, present value. At pp. 169-170 Matter of Izummi, 22 I&N Dec. 169 (AAO 1998). The concept of loans in EB-5 was specifically addressed in yet another Precedent Decision. Soffici involved a situation where the alien transferred his EB-5 investment funds directly from his corporate account rather than his personal account however I would take this as a cautionary tales despite the slightly different context. I would urge folks to strive to meet these challenges up front for their own protection. Matter of Soffici, 22 I&N Dec. 158 (AAO 1998) held, in pertinent parts: A petitioner under § 203(b)(5) of the Immigration and Nationality Act cannot establish the requisite investment of capital if he lends the money to his new commercial enterprise. Loans obtained by a corporation, secured by assets of the corporation, do not constitute capital invested by a petitioner. Not only is such a loan prohibited by 8 C.F.R. § 204.6(e), but the petitioner and the corporation are not the same legal entity. A petitioner's personal guarantee on a business's debt does not transform the business's debt into the petitioner's personal debt. A petitioner must present clear documentary evidence of the source of the funds that he invests. He must show that the funds are his own and that they were obtained through lawful means. The concept of loans in EB-5 should take into account certain concepts from another Precedent Decision, which was addressing promissory notes but they can easily be applied to loans when the proceeds will be used as the EB-5 capital investment. Matter of Hsiung, 22 I&N Dec. 201 (AAO 1998) held, in pertinent parts: A promissory note secured by assets owned by a petitioner can constitute capital under 8 C.F.R. § 204.6(e) if: the assets are specifically identified as securing the note; the security interests in the note are perfected in the jurisdiction in which the assets are located; and the assets are fully amenable to seizure by a U.S. note holder. When determining the fair market value of a promissory note being used as capital under 8 C.F.R. § 204.6(e), factors such as the fair market value of the assets securing the note, the extent to which the assets are amenable to seizure, and the present value of the note should be considered. Whether a petitioner uses a promissory note as capital under 8 C.F.R. § 204.6(e) or as evidence of a commitment to invest cash, he must show that he has placed his assets at risk. In establishing that a sufficient amount of his assets are at risk, a petitioner must demonstrate, among other things, that the assets securing the note are his, that the security interests are perfected, that the assets are amenable to seizure, and that the assets have an adequate fair market value. Lastly, while Matter of Ho is most often cited for its in-depth discussion of what constitutes a proper business plan, it is also of use to this discussion. Portions of the Holding from Ho specifically address the requirement that the alien is using his or her own money and that it is legally his or her own capital to invest. Matter of Ho, 22 I&N Dec. 206 (BIA 1998) held, in pertinent parts: The petitioner must establish that he has placed his own capital at risk, that is to say, he must show that he was the legal owner of the invested capital. Bank statements and other financial documents do not meet this requirement if the documents show someone else as the legal owner of the capital. The petitioner must also establish that he acquired the legal ownership of the invested capital through lawful means. Mere assertions about the petitioner's financial situation or work history, without supporting documentary evidence, are not sufficient to meet this requirement. I am not saying that no loan arrangement can work, I am saying that it has to be EB-5 compliant just like every other aspect of the EB-5 project, applications, petitions, and all supporting evidence relating to investment structures, exit strategies, and partnerships etcetera. That's my two-cents, for now. 1http://research.lawyers.com/Summary-Judgment-Motion.html 2Petition for a Nonimmigrant Worker 3 Word was misspelled in original, corrected herein. 3 Bold added for emphasis from this point forward within quoted text. About The Author Joseph P. Whalen is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.

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An attorney who purchased 14,000 shares of stock in a firm client after learning confidential information from his law partner is the subject of a one-year suspension recommendation by the Illinois Review Board. The attorney also had falsely denied that he misused confidential information in making the purchases. He had used information learned from a partner's e-mail to purchase stock and realized a profit of almost $135,000.The review board concluded that he had violated his duties of confidentiality and honesty and (over a dissent) engaged in criminal conduct that adversely reflected on his fitness to practice. The attorney had not been convicted of any criminal offense. He had been subject to a civil enforcement action and repaid double the amount of the stock sale profit as a penalty. A hearing board had recommended a two-year suspension. The review board concluded that the sanction was unduly harsh: The Hearing Board...declined to consider [the attorney's] family problems in mitigation. The Hearing Board discounted this evidence, reasoning that there was no real correlation between [his] misconduct and his family problems. In our opinion, the Hearing Board took too strict a view in assessing this evidence. [The attorney] testified that he committed the acts in question because he was acting irrationally, in response to depression and problems that he was having with a teenaged daughter. [He] and his ex-wife testified in detail about serious problems affecting one of their daughters, beginning in July 2004 and continuing through at least May 2006, the time of [his] misconduct. Each testified that their daughter’s problems with drugs and problems brought about by persons with whom she was associating caused very significant emotional stress for the family. The family ultimately placed the young woman in remote residential treatment facilities, at significant expense. [The attorney] sought and received treatment for depression between August 2005 and April 2006 and in October and November 2006. In addition, [his] father died, in December 2005, and [he] assumed responsibility for his late father’s affairs, out-of-state, which added additional stress. [He] testified that, as a result of these factors, he was not using his best judgment at the time of his misconduct. He testified that his "life was going down the tubes." The facts which [he] and his ex-wife described support that statement. [His] very difficult family circumstances do not excuse his misconduct. They do, however, provide a framework from which to reasonably assess this respondent’s actions. These circumstances were ongoing at the time of [his] misconduct. A temporal connection between a respondent’s misconduct, ill mental health, and family problems is properly considered in mitigation. (citation omitted) While we do weigh the mitigating factors differently than did the Hearing Board, they are not sufficient in this case to justify a lesser suspension than one year, given the facts of this case as a whole. The majority questions the appropriateness of bringing the criminal conduct charge absent a conviction, notwithstanding governing case law that makes clear that conviction is not a necessary predicate to the violation. (Mike Frisch) http://lawprofessors.typepad.com/legal_profession/2010/09/inside-information.html http://www.typepad.com/services/trackback/6a00d8341bfae553ef013487929fec970c Listed below are links to weblogs that reference Inside Information:

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« Federalist Society Hears Update on Pre-Emption: It's a Mess | | Antitrust Officials Moving Forward with New Merger Guidelines » Federalist Society Panelist Calls for End of Patent Injunctions Should there be an easier way to infringe patents? The question was the subject of heated debate during a wide-ranging panel discussion on the state of intellectual property law at the Federalist Society’s annual conference today. Daniel Ravicher, president of the Public Patent Foundation, proposed that the government do away with the use of preliminary injunctions against patent infringers, and require patent holders to accept royalties instead. “With intellectual property, I think we should encourage efficient infringement,” Ravicher said. That suggestion drew a rebuke from libertarian scholar Richard Epstein, a professor at New York University School of Law. He said efficient infringement systems in contracts are a “total nightmare.” Compulsory licensing systems rarely seem to arrive at appropriate royalty rates, he said. He then called the idea of doing away with injunctions an example of “political, economic and intellectual stupidity.” Epstein pointed to the growth of innovation in the pharmaceutical industry after Congress strengthened drug patents in the 1980s as an example of how strong patents can yield benefits. But during his turn at the microphone, Professor Michael Meurer, a research scholar at Boston University School of Law, argued that pharmaceuticals gave only half the picture. The current patent framework works well for the drug market, he said, but poorly in the information technology and communications industries. Meurer said there has been an “explosion” of patent litigation in those industries because patents are hard to search and ill-defined. He called for more transparency in patents and better claim interpretation. Professor F. Scott Kieff of George Washington University Law School argued that weaker patents have unforeseen consequences, particularly in the area of competition. “Big companies love a weak patent system because they can communicate with each other through weak patent litigation,” he said, explaining that lawsuits allow companies to exchange information through discovery that would ordinarily be barred by antitrust law. “These cases are not all about money,” Kieff said. Posted by Jordan Weissmann on November 12, 2009 at 03:50 PM in Miscellany | Permalink

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In US Courts, Truth Often Gets Left in the Dust By Nicholas N. Kittrie. Nicholas N. Kittrie is author of the forthcoming ''The War Against Authority: From the Crisis of Legitimacy to a New Social Contract'' (The Johns Hopkins University Press, November). / THE television cameras have gone dark, and Judge Lance Ito's courtroom returns to the non-celebrity workaday world of robbery, larceny, and assault. The high-priced defenders, the public prosecutors, and the expert witnesses are preparing, perhaps with a bit of ennui, for their next cases. But the ''trial of the century'' is not truly over.As important as the jury's verdict has been for all of those involved, of far greater national significance will be the American people's verdict when they realize that after nine months of trial and 107 witnesses, after 12,000 pages of transcripts and innumerable motions and counter-motions, the truth of what actually occurred that night in Los Angeles has still not been revealed, possibly not even genuinely examined. America may come to realize that it knows more about Marcia Clark's hairstyle, Johnnie Cochran's personal life, or Mark Fuhrman's abhorrent racial views than it does about the murders of Nicole Brown Simpson and Ronald Goldman. The murders themselves must now be allocated to the ''unresolved'' or ''uncleared'' category, where nearly 73 percent of America's some 30,000 annual homicides end up. It has been said that in war truth is the first casualty. But wars are contests of force where prowess and resources, rather than truth, are expected to prevail. This is not what's expected in the hallowed halls of justice, where one hopes to find the realization of Benjamin Disraeli's assertion that ''justice is truth in action.'' Yet in the modern American criminal court it is not Disraeli's promise that rules, but a mangled version of the axiom about war: Truth, far from being victim, is hardly even present. Truth is absent without leave, or acknowledgment, from the battle between lawyers.Who in the courtroom is actually vested with the duty of pursuing the truth? America's criminal justice system, derived from the country's English heritage, has sought to differentiate itself from the European inquisitorial process, under which the accused is expected to cooperate with the state's investigation and is encouraged to offer evidence to exonerate himself. Under the system that prevails on the Continent, the role of lawyers is greatly subdued, with the major quest for information, during both investigation and trial, being carried out by an impartial judicial officer.The state as adversaryThe Anglo-American adversarial process believes, instead, that truth and justice can be best derived not from cooperative pursuit but from a fierce contest between disagreeing parties. What the adversarial process eventually created, however, is a perception that the ''state'' is the suspect's enemy rather than an unbiased pursuer of the truth. The suspect has no duty to aid the state in the quest for justice. He or she is not required to testify or otherwise cooperate, nor does the state generally offer any incentives to induce the defendant to contribute to the pursuit of the truth. O.J. Simpson's victorious lead attorney, Johnnie Cochran, conceded this when he claimed in his closing argument that the ''search for the truth is their job,'' referring to the prosecution. The defense counsel is hired to keep the defendant out of prison, regardless of guilt.On the other hand, the police and their courtroom spokesmen, the prosecution cadre, seek to present themselves as a squad of Diogeneses, all searching, lanterns aloft, for the truth and nothing but the truth. In their quest they are admonished to heed Sir William Blackstone, a pillar of modern Anglo-American legal jurisprudence, who declared that ''it is better that 10 guilty persons escape than one innocent suffer.''But the police and prosecution have a goal too, much as the defense does. They are expected to preserve law and order and to place criminals in prison. Can the desired end result, conviction, sometimes become more important than the truth surrounding guilt or innocence? Police and prosecutorial abuses, including brutality and trickery in securing confessions, have not been unknown in this country. But other practices trouble true believers in the adversarial model even more than such abuses. The increasing use of plea bargaining is said to be vital to speed and efficiency in the criminal justice system, but the plea bargain amounts to an oriental bazaar type of negotiation. It has been joined by the even more bizarre Alford plea (permitting an accused to plea: ''Your Honor! I plead guilty but I did not do it!''). Together, they now account for some 95 percent of all criminal dispositions in this country. These and similar innovations, vehemently supported by lawyers of all stripes as indispensable in an overburdened legal system, further dilute the quality of ''truth'' in the nation's halls of justice.What of the judge? Alas, the judge in the American legal system is more an umpire than a Solomon. He or she sits on high, deciding what is to be allowed into evidence, ruling on motions concerning witnesses, choosing when to turn the mass-media microphones and cameras off. Their role is to make the court run in an orderly manner, to make sure the system works and triumphs - the system, not the truth.And, finally, the jury. Before deciding whether to open the cell door to freedom or lock it in punishment, these 12 men and women must decide which version of the truth they believe. Yet the truth they have to rely on in reaching their verdict is that proclaimed by two adversarial parties who often use the criminal process (sometimes with full constitutional support) to obfuscate the truth.''The court's power,'' wrote the US Supreme Court some three years ago, ''lies in its legitimacy ... that shows itself in the people's acceptance ....'' It is the public's trust in the American criminal justice system that is likely to be drastically affected by the post-mortem of the Simpson trial.How did truth retreat from the forefront of the American criminal justice system? Perhaps it was caused by the emergence of greater extremism in the operation of the adversarial process, with both the prosecution and defense becoming more concerned about their respective roles than about simple truth and justice. This development may be attributed to the post-World War II era, when the prodding of the Supreme Court, under Chief Justice Earl Warren, brought about what Prof. Herbert Packer described as a victory of ''due process'' over ''crime control'' in the American criminal process.To due-process supporters, the state and its agencies are all-powerful and the accused is pitifully helpless. They insist that the prosecution should not secure a conviction, even of the factually guilty, by inappropriate ways and means. Stressing the possibilities of both deliberate and accidental state errors, they are committed to the eradication of all state misdeeds. This camp therefore considers ''factual guilt'' of little significance. What matters to them is ''legal guilt,'' meaning guilt determined in careful conformity with judicially specified, and constitutionally sanctioned, standards of law enforcement.The crime-control camp, on the other hand, sees its function primarily as that of reducing, or at least stabilizing, criminal activity. They operate, generally, on the unstated assumption that those suspected by the police, who have had evidence of probable cause established against them - and who have failed to exculpate themselves through alibi witnesses or other testimony - are presumably guilty. Favoring speedy, efficient, and informal proceedings, the crime controllers do not always shy away from psychological or even physical intimidation of suspects, or other questionable practices intended to expedite punishment.Although the Supreme Court, under Warren, declared the supremacy of the due-process approach over crime control, the final victory of that camp was never fully attained. Mr. Simpson's elaborate trial serves to demonstrate the ongoing skirmishes between the advocates of the two models.Questions of due processMs. Clark and the California prosecutors relied, in great part, on the tainted testimony of Detective Mark Fuhrman, which was faulted by the defense as reflective of the crime-control approach. The defense constantly raised questions not only about police and prosecution negligence, but also about deliberate misconduct and racial bias. They called for, and may have received, due process. To the prosecution, the irregularities of the state's actions may seem insignificant. To the defense, no state willing to keep in its employ officers such as Fuhrman should be entitled to win a conviction.Any conclusion that the Simpson jury might have reached would have likely fortified a growing suspicion that, in the on-going struggle between the crime-control and due-process approaches, the loser is not only the truth but also the public's confidence in its embattled system of justice. The lesson to be learned from the O.J. Simpson morality play is that no legal system can retain the confidence of the people if, in its search for ''justice,'' it leaves the truth in the dust. Latin America makes strides: Former Guatemalan dictator faces genocide trial Three years after bloody election violence in Ivory Coast, tension simmers O.J. Simpson in court to fight robbery, kidnapping conviction

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| United States v. Gosnell United States v. Gosnell United States District Court, District of Montana, Butte Division UNITED STATES OF AMERICA, Plaintiff,v.DOUGLAS JAMES GOSNELL, Defendant. Dana L. Christensen, Chief District Judge Before the Court is Defendant Douglas James Gosnell’s motion to suppress. For the reasons explained, the Court denies the motion. Background In January 2015, Gosnell was indicted for Possession of a Firearm by a Person Under a Domestic Order in violation of 18 U.S.C. § 922(g)(8) and Receipt of a Firearm While Subject of Indictment or Information in violation of 18 U.S.C. § 922(n). Trial is scheduled for May 26, 2015. At approximately 5:15 p.m. on May 18, 2013, Gosnell drove to the Anaconda-Deer Lodge County Law Enforcement Agency, where he indicated he had warrants for his arrest. Officers confirmed that Gosnell had a warrant from the Justice Court in Missoula County and a California warrant that was only extraditable within the State of California. Gosnell was apparently served with the Missoula County arrest warrant and escorted into the detention center booking area. Video and audio of the booking process show Sergeant Heffernan instruct Gosnell to put his personal belongings on a table. Sergeant Heffernan states[1], “Doug, go ahead and put everything here, empty your pockets right here – hat, gloves, coat, guns, knives.” (Doc. 24, Exhibit B). Gosnell immediately states, “Gun’s out in the car.” Id. Gosnell then makes several statements regarding his dog, which was in the vehicle he drove to the agency. Gosnell made repeated requests for the officers to take care of his dog. Sergeant Heffernan then asked Gosnell if officers had permission to go in his car. Gosnell responded, stating “Fuck, yeah. You got permission. Will you take care of my dog?” Id. Gosnell continues to request that the officers take care of his dog, and not take it to the pound. The officers respond that they cannot promise to take his dog home, assure him that they will not kill the dog, but do not ask Gosnell any questions. Gosnell then states, “Okay, I’m parked out front, pistol is behind the seat.” Id. Gosnell then tells the officers to “get Tim up here.” Id. This appears to be a request to speak with Chief of Police Tim Barkell. Gosnell later indicates that he also has prescription medications in his vehicle that he will need. The officers continue to book Gosnell, the video ending with Gosnell being placed in a holding cell. Chief Barkell was contacted, and met with Gosnell the evening of May 18, 2013. Chief Barkell provided Gosnell with a written Miranda waiver, on which Gosnell indicated that he understood his rights, wished to speak with the officer, and wished to have an attorney present. According to the search warrant application, Chief Barkell and Sergeant Heffernan approached Gosnell’s vehicle with a flashlight and were able to see both the dog and a black nylon holster with a handgun in it. (Doc. 23). The animal and prescription medications were removed from the vehicle. On May 22, 2013, Chief Barkell applied for a search warrant for Gosnell’s vehicle. The subsequent search, pursuant to the search warrant, resulted in the seizure of a black H. Weihrauch .357 revolver in a black nylon holster, which was loaded with six rounds of .357 ammunition, and 32 live rounds of .357 ammunition. Discussion Gosnell contends that the inculpatory statements “gun’s in the car, ” and “pistol is behind the seat” must be suppressed because he was subject to a custodial interrogation prior to being given Miranda warnings and that the physical evidence discovered in his vehicle pursuant to the search warrant must be excluded as a result of the initial constitutional violation. The Court denies the motion because the officers did not expressly question Gosnell about potential firearms, nor did their conduct rise to the level of a ‘functional equivalent’ of express questioning. Further, Chief Barkell was able to see the gun in question in plain sight when he approached the vehicle, per Gosnell’s request, to secure his dog. Miranda safeguards attach when a person is subject to a custodial interrogation. Miranda v. Arizona, 384 U.S. 436 (1966). An interrogation includes express questioning and its functional equivalent. Arizona v. Mauro, 481 U.S. 520, 526 (1987). The functional equivalent of express questioning has been defined as “words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 300-301 (1980). The Court looks to whether under the circumstances involved in the given case, the questions are reasonably likely to elicit an incriminating response. United States v. Solano-Godines, 120 F.3d 957, 961 (9th Cir. 1997). Miranda rights are not required for routine booking questions, such as asking for biographical data necessary to complete booking. Pennyslvania v. Muniz, 496 U.S. 582, 601 (1990). During the booking process, officers may remove and list, or inventory, property found on the person or in the possession of an arrested person who is to be jailed. Illinois v. Lafayette, 462. U.S. 640, 646 (1983). Gosnell was in custody after turning himself in, and was undergoing the booking process when he made the statements in question. The question then turns on whether, when Sergeant Heffernan instructed Gosnell to empty his pockets, he should have known that he was reasonably likely to elicit an incriminating response. The defense argues that the officers were familiar with Gosnell, and knew or should have known of his prior felony convictions. This, Gosnell alleges, shows that Sergeant Heffernan’s instruction to empty his pockets of everything, including knives and guns, was intended to elicit an incriminating response. However, the video is clear in showing that Sergeant Heffernan was simply proceeding through the booking process. Sergeant Heffernan did not ask Gosnell if he had any guns, nor did he ask what was in his vehicle. Rather, he listed several items, with no apparent specific intent, in order to instruct Gosnell to turn over any personal belongings on his person for purposes of inventorying them. The fact that Gosnell was familiar with these officers and the booking process also suggests that he was not under the impression that when asked to empty his pockets, he was being questioned about the location of his firearm. Gosnell’s statement, “gun’s out in the car” was a voluntary statement given immediately after he was told to empty his pockets. Telling Gosnell to turn over items on his person during booking was not reasonably likely, in this case, to lead to an incriminating statement about the location of his firearm outside in his vehicle. As such, the statement will not be excluded. The next statement in question, “pistol is behind the seat, ” was also voluntarily given. Gosnell stated that the pistol was behind the seat after a discussion of what would be done with his dog, and after giving officers permission to remove his dog from his vehicle. Officers never asked about, mentioned, or implied anything regarding the firearm. In fact, their only response to his utterances regarding the firearm were “okay.” (Doc. 24, Exhibit B). Police statements about Gosnell’s dog were not reasonably likely to lead to an incriminating statement about the exact location of his firearm. Lastly, the search warrant application states that Chief Barkell was able to see the firearm in question, in plain sight, by looking through the windows of the vehicle. Chief Barkell was looking in the vehicle pursuant to Gosnell’s request that he take care of his dog, which was located in the vehicle. Chief Barkell’s plain view observation of the firearm in the holster, as stated in the search warrant, provide probable cause notwithstanding the inclusion of Gosnell’s statements regarding the firearm. In conclusion, the routine booking procedure of inventorying Gosnell’s property on his person was not likely, in this case, to lead to an incriminating statement. Gosnell voluntarily stated that his gun was in his car. Further, discussion of Gosnell’s dog was not reasonably likely to lead to an incriminating statement and Gosnell’s statement that the gun was behind the seat was voluntary. Neither of these statements were obtained as a result of a Miranda violation. IT IS ORDERED that Defendant’s motion to suppress (Doc. 21) is DENIED.

法律

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Moazzam Begg Remanded Over Terror Charges The former Guantanamo Bay inmate appears at Westminster Magistrates Court to face charges linked to the Syria conflict. Moazzam Begg was held at Guantanamo Bay for nearly three years Ex-Guantanamo detainee Moazzam Begg has appeared in court charged with providing terrorist training and funding terrorism overseas. The 45-year-old British citizen, from Hall Green, Birmingham, was one of four people arrested earlier this week on suspicion of terrorism offences linked to the Syria conflict.He appeared at Westminster Magistrates Court today alongside a woman, Gerrie Tahari, 44, of Sparkbrook, Birmingham, who also denied funding terrorism overseas.Begg was remanded in custody and will next appear at the Old Bailey on March 14.Both were arrested on Tuesday with two other men held on suspicion of facilitating terrorism overseas. Begg was released from Guantanamo Bay in January 2005 The pair - a 36-year-old man from Shirley, Solihull, and a 20-year-old man from Sparkhill, Birmingham, who is the son of Tahari - remain in police custody. Begg was held by the US government at the Guantanamo Bay detention camp in Cuba for nearly three years after being arrested in Pakistan in February 2002.He was detained on suspicion of being a member of al Qaeda before being released without charge in January 2005.He was allowed to return to the UK where he was arrested by police before being released without charge.Begg is a director of Cage - which campaigns "against the War on Terror" - and has always maintained that he has never been involved in any kind of terrorist activity.:: Watch Sky News live on television, on Sky channel 501, Virgin Media channel 602, Freeview channel 82 and Freesat channel 202.

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Meanwhile, from spy central, another admission: they've been illegally spying on people's lawyers and intercepting legally privileged material: The regime under which UK intelligence agencies, including MI5 and MI6, have been monitoring conversations between lawyers and their clients for the past five years is unlawful, the British government has admitted. The admission that the regime surrounding state snooping on legally privileged communications has also failed to comply with the European convention on human rights comes in advance of a legal challenge, to be heard early next month, in which the security services are alleged to have unlawfully intercepted conversations between lawyers and their clients to provide the government with an advantage in court. The case is due to be heard before the Investigatory Powers Tribunal (IPT). It is being brought by lawyers on behalf of two Libyans, Abdel-Hakim Belhaj and Sami al-Saadi, who, along with their families, were abducted in a joint MI6-CIA operation and sent back to Tripoli to be tortured by Muammar Gaddafi’s regime in 2004. That's a civil case (yes, they invaded people's privacy and pissed on the ECHR just to save the government money), but it is likely they've also done this in criminal terrorism cases as well. Which has just given everyone convicted of such an offence in the UK in the past five years grounds for appeal. Not to mention handed a clear propaganda victory to those terrorists, who can publicly claim (with some justification) that their convictions were just a stitch-up. Heckuva job those spies are doing there. I bet UKanians all feel a lot safer now. SMERSH,

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Google Files First-Amendment Request With FISA Court By Bill Chappell Jun 18, 2013 TweetShareGoogle+Email Originally published on July 11, 2013 9:17 am Google has filed a legal motion asserting its "First Amendment right to publish aggregate information about FISA orders," asking the U.S. Foreign Intelligence Surveillance Court to remove the gag order that keeps the company from issuing that information. Google and other big U.S. tech companies have been under fire after it was reported that they allowed the National Security Agency to mine customer data, in a government program called PRISM. "FISA court data requests typically are known only to small numbers of a company's employees," says The Washington Post, which first reported the story. "Discussing the requests openly, either within or beyond the walls of an involved company, can violate federal law." The court filing comes one week after Google asked the U.S. government's permission to provide the public with information about the national security requests it receives. As in that case, Google is seeking to publish general statistics about the court's orders, which would include the number of users or accounts in question. In today's carefully worded request for a declaratory judgment, Google was mindful not to say it has received such requests, saying that it wanted to reveal information about "FISA requests that may be or have been served upon it, if any." Google hopes to add that information to its Transparency Report, where it lists government requests about users' information. The FISA court, comprising 11 federal judges, is believed to have refused very few of the government's requests to conduct electronic surveillance. "It may be that they grant more than 99 percent of the requests," journalist and author Tim Weiner told All Things Considered co-host Melissa Block last week, "but they look at them." Large Internet companies such as Google, Facebook, Microsoft, and others have issued public statements saying that claims that they provide the NSA with "direct access" to users' data are untrue. Those claims stem from classified documents leaked by former government contract employee Edward Snowden, who reiterated his views yesterday in an online chat hosted by The Guardian newspaper, which first published the NSA story. In the request Google made last week, its chief counsel, David Drummond, explained to Attorney General Eric Holder that the search and advertising giant "has worked tremendously hard over the past fifteen years to earn our users' trust." Update at 7:10 p.m. ET. ACLU: 'Step In The Right Direction' After we published, the ACLU got in touch with this reaction to today's news, calling it "a step in the right direction": "We welcome Google's effort to force greater transparency, but the public is entitled to know even more than the limited information Google wants to share," says ACLU attorney Alex Abdo. "At a minimum, the public should know the statistics relating to the government's use of PRISM and the FISA Amendments Act, not aggregated with other data, and it should know which specific provisions of FISA the government has relied on to require Google to disclose customers' Internet data and email."Copyright 2013 NPR. To see more, visit http://www.npr.org/. TweetShareGoogle+EmailView the discussion thread. © 2017 WNIJ and WNIU

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406 F. 2d 574 - National Labor Relations Board v. Zoe Chemical Co HomeFederal Reporter, Second Series 406 F.2d. 406 F2d 574 National Labor Relations Board v. Zoe Chemical Co 406 F.2d 574 NATIONAL LABOR RELATIONS BOARD, Petitioner,v.ZOE CHEMICAL CO., Inc., and Local 803, Allied Aluminum and Industrial Union, Respondents. Docket 31989. Argued October 9, 1968. William J. Avrutis, Atty., NLRB (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Allison W. Brown, Jr., Atty., Washington, D. C., on the brief), for petitioner. Charles R. Katz, New York City (Katz & Wolchok, New York City, on the brief), for respondent Zoe Chemical Co., Inc. Before FRIENDLY, ANDERSON and FEINBERG, Circuit Judges. FEINBERG, Circuit Judge: Over five years ago, respondent Zoe Chemical Co., Inc. was caught in the cross-fire of a struggle between two unions, one of which — Local 803, Allied Aluminum and Industrial Union — was then midway through a three-year collective bargaining contract with Zoe. At Local 803's request and in accordance with a judicially confirmed arbitration award, Zoe discharged twelve employees on October 4, 1963. Since then, it has found itself involved in a bitter legal battle before the National Labor Relations Board, culminating in a back-pay order which may subject Zoe to heavy liability. Before us now is the Board's petition to enforce that order; for reasons given below, we decline to do so against Zoe. Although unaware of it at the time, Zoe's troubles started in March 1962, when it signed a collective bargaining agreement — apparently its first — with Local 803. The contract contained a standard union security clause, requiring the approximately 25 to 30 production employees "[a]s a condition of employment" to "become and remain members of the Union in good standing on the 31st day after date of employment." After achieving status as bargaining representative, however, Local 803 ignored the employees. For over a year, although dues were deducted from the wages of those who had signed check-off authorizations during Local 803's organization drive, the union security provisions were not enforced, no Local 803 representative came to the plant, there was no union steward, and the shop was not serviced by the Local. Understandably disenchanted by this treatment, some of the employees contacted another union, Local 8-149, Oil, Chemical and Atomic Workers International Union, AFL-CIO (Local 149); internecine warfare broke out almost immediately. In June 1963, Local 149 filed a petition with the Board for a representation election, claiming that a majority of the unit had signed Local 149 authorization cards. However, the Regional Director dismissed the petition because a valid collective bargaining agreement with Local 803 was then in effect. Meanwhile, Local 803 stirred itself into action. Its president, Bernard Kalisky, visited the plant on June 21, while Local 149's petition was still pending, and explained to the employees that Local 803's contract barred them from bringing in another union. He also apologized for the union's neglect and promised to correct the situation in the future, stating that the union official who should have serviced the plant would be fired.1 Kalisky also read the union security clause to the employees and warned them that they had to join Local 803 or he would have to request their discharge; he stated that past dues would be forgiven and the employees would be granted another 30 days to join up. Thereafter, in June and in July, Kalisky and sometimes other union agents frequently returned to the plant to repeat the warning. During this time, Kalisky stated that the employees would also have to sign union membership cards in order to avoid discharge. However, prior to August 30, none of the subsequently discharged employees tendered either dues or initiation fees. Meanwhile, on July 15, Local 149 filed charges with the Board because the company refused to recognize it as a majority representative. The charge was withdrawn in August. On July 18, an employee filed a union de-authorization petition with the Board, seeking to nullify the union security clause and Local 803's contract. So far as appears from the record, this petition is still pending five years later. On July 24, Kalisky wrote Zoe recounting what had transpired at the June 21 meeting. The letter also informed Zoe that although Kalisky had given the employees additional time to comply with the union shop provision, all except six, whom he named, had failed to do so. Kalisky therefore requested the company to discharge the noncomplying employees immediately. During this period, Local 149's organizer was pressuring Zoe not to enforce the union security clause, with the possibility of a strike implicit. Zoe posted Local 803's letter where all could see it but refused to discharge the employees. On August 5, Local 803 commenced arbitration proceedings under its contract to require Zoe to enforce the union security clause.2 All notices regarding that proceeding were posted on the employee bulletin board. The hearing was attended by representatives of Zoe and Local 803, but neither the employees nor Local 149, although otherwise represented by counsel, attended or intervened. In the arbitration proceeding, Zoe resisted Local 803's demand, pointing out that discharge of "practically the entire unit * * * at its then busy season would constitute economic hardship." On August 26, arbitrator Jerome J. Lande, former general counsel of the New York State Board of Mediation, ruled that the union security agreement was clear and directed Zoe to discharge those of its employees in the unit "who have failed to join the union on or before Sept. 3." Upon receipt of the award, Zoe posted it on the bulletin board, and in the next few days Zoe's president explained its impact to the employees. Local 803 sought confirmation of the award in the Supreme Court of the State of New York and obtained an order of that court, dated September 30, which confirmed the arbitrator's award. On October 4, 1963, Zoe complied with the award.3 Within a week or two, the discharged employees filed charges with the Board, claiming that they had properly tendered dues and initiation fees, a factual issue to be discussed below. In February 1964, the Board's General Counsel issued a consolidated complaint against both Local 803 and Zoe, charging the former with violating sections 8(b) (1) (A) and 8(b) (2) of the National Labor Relations Act, 29 U.S.C. §§ 158(b) (1) (A), (2) and the latter with violating sections 8(a) (1) and 8(a) (3), 29 U.S.C. §§ 158(a) (1), (3). The gist of these charges was that Local 803 had unlawfully enforced its union shop contract with Zoe, by rejecting timely tendered of dues and fees and by causing Zoe to discharge the employees because of rival union activities and that Zoe had wrongfully gone along with this improper scheme. There then ensued a lengthy legal struggle before the Board, which required two separate decisions by the hearing examiner, two appeals to the Board and decisions by it, 13 days of hearings and almost 2,000 pages of transcript, before culminating in a Board order in September 1966, almost three years later. The chief issues litigated involved the alleged attempt of the discharged employees to make a proper tender of dues and initiation fees before their discharge. The employees maintained that they offered to pay dues on August 30, 1963, but that Kalisky insisted that they also sign union membership cards,4 and when they replied that they were not required to do this,5 he rejected their tender. Local 803 sharply disputed this testimony, but in his first decision the trial examiner did not decide the issue whether dues had actually been tendered. His theory was that the employees were also required to tender the $25 initiation fee with the $5 dues, "to test the Union's willingness to accept them in fulfillment" of the contract obligations; since that additional tender was not made, the discharges were proper. Accordingly, in a thorough and well-reasoned opinion, he recommended that the complaint against Local 803 and Zoe be dismissed. However, the Board did not accept this view, holding, as the examiner properly construed it, that if the charging parties were believed, an additional tender of initiation fees would have been futile "since the Union had demanded more than it was legally entitled to, namely, signed authorization cards." Accordingly, the Board directed the examiner to resolve the factual issues on the tender. The examiner thereupon reopened the record for additional evidence and made further findings; the most significant were that tender of dues was made to Kalisky at noon on August 30, 1963, and that Kalisky rejected the tender because the employees refused to sign membership cards. The examiner therefore concluded, under what he regarded as "the law of the case set down in the Board's" remand, that Local 803 had caused the discharges for reasons other than failure to tender dues and initiation fees and had violated the Act. The examiner went on to hold that Zoe did not have "reasonable grounds for believing that Local 803's discharge request was predicated on the employees' failure to pay dues," and that, therefore, Zoe also violated the Act when it discharged the employees. The examiner's recommended order required Zoe to offer reinstatement and held Zoe and Local 803 jointly and severally liable for backpay until April 6, 1964, when the Local notified Zoe that it had no objection to reemployment of the employees; after that date, only Zoe would be liable for backpay. These findings were adopted by the Board, except that for the period prior to April 6, 1964, Local 803 was "primarily liable" and Zoe was liable only "secondarily." Even this might be scant consolation for Zoe, since Local 803 is apparently no longer in existence.6 This summary has skimmed over a number of other factual issues decided before the Board.7 Those proceedings have also generated a surprising quantity of legal issues in this court.8 However, we conclude that we need not deal with most of them because the issue of the validity of the key finding against Zoe is dispositive. We note, moreover, that Zoe stands alone before us in contest with the Board because Local 803 has not appeared. We now turn to the legal basis of the Board's case against Zoe. The Board's order found that Zoe violated sections 8(a) (3) and (1) of the Act. Since the finding as to the latter depends upon the former, we turn to section 8(a) (3), which provides, in pertinent part: Sec. 8(a) It shall be an unfair labor practice for an employer — (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this Act, or in any statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in section 8(a) of this Act as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, which ever is the later, * * * Provided further, That no employer shall justify any discrimination against an employee for non-membership in a labor organization * * * (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership * * *. The ultimate legal question before us then is the validity of the examiner's finding, adopted by the Board, that Zoe had reasonable grounds to believe that the employees' membership in the Union was denied for reasons other than failure to tender the uniformly required periodic dues and initiation fees. Section 8(a) (3) (B) was inserted into the National Labor Relations Act in 1947 by the Taft-Hartley amendments in that year. The congressional aim was to eliminate the most serious abuses of compulsory unionism by abolishing the closed shop, while permitting other forms of union security to continue, thus requiring all employees to share in certain minimum financial burdens of the union. See NLRB v. General Motors Corp., 373 U.S. 734, 83 S.Ct. 1453, 10 L.Ed.2d 670 (1963), noted in 11 U.C.L.A.L.Rev. 143 (1963). Thus, the emphasis in the Act is on limiting "the sanction of discharge to failure to tender periodic dues and initiation fees." NLRB v. Local 3, Retail Store Union, 216 F.2d 285, 287 (2d Cir. 1954). Moreover, in order to protect employees against union attempts to discriminate for other reasons, the Act contemplates potential liability of an employer who meekly submits to a union's illegal intentions. E. g., NLRB v. Shear's Pharmacy, Inc., 327 F.2d 479, 481 (2d Cir. 1964). But, unlike the liability of a union, which is based upon causing or attempting to cause employer discrimination, the employer is liable only "if he has reasonable grounds for believing" that the union has denied membership for reasons other than failure to tender the required dues and initiation fees. Obviously, therefore, before an employer can be held liable, questions of his belief and the reasonableness of holding it are crucial. The factual findings of the trial examiner on which he based his conclusion that Zoe had violated section 8(a) (3) are as follows:9 On September 4, after Kalisky had asked Zoe to fire the 12 employees and had himself told them not to return to work, they told Axelrod, Zoe's president, that they had "offered him (Kalisky) the dues" and stated that "According to the law we are supposed to offer them [dues]. But we don't have to join any union." All testified that Axelrod ordered them back to work after reminding them that it was he, not Kalisky, who did the firing. Axelrod denied that any mention had been made at this meeting of dues offers or union cards. On October 4, after the court order enforcing the arbitration award had issued, Kupetz, the co-owner of the business, assembled the employees and told them that he "had to discharge" them because they were not "members of Local 803." Various employees testified that they told Kupetz, "We offered the dues. * * * Can't we just pay our dues and still work here?" Kupetz denied "any discussion" on or before October 4 about dues or about whether Local 803 had refused to accept the employees because they failed to sign union cards. In his supplemental decision, the trial examiner credited the employees' testimony and concluded: Accordingly, I find, as the charging parties testified, that before and at the time of the discharges, they informed the Company of the fact that they had tendered dues to Kalisky and that the latter had rejected their tenders. He further noted: A prudent employer, familiar with these facts, would at least have investigated the matter to determine if Kalisky's discharge demands exceeded permissible limits, and held that the discharge "must have been based on a ground other than the employees' failure to make the statutory tender." We accept the trial examiner's findings as to the two conversations between the employees and the company's managers. But it does not necessarily follow that the examiner correctly decided the question whether Zoe had "reasonable grounds for believing" that membership was denied for a reason other than nonpayment of dues and intiation fees, i. e., because the employees refused to sign cards. Resolution of that issue requires careful consideration of the probable subjective impact of all of the circumstances leading up to the employees' discharge. This type of evaluation, especially in a case as factually complex as the present one, poses no simple task. The legislative history of section 8(a) (3) (B) and the comparatively few cases that have interpreted its language do not shed much light on the standards to be applied in determining whether information conveyed to an employer must have been sufficient either to create the requisite condemned belief or to prompt at least a further injuiry into the union's discharge demand.10 Clearly some kind of specific information as to the illegality of the union's request must be communicated to the employer: "In order to hold the employer * * * there must at least be proof that he knew he was acting for an impermissible cause." NLRB v. Local 138, IUOE, 293 F.2d 187, 197 (2d Cir. 1961). Absent actual knowledge of some sort, the employer has no duty independently to inquire into the circumstances behind the union's demand.11 Where the employer is given sufficient reason to suspect that the demand might be improper, however, he does have a duty to investigate, though his initial doubt may fall short of "reasonable grounds for believing."12 This duty in turn gives rise to difficult questions of interpretation: How much probable doubt is necessary to require further inquiry, and how far must the employer go to allay his doubts, either in ascertaining the true facts or in resolving issues of law which they may raise? With these problems in mind, we turn to the facts of the present controversy. The trial examiner did not find — and the record does not establish — that Zoe knew that the reason for the union's failure to accept the employees' tender was their refusal to sign union membership cards. In neither of the two critical meetings between the employees and management was this basic issue emphasized, and there is little in the record to suggest that Zoe was aware of it.13 Assuming then, that Zoe was in fact ignorant of the real reason for Local 803's discharge request, the decisive question is whether the employees' protests that "we don't have to join any union" or "we offered the dues" were sufficient in their context to raise a suspicion that the union might be demanding an illegal condition to membership. Looking at the entire, complicated background of the dispute between the dissident employees and Local 803, we do not agree with the trial examiner or the Board that Zoe must have suspected that the union's demands were illegal. In one of the few cases which have discussed the meaning of the statutory phrase, "reasonable grounds for believing," the court stated: [T]he Act * * * requires us to consider the record as a whole, and * * * we take cognizance of the obvious truth that in forming beliefs reasonable men do in fact consider all the information available, and that in consequence, "reasonable grounds to believe" may not be inferred from isolated facts but on the contrary must consist of all the conflicting evidence available to the person sought to be charged with the belief, which furthermore must be sufficient for a reasonable man to form a belief upon evaluation thereof. NLRB v. Pape Broadcasting Co., 217 F.2d 197, 200-201 (5th Cir. 1954). In Pape, an employee Thompson's timely tender of dues and initiation fees to the union was refused because of his reluctance to give up membership in another local of the same union. The company's manager admitted that union officials had told him that Thompson's failure to give them a traveling card was the reason for their termination request and that Thompson himself had told the manager that he had tendered his dues and fees. But looking at the whole record the court noted that on several other occasions union officials had assured the managment that Thompson had not tendered or paid his dues and that submission of a traveling card would constitute compliance in lieu of dues. Moreover, Thompson himself had indicated some uncertainty as to his compliance with the proper procedures. The court concluded: The word "believe" as used in the Act * * * means to be convinced or to feel that something is true or at least probable. Upon consideration of the record as a whole, we conclude that there was no substantial evidence to show that the Company * * * had reasonable grounds to believe, that is, grounds to form a rationally justified belief, that the union's request to dismiss Thompson was for anything other than his failure to tender dues and initiation fees. 217 F.2d at 203. In this case too, the controversy must be considered in perspective. The letter of July 24 from Local 803, which requested Zoe to discharge the employees, did not mention membership cards; in fact, it affirmatively stated that the membership requirement would be fully met if dues and initiation fees were paid.14 Zoe did not discharge the employees upon receipt, for the first time, of a union request, with no independent reason to believe that the union's claims were valid. See NLRB v. Die Makers Lodge No. 113, 231 F.2d 298 (7th Cir.), cert. denied, 352 U.S. 833, 77 S.Ct. 50 (1956). On the contrary, the employees here had for months vehemently and publicly expressed their opposition to Local 803. Zoe was well aware of their loyalty to the rival Local 149 and of their repeated efforts to obtain representative status for that union, as it was of Local 803's counter-efforts to enlist the company's employees. When Local 803 requested the discharge of the nonjoining employees in its letter of July 24, not only did the employees in question thereafter fail to protest the membership card requirement to the company, but, the hearing examiner found, they "wanted nothing to do with the contracting union" and "demonstrated that they `were entirely unwilling to become members' on any basis whatsoever." The fact that neither the employees nor Local 149 made any attempt to participate in the arbitration proceeding from August 5 to 26, though on full notice of it, could reasonably have suggested to Zoe that they still refused to have anything at all to do with Local 803, including — most obviously — the payment of dues. Between August 30 and October 4, Local 803 president Kalisky continued to insist to company official Kupetz that the employees who refused to join the union be fired, while the employees themselves still failed to tell Zoe clearly of their objections to signing the membership cards.15 In the light of this background of continuous and intense hostility to Local 803 on the part of the employees, we think that on the date of their discharge Zoe might very reasonably have believed that they still refused to meet such a valid union condition for membership as payment of dues. We are aware that the employees did protest that they had tendered their dues and did not have to "join" the union. But even if the company must have credited this claim, it might well have assumed that the employees still had refused to pay the required initiation fee, or, in the case of the October 4 termination meeting with Kupetz, that their tender of dues had been made after the September 3 deadline established in the arbitration decree. In any event, we cannot say that after months of open warfare between the employees and the union the "isolated facts" of the former's vague objections expressed to Zoe were sufficient to require Zoe to believe that they were being denied union membership for an impermissible reason. Our conclusion is strengthened by comparing the facts of this case with the prototype situation to which section 8(a) (3) (B) was presumably directed: prompt and unquestioning acquiescence by the employer in discharging an employee towards whom the union is hostile or arbitrary. See, e. g., Staats Dairy Transport, Inc., 162 N.L.R.B. No. 97 (Jan. 22, 1967); cf. NLRB v. A & B Zinman, Inc., 372 F.2d 444 (2d Cir. 1967). Here Zoe steadfastly refused to fire the employees in question for over three months after their controversy with Local 803 broke out, and only finally did so under court order, when noncompliance might subject it to liability for contempt. The hearing examiner found that Zoe had maintained "strict impartiality" towards the inter-union strife, stating: "There is nothing in the record even suggesting company hostility toward, and interference with, the dissidents' rival union activity." Finally, several other employees from the original dissident group had become members of Local 803 before September 3. Far from suggesting that the union was in any way "out to get" the remaining twelve in the group, this fact might well have strengthened Zoe's impression that the hostility of the remaining employees, rather than any discrimination against them on the part of Local 803, was the cause of the conflict. For the reasons set forth above, we do not think that whatever doubts Zoe may have had about the facts of the discharge demand were sufficient to constitute the "reasonable grounds for believing" required by the statute. Nor do we find that under the circumstances Zoe had a duty to investigate the situation further. Even if the company had been fully aware of the employees' claim that their tender of dues was improperly rejected for failure to execute membership cards — an assumption as to which the examiner made no finding, as noted above — we think that it would be an unduly harsh application of section 8(a) (3) to hold Zoe liable for discharging them. While there may well be situations in which an employer would have no justification for refusing to look into the merits of a union discharge request, this is not such a case. In determining the employer's duty in this respect, it is certainly relevant to consider both the burden which further inquiry would impose on him and the likelihood that investigation would lead to a prompt and certain resolution of his doubts. In NLRB v. Leece-Neville Co., 330 F.2d 242 (6th Cir.), cert. denied, 379 U.S. 819, 85 S.Ct. 41, 13 L.Ed.2d 31 (1964), a company discharged seven employees at the union's demand in spite of protests by all the employees that they had paid or tendered their dues. The union had rejected the tenders primarily because they did not include an unlawful fine. The court reversed the Board's finding that the company had violated section 8(a) (3), holding that it was not under a duty to make a further investigation which would have required an examination of the Union's books, a judgment of the credibility of the persons involved and an interpretation of the Union's bylaws. A burden such as this should not be placed upon the Company. 330 F.2d at 248. Quoting at length from the Pape case, supra, the court pointed out: Here the Company also had only isolated and conflicting facts before it and it should not be obligated to conduct an extensive investigation to determine the merit of the Union's demand to discharge the seven employees. Whatever conclusion we might have reached on the facts of Leece-Neville, we agree with the principle that the Act does not contemplate an exhaustive investigation by the employer into the facts or legal implications of every union discharge request.16 Requiring Zoe to resist Local 803's demands once again and conduct an investigation into the dispute, after Zoe was under the sanction of a court order, would impose too great a burden. The very length and complexity of the litigation in this case before the Board and this court indicates that further inquiry by Zoe would have been a formidable and quite possibly fruitless task. It is by no means improbable that Kalisky would have denied, as he did during the hearings, that the employees had ever made a timely tender. And even if Zoe could have resolved to its satisfaction from all of the conflicting evidence that a tender of dues had been made, it would still be faced with the complex legal issues considered by the hearing examiner and the Board: whether the employees were required to tender the initiation fees as well as the dues, whether the time for tender was extended by the arbitration decree, whether signing membership cards was a permissible requirement of union membership, to name only a few. To take the last issue as an example, the hearing examiner initially construed the arbitration award's direction to discharge employees "who have failed to join the union on or before Sept. 3," as requiring only payment of dues and fees, while the Board interpreted it to require the "employees to join the Union and pay dues and fees." If Zoe had interpreted the award in the same way as the Board, the fact that it thought it was properly complying with the letter of the subsequent court order might not in itself justify a violation of section 8(a) (3) — a mistake of law is no defense — but it does illustrate Zoe's plight. We do not think that an employer can fairly be held at his peril correctly to interpret the legality of a requirement such as signing membership cards, especially where, as here, the statute is ambiguous, the past case law on the subject unclear,17 and a state court has apparently deemed the requirement permissible and ordered the employer to proceed accordingly.18 We do not here rule on the correctnes of the Board's conclusion that requiring employees to sign these membership cards was impermissible, or on any of the other legal issues noted above. Whatever the proper answers may be, we do not think that the Act should be an obstacle course for employers. To stake an employer's liability on his resolution of such complex legal questions would be to go far beyond the reasonable purpose of the statute to prevent employers from docilely acceding to patently illegal union discharge demands. Thus, we hold only that the record before us fails to support the finding that Zoe had "reasonable grounds for believing" the discharge request improper or that the company was at fault in not conducting a further investigation into the dispute. The Board's petition for enforcement of its order against Zoe is therefore denied. A further word is necessary regarding Local 803, against which the Board's petition is also brought. As already indicated, Local 803 has defaulted and has not appeared. Therefore, the Board's petition as to it would ordinarily be granted as a matter of course. However, the Board is apparently attempting to enforce successor liability against another union, which has filed an answer in this court both denying such liability and attacking the validity of the underlying Board order against Local 803. We have refrained from deciding the latter issue, and the former is essentially a question of fact which should be decided by the Board in the first instance. Southport Petroleum Co. v. NLRB, 315 U.S. 100, 62 S.Ct. 452, 86 L.Ed. 718 (1942). The Board may insist on attempting to enforce successor liability19 and may hold another union liable on that basis. Should that occur, we make clear that such union will have the right to litigate in this court the validity of the Board order against Local 803, since we have not decided that issue on the merits. That official resigned his position as an officer of the union in the following month On August 5, Local 803 also filed with the Board an unfair labor practice charge against Zoe because of its refusal to honor the union security clause. The charge was dismissed on October 15 by the Regional Director In this general period, the inter-union struggle erupted in another legal maneuver. On August 23, Zoe discharged several employees, not involved in this case. Local 149 promptly filed charges with the Board, alleging that the discharges were discriminatory. On October 15, the Regional Director dismissed the charges because of insufficient evidence These cards contained the following statements: I hereby accept membership in Local No. 803 and of my own free will hereby authorize Local No. 803 its agents or representatives to act for me as a collective bargaining agency in all matters pertaining to rates of pay, wages, hours, or other conditions of employment. I also agree to abide by the constitution and by-laws and the rules and regulations of the Union and its International Union. They had been so advised the previous evening by Local 149 representatives after a telephone conversation with that Local's attorney The Board informs us that another union may have successor liability E. g., that the employees did not, as they originally claimed, make a second tender of dues to Local 803 on the evening of August 30; that Local 803 was not motivated by a desire to punish the dissident employees for their rival union activity These include: the adequacy of a tender of dues without initiation fees or of a tender of partial dues only; the date by which such a tender must have been made, and the effect of the arbitration decree on that date; the authority of the hearing examiner to reopen the hearings on his own discretion; whether the hearing examiner properly credited the testimony of various witnesses; the claimed abuse of the Board's processes by the employees; the effect of the New York Supreme Court order confirming the arbitration award on the legality of Zoe's actions; the legality of the requirement that the employees sign membership cards; whether Zoe had "reasonable grounds for believing" that the union's discharge request was for impermissible reasons These findings were adopted by the Board in its order The legislative history does, however, contain the statement that: "The tests provided by the amendment are based upon facts readily ascertainable and do not require the employer to inquire into the internal affairs of the union." S.Rep. No. 105, 80th Cong., 1st Sess. 20 (1947) Thus, the employer has had no obligation to question a union's discharge demand if the employee himself does not deny that it is based on non-payment of dues, see Krambo Food Stores, Inc., 114 N.L.R.B. 241, 244 (1955), enforced as against the union sub nom. NLRB v. Allied Independent Union, 238 F.2d 120 (7th Cir. 1956), even though the employer may be unclear as to the ground on which the union's demand is based, and though the demand may seem unusual on its face, see Associated Transp., Inc., 169 N.L. R.B. No. 164 (March 5, 1968), enforced as against the union sub nom. NLRB v. Local 182, IBT, 401 F.2d 509 (2d Cir. 1968) (Employer said reason for discharge "[H]as something to do with your dues," 169 N.L.R.B. No. 164 at 2; demand was made by "a union representative with whom the Employer did not normally deal, on behalf of a Local with which the Employer had no dealings," id. at 6 (dissenting opinion)) Investigation may be required under some circumstances where the employer is confronted with the employee's claim that he had paid or tried to pay the dues, see NLRB v. Die Makers Lodge No. 113, 231 F.2d 298 (7th Cir.), cert. denied, 352 U.S. 833, 77 S.Ct. 50, 1 L.Ed.2d 53 (1956); Staats Dairy Transp., Inc., 162 N.L.R.B. No. 97 (Jan. 22, 1967), or was not legally obligated to do so, see May Dep't Stores, Inc., 133 N.L.R.B. 1096 (1961), or that an improper fine was being demanded as well as dues, see NLRB v. Eclipse Lumber Co., 199 F.2d 684 (9th Cir. 1952) The testimony of the charging employees as to their conversations with Axelrod on September 4 and Kupetz on October 4 contains only a few fleeting references to "cards," none of which was specifically mentioned by the examiner The key paragraph of the letter was: I further told [the employees] that the requirement to become and remain a member of the Union in good standing would be fully satisfied if on the 31st day after June 21, 1963, each of them paid the regular initiation fee of $25 and $5 monthly dues and continued the $5 dues monthly thereafter. Compare May Dep't Stores, Inc., 133 N.L.R.B. 1096, 1097 (1961), where the employer was "confronted by a clear-cut avowal by [the employee], iterated and reiterated, that she had orally resigned from the Union and was not compelled to pay the dues in issue." See Producers Transp., Inc. v. NLRB, 284 F.2d 438, 443 (7th Cir. 1960) ("If this Company * * * could not reasonably rely upon a written statement by the Union's president that Pool had been suspended for nonpayment of his dues, then no employer can ever honor a discharge request made under a union shop agreement without first auditing the union's dues records."); G & H Prods. Corp., 139 N.L.R.B. 736 (1962), in which an employee was discharged for failure to pay a reinstatement fee by a certain date, although the employer knew that he had received some kind of extension. Holding that the company was not at fault in discharging him, the Board noted: Even if it had been incumbent upon Wirtz to investigate the validity of Brau's claim to an extension, as General Counsel contends, he would have been confronted with the necessity of resolving the legal questions as to whether the extension agreement was still in force despite Brau's default on the required payments, and whether the receipt given by a secretary who did not have authority to modify the agreement, nevertheless, did modify the agreement. Id. at 740. Cf. note 10 supra. Note that the cards solicited by Local 803 required the signer to do no more than to designate the union as majority representative, a status it already enjoyed under its collective bargaining agreement with Zoe, and to abide by the union's constitution and bylaws, which, according to the trial examiner, appear "to impose on employees no more than payment of $25 initiation fee and $5 monthly dues as obligations of membership * * *." We do not decide whether requiring membership on these facts would be contrary to NLRB v. General Motors Corp., 373 U.S. 734, 83 S.Ct. 1453 (1963). Cf. Union Starch & Refining Co., 87 N.L.R.B. 779 (1949), enforced, 186 F.2d 1008, 27 A.L.R. 2d 629 (7th Cir.), cert. denied, 342 U.S. 815, 72 S.Ct. 30, 96 L.Ed. 617 (1951) It is interesting to note that the New York State Unemployment Compensation Board found, subsequent to the discharge, that the employees had quit work voluntarily, as they refused to join Local 803 in accordance with the union security agreement. While this determination has no influence on the Board's determination, it is another example of the singular lack of unanimity in deciding the issue of the validity of the membership card requirement Since Local 803 notified Zoe in April 1964 that it had no further objection to rehiring the employees, its potential liability is limited

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2017-04/0403/en_head.json.gz/14871

608 F. 2d 659 - United States v. Garza HomeFederal Reporter, Second Series 608 F.2d. 608 F2d 659 United States v. Garza 608 F.2d 659 UNITED STATES of America, Plaintiff-Appellee,v.David GARZA, Defendant-Appellant. Oscar J. Pena, Laredo, Tex., for defendant-appellant. James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of Texas. Before GOLDBERG, FAY and RUBIN, Circuit Judges. GOLDBERG, Circuit Judge: This case presents nothing new no new issue of law or unique factual configuration. It presents rather a situation far too common and too often condemned by this court to be in any manner excusable. We must deal again with grossly improper prosecutorial comment during closing argument which substantially prejudiced defendant's right to a fair trial on the evidence presented in his case. David Garza was convicted by a jury on counts of conspiracy, distribution of heroin, and possession of heroin with intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The Government's case rested heavily upon the testimony of Juan Juarez, a "cooperating individual" that is, a confidential informant and Rudy Gonzales, an agent of the Drug Enforcement Administration, who worked as an undercover agent in the case. Juarez and Gonzales testified as to their participation directly with Garza and his co-conspirator David Sauceda in setting up and carrying out the alleged heroin transactions in Laredo, Texas, which formed the basis for the prosecution. Garza's defense, however, was alibi; he presented a number of witnesses who testified that at the time the Government contended he was participating in the heroin transactions, he was actually helping move a trailer in a trailer park in Laredo. Garza's defense was not insubstantial, and therefore a major issue in the trial became the credibility of Juarez and Gonzales and that of Garza's alibi witnesses. The major issue presented on this appeal arises from remarks of the prosecutor in his closing argument in which he sought personally to vouch for the credibility of Juarez and Gonzales and to bolster the Government's case by indicating that it would not have been brought, and he would not personally have participated, if Garza's guilt had not already been determined. During the opening of his argument, the prosecutor stated that David Sauceda, Garza's alleged co-conspirator, was (o)ut there at that Boys Club and never left until after he got arrested for murder. Out there selling heroin, selling to somebody else that is trying to improve the reality. Rudy Gonzales, the man from San Antonio that came over here. He wants to make this a better place. He wants to improve things. He wants to make that a prettier picture on the wall than it is right now. Those pictures are sometimes hard to face. We don't like to look at the things. We don't like to do things that are unpleasant. None of us do. Being on the jury is unpleasant. But don't you know Rudy Gonzales' job is unpleasant too? Don't you know, even though Juan Juarez gets paid for what he is doing and probably paid pretty well, that even that is unpleasant. But it's something that needs to be done. Rudy Gonzales and these other officers over here made a responsibility that they accepted upon themselves when they took that job to go out and improve that total picture. And I think he's a dedicated man, and you know what? You accepted the responsibility too, in this jury. A few minutes later, the prosecutor returned to, and amplified, these themes: And there isn't any reason in the world why Rudy Gonzales would take that stand. He's a professional man. He has been in this a long time. And if he wasn't good at it over there when he was doing it for the San Antonio Police Department, if he wasn't doing his job right over there, do you think he would ever have gotten on with the Drug Enforcement Administration? He did, and he has been with the Drug Enforcement Administration for 4 years. If Mr. Juan Juarez wasn't doing the right thing, wasn't doing what he said he should do, he said that every case he had ever worked on had been a conviction. That's what he said. For 8 years. Do you think he would still be doing it? Do you think anybody would tolerate his wasting the taxpayers' money if he wasn't doing a good job? They get up here and say that's the man. If it wasn't the man, they wouldn't have any reason to say it, ladies and gentlemen. They would just go on off about their business and do something else. Those people and the Government has (sic) no interest whatsoever in convicting the wrong person. But the person who does these things has a lot of interest in getting off the hook, doesn't he? He sure does. Defense counsel in his closing argument attacked the credibility of Juarez and Gonzales. He argued that Juarez had stated that he was paid for his work on a case-by-case basis and that, unless he made a case, he would not be paid. As for Gonzales, defense counsel argued that alleged inconsistencies in his testimony undercut his credibility. Then, after arguing that the Government had not proved Garza's guilt beyond reasonable doubt, he anticipated the prosecutor's argument on the need to protect society from criminals and added, "Fine, I want to protect society from criminals, and you do too, but I don't want innocent people going to jail, and I'm sure you don't either." In his rebuttal argument, the prosecutor responded to these comments by enlarging upon his original themes: And he (defense counsel) said something else that kind of irritated me at one point. He said that he hoped an innocent man was not found guilty. I have been doing this kind of work for a long time. He's a defense lawyer, and I told you while ago that I thought Rudy Gonzales over here was a professional man. And I think these Drug Enforcement Administration people are professionals. And I think the record of being able to move from one job to another job and staying in that work as long as they have indicates that they are professionals. He talks about motive. I think their motives are pure as the driven snow. Their motives are to get out and make this world a better place to live in. A better place to live in, and I'll tell you they don't have to fabricate to do it because there is enough wrong going on and there is enough corruption going on out there that if you just go out and walk around the streets and know what you are looking at and looking for you just bump right into it. You don't have to frame anybody. And, ladies and gentlemen, if I thought that I had ever framed an innocent man and sent him to the penitentiary, I would quit. Now, I resent the innuendoes that I would stand up here and try to send an innocent man to the penitentiary, and that's what it was. I resent that because it's simply not true because, believe you me, there is presently enough work to do without fooling around with innocent people. Plenty enough. All over the place. Defendant challenges these remarks as improper closing argument which substantially prejudiced his right to a fair trial. We agree.1 A criminal trial provides a neutral arena for the presentation of evidence upon which alone the jury must base its determination of a defendant's innocence or guilt. Attorneys for both sides, following rules of evidence and procedure designed to protect the neutrality and fairness of the trial, must stage their versions of the truth within that arena. That which has gone before cannot be considered by the jury except to the extent it can be properly presented at the trial and those things that cannot properly be presented must not be considered at all. The role of the attorney in closing argument is "to assist the jury in analyzing, evaluating and applying The evidence. It is not for the purpose of permitting counsel to 'testify' as an 'expert witness.' The assistance permitted includes counsel's right to state his contention as to the conclusions that the jury should draw from the evidence." United States v. Morris, 568 F.2d 396, 401 (5th Cir. 1978). (emphasis in original) To the extent an attorney's closing argument ranges beyond these boundaries it is improper. Except to the extent he bases any opinion on the evidence in the case, he may not express his personal opinion on the merits of the case or the credibility of witnesses. See, e. g., United States v. Rodriquez, 585 F.2d 1234, 1243-44 (5th Cir. 1978); United States v. Morris, supra, 568 F.2d at 401; Hall v. United States, 419 F.2d 582, 585-87 (5th Cir. 1969). Furthermore, he may not suggest that evidence which was not presented at trial provides additional grounds for finding defendant guilty. See, e. g., United States v. Morris, supra, 568 F.2d at 401; Hall v. United States, supra, 419 F.2d at 587; Gradsky v. United States, 373 F.2d 706, 710 (5th Cir. 1967).2 It is particularly improper, even pernicious, for the prosecutor to seek to invoke his personal status as the government's attorney or the sanction of the government itself as a basis for conviction of a criminal defendant. The power and force of the government tend to impart an implicit stamp of believability to what the prosecutor says. That same power and force allow him, with a minimum of words, to impress on the jury that the government's vast investigatory network, apart from the orderly machinery of the trial, knows that the accused is guilty or has non-judicially reached conclusions on relevant facts which tend to show he is guilty. Hall v. United States, supra, 419 F.2d at 583-84. The Supreme Court emphasized the special responsibility and status of the government's attorney in Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1934). Justice Sutherland, writing for the Court, stated: The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none. Id. at 633. This analysis of the prosecutor's "double burden" has been carried forward in numerous cases from this Court. See, e. g., United States v. Corona, 551 F.2d 1386, 1391 (5th Cir. 1977); Washington v. United States, 327 F.2d 793, 795 (5th Cir. 1964); Hall v. United States, supra, 419 F.2d at 587-88; Handford v. United States, 249 F.2d 295, 296 (5th Cir. 1957). We must now turn to an examination of the prosecutor's comments in this case in light of the rules outlined above and this Court's cases applying them. We must first determine whether the prosecutor's argument was improper and, if so, whether it "prejudicially affect(ed) substantial rights of the defendant." United States v. Corona, supra, 551 F.2d at 1388. In his remarks set forth above, the prosecutor made extremely improper remarks of two varieties, both of which have often been discussed by this Court.3 First, the prosecutor sought personally to bolster the credibility of its key witnesses, Juarez and Gonzales, by reference to matters which were outside the record in the case. For instance, he inserted repeatedly his opinion of their motives. Of Gonzales, for example, the prosecutor insisted, "He wants to make this a better place. He wants to improve things. He wants to make that a prettier picture on the wall than it is right now." At another point, the prosecutor asserted that Juarez and Gonzales "get up here and say that's the man. If it wasn't the man, they wouldn't have any reason to say it, ladies and gentlemen." On rebuttal he took up this cudgel again, asserting of both Gonzales and Juarez, "I think their motives are pure as the driven snow. Their motives are to get out and make this world a better place to live in." Aside from personally vouching for his witnesses' motives and general integrity, the prosecutor attempted to bolster their credibility by maintaining that they had taken on the responsibility for doing an "unpleasant job" and that they were "professional" and "dedicated" men, doing a good job and the "right thing." In all these attempts, the prosecutor's argument was improper, and this court has all too often had to make such a determination. In Gradsky v. United States, supra, the Court condemned the prosecutor's statements that the government did not put on a witness "unless there appears to be some credibility, until he appears to be a truthful witness," because it found that "the government's belief in the credibility of the witness was based on something other than the evidence of record." Id. at 710. Similarly, this court has condemned a prosecutor's statements that he knew a witness to be "a fine F.B.I. officer" and "(a) man of absolute integrity." Hall v. United States, supra, 419 F.2d at 585-87. In United States v. Corona, supra, the court found improper the prosecutor's argument that government agents who had testified in the case "did the best they could under the circumstances," and were doing "a dirty, nasty job" and were "associating daily with dirty, nasty people, because I, for one, consider dope dealers and dope traffickers as dirty, nasty people." Id. at 1388. These statements were held to have impermissibly asserted the prosecutor's credibility as a basis for conviction. Id. at 1389. Finally, where the prosecutor maintained in his closing that a government agent/witness "did a real good job" and "was doing his duty to his country," the Court held such statements to be outside the record and therefore impermissible comment, requiring reversal of defendant's conviction. United States v. Brown, 451 F.2d 1231, 1235-36 (5th Cir. 1971). The prosecutor's attempts to bolster his witnesses' credibility in this case crossed the boundary of proper comment in all the respects noted above. He not only attempted to assert his own credibility as a foundation for that of his witnesses, but attempted to take advantage of his status as government's attorney to give sanction to his witnesses' testimony and to suggest that the "government's vast investigatory network" knew, from information not presented at trial, that these witnesses were telling the truth. The prosecutor entered a second line of improper comment when he argued that the prosecution would not have been commenced, and that he personally would not have participated unless it had already been determined that defendant was guilty. At one point, he argued that "those people (the government agents) and the Government has (sic) no interest whatsoever in convicting the wrong person." On rebuttal, he resumed this tack, stating at one point, "And, ladies and gentlemen, if I ever thought that I had framed an innocent man and sent him to the penitentiary, I would quit."4 This entire line of argument presumed that the whole government apparatus, and the prosecutor individually, had reached a determination of the defendant's guilt before the trial and implied that the jury should give weight to this fact in making its determination. This particularly egregious form of argument has also been considered and condemned by this Court. In Hall v. United States, supra, the Court considered the prosecutor's statement that "we try to prosecute only the guilty." In holding the statement indefensible, the Court stated: Expressions of individual opinion of guilt are dubious at best. . . . This statement takes guilt as a pre-determined fact. The remark is, at the least, an effort to lead the jury to believe that the whole governmental establishment had already determined appellant to be guilty on evidence not before them. . . . Or, arguably it may be construed to mean that as a pretrial administrative matter the defendant has been found guilty as charged else he would not have been prosecuted, and that the administrative level determination is either binding upon the jury or else highly persuasive to it. Appellant's trial was held and the jury impaneled to pass on his guilt or innocence, and he was clothed in the presumption of innocence. The prosecutor may neither dispense with the presumption of innocence nor denigrate the function of the trial nor sit as a thirteenth juror. Id. at 587. (Citations and footnotes omitted) Hall 's reasoning was expressly adopted in United States v. Lamerson, 457 F.2d 371, 372 (5th Cir. 1972), to condemn the prosecutor's statement, "and, Mr. Lamerson, had (he) not committed a crime, we would not be (prosecuting him). It's as simple as that." The prosecutor's statements here are fully as improper as those in Hall and Lamerson.5 Our finding that the prosecutor's comments were improper does not end our inquiry. Since defense counsel failed to object to these comments at trial, we must determine whether they rise to the level of "plain error" that is, errors or defects "affecting substantial rights" of the defendant. Fed.R.Crim.P. 52(b). "(W)hen an appellate court should take notice of an error not raised below must be made on the facts of the particular case, and there are no 'hard and fast classifications in either the application of the principle or the use of the descriptive title.' " 3 Wright, Federal Practice and Procedure § 856, at 373 (1969), Quoting Dupoint v. United States, 388 F.2d 39, 45 (5th Cir. 1968). While any single statement among those we have isolated might not be enough to require reversal of the conviction and, indeed, some clearly would not we think it beyond question that the prosecutor's improper comments, taken as a whole, affected substantial rights of the defendant. As already discussed, perhaps the most important problem facing the jury was its decision whether to credit the testimony of Gonzales and Juarez, the government witnesses, or that of defendant's alibi witnesses.6 The prosecutor's comments that we have considered were expressly intended to influence this critical credibility choice; he introduced for the jury's consideration his own personal opinion as to this choice, suggested the existence of information beyond that presented at trial to support his witnesses' credibility, and sought to use the status and influence of the entire government investigatory apparatus to bolster the believability of his case. It is impossible to imagine this strategy did not have substantial influence on the jury. Furthermore, while defense counsel could and, indeed, should have objected to the first instances of improper comment by the prosecutor, at some point the transgressions of this prosecutor cumulated so greatly as to be incurable; then objection to these extremely prejudicial comments would serve only to focus the jury's attention on them.7 In addition, as this Court observed in overturning a conviction because of improper prosecutorial comment, despite a corrective instruction, once such statements are made, the damage is hard to undo: "Otherwise stated, one 'cannot unring a bell'; 'after the thrust of the saber it is difficult to say forget the wound'; and finally, 'if you throw a skunk into the jury box, you can't instruct the jury not to smell it.' " Dunn v. United States, 307 F.2d 883, 886 (5th Cir. 1962). Finally, this Court has several times recognized in similar contexts the necessity for holding such comments as were made here to be "plain error." See, e. g., United States v. Corona, 551 F.2d at 1388 n. 2; Ginsberg v. United States, 257 F.2d 950, 955 (5th Cir. 1958). The prosecutor in this case ignored the "double burden" imposed upon him as the government's attorney both to conduct his case zealously and to assure that justice is done by complying fully and fairly with the rules of conduct by which he is bound. He sought instead a triple burden: prosecutor, judge and jury. A prosecutor can be vigorous without being venomous; forceful without being fanatical; adversarial without being A priori. Here the prosecutor failed to observe these elementary principles of advocacy. Because his conduct so prejudiced defendant's right to a fair trial as to amount to "plain error", we reverse the conviction and remand the case to the district court. Garza raises several other contentions in this appeal, including challenges to other comments by the prosecutor in his closing argument. Since the comments set out above are so clearly improper and so obviously require reversal, we find it unnecessary to discuss the other points raised Such improper comments by an attorney also violate his ethical responsibilities. It is the duty of an attorney not to "(a)ssert his personal opinion as to the justness of a cause, as to the credibility of a witness, . . . or as to the guilt or innocence of an accused . . .." ABA Code of Professional Responsibility § DR7-106(C)(4) (1976). See generally ABA Standards, The Prosecution Function § 5.8 In selecting examples of improper comment for our discussion below, we have attempted to be only illustrative, not exhaustive. The longer quotations from the prosecutor's closing argument set out above are virtually textbook examples of what a closing argument should Not be This statement was ostensibly in response to defense counsel's argument to the jury that, while society needed protection from criminals, such need did not justify convicting innocent people. But while defense counsel's argument can at most be construed as contending that the evidence did not warrant defendant's conviction, prosecution's argument went far beyond the evidence and sought to invoke the prosecutor's own credibility as a basis for a conviction The government has excavated and relied upon an old case from the Seventh Circuit to defend this type of comment. There, the court found the prosecutor's statement not improper when he argued, "If I, in my own mind, thought for one minute that these defendants were not parties to this case, I certainly wouldn't have the courage to stand up here and argue before you that they were guilty. It is never our intention to prosecute and try innocent men." United States v. Battiato, 204 F.2d 717, 719 (7th Cir. 1953), Cert. denied, 346 U.S. 871, 74 S.Ct. 118, 98 L.Ed. 380 (1953). This decision is in clear conflict with the newer and, we feel, better reasoned precedents from this circuit. We therefore decline to follow it, even if it is still good law in the Seventh Circuit The jury apparently found the case quite close despite the prosecutor's improper attempts to influence it. It took eleven hours for the jury to reach a verdict We think important to note that in such circumstances the trial judge has an obligation to intervene to assure protection of defendant's right to a fair trial. As the court noted in United States v. Corona, supra, 551 F.2d at 1391n5 n. 5, "We do not intend to indicate that only the prosecuting attorney in this case is worthy of blame. Indeed, the trial judge has an obligation in the interests of fairness and justice to stop the prosecutor from delivering a greatly prejudicial argument sua sponte. See Viereck v. United States, 318 U.S. 236, 63 S.Ct. 561, 87 L.Ed. 734 (1943)."

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Legal and Privacy Notices Site Copyright Copyright Infringement Claims Use of Photos Privacy Policy COPPA Compliance Site Copyright This web site, www.rrmuseumpa.org, is copyright © 2008 - 2016 by the Friends of the Railroad Museum of Pennsylvania (FRM), P. O. Box 125, Strasburg, PA 17579. Earlier versions with similar content have been copyright since 1997. This copyright is renewed immediately as changes are made. Our copyright includes all pages and sections of this web site, including periodic changes and modifications. It covers all content, including text, HTML code, pictures, graphics and design, except as may be covered by other copyright or trademark authority, whether reached through www.rrmuseumpa.org or any other URL owned and used by the FRM. 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For more information on United States Copyright Laws, go to the US Copyright Office or a summary of the Digital Millennium Copyright Act provided by the American Library Association. Photographs All photos on this site are owned by the Railroad Museum of Pennsylvania (Pennsylvania Historical and Museum Commission) or the Friends of the Museum, and are covered by the copyright of this site, or are used by authorization of their owner. They have been taken by the Webmaster, professional photographers engaged by the Museum, and several members, or lawfully donated or provided to the Museum. Permission may be granted to use pictures owned by the Museum for non-commercial purposes only, and may be requested by clicking here: describe the picture, its intended use, and provide the URL of the page on which it appears. Privacy Policy and Emailing Statement We believe that the full benefits of the World Wide Web should rest on a respect for its users. 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Information on The Children's Online Privacy Protection Act is available at the Federal Trade Commission site. Site Copyright Copyright Infringement Claims Use of Photos Privacy Policy COPPA Compliance

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Le projet GPO visant à conserver l'ensemble des données juridiques publiques américaines Claire M. Germain, Cornell Law SchoolFollow Presented in Paris at the 6th Conference on Computerisation of Law via the Internet, November 3, 2004. The Government Printing Office (GPO http://www.gpoaccess.gov/) digitization efforts have the goal to provide permanent public access in electronic form to publications of the United States Federal government, following the American principle that citizens should have free access to government information. By law and tradition, GPO has provided access to official publications regarding the three branches of the Federal government, Congress, the judiciary, and the executive, since 1813. Sample legal publications include bills, congressional reports and hearings, Congressional Record, public and private laws, U.S. Code, Federal Register, Code of Federal Regulations, Supreme Court decisions, federal agency reports and documents. GPO is currently building a new model for government publishing, based on the new technologies available. It is creating a fully digital database of all known federal government documents, to be used for multiple purposes, such as producing print on demand documents and disseminating official government documents over the Internet. GPO intends to take the lead in creating digital standards for official documents of the United States government. This includes gathering and producing digital documents in a uniformly structured database, in order to authenticate documents disseminated over the Internet and to preserve the information for permanent public access. It also involves developing database search and retrieval tools, metadata and permanent PURLs (Persistent Uniform Resource Locators), and providing increased to training to librarians. Government documents, Preservation, Digitization Germain, Claire M., "Le projet GPO visant à conserver l'ensemble des données juridiques publiques américaines" (2004). Cornell Law Faculty Working Papers. Paper 17.http://scholarship.law.cornell.edu/clsops_papers/17 Claire GPO abstract French.rtf (2 kB) Abstract in French

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Obama Issues Year-End Commutations For Drug Crimes By Scott Neuman Dec 19, 2013 TweetShareGoogle+Email Originally published on December 19, 2013 4:28 pm President Obama has commuted the sentences of eight people convicted of drug crimes, saying their terms were unusually harsh due to a system that treated crack cocaine as a more serious offense than powder cocaine. The president also pardoned 13 others convicted of various other offenses. The commutations come after the Fair Sentencing Act of 2010, which is aimed at reducing disparities in the way the law treats cocaine possession. "If they had been sentenced under the current law, many of them would have already served their time and paid their debt to society," Obama said in a written statement. "Instead, because of a disparity in the law that is now recognized as unjust, they remain in prison, separated from their families and their communities, at a cost of millions of taxpayer dollars each year." Reuters says: "The eight have each served more than 15 years in prison. A White House official said their sentences had been unduly harsh and helped contribute to 'an expensive and ineffective overcrowding of our prisons.' " The Associated Press writes: "Previously, Obama had commuted only one sentence in the five years of his presidency, involving another drug case. He previously had pardoned 39 people. A pardon forgives a crime and wipes out the conviction, while a commutation leaves the conviction but ends the punishment. "In August, Attorney General Eric Holder announced a major shift in federal sentencing policies, targeting long mandatory terms that he said have flooded the nation's prisons with low-level drug offenders and diverted crime-fighting dollars that could be far better spent." Copyright 2013 NPR. To see more, visit http://www.npr.org/. TweetShareGoogle+EmailView the discussion thread. © 2016 WVAS

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Supreme Court Stays High Court order on Mohan Babu’s ‘Padma Shri’ The Supreme Court today, stayed the order of High Court which directed Mohan Babu not to misuse the Padma award title. Mohan Babu was awarded Padma Shri in 2007. Elated by the order, Mohan Babu’s actor son Vishnu Manchu expressed his gratitude to the Supreme Court’s decision and said “it has re-affirmed our belief in the nation’s judiciary.” The controversy erupted when “Padma Shri” was prefixed to the names of the well noted philanthropist and educationist Mohan Babu in the credits of the controversial film Denikina Ready (2012), produced by his son Manchu Vishnu. “It was politically motivated” says the legendary actor’s son Vishnu Manchu to malign my father’s unblemished reputation. He is a well-respected individual in the society and acknowledged for his educational as well as his philanthropic contribution to the public. People can now see that there is merit in the judgment. Vishnu added. He also stated, his father’s political opponents should concentrate on society well being and development rather than indulging in mudslinging and political gimmicks for cheap publicity.

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Builder Uses Chapter 11 at Four Subdivisions to Continue Construction and Sales Affiliates of Pennsylvania-based Heritage Building Group operating under cash collateral deal with lender. By John Caulfield By the end of May, Heritage Building Group intends to file a plan for reorganizing the financing for several of its communities in New Jersey that it placed into bankruptcy in January. The Jamison, Pa.-based builder—which reported a 12% revenue increase in 2008 and jumped to number 65 on the BUILDER 100 ranking in 2008, from number 115 in 2007—continues to build and sell homes in the four subdivisions that filed for protection from creditors under Chapter 11 of the federal bankruptcy code on Jan. 20 in the U.S Bankruptcy Court in Camden, N.J. Nicole Nigrelli, an attorney representing Heritage in these proceedings, says the filings were the result of a dispute between the builder/developer and its lender, Wachovia Bank, over release prices for homes sold in those neighborhoods. She claims that the rest of Heritage’s business was “doing well” and was in no danger of needing to file for protection from creditors. Heritage itself, whose businesses include property management and rental and commercial construction, is not part of the Chapter 11 proceedings. Richard Carroll, president of Heritage’s home building operations, did not return phone calls requesting comment. Heritage has until May 20 to file an exclusive plan for reorganizing its developments; after that, other interested parties—such as its lender or other creditors—can file separate plans. Nigrelli explains that Heritage has worked out a cash-collateral arrangement with Wachovia’s parent, Wells Fargo, that allows the builder to complete construction and sell in the four subdivisions where its LLCs filed for bankruptcy: Heritage Highgate and Heritage Twin Ponds in Breinigsville, N.J.; and two developments called Wilton’s Corner in Sicklerville, N.J. In a March 3 filing for one of the Wilton’s Corner LLCs, for example, Heritage gave a breakdown of how its cash collateral would be used to continue construction of eight homes, which ranged from $15,160 to $75,593 per unit. In its filings, Heritage claims that the four townhome and single-family subdivisions in Chapter 11 have between 50 and 99 creditors, between $10 million and $50 million in assets and about the same in liabilities. The filings didn’t provide many specifics about inventory and lots except to note that one of the Wilton’s Corner developments had 195 units, all but 13 of which had been sold through February 3. Nigrelli adds that Highgate has 68 lots available on that date in various stages of completion. The LLCs’ respective unsecured debt varies. Heritage Highgate, for example, owed its 20 largest unsecured creditors (which are mostly building product suppliers and contractors) nearly $3 million (including $60,580 to Heritage Building Group). Another LLC, known as Heritage Residential at Wilton’s Corner VII LLC, owed its top 20 unsecured creditors just over $1 million. John Caulfield is senior editor at BUILDER magazine About the Author Richard Carroll Nicole Nigrelli Heritage Building Group How Inflation Will Affect Home Builders in 2017 BUILDER Wall Street Kicks America's Renters to the Curb NAHB Now How to Negotiate for Construction Loan Financing Join the Discussion

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Tweet04 July 2012 | News | SwedenCase on police shooting judged inadmissible by the European Court
Press Release 2012-07-04 The European Court of Human Rights has rejected the lawsuit against Sweden that Civil Rights Defenders submitted along with the family of 22-year-old Daniel Franklert Murne. Daniel was shot dead by police in his parents’ home in Lindesberg in 2005.
– Daniel’s family and we are very disappointed. Despite incriminating circumstances the court chooses not to take up the case. No one will be held accountable for the extremely flawed police operation that led to Daniel’s death. And, given that no lessons have been learned by either this case or of other shootings, it is very likely to happen again, says Robert Hårdh, Civil Rights Defenders Executive Director.
Civil Rights Defenders is now considering, along with the family, the options for moving forward. One possibility is to refer the matter to the UN Human Rights Committee, for consideration in relation to the International Covenant on Civil and Political Rights. That was what Civil Rights Defenders did in the case of Mohammed Alzery, who in 2001 was deported to Egypt under brutal forms. UN Human Rights Committee directed sharp criticism of Sweden, which was subsequently forced to pay damages to Mohammed Alzery – and Ahmed Agiza, who was expelled at the same time.
– The decision by the European Court not to raise the case is an ominous sign that the Court is now doing everything possible to protect itself against the case overload that threatens to lead to the Court’s collapse. It is one of the most important bodies in the world with regard to the maintenance of human rights, but chances are that its meaning is marginalized. And as long as national authorities and courts do not take responsibility, it is always the most vulnerable who suffer, concludes Robert Hårdh.
Background to the Murne case In 2005, 22-year-old Daniel Franklert Murne was shot dead by police in his parents’ home in Lindesberg, Sweden. Daniel had suffered from a psychosis and needed medical care, but the police operation got out of hand and Daniel lost his life. The subsequent police investigation was defective and, with reference to self-defense, no one was held responsible for the killing. Daniel’s parents and sister sued Sweden before the European Court of Human Rights with the assistance of Civil Rights Defenders.
Civil Rights Defenders believe that the poorly planned police intervention together with structural shortcomings in the police force have contributed to Daniel’s death. For example, there is a lack of knowledge, proper training and regulation concerning police interventions against mentally ill persons. Furthermore, the current Swedish legislation regulating the use of of firearms is deficient and out of date and this, together with the use of expanding bullets (hollow point bullets) as standard police ammunition, leads to an unacceptable situation. For more information contact:
Robert Hårdh, Civil Rights Defenders Executive Director, Cell phone: +46 709 14 63 14
Christer Murne, father of Daniel Franklert Murne, Cell phone: + 46 739 09 63 81
Read more about the caseCategories: News.Tags: Daniel Franklert Murne, Dumdumkulor, Polisens metodutredning, and Polisskjutningar.Regions: Sweden.Video: Interview with Ales Bialiatski’s wife and colleaguesLaw amendments threaten freedom of associationNewsFor the latest updates on human rights achievements, collaborations, events and activities. SwedenSeveral new laws have given the Swedish police the opportunity to use covert surveillance under the pretext of preventing serious crimes. However, such coercive measures can only be implemented when there is a marked need, and the measures are proportional to the resulting violation of integrity. Another development that troubles us is the increased legislation that aims to combat ”terrorism”, which has not been offset with increased protection of human rights. Read about the current human rights situation in our country review Human rights in Sweden

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France moves one step closer to legalising euthanasia Using the term "assisted death" rather than euthanasia, the council invoked a "duty to humanity" to allow a patient "suffering from an ailment for which the treatment has become ineffective" to die. A medical team, not a sole doctor, would take the decision. The council's conclusions came after President François Hollande asked it to examine the precise circumstances under which such steps could be authorised, with a view to tabling draft legislation by June. Changes were necessary, he said, as, "the existing legislation does not meet the legitimate concerns expressed by people who are gravely and incurably ill". Read More>http://www.telegraph.co.uk/news/worl...uthanasia.html I'm not particularly concerned with the youth in Asia or France for that matter. With the direction that country is headed I imagine the line will be out the door. There is a big difference between assisted suicide and euthanasia. With the first, the patient is capable of giving consent and does so. I really don't have a problem with assisted suicide for terminal patients who want to avoid having a terribly painful last few months, and are going to die anyways. One of the issues I had with Dr. Death was at least one of his patients was not terminal-it was a woman with cerebral palsy. Those are good points, it isn't an easy issue. I have seen this done by hospice in this country for 3 decades, it just isn't talked about. In the last couple of days of death, a morphine drip is usually increased. It results in depressing respiration and eventual death. But, it's done as palliative care and pain management for the patient to increase comfort during the last days and not necessarily to hasten death. Morphine basically manages pain and enables the disease process to take over. Personally, when it's my turn, I hope I get a good nurse that makes my last days as painless as possible. Now giving a bolus of morphine as an overdose is euthanasia. That's not what happens in hospice. I figured that is what was happening with my mom. She had vascular dementia and had a stroke and gone into a coma. They called the family to her nursing home (the doc opted to keep her there instead of taking her to the hospital) and said to hurry as she probably had less than an hour. Four days later, she kept holding on, although breathing very laboriously. She had signed a do not resuscitate in her living will, so they were only giving her oxygen. It was horrible. The nurse practitioner for the doc finally came over and ordered more morphine. She only lasted a few hours after that. The doc never came over once in the 4 days. He had been my doc, too. I was very upset and changed docs.

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Court orders new trial in quintuple killing 11:13 PM, Thursday, November 08 2012 | 1497 views | 0 | 8 | | LITTLE ROCK (AP) — A man convicted in the 2009 shooting deaths of five people at a trailer park in Arkansas deserves a new trial because a juror admitted he could not be fair to him in his original trial, the state Supreme Court ruled Thursday.Samuel Lee Conway was convicted last year on five counts of capital murder, plus other charges, and sentenced to life in prison without parole in the slayings in Garland County.Conway, 26, argued that he deserved a new trial because the judge didn’t dismiss a juror who told him he couldn’t be impartial.Before the prosecution rested at Conway’s trial, the juror sent a note to Judge John Homer Wright.“I don’t think I can be a fair juror anymore,” the juror said in the note, according to the Supreme Court’s opinion. He said he kept a loaded shotgun beside his bed because of the testimony he’d been hearing.“That’s basically — it’s bad saying it, but I’ve made up my mind about the case already this early,” the juror said, according to court filings.Still, Wright decided not to dismiss the juror.“I’m not gonna excuse him because I don’t think that he’s expressed anything other than the fact he has formed an opinion, which you have acknowledged jurors do then they go in and discuss it,” Wright said, according to court filings.The high court sided with Conway, saying the judge abused his discretion in failing to dismiss that juror.“The right to a fair and impartial trial is a fundamental guarantee, and Conway was denied that right in this case,” Justice Karen Baker wrote for the Supreme Court.A new trial date has not been scheduled. Conway will be transferred from a state prison to a Garland County jail, one of his lawyers, Janice Vaughn, said, adding that she was pleased with the court’s decision.“The very thrust of our whole system is to have a fair jury, and when a juror can’t be fair, you don’t get a fair trial,” Vaughn said. Wright didn’t immediately respond to a phone message Thursday. Aaron Sadler, a spokesman for the attorney general’s office, said they respect the Supreme Court’s decision. Authorities said Conway and Jeremy Pickney shot five people and stole a set of expensive wheel rims and flat-screen televisions.Firefighters found the bodies of Edward Gentry Jr.; his wife, Pam Gentry; their son, Jeremy Gentry; and Jeremy’s girlfriend, Kristyn Warneke, in the rubble of a burned mobile home early on Nov. 12, 2009. Police discovered Edward Gentry Sr. in a mobile home next door.Authorities said all of the victims had been shot and killed before the fire started.Pickney pleaded guilty to lesser charges: conspiracy to commit aggravated residential burglary and theft by receiving.Law enforcement officers fatally shot a third suspect, Marvin Lamar Stringer, at a motel a week after the murders.

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DEQ executive director honored with award Published: Thursday, Oct. 25 2012 3:00 p.m. MDT SALT LAKE CITY — Amanda Smith, executive director of the Utah Department of Environmental Quality was named Lawyer of the Year by the Energy, Natural Resources and Environmental Law Section of the Utah State Bar. Smith received the award at the annual meeting of the Utah State Bar's environmental law group. "It is an incredible honor to be recognized by my peers," Smith said. "I am very humbled to receive this award." The award recognizes an attorney's achievement in energy, natural resources and environmental law during the past year. Smith is being recognized for her leadership in legislative efforts for the successful passage of a pair of bills establishing new appeals procedures for environmental permits and restructuring of regulatory boards to allow for more public participation. Members also honored Denise Chancellor, who represented the agency through the Utah Attorney General's Office, with a lifetime achievement award. Chancellor retired in August. — Amy Joi O'Donoghue Twitter: amyjoi16

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Home > Blogs > Savi Hensman's blog > Denying justice to least powerful Denying justice to least powerful By Savi Hensman The UK government is making it harder to challenge state decisions, the chair of the Administrative Justice and Tribunals Council has warned. Richard Thomas gave the examples of the introduction of employment tribunal fees, forcing tenants to seek help from local councillors before going to the housing ombudsman, and delays in hearing appeals over social security decisions. The average wait is 29 weeks, and "If you are dependent on benefits to keep your household afloat then this is not a happy story." A family of four going to an immigration tribunal must pay £560. There is also a trend for non-accountability in education: "The increasing number of schools that will be outside local authority control (including academies and free schools), and which will, therefore, act as their own admission authorities, is especially troubling." Yet the authorities often get things wrong: half of all immigration appeals are successful, as are a third of cases to overturn school admission decisions. “UK citizens must be confident that they can challenge government decisions – which have a huge effect on them and their families – quickly, easily and proportionately. At a time of increasing economic and social fragility, it is especially important to have meaningful arrangements for the resolution of genuine grievances against the might of government,” he urged. The Legal Aid, Sentencing and Punishment of Offenders Bill 2010-11, is making its way through Parliament, It is expected to reach the report stage in the House of Commons in late October. It seeks drastic restrictions on legal aid in England and Wales, and will “have a disproportionate effect upon the poorest and most vulnerable in society," according to senior judge Baroness Hale of Richmond. Its effects include blocking many “no win no fees” cases. This prompted the family of dead schoolgirl Milly Dowler – who took action against media corporation News International on this basis – to write to David Cameron, urging him, “We are sure that you do not want to go down in history as the Prime Minister who took rights away from ordinary people so that large companies could print whatever they like and break the law without being able to challenge them”. Victims of medical negligence will also be hit. Yet despite the many voices of protest, the government seems intent on pressing ahead. A Welfare Reform Bill that has been widely criticised for its damaging impact on tenants on housing benefit and disabled people is at the committee stage in the House of Lords. The government is determined to get tough on people who lose their jobs in the current economic crisis – which many believe has been made worse be state policies – and those of working age suffering from conditions such as mental illness, multiple sclerosis or cancer. Ordinarily, such important – and controversial – legislation would be referred to a committee of the whole House, where it could be studied line by line, and if necessary amended. Instead, this Bill is being heard in grand committee, where fewer people can take part and there is no voting on amendments: the committee must agree unanimously. So just one peer intent on pushing the reforms through in their current form can block changes to the Bill’s wording. At the same time, the NHS is imposing increasing restrictions on treatment so that, for instance, a manual worker who needs a knee replacement may face a long wait or be denied treatment altogether. If he then experiences constant pain, is unable to walk properly and loses his job, he may be treated as a ‘scrounger’ who should be able to work if he were not lazy. Hedge funds, financiers and private equity firms contributed more than a quarter of all donations to the Conservative party (the dominant partner in the ruling Coalition) in the past year, the Bureau of Investigative Journalism revealed at the end of September 2011. Several major energy, transport, leisure and retail companies also gave generously. The opposition, too, has close links with big business. Meanwhile the rights of ordinary people at risk of unjust treatment by the state or huge corporations are being cut back. As Hebrew prophets such as Jeremiah warned thousands of years ago, societies built on injustice are not stable, and face disaster. © Savi Hensman is a Christian commentator and Ekklesia associate. She works professionally in the care and equalities sector.

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States Handing Off More Responsibilities to Cities States are asking cities to take charge of more programs, but they may not provide enough support. by Alan Greenblatt Jerry Brown is dusting off one of the oldest plays in his book. Back in 1975, during his first term as governor, Brown had appeared before the California State Association of Counties (CSAC) to talk about realignment -- the term of art in California for devolution, or changing the way responsibilities are split between the state and localities. Now that he’s back in the governor’s office, Brown is putting some of those ideas into action. He returned to CSAC on his first full day in office to promote a realignment package that would make counties responsible for running a much larger share of public safety and social service programs. Proposition 13 -- the property tax law that passed during Brown’s first term -- “took away the power of counties to tax, for the most part,” Brown said at CSAC in January. “It sent the decisions up to Sacramento. So we want to redistribute all that.” County officials are welcoming the chance to take charge of certain programs, while expressing great concern about handling others. Unsurprisingly, the big question is money -- whether the state will send enough cash to localities to fund the missions it expects them to carry out. “There’s a lot of anxiety,” says Jean Kinney Hurst, a legislative representative with CSAC. “We’re talking about $6 billion worth of programs, many of which counties have never done before.” In California, Non-Violent Inmates Might Transfer to County Jails Similar anxieties are being expressed elsewhere around the country. Other states may not be holding the same overt policy debate about whether localities should take on a larger load, but the question is nonetheless being posed in the form of budget cuts that leave localities more on their own. “There’s a potential,” says Ellis Hankins, executive director of the North Carolina League of Municipalities, “for local elected officials to have to pick up more of the burden and increase the taxes to pay for more public services.” There’s nothing new in this. States always cut aid to local governments in recessions. During the ongoing state budget crunch, the cuts have grown so deep that many officials at the local level are complaining that states are doing to them what Washington does to the states -- passing on more mandates even while cutting funding. “We want to make sure that, at a minimum, states don’t try to balance their budgets on the backs of cities by mandating that local governments do what historically has been done by states,” says Don Borut, executive director of the National League of Cities. “And we don’t want the states preempting or putting restraints on how cities can raise money.” Devolution by budget cut is happening all over the country. Very few states still have a line item called “aid to localities.” But program responsibilities -- and finances -- are all mixed up between the state and local levels across a broad range of program areas, including health, public safety and the big cost driver of education. States have slashed billions over the past couple of years that otherwise would have gone to local governments. In Massachusetts, for example, Gov. Deval Patrick has proposed cutting direct municipal aid for the fourth year in a row. His package would bring the total cut to more than $481 million, or 37 percent. Beverly, Mass., Mayor William Scanlon says such cuts are “really painful,” because state aid is the second largest share of his city’s revenue. But cuts in total state aid to localities -- education has been better protected than municipal aid -- aren’t out of line with levels of Massachusetts’ spending cuts overall. Scanlon says he recognizes that the governor and legislators have had little choice in the matter. “The state’s revenues have fallen off the table,” Scanlon says. “If I was in their shoes, I’m afraid I would do what they’ve done.” What Scanlon and other mayors object to, however, is the state backing out on prior promises -- failing to return what are really local revenues. Massachusetts established a program back in the 1970s to encourage police officers to continue their education by increasing their salaries when they receive degrees in higher education. The state promised localities it would pick up 50 percent of the tab. Under that formula, the state’s share for the coming year stands at nearly $60 million, but Patrick’s budget only provides $5 million. Court decisions suggest that localities may be on the hook for the rest. Similar stories can be told all over. North Carolina Gov. Bev Perdue wants to slash the local share of lottery proceeds from 40 percent to 10 percent. And her budget would shift the $57 million cost of school bus replacements onto counties, a responsibility they have never had before. In all, the overall cost shift to counties is $345 million. In Michigan, where much local taxing authority was taken away decades ago in favor of a local share of state sales taxes, the state over the past decade has cut $4 billion that, by statute, should go to local governments. Michigan Gov. Rick Snyder not only wants to cut remaining revenue sharing by a third this year, but wants to make localities earn the money. State aid, under his proposal, would be contingent on their putting in place measures to save money, including consolidation of services and winning concessions on wages and benefits from their workers. Last month, Snyder pushed a bill that would make it easier for the state to intervene in municipal and school district finances by creating “emergency fiscal managers” with broad authority. Snyder said he didn’t want the state to have to take over local budgets but that his legislation would create an early-warning system when localities are getting in trouble. It has become a common tack. Governors promise more flexibility on certain rules or help with pensions or employee health costs in exchange for less money overall, and demand that localities change workforce rules and consolidate certain services -- or merge with their neighbors altogether. Governors haven’t gotten far over the past decade with most of their proposals that local governments consolidate, but they are now wielding a much bigger financial stick. “The fiscal constraints are now coming to bear on localities,” says John Krauss, director of the Indiana University Public Policy Institute, who helped run a local government reform commission for Gov. Mitch Daniels. “Resources are becoming scarce, things change and you can’t do it the same way,” Krauss continues. “Localities are now seeing that it is probably wise to have merger and intergovernmental agreements. Those are taking off.” Krauss argues that consolidation at the local level is “logical,” and notes that many of the ideas his commission recommended echo back to a governmental reorganization report from 1932. But local officials are understandably wary of reorganization that is pushed from above. They naturally worry about having to pick up any financial difference, particularly where they are operating under constraints -- often imposed by their states -- in terms of their own ability to increase taxes. But they also worry about equity issues. Some local governments are better off financially than others. As more and more responsibility falls primarily or wholly on local governments, states may be abdicating their role in seeing that a certain level of service is made available to all residents, regardless of the jurisdiction in which they reside. For some services, such as education, states are required to see that disparities based on ZIP code are not too wide. That’s certainly the case in California, which is a pioneer state when it comes to school-equity lawsuits. Because of a 1988 ballot initiative, the state is required to spend at least 40 percent of its general fund revenues on K-12 education. A lot of the money the state spends on education comes out of locally collected property taxes, which the state vacuums up and then redistributes. Education is just one way state and local finances are hopelessly entangled in California. There are dozens of others. A discussion solely about how revenues from vehicle license fees are shared between Sacramento and localities could go on for many long and tedious hours. Even local officials who are nervous about Brown’s proposals give him credit for trying to sort through the mess. There’s a lot to be said for citizens’ being able to know who’s responsible for raising the money and spending which funds for which programs. But given the convoluted nature of the way money is taxed at one level of government -- and then chopped up and redistributed to other levels of government -- it’s often impossible to know who to thank and who to blame. “One of the reasons why California got so screwed up,” says former California Assembly Speaker Robert Hertzberg, “is the unintended consequences of the jury-rigged attempts to get money to the locals.” Hertzberg is a strong backer of Brown’s realignment proposal. He recognizes, however, that the word “realignment” is code to local governments that they will have to pick up more responsibilities without getting more money to pay for them. Brown initially proposed offering localities funding to cover their new responsibilities for five years, but has since said he will find a way to provide more permanent funding. “It’s a long discussion that starts with, ‘There better be enough money,’” says David Finigan, a Del Norte County, Calif., supervisor. Finigan has reason to be wary. Brown’s whole idea is predicated on the hope that voters will approve a tax package to pay for it in a special election in June. And past realignment debates in Sacramento haven’t all come through with the kind of money that Brown is promising. A 1991 realignment of social services left counties about a billion dollars short. Cities are already livid that Brown wants to eliminate nearly $2 billion in local redevelopment funds. The state of California has long been notorious for dipping into local coffers, either by using sticky fingers to hold on to tax dollars the state is supposed to hand down, or by “borrowing” local revenues. Local officials in California have twice succeeded in recent years in convincing voters to pass propositions designed to block such behavior on the part of the state. “There has been a long-standing history of distrust in the relationship between the state and local governments in California,” says CSAC’s Hurst. “Unless you put things in the constitution, you can’t rely on anyone’s word or handshake agreement.” Los Angeles District Attorney Steve Cooley warns that Brown’s proposed realignment will “wreak havoc” and be a “public safety nightmare.” He notes that jails in his county are already at or near capacity limits imposed by federal courts. County supervision of paroled rapists and murderers, he says, would mean some convicted felons will serve little or no time in custody due to insufficient bed space. But many other local officials in California aren’t opposed to the idea of realignment—in principle. Just as states have long argued that they can run programs more efficiently than the feds if given adequate support and flexibility, Finigan says that localities can handle most of the programs Brown has put on the table “better and cheaper” than the state. Hertzberg now co-chairs California Forward, a policy group that has advocated better alignment of services and level of government. He says it’s unfortunate that the idea has been distorted by the unending arguments in California about how revenue streams flow up and down and diverge between the state and localities. He recognizes that money has to follow program responsibility in order for realignment to work, but argues that realignment is a necessity in order for localities and regions within the state to operate in a more responsive way. It’s possible that Brown’s ideas -- ambitious as they are -- represent only a first step in this regard. It will be challenging enough to put counties in charge of parole, for instance. But the current debate about public safety and social services may only be the opening of a long discussion that will eventually incorporate even bigger issues such as education and the tax code. If it’s done right -- and isn’t just a cost-cutting maneuver -- many local officials in California believe they can offer more efficient coordination of services. As things stand now, though, counties struggle to knit together closely related programs that nonetheless are funded through separate state revenue streams, each with its own set of mandates. Some counties have figured out how to do this already. Kids who are at risk of being removed from their homes, for instance, might fall under the purview of any of three different agencies, depending on whether the problem is parental abuse, drug use or involvement in crime. Each of these programs comes with its own set of state money that goes to either the county health, human services or probation department. Quite often, the problems of at-risk kids are intertwined. But this has often led to situations where local agency officials point fingers at one another and argue, “This kid belongs to you, it’s a substance abuse issue,” or “No, the primary problem is the criminal activity.” Taking kids out of their homes is an expensive proposition and no one wants to be stuck with the bill. About a decade ago, officials in San Mateo County, Calif., decided it was pointless to try to shift responsibility between departments. Officials from different agencies began meeting on a weekly basis, getting to know the kids and their problems, and trying to coordinate the whole panoply of services that they might need. It didn’t always go smoothly at first, but over time the agencies learned to work together. The result has been a 50 percent reduction in the number of kids removed from their homes. “Kids who stay in their homes, so long as they get the right services, do a whole lot better in the long run,” says County Health System Chief Jean Fraser. Fraser recognizes that her county has resources others might not be able to draw on. The county is made up largely of affluent suburbs just south of San Francisco and has 700,000 residents -- as many as the state of Vermont. But she argues that it’s even more important for poorer counties to have greater flexibility in expending the limited resources at their disposal. Already facing budget shortfalls of their own, it’s difficult for local officials to contemplate the prospect of taking on further program responsibilities. Many of the programs Brown is expecting them to take over come laden with mandates from either the state or federal level -- or both. And in many other states, localities are being asked to do more without seeing real help in terms of delivery on promises of greater flexibility, or even serious debate about what responsibilities best lie with which level of government. The issue, of course, is whether California will remain committed to funding the responsibilities Brown hopes to pass down -- an ever-present source of anxiety for local officials in California, as it is for their counterparts in other states. If the commitment is there, Fraser sees real promise in the notion of freeing counties to design programs in ways that best meet the needs of their own residents. “From our perspective, the idea of having more flexibility about what we do is really exciting,” she says. “We’re raring to go.” Alan Greenblatt [email protected] Gov. Jerry Brown’s new law aims to reduce overcrowding, but the program lacks funding support and local sheriffs fear they’ll pay the price.

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E-government bill clears senate government panel By Andy Leonatti Satisfaction with federal services on the rise thanks to e-gov Public satisfaction with e-government hits lowest level since 2005 Lawmakers to push for public-private swapping of tech workers The Senate Homeland Security and Governmental Affairs Committee easily adopted a bill Wednesday reauthorizing legislation to improve the accessibility of online government information another five years. The bill, introduced by Senate Homeland Security and Governmental Affairs Chairman Joseph Lieberman, I-Conn., was approved by the committee by voice vote. The legislation reauthorizes the provisions of the E-Government Act of 2002, which sought to boost initiatives that make government information more accessible online. Lieberman and former Sen. Fred Thompson, R-Tenn., authored 2002 bill. The 2002 bill also establishes a Federal Chief Information Officer within the Office of Management and Budget. It also requires federal courts to post judicial opinions online. The reauthorization bill also includes a provision that requires the director of OMB to devise a plan for government information to be made more readily available on commercial and government search engines within one year of the bill's enactment. Federal agencies would have two years to comply with the director's plans. The bill extends the authorization for the government's Internet portal that provides government information to citizens through fiscal 2012. That section authorized $15 million for fiscal 2003 and "such sums necessary" for fiscal 2004 to fiscal 2007. The measure extends through fiscal 2012 an initiative to establish guidelines for collecting government geographical information. It also authorizes education programs on accessing government information at community technology centers and public libraries In July, a GAO report found "significant weaknesses" in information security policies and practices amongst nearly all the major federal agencies. Lieberman's 2002 bill contained the Federal Information Security Management Act, which established guidelines for computer security throughout government agencies and allowed OMB and Congressional oversight. The report found that agencies placed data at great risk of loss or theft.

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Ex-TD 'didn't want to get involved' in claims row Tim Healy MARY O'Rourke "did not want to get involved" in a row about insurance costs for a flooded house, the High Court heard. http://www.independent.ie/irish-news/courts/extd-didnt-want-to-get-involved-in-claims-row-28944370.html The former TD and minister had been asked to give evidence in an action brought by Donald McIntyre against Insurance firm Allianz Plc, arising out of an arbitration decision that took place in late 2011. The McIntyres got into dispute with the insurance firm after a water leak in June 2008. It caused what he claims was severe damage to the home he shares with his wife Anna and their two daughters at Ballyboy, Kilcormac, Co Offaly. Liability was accepted by Allianz, who offered the family €120,000, but the McIntryres rejected that offer, claiming the cost of repairing the damage was approximately €300,000. The matter went to arbitration and Athlone-based engineer Malachi Cullen acted as arbitrator. In December of 2011, Mr Cullen ruled the McIntyres were entitled to €108,000. The McIntyres are seeking to have the arbitration set aside and for a new arbitration to start. The McIntyres claim Allianz loss adjuster Kevin Clabby and Mr Cullen are well known to each other. They claim Ms O'Rourke can confirm this. In an affidavit sworn by a solicitor acting for the plaintiffs, Ms O'Rourke allegedly said in a phone call last September that she didn't want "to do the dirt on them". Ms O'Rourke was subpoenaed last Sunday night, but a barrister representing her handed in a doctor's cert saying she was not able to attend court. Ms Justice Mary Laffoy accepted the cert and ordered that the case proceed. The case continues.

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Opinion Opinion L.A. Opinion Supreme Court judges rob MGM in 'Raging Bull' legal bout Robert De Niro in 'Raging Bull' Associated Press Robert De Niro as Jake La Motta in Martin Scorsese's film "Raging Bull." Robert De Niro as Jake La Motta in Martin Scorsese's film "Raging Bull." (Associated Press) Michael McGoughContact Reporter Fairness is knocked out in 'Raging Bull' case On Monday, the Supreme Court decided a case that featured a famous movie — and a legal doctrine that most Americans have never heard of. The immediate loser was MGM, but the ruling will also make life difficult — too difficult — for other film studios, publishers and producers.The movie is the 1980 classic “Raging Bull,” directed by Martin Scorsese and starring Robert De Niro as prizefighter Jake LaMotta. In 1976, LaMotta and a friend, Frank Petrella, assigned the rights to a book and two screenplays about LaMotta’s career to a production company. Later the rights passed to MGM. The rest is cinematic history. When Petrella died, his copyrights were inherited by his daughter Paula. She renewed the copyright for one of the screenplays in 1991 but didn’t file suit against MGM for infringement until 2009. The U.S. 9th Circuit Court of Appeals ruled that the suit couldn’t go forward because Paula Petrella had waited too long. The decision was based on the legal doctrine known as “laches,” which refers to an "unreasonable delay pursuing a right or claim... in a way that prejudices the [opposing] party."But the Supreme Court, by a 6-3 vote, overturned the 9th Circuit, saying that the case wasn’t governed by the laches doctrine because Congress had enacted a statute allowing copyright suits to be filed within three years of an infringement. Paula Petrella’s argument is that MGM, which has continued to market “Raging Bull” in various formats over the years, committed infringements in the three-year period before she sued. Assuming that Petrella and MGM don’t settle the case, a trial will now be held at which she will argue that continued distribution of “Raging Bull” violates the copyright on the screenplay she holds, while the studio will argue (among other things) that the finished film isn’t substantially similar to that script. Whatever the merits of Paula Petrella's copyright claim, she waited too long to get into the ring with MGM. The legal issue in this case is terribly technical: Whether a statute of limitations in an act of Congress trumps the laches principle. But the broader question is whether the courts will require people with legal claims to bring them within a reasonable period of time, an issue that has implications for all sorts of lawsuits.In his dissenting opinion, Justice Stephen G. Breyer noted that Paula Petrella “waited 18 years after renewing the copyright, until 2009, to bring suit. During those 18 years, MGM spent millions of dollars developing different editions of, and marketing, the film. MGM also entered into numerous licensing agreements, some of which allowed television networks to broadcast the film through 2015. Meanwhile, three key witness died or became unavailable, making it more difficult for MGM to prove that it did not infringe the petitioner’s copyright.”The doctrine of laches belongs to a subdivision of the law known as “equity,” which allows courts to use their judgment of the circumstances to ensure a fair result. Whatever the merits of Paula Petrella’s copyright claim, she waited too long to get into the ring with MGM. That is what the court should have held. MGM Inc. Patents, Copyrights and Trademarks Are Supreme Court justices becoming 'party judges'? Jesus in Congress: Actually, most of the prayers there are ecumenical The Supreme Court punts on chance to end gun-control confusion

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Home > LAWA A seven-member Board of Airport Commissioners governs Los Angeles World Airports. By the Charter of the City of Los Angeles, the Board is responsible for the formulation of airport policy. The Board is comprised of public-spirited business and civic leaders who are appointed by the Mayor, approved by the City Council and serve staggered five-year terms. The current members of the Los Angeles Board of Airport Commissioners are Sean O. Burton; Jeffrey J. Daar. Gabriel L. Eshaghian, Beatrice C. Hsu, Cynthia Telles, and Valeria C. Velasco. Commissioner Velasco was first appointed to the Board on September 5, 2005 and has remained a member since that time. Commissioner Burton was first elected president of the Board on September 17, 2013. Commissioner Velasco was re-elected vice president on that same day. Following are biographies of each of the commissioners: Sean O. Burton – President (appointed for term ending June 30, 2019) Commissioner Burton is chief executive officer of CityView, overseeing the strategic direction and day-to-day operations of the company. CityView is a premier investment management and development firm focused on urban residential real estate in the Western United States. Commissioner Burton joined CityView in 2003, served as the firm’s chief operating officer from 2003 through 2008, and then as its president from 2008 through 2015. Prior to joining CityView, Commissioner Burton was a senior executive in the Corporate Business Development and Strategy Division at Warner Bros. responsible for making strategic investments. His other professional experience includes serving as a transactional attorney at O’Melveny & Myers, LLP and serving in the White House and for the Democratic National Committee during the Clinton Administration. Commissioner Burton previously served on the Los Angeles City Planning Commission where he chaired the subcommittee overseeing approval of the proposed Farmers Field National Football League stadium. He also had a leading role in advocating structural changes in the state’s fiscal and budgetary process when he was appointed by the Governor in 2001 to the California Commission on Tax Policy and the New Economy. He is a trustee at John Thomas Dye School, a member of the Young Presidents’ Organization, and a member of the board of United Friends of the Children. Commissioner Burton is a graduate of the New York University School of Law and the University of California, Irvine. He recently retired as a lieutenant (Intelligence) from the United States Navy Reserve. Valeria C. Velasco – Vice President (appointed for term ending June 30, 2017) Commissioner Velasco is a sole practitioner estate planning attorney in Playa del Rey. As a civic leader, she has served as Lieutenant Governor for Rotary International District 5280 and currently serves as a Fee Dispute Arbitrator for the State Bar of California. She also served as chair of the Los Angeles Area Chamber of Commerce World Trade Week in 2012. Commissioner Velasco has served as a City of Los Angeles Planning Commissioner, Staff Legal Counsel and Hispanic Liaison to former City Councilman Michael Woo, Assembly Aide/Hispanic Liaison to former Assemblyman Mike Roos and a bilingual elementary school teacher. Commissioner Velasco earned a Juris Doctorate from the University of West Los Angeles School of Law, a Master of Arts degree in education from Claremont Graduate School, and Bachelor of Arts degree from California State University, Long Beach. Commissioner Velasco has held the position of vice president of the Board of Airport Commissioners since September 14, 2005. She is a native Californian, born at California Hospital in Los Angeles, and has lived with her husband Frank in Playa del Rey since 1988. Jeffery J. Daar (appointed for term ending June 30, 2020) Commissioner Daar has practiced law since 1982 and is a principal in the law firm Daar & Newman, PC. His expertise includes strategic planning, state and federal litigation, dispute resolution, and international transactions and disputes. His practice focuses on both litigation and transactional projects. Commissioner Daar is known for his extensive background in a number of practice areas including, but not limited to, cross-border litigation and transactions, class actions, insurance including insurance insolvency, product liability, consumer litigation, unfair competition, appellate work, private post-secondary schools and colleges, and intellectual property. Commissioner Daar is an internationally recognized speaker on subjects relating to international law. He is also a writer on international law issues, including being executive editor of the 560-page International Intellectual Property Law Basics (2008), which was written by him and 53 other lawyers from more than 30 counties and the European Union. He received his juris doctor from the University of California, Davis, where he was a member of the Law Review and the Moot Court Board. He received his Bachelor of Arts degree from Claremont McKenna College. Leadership in both international and local organizations is also part of Commissioner Daar’s daily life. He is past chair of the State Bar of California International Law Section. In Consulegis, an international network of law firms, he is an elected-member of its nine-member advisory board, and co-chair of its International Litigation and Arbitration Specialist Group, coordinating the activities of lawyer specialists in more than 40 countries. He is also a past chair of the International Law Section of the Los Angeles County Bar Association and present chair of the International Affairs Committee of the Valley Industry & Commerce Association. Commissioner Daar has been appointed by three different Mayors of the City of Los Angeles as a city commissioner, including the Rent Adjustment Commission, the Municipal Election Commission, and the Board of Airport Commissioners. Commissioner Daar is a resident of the city of Northridge. Gabriel L. Eshaghian (appointed for term ending June 30, 2019) Commissioner Eshaghian is a Principal and Vice President of Acquisitions and Development with The Somerset Group, a New York-based real estate investment, development and management firm founded in 1979. He has been with the organization for more than eight years, since he opened its Los Angeles office in September 2005. Before joining Somerset, Commissioner Eshaghian spent more than 10 years in various executive positions within the travel and transportation industries, most recently with PricewaterhouseCoopers LLP, one of the world’s largest professional services firms. He spent over three years as their U.S.-based Global Travel Manager, followed by two years as a director with its United Kingdom affiliate Nyras, focusing on turnaround, strategy consulting and investment banking transaction services in the global airline and transportation sector. Commissioner Eshaghian has also held commercial management and business development positions in the airline industry, including positions with Swissair, and with Virgin Atlantic Airways as its US-based Global Key Accounts Manager. He is a subject matter expert in the areas of real estate acquisitions and finance, global travel management and aviation strategy. He has traveled and worked extensively in more than 50 countries and is a classically trained concert-level pianist. He is an active member of the Urban Land Institute, Ipalpiti Young Artists International, The Maestro Foundation and the Children’ Music Fund Charity. Commissioner Eshaghian holds a Bachelor of Arts degree in Religion from the University of Southern California and a Master of Science degree in Real Estate Finance from New York University. Beatrice C. Hsu (appointed for term ending June 30, 2021) Commissioner Hsu is Senior Vice President for Development at Brookfield Properties, responsible for Brookfield’s multifamily development activities on the west coast. Brookfield Properties is a developer, owner and operator of real estate with over $140 billion in assets under management globally, including office, retail, residential, industrial and hotel properties. Prior to joining Brookfield, Commissioner Hsu spent over 10 years with Related California on urban infill development projects, including affordable housing, mixed-income housing and commercial mixed-use development in Southern California. Prior her career in development, Commissioner Hsu served as a senior advisor to then-Councilmember Eric Garcetti. In that position she served as staff chair on the City Council’s Housing, Community and Economic Development Committee, which had oversight over the City’s Community Redevelopment Agency, Housing Department, Community Development Department, Homeless Services Authority and Housing Authority. Commissioner Hsu also served previously as a policy analyst for the California State Controller. She is a graduate of Yale University with a Bachelor of Arts degree in political science and history, and the University of Southern California’s Ross Minority Program in Real Estate. She is a former Vice Chair of the City of Los Angeles Industrial Development Authority and currently serves on the Board of Directors for Larchmont Charter Schools. Cynthia A. Telles (appointed for term ending June 30, 2018) Commissioner Telles is director of the University of California, Los Angeles Neuropsychiatric Institute Spanish-speaking Clinic and is responsible for managing the operations of the model psychiatric clinic, as well as its training and research. She has been on the faculty of UCLA School of Medicine, Department of Psychiatry since 1986. Commissioner Telles has held many governmental and public service appointments. She also currently serves on the White House Commission on Presidential Scholars to which she was appointed by President Barack Obama in 2010. In addition, she serves on the White House Fellows Regional Selection Panel, a position she held during 1998 – 2001, and more recently since 2012. During the Clinton Administration she was appointed to the National Advisory Council of the Substance Abuse and Mental Health Services Administration (U.S. Department of Health and Human Services). Previously, she served on the advisory group to the Presidential Task Force on Health Care Reform. Commissioner Telles has extensive experience serving on corporate boards as well as governmental commissions and civic/philanthropic organization boards. These include serving on the Board of Directors of General Motors since 2010 and for a decade as a member of the Board of Kaiser Foundation Health Plan and Hospitals (Kaiser Permanente). Previously, she served on the boards of Sanwa Bank and Burlington Northern Santa Fe Corporation. Commissioner Telles has also played a significant role in national and local philanthropic organizations. She is currently Chair of the California Community Foundation and has served on the Board since 2004. Between 2001 and 2010, she was on the Board of Directors of The California Endowment, the largest health foundation in California. She served as its Board Chair from 2004 through 2006 and as Vice Chair from 2002 through 2004. Moreover, she has served on the boards of numerous non-profit and civic organizations. In Los Angeles, she has served for 13 years on various city commissions: vice president of the City of Los Angeles Ethics Commission, as president of the Los Angeles Commission on the Status of Women, as vice president of the Los Angeles Board of Library Commissioners and as a member of the Los Angeles Commission on Children, Youth and Families. Additionally, she served on the Los Angeles Police Department’s Board of Rights. Commissioner Telles received a Bachelor of Arts degree from Smith College and a doctorate degree in Clinical Psychology from Boston University. City of L.A. | Disclaimer | Accessibility | Privacy | Sitemap Employment | Comments/Contact Us

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more Topics Home › Articles Advancing Pro Bono To The Next Level Wednesday, August 5, 2009 - 00:00 Published Version Digital Version Lowenstein Sandler PC Kenneth H. Zimmerman Melissa Toner Lozner Kenneth H. Zimmerman Editor: Ms. Lozner, would you please describe your public service background? Lozner: Public service has always been a priority for me, both personally and professionally. I am one of the five founding staff members for the Lowenstein Center for the Public Interest, which the firm launched several months ago. My responsibilities are to develop initiatives that maximize the societal impact of the firm's pro bono work, increase and facilitate attorney participation in pro bono activities within the firm, and continue handling specific pro bono matters. I have been involved in a variety of pro bono activities since I joined the firm as a lateral attorney four years ago. Lowenstein regularly handles pro bono criminal appeals for the New Jersey Public Defender's Office, and I am particularly active in that initiative. In one noteworthy case, I briefed and argued an appeal of a first-degree robbery conviction, which the Appellate Division reversed on prosecutorial misconduct grounds. I also represent a Burmese teacher and political refugee who was awarded asylum and is currently seeking derivative asylum for his wife and young children. Editor: Mr. Zimmerman, last summer as chair of firm's pro bono committee you were working on a strategic plan. Has that been developed and is the Lowenstein Center part of the outcome of those efforts? Zimmerman: Very much so. The Lowenstein Center for the Public Interest is the embodiment of that strategic planning process. The firm has a long-standing commitment to pro bono activites, reflected in our #1 ranking in New Jersey over the past four years and significant history of taking on major pro bono cases. Thus, we were building on a solid foundation. Through the strategic planning process, we focused on four priorities to expand and improve our program: (1) maximize the social impact of our work by focusing on several distinct substantive areas, (2) broaden participation throughout the firm, (3) enhance the profile of our program internally and externally, and (4) improve operations, especially through a more effective use of technology. The first area is particularly significant, as it reinforces the firm's commitment to ensuring we are making as much of a difference as possible in the communities in which we live and work. We have focused, to that end, on issues related to children and education, immigration, criminal justice, and sustainable and economic development. By way of example of our efforts, we are working closely with charter schools, especially in the greater Newark area, to expand their ability to deliver quality education to low income children; spearheading in New Jersey the Kids in Need of Defense (KIND) initiative to provide universal representation to immigrant children in the country without a parent or guardian; continuing our impact litigation against Immigration and Customs Enforcement (ICE) for entering the homes of immigrants without a warrant or consent, and on behalf of special education for children; helping to establish a national model in response to the foreclosure crisis by creating a non-profit that can acquire and rehabilitate foreclosed properties; and serving as counsel to the Governor's Blue Ribbon Task Force on integrating immigrants. Going forward, we are expanding our efforts by developing a partnership with the Innocence Project. Throughout, we are looking to incorporate more substantial expertise and talents of the non-litigators in the firm, such as the transactional work involved in an award-winning initiative that will result in a supermarket and other healthy food initiatives being brought to Newark. Editor: Mr. Zimmerman, your public service experience includes advising HUD Secretary Donovan as part of the Obama Administration's transition team. Could you describe that experience for our readers? Zimmerman: I was very privileged to be asked to serve on the nine-member transition team that led the Obama Administration's initial planning efforts related to the United States Department of Housing and Urban Development, and then to be asked to stay for the first 100 days as a senior advisor to the new HUD Secretary, Shaun Donovan. In these capacities, I was involved first with helping develop what amounted to an initial strategic plan for HUD and then the first stages of implementing it. All told, I was in D.C. on a close to full-time basis from November through April. It was a very exciting process, as the new administration tried both to establish a long term agenda and to deal with the immediate housing and economic crisis. I participated in the development of certain aspects of the President's housing plan, the provisions related to HUD and the Recovery Act and development of the 2010 budget. In the Recovery Act, HUD received an additional $13 billion which amounts to roughly a third of its annual appropriation of $40 billion. This involved helping to identify what kind of funds it made sense to ask for and then, just as significantly, how those funds should and could be disseminated as quickly as possible. Editor: Are you still involved with the New Jersey Institute for Social Justice? Zimmerman: Yes. The Institute reflects a portfolio illustrating the kind of work that we are doing in conjunction with the foreclosure crisis. We are working with NJISJ to examine programs that may make employment opportunities available in areas hard hit by foreclosures as a means of assisting the rebuilding of these communities. We are exploring whether Newark might be one of the areas in which this kind of pilot program may be developed. Editor: Also in connection with NJISJ, you were involved in drafting New Jersey's anti-predatory lending statute. Are you satisfied that it is an effective piece of legislation? Zimmerman: I think the statute is noteworthy because it involved substantive restrictions which, if implemented nationally, could have helped curb the mortgage crisis we now face, and because it was enacted with the agreement of the key stakeholders in the industry and among consumer groups. Unfortunately, the scope of the statute was limited soon after enacted by a federal bank regulator. Nonetheless, research undertaken after its passage with regard to those banking institutions to which it continued to apply showed that the full range of credit remained available to those who needed it, but the types of loans most likely to be abusive decreased markedly. Because of the housing crisis we now face, the issues we dealt with are now very much part of the national dialogue as the current administration works with interested parties to determine how to address reform of the mortgage markets and undertake the critical task of ensuring that we address what led to this crisis while preserving the availability of mortgage credit. Editor: Please describe the work that you do in the asylum and immigration cases that have been a focus of the firm's pro bono work? Lozner: The firm has a long history of representing immigrants who seek asylum in the United States. Many of these cases are referred to us by our pro bono partner, Human Rights First, a leading human rights organization. Lowenstein attorneys have had a great deal of success in obtaining asylum for individual clients. In one recent case, the firm and HRF's work led to a change in federal immigration law that resulted in a favorable outcome not just for our client, but for an entire population of deserving refugees as well. More recently, Lowenstein Sandler became a founding member of KIND, whose goal is to provide universal legal representation for all unaccompanied children who are in U.S. immigration court proceedings. As the initiative's lead law firm in New Jersey, Lowenstein handles cases and provides financial support and office space for KIND's New Jersey Pro Bono coordinator, who trains, mentors, and supervises volunteers. In addition to handling a number of our own KIND cases, Lowenstein attorneys look forward to forming co-counsel relationships with attorneys at leading corporations in New Jersey in some future cases. Editor: You also have a pro bono focus on disadvantaged children. Describe the kind of work that you do for them. Zimmerman: Let me just emphasize that the KIND project that Melissa mentioned deals with children under the age of 13 who are here without a parent or guardian and are facing potential immigration problems. It is a very important and compelling piece of our broader focus on children and it reflects another premise of the Center: that we undertake individual representation but also look for opportunities to maximize the consequences of such individual representation. We have a number of pieces of litigation, including a lawsuit that was brought before my time against the state of New Jersey having to do with special education. Our work with charter schools utilizes some of the firm's real estate and corporate attorneys, who help innovators in public education expand and improve the way in which public education is being offered to low income children. We are particularly excited about it because Newark is at this important moment expanding and improving its public education. Editor: Last year, you expressed a desire to engage attorneys from a variety of practice areas, including providing projects for corporate and transactional attorneys. Have you succeeded in doing this? Zimmerman: Although the Center is in its early stages, I am encouraged and excited by the ways in which the non-litigation pro bono docket is expanding. In great measure this reflects the commitment of the leadership of the corporate and other non-litigation departments in the firm. To cite just one example, a partner who heads our tech group just put out a call for everyone in his group to undertake pro bono activities in the upcoming six months. It is that kind of leadership that ultimately represents how we can succeed. The other key is to develop the types of quality projects such as our work regarding charter schools or supermarkets. Some of the KIND work is actually being done by corporate attorneys as well. Having the Center operational with dedicated staff means that we are able to build the array of work that will enable corporate attorneys to take advantage of their skills in the pro bono space. Editor: Is there anything else that you would like to add? Zimmerman: One interesting dynamic of the Center is that we identify non-traditional types of pro bono activities and seek quality partnerships that will allow us to develop transactional work. We also identify other ways in which lawyers can contribute, particularly at a time when both the public sector and the non-profit sector are struggling so much. For example, we served as counsel for the Governor's Blue Ribbon Task Force relating to the integration of immigrants. That may not be a traditional pro bono activity, but it is another way we can employ the myriad skill sets of our lawyers without putting limits on the type of work we are doing. We are also finding that members of the firm are becoming board members of organizations that we partner with, demonstrating that we give the greatest benefit when our involvement is not exclusively in "one-off" assignments, but represents a broader investment in quality organizations. The litigation we are doing also remains very cutting edge. The lawsuit we are bringing with Seton Hall Center for Social Justice against ICE for raiding the homes of undocumented individuals and entering without consent or a warrant represents the first of these cases around the country that has led to a decision of a district court judge to allow plaintiffs to take discovery of former high level senior governmental officials. This is now on hold in light of a recent Supreme Court decision, but it reflects the national significance of the work that we are undertaking. The framework that we have created with the Center - the idea that in addition to myself there are five associates and counsel who are committing at least 25 percent of their time to staff the Center - is a particularly interesting and innovative way to expand the quality, depth and impact of the pro bono work that the firm is taking on. It is not only a further commitment on the firm's part, but a way in which our intent to have a real institutional home for pro bono activities is firmly embedded in the firm and can come to fruition. Lozner: The establishment of the Center has really inspired attorneys within the firm to broaden their participation in pro bono activities. A number of attorneys have already come to me seeking to become involved in a particular initiative or matter, as well as to discuss the best way to find a matter that is appropriate in light of their interests and skill sets. Moreover, the community at large has exhibited a remarkably positive response to the Center's creation. In talking to attorneys in the non-profit and governmental sectors, as well as prospective clients and laypeople, I have seen a real appreciation for the firm's reinforced commitment to pro bono and public service - particularly in these challenging economic times. I feel fortunate to be involved in such an innovative and important effort. Please email the interviewees at [email protected] or [email protected] with questions about this interview. Mobilizing The Next Generation Of Lawyers Committed To Equal Justice Pro Bono - Law Firms Taking Pro Bono To The Next Level Taking In-House Counsel To The Next Level Of Leadership The Next Level: Promoting Diversity In The ADR Arena Proskauer Rose: Taking A Program To The Next Level Taking A Commitment To Diversity To The Next Level Compassion, Courage And Conviction: Pro Bono At King & Spalding Disclaimer • Privacy

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By John Fund — April 9, 2012 Attorney General Eric Holder is a staunch opponent of laws requiring voters to show photo ID at the polls to improve ballot security. He calls them “unnecessary” and has blocked their implementation in Texas and South Carolina, citing the fear they would discriminate against minorities. I wonder what Holder will think when he learns just how easy it was for someone to be offered his ballot just by mentioning his name in a Washington, D.C., polling place in Tuesday’s primaries. Holder’s opposition to ID laws comes in spite of the Supreme Court’s 6–3 decision in 2008, authored by liberal Justice John Paul Stevens, that upheld the constitutionality of Indiana’s tough ID requirement. When groups sue to block photo-ID laws in court, they can’t seem to produce real-world examples of people who have actually been denied the right to vote. According to opinion polls, over 75 percent of Americans — including majorities of Hispanics and African-Americans — routinely support such laws. One reason is that people know you can’t function in the modern world without showing ID — you can’t cash a check, travel by plane or even train, or rent a video without being asked for one. In fact, PJ Media recently proved that you can’t even enter the Justice Department in Washington without showing a photo ID. Average voters understand that it’s only common sense to require ID because of how easy it is for people to pretend they are someone else Filmmaker James O’Keefe demonstrated just how easy it is on Tuesday when he dispatched an assistant to the Nebraska Avenue polling place in Washington where Attorney General Holder has been registered for the last 29 years. O’Keefe specializes in the same use of hidden cameras that was pioneered by the recently deceased Mike Wallace, who used the technique to devastating effect in exposing fraud in Medicare claims and consumer products on 60 Minutes. O’Keefe’s efforts helped expose the fraud-prone voter-registration group ACORN with his video stings, and has had great success demonstrating this year in New Hampshire, Vermont, and Minnesota just how easy it is to obtain a ballot by giving the name of a dead person who is still on the rolls. Indeed, a new study by the Pew Research Center found at least 1.8 million dead people are still registered to vote. They aren’t likely to complain if someone votes in their place. In Washington, it was child’s play for O’Keefe to beat the system. O’Keefe’s assistant used a hidden camera to document his encounter with the election worker at Holder’s polling place: Man: “Do you have an Eric Holder, 50th Street? Poll worker: “Let me see here.” Man: Xxxx 50th Street. Poll Worker: Let’s see, Holder, Hol-t-e-r, or Hold-d-e-r? Man: H-o-l-d-e-r. Poll Worker: D-e-r. Okay. Man: That’s the name. Poll Worker: I do. Xxxx 50th Street NW. Okay. [Puts check next to name, indicating someone has shown up to vote.] Will you sign there . . . Man: I actually forgot my ID. Poll Worker: You don’t need it; it’s all right. Man: I left it in the car. Poll Worker: As long as you’re in here, and you’re on our list and that’s who you say you are, we’re okay. Man: I would feel more comfortable if I go get my ID, is it all right if I go get it? Poll Worker: Sure, go ahead. Man: I’ll be back faster than you can say furious! Poll Worker: We’re not going anywhere. Note that O’Keefe’s assistant never identified himself as Eric Holder, so he was not illegally impersonating him. Nor did he attempt to vote using the ballot that was offered him, or even to accept it. O’Keefe has been accused by liberals of committing voter fraud in his effort to expose just how slipshod the election systems of various no-ID-required states are, but lawyers say his methods avoid that issue. Moreover, he has only taped his encounters with election officials in jurisdictions that allow videotaping someone in public with only one party’s knowledge. As for the D.C. Board of Elections, its loose practices are a matter of record. Last year, a community activist uncovered the fact that Andrea Pringle, the new deputy chief of staff to Washington, D.C., mayor Vincent Gray, had voted illegally in the district even though she admitted to living in Maryland. She resigned in the face of the criticism. Nor is she the only example. State Senator Harold Metts of Rhode Island got a photo-ID law put on the books in his state last year after he was told by several constituents of a pattern of voter fraud in his home town of Providence. Indeed, his own state representative and her daughter had their votes stolen by someone voting in their names in one election. “The old system was not set up to readily weed out fraud, and it would be very hard to prove,” he told the Woonsocket Patch newspaper. Metts, the state senate’s only African-American member, says that he took a lot of heat from national Democrats for getting the ID law approved by an overwhelmingly Democratic legislature. But he says party loyalty only takes him so far. “It’s time to stop crying wolf and make the voter-ID law work for those on both sides of this issue who want to ensure the integrity of the system, while guarding against disenfranchisement.” Several of the state laws that require photo ID also make new provisions to enhance security for absentee ballots, the tool of choice for many fraudsters. Last year, Lessadolla Sowers, a member of the NAACP’s Executive Committee in Tunica County, Miss., was sentenced to five years in prison for fraudulently casting absentee ballots for ten other people. “This crime cuts against the fabric of our free society,” Judge Charles Webster said at the sentencing hearing. Scandals such as that one helped convince 62 percent of Mississippi’s voters to approve a photo-ID law last November. The measure passed in a clear majority of counties that are majority-black. As with other ID laws, a free state-issued photo ID is available to anyone who says they can’t afford one. But the groups opposing voter ID won’t let the facts get in their way. James Clyburn of South Carolina, the third-ranking member in the House Democratic leadership, compares voter-ID laws to “Jim Crow” provisions that blocked people from voting in the last century, and said he is “very, very anxious” that the Supreme Court “as it is presently constituted” will support the new laws. But as previously noted, the Supreme Court already has supported voter ID, with its opinion authored by its most liberal member at the time. Some criticism of voter-ID laws has morphed into intimidation. This week, Color of Change, co-founded by former Obama special adviser Van Jones, threatened a boycott against Coca-Cola and Walmart because they financially supported the American Legislative Exchange Council, which has helped state legislators draft some of the voter-ID laws. Within hours, Coca-Cola resigned its membership in ALEC. So far Walmart is holding out by arguing that ALEC is involved with dozens of issues, many of them of direct concern to Walmart shareholders. There is something surreal about the voter-ID issue. As James O’Keefe demonstrates, it is comically easy to commit voter fraud in person, and, unless someone confesses, it’s very difficult to ever detect. With absentee balloting, there is a paper trail that makes it easier to uncover fraud, making it a problem that even some critics of photo ID will admit. Other than hypotheticals, there are very few cases of legitimate voters who were unable to have their vote counted because they lacked ID. People who show up without photo ID at the polls are allowed to cast a provisional ballot that is counted after proof of identity is offered. “From voter fraud to election chicanery of all kinds, America teeters on the edge of scandal every November,” says Larry Sabato, the director of the Center for Politics at the University of Virginia and author of a comprehensive survey of voter fraud called “Dirty Little Secrets.” The fact that so many people want to thwart legitimate and prudent efforts to improve ballot integrity has become a scandal in its own right. Attorney General Holder is unlikely to agree with that, but after what happened at his polling place last Tuesday, he should at least understand that voter fraud itself is a scandal worth investigating. — John Fund, a writer based in New York, is the author of Stealing Elections: How Voter Fraud Threatens Our Democracy.

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Casey Royer of D.I. Faces Heroin-Use and Child-Abuse and -Endangerment Charges After Allegedly OD'ing at 'Filthy' Home With 12-Year-Old Son Present Orange County DA's office ? A Casey Royer, an Orange County punk-rock pioneer, faces misdemeanor charges after overdosing on heroin while watching television with his 12-year-old son at home in Newport Beach on Thursday. The boy ran to a neighbor's house to get help for his 52-year-old dad. While reviving him, authorities discovered what the Orange County district attorney's office referred to as "filthy" living conditions.Royer has been charged with two counts of child abuse and endangerment, as well as use and being under the influence of a controlled substance. He could get up to two years behind bars if convicted.Royer began his musical career in 1979, when the then-21-year-old played drums with Social Distortion. He joined the Adolescents the following year, and when Steve Soto's band began what would be a five-year hiatus in 1981, Royer formed D.I. Steve Soto (left), Casey Royer (center) and Blairing Out With Eric Blair's host at the April 2010 premiere of We Were Feared in Newport Beach. Photo by John Gilhooley/OC Weekly He has returned for shows and recordings that have reunited the Adolescents over the years, and Royer also played with ADZ in the early 1990s, but his main focus all along has been keeping D.I. alive.Royer was among the local punk icons who appeared in the documentary We Were Feared, which was about the short run of the late, great Costa Mesa club the Cuckoo's Nest. He also turned out for the film's April 2010 premiere at the Newport Beach Film Festival.

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Learn More About Rollover Accident Litigation in Sylva, North Carolina Homerollover accident litigationnorth carolinasylva Sylva is an incorporated town located in central Jackson County, in the Great Smoky Mountains of Western North Carolina, United States of America. As of the 2000 census, the town had a total population of 2,435. It is the county seat, having taken over from nearby Webster in 1913. The town is named for William D. Sylva, a Danish handyman who spent a month in the home of General E. R. Hampton. When the town applied for a post office, Hampton asked his young daughter Mae what the town's name should be. She liked the handyman so much she said, "Sylva." Rollover Accident Litigation Lawyers In Sylva North Carolina What is rollover accident litigation? A rollover is a type of vehicle accident, where a vehicle turns over on its side or roof. Such accidents have a tendency to badly injure the occupants of the vehicle, car, bus or truck involved and those around the vehicle. While many auto accidents occur because of human error, many also can be caused or worsened by defective products or inadequate safety mechanisms. Among these problems are vehicles that are prone to rollovers, especially increasingly popular sport utility vehicles, or SUVs. A number of vehicles have also been found to have roofs that cannot withstand rollover accidents, with drivers and passengers injured and killed. People who are injured in rollover accidents may be compensated for their injury, lost income, and pain and suffering. Answers to rollover accident litigation issues in North Carolina Federal court opinions concerning rollover accident litigation in North Carolina 812 F2d 172 Erwin v. Jeep Corporation 190 F3d 856 C. Richard Brown, v. American Life Holdings, Inc., et al. Homerollover accident litigationnorth carolinasylva

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The Marriage Exchange Martha C. Howell The Medieval Origins of the Legal Profession Canonists, Civilians, and Courts James A. Brundage | 5 halftones In the aftermath of sixth-century barbarian invasions, the legal profession that had grown and flourished during the Roman Empire vanished. Nonetheless, professional lawyers suddenly reappeared in Western Europe seven hundred years later during the 1230s when church councils and public authorities began to impose a body of ethical obligations on those who practiced law. James Brundage’s The Medieval Origins of the Legal Profession traces the history of legal practice from its genesis in ancient Rome to its rebirth in the early Middle Ages and eventual resurgence in the courts of the medieval church. By the end of the eleventh century, Brundage argues, renewed interest in Roman law combined with the rise of canon law of the Western church to trigger a series of consolidations in the profession. New legal procedures emerged, and formal training for proctors and advocates became necessary in order to practice law in the reorganized church courts. Brundage demonstrates that many features that characterize legal advocacy today were already in place by 1250, as lawyers trained in Roman and canon law became professionals in every sense of the term. A sweeping examination of the centuries-long power struggle between local courts and the Christian church, secular rule and religious edict, The Medieval Origins of the Legal Profession will be a resource for the professional and the student alike. Review Quotes List of Abbreviations Preface IntroductionChapter 1 The Foundation: The Roman Legal Profession Chapter 2 Law without Lawyers: The Early Middle Ages Chapter 3 The Legal Revival of the Twelfth Century Chapter 4 Church Courts, Civil Procedure, and the Professionalization of Law Chapter 5 Pre-Professional Lawyers in Twelfth-Century Church Courts Chapter 6 The Formation of an Educated Elite: Law Schools and Universities Chapter 7 Attaining Professional Status Chapter 8 Professional Canon Lawyers: Advocates and Proctors Chapter 9 Judges and Notaries Chapter 10 The Practice of Canon Law Chapter 11 Rewards and Hazards of the Legal Profession Conclusion: The Tradition of the Legal Profession Bibliography Index Review Quotes Paul Brand, University of Oxford “James Brundage’s The Medieval Origins of the Legal Profession is a major work of original scholarship, the crowning achievement of a long and distinguished career as a historian of the medieval canon law. He has succeeded brilliantly in this first general account of the emergence of canon lawyers as a recognizable professional group. This book will, undoubtedly, be recognized as a work of fundamental importance to all scholars working on canon law or indeed more widely on medieval lawyers.” Kenneth Pennington, Catholic University of America School of Law “A marvelously comprehensive survey on the origins of the legal profession that will provide an agenda for research for years to come. With wit and style, James Brundage is the first to have written a book that covers all this territory: the origins of lawyers in European society as well as their professional associations, status, education, and work. The Medieval Origins of the Legal Profession will be read and used by undergraduates, law students, and historians alike.” Charles Donahue, Jr., Paul A. Freund Professor of Law, Harvard Law School “Long-awaited, Professor Brundage’s history of the medieval (and ancient Roman) origins of the legal profession was well worth waiting for. Brundage masterfully weaves together the history of the teaching of law as an academic subject, the explosion of new sources of law, the emergence of the university, the emergence of formal courts, and the development of Romano-canonical procedure. All these topics, many of which are quite controversial, are handled with a deftness and clarity that provokes admiration and, for those of us who have tried to write about the same things, a tinge of envy. This book will stand for many years as a monument, not only in the history of the legal profession but also in the history of European law.” John Hudson | Times Literary Supplement “James Brundage tells us, a new law book cost on average about thirty-five Bolognese pounds, more than some houses. Today's students, scholars and lawyers will welcome this very learned and much more affordable volume.”–John Hudson, Times Literary Supplement Review of Metaphysics “This book . . . has been forty years in the making, and given its richness, the reader can be grateful for those decades of research.” Thomas Kuehn | American Historical Review “The first several chapters provide sparkling synopses of legal procedures and the roles of legal experts during the Roman Empire, the early Middle Ages, and the beginnings of the revival of Roman law in the eleventh and twelfth centuries, which is ascribed to the powerful texts that drove it. . . . Brundage’s discussion of the other key text of the legal revival, Gratian’s Decretum, is the best lucid summary of the highly technical paleographic and legal research one is likely to find. . . . To someone coming fresh to medieval canon law, Brundage's is one of the first books to confront. It is readable, at times colorful, informative, and sound.” Diana Jefferies | Parergon "This is a book that will have appeal for the generalist reader looking for a broad-spectrum understanding of the subject as well as a more specialist reader whose specific interests lie in one of the aspects of the legal profession. Brundage's style is easy to read and his descriptions of what actually occurred in the legal faculties or in the courtrooms of the period are entertaining. . . . A significant work that will assist researchers and students for many years." Paul du Plessis | Edinburgh Law Review "[A] beautifully written book. . . . It contains a wealth of information which is communicated effortlessly in the easy style for which Brundage is known. This book should be required reading, not just for those with an interest in legal history, but for anyone wishing to explore the origins of the legal profession in Western Europe." Thomas M. Izbicki | Review of Politics "Brundage has provided us with a lucid and informative account of how law became a profession in the Middle Ages, a factor in the larger development of the learned professions in the Western world." Association of American Publishers: PROSE Book Award Law and Legal Studies category View Recent Awards page for more award winning books. For more information, or to order this book, please visit http://www.press.uchicago.edu History: European History Law and Legal Studies: Legal History Religion: Religion and Society

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Baroness O'Cathain: I should like to make two points. First, there is a general feeling, particularly in country towns, that with the increased use of CCTV in car parks, shopping centres and streets, crime is moving out from those places. People feel that the increase in CCTV encourages crime to move to areas where CCTV is not used. Secondly, with increasing affluence in rural areas, there is more to steal in those areas. Many people have second homes in rural areas. Some cottages are now quite palatial. Many people keep pictures, works of art and various valuable items in cottages which up until relatively recently--30 or 40 years ago--were purely workmen's cottages. Friends involved in the legal profession in Sussex are concerned that over the next few years there might be an even greater move of crime from the smaller towns, where there is increased surveillance, into the rural 9 Oct 2000 : Column 146 areas. The noble Baroness referred to the increased use of CCTV, I presume along the rights of way in rural areas. I do not think that that will be feasible. Baroness Scott of Needham Market: I was talking about rights of way around urban fringes. Baroness O'Cathain: I thank the noble Baroness for putting me right. I believe that we are being somewhat complacent if we think that the increasing use of rights of way could not lead to an increase of crime in rural areas. Lord Whitty: That exchange reminds us that we must regard the rights of way as being as much in urban as in rural areas. Therefore these provisions have to cover potential crime in both such areas. I agree with the noble Baroness, Lady Scott, that we should use these powers sparingly; and that we should not use the fear of crime as a general means of restricting the rights of way. Nevertheless, we have to have some powers in this area. I deal with Amendment No. 376. I do not think that there is much between us on the need to have measures to protect schools. Amendment No. 376, which would set an additional test to be met before an order could be confirmed, relates only to orders closing rights of way, not diversion orders. Therefore it would allow rights of way to be diverted where they cross school premises. However, only a small minority of schools are likely to need recourse to these powers. Moreover, the Bill already contains a number of conditions to be met before an order closing a right of way may be made. We are not persuaded that additional tests are needed. The additional factors set out in the amendment may in some cases be difficult to apply. For example, I am not sure that whether premises pre-date a highway is the relevant issue. If there is a case to protect premises against crime it does not much matter whether the building was built before or after the highway was established. The purposes of the provisions in Schedule 6 are to deal with problems which arise now, irrespective of the provenance of a right of way. It seems sensible that they are not confined by the provenance of the right. The use of the separate provisions in new Sections 118B and 119B for closing or diverting rights of way to prevent crime in designated areas should never be a first option. As the noble Baroness, Lady Scott, says there are many other ways of dealing with such problems. Nor can it be easy. This requires a designation by the Secretary of State. It is not available to the local authority or the local police authority. In some areas the geography of rights of way can generate levels of opportunistic crime which may undermine policies aimed at dealing with problems of social exclusion. But they will be relatively rare and the procedure would ensure that they are used only sparingly. 9 Oct 2000 : Column 147 As originally introduced, the powers provided under these clauses related only to designated urban areas. However, arguments deployed by both parties in another place persuaded the Government to widen the provisions by removing the word "urban". That is a slightly different approach from that taken in the amendment by the noble Baroness, Lady Scott. As the Bill stands, it is clear that orders may be made only in order to tackle high and persistent levels of crime in designated areas arising from use of a right of way. Additional tests must be taken into account by the confirming authority, such as whether an order would be consistent with any crime prevention strategy prepared under the Crime and Disorder Act 1998. The option of diversion rather than closure must also be considered. The provisions are limited and would require a pretty rigorous procedure before they could be triggered. They are there to deal with situations of high crime, high potential crime and persistent crime. It is important that people are assured that we have those powers for use when necessary. 9 Oct 2000 : Column 148/ This is a question of balance. The powers would be used sparingly. We believe that we have got the balance right. I hope that the noble Baroness will not pursue her amendments. Baroness Scott of Needham Market: I am grateful for that reply and take some comfort from the fact that the measures will be a last resort and that there are a significant number of tests to be gone through. However, I remain a little concerned that the existence of the provisions in the Bill helps to generate a perception that there is a link between public rights of way and crime, which is far from proven. However, I take some comfort from the Minister's remarks and with that I beg leave to withdraw the amendment. Baroness Farrington of Ribbleton: I beg to move that the House do now resume. Moved accordingly, and, on Question, Motion agreed to. House resumed. House adjourned at ten minutes before midnight.

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More Fuel for Our Next Civil War About 20 years ago, I attended a symposium in San Francisco commemorating the Roe v. Wade decision. It was an interesting event, in which Charles Reich, who was my constitutional law professor at the time, was a featured speaker. If memory serves, Nancy Pelosi and Barbara Boxer may have been there as well, and I seem to recall that the event was held at Hastings, the second tier California public law school.In any event, Reich was speaking sort of off the cuff at one point, and he suddenly got this light in his eyes, and he said, “you know, you can’t dismiss the idea that the Dred Scott decision haunted the Court when Roe v. Wade was being considered.” He elaborated that the Dred Scott really hardened the sectional divisions between North and South, and perhaps made the Civil War inevitable, and he pondered that sometimes the United States Supreme Court has the ability, and the power, and perhaps sometimes the inclination to be the ultimate protector of the Union from culture war. And, yes, slavery was a culture war issue.Even on the American left, there has always been disquiet about Roe v. Wade. Legally, it was probably the worst reasoned decision handed down by the Supreme Court since Dred Scott, and it would stand as the worst decision until Bush v. Gore. There is no doubt that the intent of the state of Texas in outlawing abortion was a moral basis, and the United States Supreme Court could have struck down the statute on First Amendment grounds. Instead, it made a broad declaration with national import, and while it has sparked a thirty year culture war, it certainly did not create a patchwork of abortion/anti-abortion states as Dred Scott divided the nation.So what is the United States Supreme Court going to do about gay marriage? And would Reich, who is gay, agree to forego the union for gay marriage, or would he pick union over marriage equality? On one hand, even the liberals on the Court are uncomfortable with Roe v. Wade. On the other, the Court worries about another Dred Scott. Roberts is looking for legacy, but already his legacy is one of bad decisions on big cases which resolve nothing and which do, in fact, inflame the political community. (Obamacare is really Obamatax, and the issue of its application isn’t yet ripe. huh?) The United States Supreme Court, in its arguments this week, really looked like what the Congress should have doing about this issue, but didn’t do, 20 years ago. Now, we have the Roberts court which holds in its hand whether it makes a broad brush and controversial decision like Roe v. Wade, or instead establish a patchwork which will result be another Dred Scott, yet more fuel for the sense that there are now two Americas – one red and one blue, irreconcilable. This isn’t a principled court. It’s a court made up of political hacks appointed by gutless presidents and approved by weak Senates that have discouraged the appointment of great thinkers to the highest bench.The one thing I am sure of, however, and it’s why I don’t envy this Court, is that, no matter what it does, history will show it did the wrong thing.

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