text:
AND THE LORD GOD PLANTED A GARDEN EASTWARD IN EDEN; AND THERE HE PUT THE MAN WHOM HE HAD FORMED-Gen 2:8. AND THE LORD GOD TOOK THE MAN, AND PUT HIM INTO THE GARDEN OF EDEN TO DRESS IT AND TO KEEP IT. Note that the Lord put Adam where He wanted him to be and gave him work to do (to work it and to take care of it). AND THE LORD GOD COMMANDED THE MAN, SAYING, OF EVERY TREE OF THE GARDEN THOU MAYEST FREELY EAT: BUT OF THE TREE OF THE KNOWLEDGE OF GOOD AND EVIL, THOU SHALT NOT EAT OF IT: FOR IN THE DAY THAT THOU EATEST THEREOF THOU SHALT SURELY DIE-Gen 2:15-17. Adam could eat of every tree, except one. God had given Adam a command. Sin is disobeying God’s commandments. God also warned Adam of the consequences of disobeying His command. The penalty for disobedience was death. Adam’s obedience was going to be tested. We are to fear God-ref Lk 12:5. For it is written, BY THE FEAR OF THE LORD MEN DEPART FROM EVIL-Pv 16:6. We need to understand that THE WAGES OF SIN IS DEATH-Ro 6:23. We surmise that Adam feared God and His judgment. Adam had the choice of believing God’s Word or not believing it. Note that Adam had fellowship with God. No sin separated him from God at this time.
As we examine how Satan deceived Eve, let us be mindful that he uses many of these same devices on us today. He speaks to us in our thoughts, through other people, through situations, through our flesh and emotions, and through unexpected ways to cause us to do contrary to what God would have us do. He lies to us. Sometimes he mixes the truth with lies. He stirs up our emotions. He uses our anger, bitterness, fears, jealousy, envy, love, and even good intentions to persuade us to do contrary to God's will. He uses temptations, persecutions, and threats. He uses the pleasures of this life, the deceitfulness of riches, the lusts of other things, and cares of this world. He uses things that our hearts desire. He uses our ambitions of wanting to get ahead, and to prosper, and get more things. He uses our desire to be someone special. He makes us think we are doing what God wants us to do when, in reality, we are disobeying God. He causes many to believe the Bible is not true and others to believe the Bible does not mean what it really says. He causes many to believe he does not exist. He causes others to greatly underestimate his powers of deception. Because of Satan's lies, we become confused, and the Word of God becomes twisted in our mind. He uses Scripture (in our thoughts) in such a way that we become deceived. He causes us not to hate sin and every evil way. He persuades us to think we will never have to face the judgment of God. He leads us to believe we will go to heaven when, in reality, we are on our way to hell. He causes us to examine ourselves and our relationship to God by emotions, rather than by the truth of the Gospel. He brings many distractions when we open our Bible to read and to study. He may send people to us that look like true Christians, but are really wolves in sheep’s clothing. And if God sends someone to us, Satan may put in our thoughts reasons to believe the person is not from God at all. Satan convinces us that the thoughts we are having, which prompt us to sin, are really our own thoughts. Other times he persuades us that the thoughts we are having are from God, when they are really from Satan.
In Ezekiel chapter 28, we see some references pertaining to Satan. In verse 12, it is written, "FULL OF WISDOM, AND PERFECT IN BEAUTY." In verse 13, "THOU HAST BEEN IN EDEN THE GARDEN OF GOD." Verse 13 also shows that he was CREATED. Verse 17 says, THINE HEART WAS LIFTED UP BECAUSE OF THY BEAUTY, THOU HAST CORRUPTED THY WISDOM BY REASON OF THY BRIGHTNESS. Isa 14:12-14 gives additional information: O LUCIFER, SON OF THE MORNING!...THOU HAST SAID IN THINE HEART…I WILL EXALT MY THRONE ABOVE THE STARS OF GOD...I WILL BE LIKE THE MOST HIGH. Thus, we note that Satan was FULL OF WISDOM, and PERFECT IN BEAUTY, and had much BRIGHTNESS. Most people greatly underestimate Satan’s craftiness and ability to deceive.
NOW THE SERPENT (which is also called Satan, the devil, and Lucifer) WAS MORE SUBTILE (or crafty) THAN ANY BEAST (or wild animal) OF THE FIELD WHICH THE LORD GOD HAD MADE. AND HE SAID UNTO THE WOMAN, YEA, HATH GOD SAID (or did God really say), YE SHALL NOT EAT OF EVERY TREE OF THE GARDEN?-Gen 3:1. The serpent, which is also called Satan, now begins a process of causing Eve to be confused, deceived, to doubt what God had said, and to ultimately cause her to disobey God’s command. We hear that same voice today in our thoughts. Also note that the serpent did not use God’s Words in this case, but rather used an evasive and deceptive approach, by saying, "HATH GOD SAID?" Then he used the words, "YE SHALL NOT EAT OF EVERY TREE OF THE GARDEN?" As the serpent spoke, he did not call God, Lord God (or Jehovah God), but addressed Him only as God, perhaps, trying to belittle Jehovah God in her thinking. From the first three words, "HATH GOD SAID," it can be seen that the serpent is an enemy of God. He is attempting to bring doubt toward the Word of God. He is challenging God’s Word. He begins with a question to open the conversation. It is as if he wants you to know something, but it is really the beginning of a deception. It was intended to cause doubt in the woman’s mind. God is not the author of confusion, but Satan is-ref l Cor 14:33. Thus, we have the beginning of the serpent’s attack, causing the woman to doubt, to be confused, and to be deceived. Eve did not understand the deceptive and crafty ways of the devil. She did not perceive him as a threat. It is the same with most people today. The woman should have turned away, but she did not. She chose to enter into a dialogue with the serpent. That dialogue proved to be a great mistake. She did not realize that the devil was her enemy. The serpent also seems to be implying that God is too demanding and overbearing, and that He does not really love the woman, because she could eat of every tree, except one. Surely, if God really loved her, He would give her everything she wanted.
AND THE WOMAN SAID UNTO THE SERPENT, WE MAY EAT OF THE FRUIT OF THE TREES OF THE GARDEN: BUT OF THE FRUIT OF THE TREE WHICH IS IN THE MIDST OF THE GARDEN, GOD HATH SAID, YE SHALL NOT EAT OF IT, NEITHER SHALL YE TOUCH IT, LEST YE DIE-Gen 3:2,3. Note confusion as to what God said seems to be setting in. In her thoughts, she must have begun to question God’s Word. Eve stated certain words, which are not recorded that God said, such as, NEITHER SHALL YE TOUCH IT. Her response to the serpent was a general impression of what she believed God had said, rather than God’s exact words. It may also be noted that she said, "YE SHALL NOT EAT OF IT...LEST YE DIE." God had said, "THOU SHALT SURELY DIE." Her reply, "Lest ye die," does not seem to carry the force that God’s Word had conveyed. Her way of replying may indicate that her belief and trust in God and His Word was like a wave; however, she did fear God’s judgment. Thus, if Satan was to be successful in causing her to disobey God, he needed to eliminate the fear of God’s judgment, which is death. Satan had won the first round.
AND THE SERPENT SAID UNTO THE WOMAN, YE SHALL NOT SURELY DIE-Gen 3:4. God had said, "THOU SHALT SURELY DIE." Certainly, God would not cause her to die for simply eating of the fruit of one particular tree. Satan’s words, "YE SHALL NOT" carry a certain amount of force. Satan is directly contradicting God’s Word and undermining the concept of God’s absolute authority. Satan is scoffing at God’s authority. He seems to be suggesting that the woman is confined by her position of believing and trusting in God’s Word. "YE SHALL NOT SURELY DIE," is the same lie that he puts in our thoughts today. Satan puts in our thoughts that we will not perish and that hell is only for bad people. He tells us that we are a pretty good person; therefore, God will surely let us into heaven. Satan may tell us that there is no such place as hell or the lake of fire and surely, a good, loving, and merciful God would never send us there. Satan may tell us that the idea of eternal punishment is just not true. The devil may tell us that it is all right to disobey God. It is all right to sin. It is all right to live any way we want. The devil may tell us we do not have to repent of all sin. We do not need to read the Bible. We do not need to hear and obey the Gospel. We do not need to go to church. Satan may tell us in our thoughts that we will never have to give an account for our sin. We will never have to face the judgment of a holy God. We do not have to worry. God will never let us perish to the lake of fire. As a result, she must have begun to question God’s Word.
Here is the conflict: it is between the truth of God’s Word and the lies Satan puts in our thoughts. It is between the truth of God’s Word and our emotions. It is between the truth of God’s Word and our fleshly desires. We are in a battle between the TRUTH of God’s Word and the lies of the devil. There is a battle going on in our thoughts between the truth of God’s Word and the traditions of men, pastors, churches, denominations, and our own wrong thinking. Satan is a master at confusing us, deceiving us, and causing us to doubt. It is written, THE DEVIL...IS A LIAR, AND THE FATHER OF IT-Jn 8:44. In telling the woman, YE SHALL NOT SURELY DIE, the serpent was also insinuating that God lied to her.
The serpent had first planted doubt and confusion in the woman’s mind. Now, by directly contradicting God’s Word of truth, he was attempting to remove the fear of God’s judgment, which was, THOU SHALT SURELY DIE. The woman was going to have to choose which voice she would believe. She was going to have to choose whether she would put her faith in the words of the Lord God, or put her faith in the words of the serpent. We are faced with this same choice. Will we put our faith in the Word of God? or will we put our faith in the wrong thoughts we have in our mind, or hear from blind teachers and others?
The serpent knew that if Eve chose to believe his words rather than God’s Word, he will have succeeded. Thus, the serpent continued to do more than just contradict God’s Word. He had to persuade the woman in other ways, also.
Satan is called the ACCUSER-ref Rev 12:10. He accuses the brethren, and he accuses God. Next the serpent will attempt to explain to her why God lied. The serpent then said, FOR GOD DOTH KNOW THAT IN THE DAY YE EAT THEREOF, THEN YOUR EYES SHALL BE OPENED, AND YE SHALL BE AS GODS, KNOWING GOOD AND EVIL-Gen 3:5. Note Satan’s words, "FOR GOD DOTH KNOW." This gives the impression it is all right in the eyes of God and that God misled her for these reasons.
Then the serpent adds these words, "KNOWING GOOD AND EVIL." Satan was telling the woman that the path to knowledge is to bypass God’s Word. The woman must have wondered, "What is good and evil?" Indeed, if she would disobey God and do as the devil was tempting her to do, she would know and understand GOOD AND EVIL. She would also die, even though Satan had assured her that she would not die. Satan’s very clever and deceitful words, which were filled with half-truths and lies, were having an effect on the woman. The fear of God’s judgment had been eliminated. Now, she was being tempted with things that could be greatly desired. She must have wondered, because God knew all this anyway, "Surely, it must be all right."
AND WHEN THE WOMAN SAW THAT THE TREE WAS GOOD FOR FOOD, AND THAT IT WAS PLEASANT (or pleasing) TO THE EYES, AND A TREE TO BE DESIRED TO MAKE ONE WISE (or desirable for gaining wisdom)-Gen 3:6. The verse said, item one-THE WOMAN SAW…item two-THAT IT WAS PLEASANT (or pleasing) TO THE EYES (the lusts of the eyes began to prompt her to sin). Sight can be a pathway to lead us to sin. She saw, item three-that the TREE WAS GOOD FOR FOOD. The lusts of the flesh began to prompt her to disobey God. Food can be a pathway to lead us to sin. Satan tempted Jesus regarding food. She saw that the tree was, item four-TO BE DESIRED, item five-TO MAKE ONE WISE.
Desire can lead to covetousness, which is sin. The idea that we can’t have something may make us to want it even more. The woman’s fleshly desires must have elevated. Her ungodly desires were prompting her to sin. She began to desire and covet the fruit. God’s Word warns us about being covetous. Indeed, the eyes of man never seem to be satisfied-ref Pv 27:20. She had the magnificent Garden of Eden to dwell in. She could eat of every tree of the garden, but it wasn’t enough. She did not seem to be thankful for all that she had. She wanted more. We might consider, Ro 1:21-BECAUSE THAT WHEN THEY KNEW GOD, THEY GLORIFIED HIM NOT AS GOD, NEITHER WERE THANKFUL; BUT BECAME VAIN (or futile) IN THEIR IMAGINATIONS (or thinking), AND THEIR FOOLISH HEART WAS DARKENED. Therefore, God gave them up-ref Ro 1:24. The serpent caused her to look at what she did not have, rather than what she did have.
The fear of God’s judgment had been eliminated. She was no longer afraid of the judgment of death. She also realized that there should be great benefits in eating this particular fruit. As it might be said by the devil, "There is nothing to lose and everything to gain." It is written, THERE IS A WAY WHICH SEEMETH RIGHT UNTO A MAN, BUT THE END THEREOF ARE THE WAYS OF DEATH-Pv 14:12. It seemed right to the woman to eat of the fruit.
She now wants her husband to share in what she considered to be her good fortune, her wicked sin. Many times we may do something wrong and then want to get other people also involved. We want other people to see it "our" way. AND (she) GAVE ALSO UNTO HER HUSBAND WITH HER; AND HE DID EAT-Gen 3:6. Adam had become the follower of his wife, rather than a follower of the Lord God. Adam, who was the leader, became the follower of the woman. It seemed right to Adam to follow his wife’s word, rather than God’s Word.
God’s Word also says, in Romans chapter 6, do not CONTINUE IN SIN-ref v. l. Do not LIVE ANY LONGER in sin-ref v. 2. WE SHOULD NOT SERVE SIN-v. 6. Do not let SIN...REIGN IN YOUR MORTAL BODY-ref v. 12. We should not OBEY sin IN THE LUSTS THEREOF-ref v. 12. Do not yield your members (or body) AS INSTRUMENTS OF UNRIGHTEOUSNESS UNTO SIN-ref v. 13. GOD FORBID that we should SIN-ref v. 15. YIELD YOUR MEMBERS SERVANTS TO RIGHTEOUSNESS UNTO HOLINESS-v. 19. FOR THE WAGES OF SIN IS DEATH-Ro 6:23.
THEY SEWED FIG LEAVES TOGETHER, AND MADE THEMSELVES APRONS (coverings). The fig leaves are man’s attempt to save himself by a bloodless religion of good works. Fig leaves cannot cleanse us or wash us from our sins. Fig leaves cannot cover the shame of our nakedness. People try to hide their sins. It is written, IF I HAVE CONCEALED MY SIN AS MEN DO, BY HIDING MY GUILT IN MY HEART BECAUSE I SO FEARED THE CROWD AND SO DREADED THE CONTEMPT OF THE CLANS THAT I KEPT SILENT AND WOULD NOT GO OUTSIDE-Job 31:33,34 NIV. Many people today attempt to cover their sin and nakedness in a variety of ways. They may do this by performing good works or following a certain denomination. Some may try to cover their shame by preaching in pulpits, or auditoriums, or even on the mission field. Their preaching consists of words and stories of men with very little of the Word of God. They have TURNED TO MEANINGLESS TALK. THEY WANT TO BE TEACHERS OF THE LAW (or Bible), BUT THEY DO NOT KNOW WHAT THEY ARE TALKING ABOUT-ref 1 Tim 1:6,7 NIV. They do not understand that they do not know what they are talking about, BECAUSE THE DARKNESS they are walking in HAS BLINDED their eyes-ref l Jn 2:11 NIV. Some try to cover their nakedness by going to church, singing in the choir, or teaching a Sunday school class. What better place to ease the conscience from sin than behind a pulpit or in a lukewarm church that does not preach on sin, judgment, and eternal damnation. Some try to cover their nakedness by giving money to their church or charitable organizations, or by getting involved in worldly causes that seem right. They may have the praise of men, but they will perish to hell.
Many people today refuse to admit they sin or do wrong. They do not even know they are naked; their covering is deceit. Their CONSCIENCES HAVE BEEN SEARED AS WITH A HOT IRON-1 Tim 4:2 NIV. They are like trees walking about without understanding-ref Mk 8:24. They do not understand God’s Word. Adam’s intimate relationship with God was broken. Billions of graves testify that when God said, "THOU SHALT SURELY DIE," He meant exactly what He said. Indeed, these prove that God’s Word is true. The man and woman covered their nakedness from each other and then hid from the Lord God. And from that time even until now, people have been speaking and doing evil, hoping that no one will find out. They are still trying to hide from others what they say and what they do.
AND THEY HEARD THE VOICE OF THE LORD GOD WALKING IN THE GARDEN IN THE COOL OF THE DAY: AND ADAM AND HIS WIFE HID THEMSELVES FROM THE PRESENCE OF THE LORD GOD AMONGST THE TREES OF THE GARDEN-Gen 3:8. Shame, fear, and guilt are often a result of sin. Sin perverts our judgment and deceives us. As it is written, SIN...DECEIVED ME, AND...IT SLEW ME-Ro 7:11. Adam did not see the face of God, but rather HEARD THE VOICE OF…GOD. ADAM AND HIS WIFE HID. Often, when the light appears, darkness wants to hide. Light exposes darkness. As it is written, EVERYONE WHO DOES EVIL...WILL NOT COME INTO THE LIGHT FOR FEAR THAT HIS DEEDS WILL BE EXPOSED-Jn 3:20 NIV.
They were afraid. Adam did not want his nakedness exposed. He did not want his sin exposed. As it is written, IF I COVERED MY TRANSGRESSIONS AS ADAM, BY HIDING MINE INIQUITY IN MY BOSOM (or heart)-Job 31:33. Judgment was about to come upon them, and they did not want to face it. Sin causes us to be more concerned with what happens to us, than the fact that we disobeyed God. Sin can cause us to be more concerned with our appearance and what people think about us, than the fact that we have sinned against a holy God. Adam was more aware of his nakedness, than the fact that he had disobeyed the Lord God. Adam seemed more concerned with the consequences of what he had done, than the sin he had committed. Sin seeks a refuge in hiding, in evasion, in half-truths, in lying, and in deceit. Our flesh wants to sin and do those things that are pleasing to our worldly nature, but we don’t want to pay the price for what we do. Why were Adam and the woman afraid when they were naked? Their nakedness revealed their transgression. We need to understand, IT IS APPOINTED UNTO MEN ONCE TO DIE, BUT AFTER THIS THE JUDGMENT-Heb 9:27. By hiding, did they think somehow they would escape the judgment of God? Did they think God could not find them? Did they think He would just go away and forget that they had sinned? Did they think that God had forgotten the words He had spoken? Satan puts in the minds of many people, today, that they will not have to give account for their actions, that they will never be called to the judgment, and that everything will turn out all right. Remember, there is a battle going on in our thoughts between the TRUTH of God’s Word and the deceiving lies and half-truths of the devil.
AND HE (the Lord God) SAID, WHO TOLD THEE THAT THOU WAST NAKED? HAST THOU EATEN OF THE TREE, WHEREOF I COMMANDED THEE THAT THOU SHOULDEST NOT EAT?-Gen 3:11. The Lord God first addresses the man. He asks the man two questions. WHO TOLD THEE THAT THOU WAST NAKED? Adam either chose not to answer the first question, or the Lord God continued on with the second question, coupling them together. The first question leaves only two possibilities. Either someone had told Adam that he was naked, or he had disobeyed God. The second question was, HAST THOU EATEN OF THE TREE, WHEREOF I COMMANDED THEE THAT THOU SHOULDEST NOT EAT? Adam needed to be confronted with his sin. Note the directness of the Lord God’s question, "HAST THOU EATEN?" As part of the question, the Lord God also confronted Adam directly with His command not to eat of the tree by, saying, "WHEREOF I COMMANDED THEE THAT THOU SHOULDEST NOT EAT?"
Adam initially should not have hid. At this point, he should have immediately confessed his sin with godly sorrow and without excuse. He should have sought the Lord God for His great mercy and forgiveness—but he did not. He did not come humbly to the Lord God in repentance. AND THE MAN SAID, THE WOMAN WHOM THOU GAVEST TO BE WITH ME, SHE GAVE ME OF THE TREE, AND I DID EAT-Gen 3:12. Adam blamed his wife and also blamed God. THE MAN SAID, THE WOMAN...SHE GAVE ME OF THE TREE. Sin also causes division. Here sin divided Adam from his wife. THE MAN SAID...SHE GAVE ME. He did not blame himself but sought to lay the blame on someone else. Adam had tried to justify himself by making an excuse. Adam was afraid. Perhaps, he thought that by blaming someone else, he might escape the judgment of the Lord God. How hard it is, for us to admit we sin and are at fault. How hard it is, for us to assume responsibility for our own sin and disobedience. How hard it is, to be totally open, and transparent, and honest. It seems we always want to plead innocent, even when we are guilty. And if we are guilty, we want to make an excuse, thus, laying the blame for our sin and disobedience on someone or something else.
AND THE LORD GOD SAID UNTO THE SERPENT, BECAUSE THOU HAST DONE THIS, THOU ART CURSED ABOVE ALL CATTLE, AND ABOVE EVERY BEAST OF THE FIELD; UPON THY BELLY SHALT THOU GO, AND DUST SHALT THOU EAT ALL THE DAYS OF THY LIFE: AND I WILL PUT ENMITY BETWEEN THEE AND THE WOMAN, AND BETWEEN THY SEED AND HER SEED; IT (or He) SHALL BRUISE (or crush) THY HEAD, AND THOU SHALT BRUISE (or strike) HIS HEEL-Gen 3:14,15. The Lord God addresses the serpent first. He said, "BECAUSE THOU HAST DONE THIS." When the Lord God brings judgment, there will be a reason. God knew in advance what happened. He knew what the serpent had done. Now judgment is pronounced against the serpent. Before God’s judgment came forth, the serpent was much different in appearance than the serpent we know of today.
Judgment five-AND I WILL PUT ENMITY (or hatred)… BETWEEN…THY SEED (or offspring) AND HER SEED (or offspring). The Lord God is saying that "He" will put hatred between the seed (or offspring) of the devil and the seed (or offspring) of Israel. Satan’s seed could represent all the children of the devil for all future generations. The SEED of the WOMAN can represent all the children of Israel. Nevertheless, the seed of Satan does represent exactly as it is written: the SEED (or offspring) of the serpent (the son of Satan), which is yet to come. The son of Satan will be the Antichrist. HER SEED (the woman’s seed) is the first reference in the Bible to the coming of Messiah. HER SEED is speaking of the Messiah, Whom we now know is Jesus Christ. Indeed, the Antichrist (the son of Satan) will TAKE HIS STAND AGAINST THE PRINCE OF PRINCES (Jesus). YET HE WILL BE DESTROYED, BUT NOT BY HUMAN POWER-Dan 8:25 NIV. Judgment had come upon Adam and the woman in so much as they were naked, yet more judgments were to come shortly. Before these judgments are pronounced by the Lord God, verse fifteen demonstrates God’s great mercy, His love, and His compassion. Sin separates us from God. Therefore, in verse fifteen, we have the first announcement of the coming of the Messiah; the first announcement of any possible hope of mankind being restored to God in fellowship. That hope is centered in HER SEED: the Seed of Israel—the Lord Jesus Christ. Thus, before the judgments were pronounced upon Adam and the woman, God was giving them hope.
During the Tribulation, there will be a WAR IN HEAVEN: MICHAEL AND HIS ANGELS FOUGHT AGAINST THE DRAGON (Satan); AND THE DRAGON (Satan) FOUGHT AND HIS ANGELS, AND PREVAILED NOT...AND SATAN...WAS CAST OUT INTO THE EARTH, AND HIS ANGELS WERE CAST OUT WITH HIM. THE ACCUSER OF the BRETHREN was CAST DOWN. WOE TO THE INHABITERS OF THE EARTH AND OF THE SEA! FOR THE DEVIL IS COME DOWN UNTO YOU, HAVING GREAT WRATH, BECAUSE HE KNOWETH THAT HE HATH BUT A SHORT TIME-Rev 12:7-10,12. Following the period called the Tribulation, Jesus Christ returns, and Satan will be BOUND for A THOUSAND YEARS AND CAST...INTO THE BOTTOMLESS PIT...AND AFTER THAT HE MUST BE LOOSED A LITTLE SEASON-Rev 20:2,3. But Satan’s end will come after A LITTLE SEASON...AND THE DEVIL THAT DECEIVED THEM WAS CAST INTO THE LAKE OF FIRE AND BRIMSTONE...AND SHALL BE TORMENTED DAY AND NIGHT FOR EVER AND EVER-Rev 20:3,10. As it is written, "IT" (or He, the Seed of the woman-Jesus Christ) SHALL BRUISE (or crush) THY HEAD (which is Satan).
6. The Seed of the woman, the Messiah, will crush the serpent’s head. The serpent will strike the heel of the Seed of the woman, the Messiah.
Judgment one-I WILL GREATLY MULTIPLY THY SORROW (or worrisomeness; that is, labor, or pain: sorrow, toil). We may say that, in general, the woman’s sorrow will be multiplied, AND THY CONCEPTION. The word "sorrow," as used here, is the same word that is used in Adam’s judgment, in v. 17-IN SORROW SHALT THOU EAT OF IT.
Judgment two-I WILL GREATLY MULTIPLY…THY CONCEPTION (pregnancy). We may note that the woman’s name, "Eve," which is mentioned in v. 20, means "the mother of all living."
Judgment four-THY DESIRE (or longing, or stretching out after) SHALL BE TO THY HUSBAND. In l Cor 7:34 NIV, God’s Word tells us, A MARRIED WOMAN IS CONCERNED ABOUT THE AFFAIRS OF THIS WORLD—HOW SHE CAN PLEASE HER HUSBAND. It may also be noted that the responsibility to PROVIDE...FOR...HIS OWN HOUSE is upon the man-1 Tim 5:8. This again may give the impression that the woman’s desire will be to her husband to provide for the family.
Judgment five-HE (thy husband) SHALL RULE OVER THEE. Also 1 Cor 11:3 says, BUT I WOULD HAVE YOU KNOW, THAT THE HEAD OF EVERY MAN IS CHRIST; AND THE HEAD OF THE WOMAN IS THE MAN; AND THE HEAD OF CHRIST IS GOD. Col 3:18 states, WIVES, SUBMIT YOURSELVES UNTO YOUR OWN HUSBANDS, AS IT IS FIT IN THE LORD (or as unto the Lord)-Eph 5:22. FOR THE HUSBAND IS THE HEAD OF THE WIFE, EVEN AS CHRIST IS THE HEAD OF THE CHURCH: AND HE IS THE SAVIOR OF THE BODY. THEREFORE AS THE CHURCH IS SUBJECT UNTO CHRIST, SO LET THE WIVES BE TO THEIR OWN HUSBANDS IN EVERY THING. THIS IS A GREAT MYSTERY: BUT I SPEAK CONCERNING CHRIST AND THE CHURCH-Eph 5:23,24,32. Consider the foundation of judgments number two and three. This judgment came upon the woman because of her sin, yet through it, God is showing us the foundation of our relationship to Christ. The basis for a marriage relationship between the husband and wife is the same type of relationship that the children of God have to Jesus. The desire of a born-again child of God should be to Jesus. In like manner, the woman’s DESIRE SHALL BE TO THY HUSBAND. Note, THE HEAD OF THE WOMAN IS THE MAN. The wife is to SUBMIT to her husband AS UNTO THE LORD. LET THE WIVES BE subject TO THEIR OWN HUSBANDS IN EVERY THING. THY HUSBAND…SHALL RULE OVER THEE. 1 Tim 2:11-14 NIV says, A WOMAN SHOULD LEARN IN QUIETNESS AND FULL SUBMISSION. I DO NOT PERMIT A WOMAN TO TEACH OR TO HAVE AUTHORITY OVER A MAN; SHE MUST BE SILENT. Reason one-FOR ADAM WAS FORMED FIRST, THEN EVE. Reason two-AND ADAM WAS NOT THE ONE DECEIVED; IT WAS THE WOMAN WHO WAS DECEIVED. The Lord God has shown us His order of things and the reasons.
1. The woman’s sorrow or worrisomeness will be greatly multiplied.
2. The woman’s conception will be multiplied.
3. The woman’s suffering and pain in childbearing will be greatly increased.
4. The woman’s desire, or longing, or stretching out after, shall be to her husband.
5. The woman’s husband shall rule over her. The head of the woman is the man. Wives are to submit to their own husbands as it is fit in the Lord.
AND UNTO ADAM HE SAID, BECAUSE THOU HAST HEARKENED UNTO THE VOICE OF THY WIFE, AND HAST EATEN OF THE TREE, OF WHICH I COMMANDED THEE, SAYING, THOU SHALT NOT EAT OF IT: CURSED IS THE GROUND FOR THY SAKE; IN SORROW (or through painful toil-NIV) (or worrisomeness, labor, or pain: sorrow, toil) SHALT THOU EAT OF IT ALL THE DAYS OF THY LIFE; THORNS ALSO AND THISTLES SHALL IT BRING FORTH TO THEE; AND THOU SHALT EAT THE HERB OF THE FIELD; IN THE SWEAT OF THY FACE SHALT THOU EAT BREAD (or by the sweat of your brow you will eat your food-NIV), TILL THOU RETURN UNTO THE GROUND; FOR OUT OF IT WAST THOU TAKEN: FOR DUST THOU ART, AND UNTO DUST SHALT THOU RETURN. UNTO ADAM ALSO AND TO HIS WIFE DID THE LORD GOD MAKE COATS OF SKINS, AND CLOTHED THEM. AND THE LORD GOD SAID, BEHOLD, THE MAN IS BECOME AS ONE OF US, TO KNOW GOOD AND EVIL: AND NOW, LEST HE PUT FORTH HIS HAND, AND TAKE ALSO OF THE TREE OF LIFE, AND EAT, AND LIVE FOR EVER: THEREFORE THE LORD GOD SENT HIM FORTH FROM THE GARDEN OF EDEN, TO TILL THE GROUND FROM WHENCE HE WAS TAKEN. SO HE DROVE OUT THE MAN; AND HE PLACED AT THE EAST OF THE GARDEN OF EDEN CHERUBIMS, AND A FLAMING SWORD WHICH TURNED EVERY WAY, TO KEEP THE WAY OF THE TREE OF LIFE-Gen 3:17-19,21-24. AND ADAM CALLED HIS WIFE’S NAME EVE; BECAUSE SHE WAS (or would become) THE MOTHER OF ALL LIVING-Gen 3:20. The Lord God addresses Adam last. He begins with giving the reasons for the judgments that are about to come.
Reason one-The Lord God SAID, "BECAUSE THOU HAST HEARKENED UNTO THE VOICE OF THY WIFE"-Gen 3:17. Adam had chosen to hearken to his wife’s voice instead of obeying God. Many things come upon us to tempt us to disobey God in some way. There are many voices in this world, and there are many voices listed in the Scriptures. THE SHEEP HEAR HIS (the Lord’s) VOICE: AND HE...LEADETH THEM OUT...HE GOETH BEFORE THEM, AND THE SHEEP FOLLOW HIM: FOR THEY KNOW HIS VOICE. AND A STRANGER WILL THEY NOT FOLLOW, BUT WILL FLEE FROM HIM: FOR THEY KNOW NOT THE VOICE OF STRANGERS-Jn 10:3-5. Adam had chosen to follow the wrong voice. He had chosen the voice of his wife, rather than the voice of the Lord God. He had chosen to follow or to be led by his wife, rather than the Lord God. Satan will often make his voice sound like it is the voice of God. As it is written, AND NO WONDER (or marvel), FOR SATAN HIMSELF MASQUERADES AS AN ANGEL OF LIGHT-2 Cor 11:14 NIV. All voices and all thoughts that we have should be examined in light of the Word of God. The fruit of our thoughts, resulting the voices we hear, needs to be examined. The possible results of obeying the voices and thoughts we have need to be examined. Is the fruit that may result, the fruit of the Spirit of God or the fruit of the devil? Adam chose the wrong voice, and the history of the world was changed.
Reason two-BECAUSE THOU...HAST EATEN OF THE TREE, OF WHICH I COMMANDED THEE, SAYING, THOU SHALT NOT EAT OF IT-Gen 3:17. God’s commandments are meant to be followed. To disobey God’s commandments is sin. It is written, BY ONE MAN’S DISOBEDIENCE-Ro 5:19; and WHEREFORE, AS BY ONE MAN SIN ENTERED INTO THE WORLD-Ro 5:12. Adam had transgressed.
It may be noted that THE LORD GOD SAID UNTO THE SERPENT, BECAUSE THOU HAST DONE THIS. The Lord God had also told Adam the reason for the judgments that were to come; however, in the woman’s case, no such statement was made. The Lord God did not say to the woman, "THOU SHALT NOT EAT OF IT." That original command was given to the man-ref Gen 2:17.
Judgment one-CURSED IS THE GROUND FOR THY SAKE-Gen 3:17. Because of Adam’s sin, the ground, even the creature (or creation), became cursed. The earth, the ground, and the fields no longer bring forth the increase they once did. The seed no longer prospers as it once did. The corn no longer gives its increase as it once did. The fruit on the fruit tree is no longer multiplied as it once was. The flowers no longer appear on the earth as they once did. The creation is subjected to decay.
Judgment three-THORNS ALSO AND THISTLES SHALL IT BRING FORTH TO THEE-Gen 3:18. There are all kinds of thorns on bushes, trees, and growing up amongst the grass. This seems to indicate, prior to God’s judgment on Adam for sin, the thorns and thistles did not exist. During the Millennium, when Jesus Christ will reign as King of kings and Lord of lords, it is written, INSTEAD OF THE THORN SHALL COME UP THE FIR TREE, AND INSTEAD OF THE BRIER SHALL COME UP THE MYRTLE TREE-Isa 55:13.
There are two types of death. The first death is physical. IT IS APPOINTED UNTO MEN ONCE TO DIE, BUT AFTER THIS THE JUDGMENT-Heb 9:27. Because of Adam’s sin, God had pronounced UNTO DUST SHALT THOU RETURN. Adam did die and return to dust, just as God said: ADAM LIVED...NINE HUNDRED AND THIRTY YEARS: AND HE DIED-Gen 5:5. It is further written, WE OURSELVES GROAN WITHIN OURSELVES, WAITING (we wait eagerly) FOR THE ADOPTION, TO WIT, THE REDEMPTION OF OUR BODY-Ro 8:23. Since that time, billions of graves testify to the truth of God’s Word.
Judgment seven-Death passed upon all men. The second type of death is spiritual. WHEREFORE, AS BY ONE MAN SIN ENTERED INTO THE WORLD, AND DEATH BY SIN; AND SO DEATH PASSED UPON ALL MEN, FOR THAT ALL HAVE SINNED…DEATH REIGNED FROM ADAM TO MOSES, EVEN OVER THEM THAT HAD NOT SINNED AFTER THE SIMILITUDE (or likeness) OF ADAM’S TRANSGRESSION...FOR...BY ONE MAN’S OFFENSE DEATH REIGNED BY ONE...THEREFORE AS BY THE OFFENSE OF ONE JUDGMENT CAME UPON ALL MEN TO CONDEMNATION...FOR AS BY ONE MAN’S DISOBEDIENCE MANY WERE MADE SINNERS...SIN HATH REIGNED UNTO DEATH-Ro 5:12,14,17-19,21. FOR AS IN ADAM ALL DIE, EVEN SO "IN" CHRIST SHALL ALL BE MADE ALIVE-1 Cor 15:22. FOR THE WAGES OF SIN IS DEATH; BUT THE GIFT OF GOD IS ETERNAL LIFE THROUGH JESUS CHRIST OUR LORD-Ro 6:23.
The second type of death is eternal separation from God. This includes being cast into the lake of fire at the great white throne judgment, if a person does not receive forgiveness of their sins through Jesus Christ. The Lord God had warned Adam not to eat of the TREE OF THE KNOWLEDGE OF GOOD AND EVIL…FOR IN THE DAY THAT THOU EATEST THEREOF THOU SHALT SURELY DIE-Gen 2:17. Fellowship with God had now been broken. Later on, physical death would follow. It also referred to a spiritual death. It is written, AND I SAW A GREAT WHITE THRONE...AND I SAW THE DEAD, SMALL AND GREAT, STAND BEFORE GOD; AND THE BOOKS WERE OPENED: AND ANOTHER BOOK WAS OPENED, WHICH IS THE BOOK OF LIFE...AND DEATH AND HELL WERE CAST INTO THE LAKE OF FIRE. THIS IS THE SECOND DEATH. AND WHOSOEVER WAS NOT FOUND WRITTEN IN THE BOOK OF LIFE WAS CAST INTO THE LAKE OF FIRE-Rev 20:11,12,14,15. We are all spiritually dead apart from Christ; however, the Lord God did not leave mankind without hope.
The Lord God had pronounced the judgment, TO DUST YOU WILL RETURN-Gen 3:19 NIV. Then in verse 20, ADAM CALLED HIS WIFE’S NAME EVE; BECAUSE SHE WAS THE MOTHER OF ALL LIVING. This appears to be an act of faith, on the part of Adam, regarding what the Lord God had said in verses 15 and 16. In verse 15, we have a picture of the coming of the Messiah. In verse 16, the Lord God had said to the woman, THOU SHALT BRING FORTH CHILDREN. Adam chose to believe God’s Word that children would come forth. He reacted to this by calling his wife’s name, Eve (the mother of all living). He seems to also have believed the promise of the coming victory over the serpent. Following this response of faith in what the Lord God said, it appears, the Lord God responded by killing an animal or animals and using the skins for clothing; as it is written, UNTO ADAM ALSO AND TO HIS WIFE DID THE LORD GOD MAKE COATS (or garments) OF SKINS, AND CLOTHED THEM-Gen 3:21.
Because Adam sinned, he would now be eternally separated from God; yet the Lord God had made a way for mankind to be reconciled back to Himself. That way was through the Messiah, Jesus Christ, Who would one day come, and of Whom it was prophesied that He would BRUISE the serpent’s HEAD. Thus, from this point until the first coming of Jesus, the hope of the world to escape eternal damnation was looking forward to and believing that, one day, the Messiah would come. As a result, some people would live by faith and obey God’s commandments, but most would not believe, neither would they obey God’s commandments. It is the same today.
1. He caused or tempted her to be confused about what God’s Word said. She must have begun to question God’s Word.
2. He caused or tempted her to doubt what God’s Word said.
3. He caused or tempted her to be deceived about what God’s Word said.
5. He caused or tempted her not to remember accurately what God’s Word said.
7. He caused or tempted her to challenge God’s Word in her mind.
13. As a result, he caused or tempted her to think God was not her friend and that He didn’t love her.
15. He caused or tempted her to be like a wave in her faith and belief of what God’s Word had said.
16. The serpent caused or tempted her to choose between his word and the Lord God’s Word. She had to choose which she would put her faith in.
19. He caused or tempted her to believe God’s authority was not absolute.
20. He caused or tempted her to scoff at God’s Word and authority.
21. He caused or tempted her to believe she was not bound by God’s Word.
22. He caused or tempted her to think she did not have to believe, trust, and obey God’s Word.
26. He caused or tempted the woman’s curiosity to be aroused and to wonder about certain things.
36. He caused or tempted her to begin to covet what she didn’t have.
40. She had the right to eat of every tree of the garden, but she wasn’t satisfied. He caused or tempted her to want even more.
Do we truly understand? We have two values on our life: one is how Satan values us, and the other is how God values us. If we will turn from following Jesus, Satan will gladly give us certain things. Satan promised to give Jesus ALL THE KINGDOMS OF THE WORLD, AND THE GLORY OF THEM-Mt 4:8,9. What does your heart desire? The woman desired to eat of the forbidden fruit. She wanted her eyes to be opened. She wanted to know certain things. She wanted to be as a god. She wanted to be wise. She got what she wanted, but she also got death. Satan told her she would receive all these things, but he lied to her about not dying. Satan does the same with people today. They sell their soul for what their heart desires, but receive eternal death. The serpent may promise them peace in the world, or peace in their family, if they will just disobey God. He tells them, they will not surely perish. He may promise them money, or certain things their heart desires, such as a car, a house, a vacation, a girlfriend, a boyfriend, acceptance from others, or a better job. What does your heart desire? The serpent may give it to you—if you will just disobey God. Be sure of this: the serpent will tell you, you will NOT SURELY DIE.
The threat of God’s eternal judgment was gone. Her emotions were elevated to desire certain things that the serpent had put into her heart. Satan knows the THINGS THAT BE OF MEN-Mk 8:33. He knows what your heart desires. He also knows how to elevate your emotions to want those desires so badly, that you might do anything to get them, including disobeying God. Which voice will you follow? Satan’s value on you is to give you certain worldly things in exchange for your soul. Satan doesn’t love you. He hates you. The most he can promise you, for eternity, is eternal death. The bottom line is, Satan really wants to destroy you.
God’s value on you is to give you eternal life. God’s value on you is so great, He sent His only begotten Son to die a horrible death on the cross to pay for your sins.
21-A NOTE OF INTEREST: WHY DIDN’T THEY EAT OF THE TREE OF LIFE?

matches: v. v. v. v. v. v. v. v.


text:
Many non-Delaware lawyers will, at some point in their careers, find themselves practicing in a Delaware court after being admitted pro hac vice. For those that do, it is important to note that the Delaware courts take e-discovery seriously and have a sophisticated understanding of it. The body of e-discovery law in Delaware continues to grow, tackling issues as broad as document collection and as narrow as records review and privilege logging. This article serves as a primer on conducting e-discovery in the Delaware courts.
The Court of Chancery and the Superior Court are the two state courts in Delaware. In 2013, the Court of Chancery included e-Discovery Guidelines as part of the Court of Chancery’s broader set of guidelines. The e-Discovery Guidelines tackle such topics as: document collection; privilege log analysis; and cooperation among counsel. In addition, the court also offers standard Confidentiality Stipulations that govern the production of data and contain sample claw-back provisions. The e-Discovery Guidelines and sample Confidentiality Stipulations can be found on the Court of Chancery’s website at http://1.usa.gov/1U6IqIg.
The Corporate and Commercial Law Division of the Superior Court (CCLD; http://1.usa.gov/1LWEGGD) was created on May 1, 2010, and is designed to handle business disputes. The CCLD has a detailed sample document entitled, “E-Discovery Plan Guidelines,” which provides a template for parties to agree on topics such as preservation, production format, and privilege logging. See, http://1.usa.gov/1Rc8qvm.
Finally, the District Court for the District of Delaware has adopted the Default Standard for Discovery, which includes electronically stored information (ESI). This document provides guidelines for federal practitioners on similar topics tackled in the state court analogues, with a particular emphasis on production format. See, http://1.usa.gov/1RDUdba.
Most of the case law related to discovery emerging from Delaware courts comes from the Court of Chancery. Much of it is gleaned from hearing transcripts rather than opinions. Hearing transcripts are often cited in briefs filed by Delaware counsel, and thus can be a treasure trove for the court’s views on a variety of topics. As the CCLD is the law court to Chancery’s equity, it typically follows those cases.
Delaware takes technology competence very seriously, and has adopted Comment 8 to Model Rule 1.1 which states that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology… .” The Delaware Supreme Court has also established a Commission on Law and Technology, which offers best practices in such areas as e-discovery, social media, and cloud computing. See, http://1.usa.gov/1UYkF4z.
As such, a claim by a practitioner that he or she does not “understand” technology will not carry great weight during a discovery dispute.
Sustainable Biofuels v. Tekgar, C.A. No. 8741-VCP (Del. Ch. Jan. 28, 2014), demonstrates the court’s emphasis on competency with regard to technology. The court made clear that the majority of cases in the court involve electronic discovery and the searching of records custodians. The court emphasized that if the attorney does not understand the process, then that attorney must associate him- or herself with people who do.
The important takeaway from the case is that counsel who are unfamiliar with e-discovery should rely on their co-counsel, particularly their Delaware counsel, in addition to non-legal actors in the data space.
These cases also show that the Delaware courts are serious about the promotion of cooperation among counsel. The Court of Chancery Guidelines emphasize the usefulness of the meet and confer, and the CCLD E-Discovery Plan requires that one occur 21 days before the first scheduling conference.
Unlike some other jurisdictions in which out-of-town counsel practice, Delaware counsel is not to be seen as a simple mail drop. As stated in the Guidelines, Delaware counsel is to remain actively involved in the discovery process.
This view was illustrated in James v. National Financial, C.A. No. 8931-VCL (Del. Ch. Dec. 5, 2014), in which Delaware counsel did not actively participate in discovery and the associated issues, and was found to be responsible in not taking a more active role. The court made clear that there is no place for purely “local counsel” in the Court of Chancery.
The court again questioned the validity of a self-collection in ISN Software Corporation Appraisal Litigation, C.A. No. 8388-VCG (Del. Ch. Sept. 12, 2014). Here, a self-collection occurred but the client collected “everything” at the direction of counsel. The court was dubious that the client indeed captured everything, and ordered a forensic collection by a neutral vendor.
These views can best be summarized in the Guidelines, which state that: “The Court expects Delaware counsel to play an active role in the discovery process, including in the collection, review and production of documents, and in the assertion of privilege.” A collection process that is not overseen by Delaware counsel will carry with it a presumption of self-selection bias.
The discoverability of emerging forms of communication also continues to evolve. The court has recently weighed in on the discoverability of text messages and personal e-mail accounts.
Kan-Di-Ki, LLC v. Robert Suer, C.A. No. 7937-VCP (Del. Ch. Sept. 24, 2014), involved alleged spoliation of text messages. The court made it clear that cell phones and the potentially relevant data on them must be preserved, just as any other discoverable information is preserved once the reasonable anticipation of litigation attaches.
Personal e-mail used for the purpose of business was recently discussed in a Section 220 books and records action, Amalgamated Bank v. Yahoo!, Inc., C.A. No. 10774-VCL (Del. Ch. Feb. 2, 2016). Similar to the Kan-Di-Ki case, the court determined that it is not the source of a document that should govern whether it is rightly subject to inspection, but rather whether the document is essential to satisfy a proper purpose. The implication is clear — if a personal account is discoverable in a Section 220 action, in which the scope of discovery is narrower than in Rule 26, then such accounts are clearly discoverable in a plenary action.
While Delaware courts have concerned themselves with big picture discovery questions such as preservation and collection, they have also addressed aspects of discovery that are often left to be performed by associates and contract attorneys, such as document review and privilege logging.
The Court of Chancery has repeatedly tackled the drafting of logs in hearing transcripts and opinions. In Mechel Bluestone v. James C. Justice Cos., C.A. No. 9218-VCL (Del. Ch. Dec. 12, 2014), in which a deficient privilege log was the subject of a motion to compel, the court found that Delaware “senior lawyers” need to be involved in the making of privilege calls and the drafting of the privilege log.
The court has also spoken on privilege analysis; for example, how a privileged e-mail does not automatically mean that an attachment is also privileged. See, AM General Holdings, LLC v. The Renco Group, Inc., C.A. No. 7639-VCN, 7668-VCN (Del. Ch. April 18, 2013).
The cases above demonstrate that the assumption that jurists do not understand e-discovery does not apply in Delaware. They show that the court has an agenda, which is making discovery affordable through education and the promotion of efficient techniques, but that it has a high standard for the lawyers appearing before it. This standard extends to out-of-state attorneys’ technology and e-discovery competence.
Reprinted with permission from the April 2016 edition of the “Legal Tech Newsletter®" 2016 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com - 877-257-3382 - reprints@alm.com.

matches: v. v. v. v. v. v.


text:
What Is a Head or Poll Tax and Why Should You Care?
Article IX, section 1a of the Oregon Constitution provides that “[n]o poll or head tax shall be levied or collected in Oregon.” Oregon courts have explained that a poll or head tax is a fixed tax assessed on each eligible person. See City of Portland v. Cook, 170 Or. App. 245, 250-51 (2000) citing Oregon City v. Moore, 30 Or. 215, 217, (1896) (describing “a poll tax of $2 upon each and every person liable therefor”); Salem v. Marion County, 25 Or. 449, 451-52, (1894) (same). In other words, a head or poll tax is imposed and collected on a per capita basis.
The prohibition in Article IX, section 1a was added to the Oregon Constitution in 1910. The amendment's supporters explained that a poll or head tax “is unjust not only because it is collected from very few of the men who are supposed to pay, but also because it bears so unequally on men in proportion to their ability to pay.” See id. citing Voters' Pamphlet, General Election, November 8, 1910, at 24-25.7 The measure's supporters further explained, “[t]he laborer supporting a family on $2 a day pays exactly the same poll tax as the corporation manager with a salary of ten thousand dollars a year.” Id. Accordingly, Oregon courts have concluded that taxes that are imposed on a per capita basis violate the constitutional prohibition on head and poll taxes.
Last November, voters in Portland overwhelmingly enacted the City’s Arts Education and Access Income Tax (Arts Tax), which imposes $35 per person tax to help Portland-area elementary schools provide funding for arts teachers as well as provide grants to local art institutions. A Portland resident, George Wittemyer, sued the City claiming the imposition of the Arts Tax was an unconstitutional violation of the prohibition on imposing and collecting head and poll taxes.
In Wittemyer v. City of Portland, a Multnomah County Circuit Court judge ruled that the Arts Tax was not a head or poll tax and accordingly was not prohibited by Article IX, section 1a. Circuit Court Judge Kelly Skye ruled that "the Arts Tax is not a Poll or Head tax because it is not assessed per capita.” Rather, as Judge Skye explained “[i]n assessing the tax, the City considers a person’s income in three distinct provisions: the tax applies only to (1) income exceeding $1,000, (2) non-exempt income sources, and (3) income of individuals residing in households with income above the federal poverty guidelines.” Due to these exemptions as well as the fact that the Arts Tax applies only to taxpayers 18 years of age or older, Judge Skye concluded that “the practical effect of the tax is to tax income of certain City residents within a certain income range” and accordingly, the Arts Tax is not a per capita tax prohibited by Article IX, section 1a.
Although only a circuit court decision that does not have the same precedential effect as a decision by the Oregon Court of Appeals or Supreme Court, Wittemyer v. City of Portland, provides important guidance to cities that might be considering the imposition and collection of alternative forms of taxation. In order to avoid claims that such taxes are prohibited head or poll taxes, cities must work closely with their city attorneys and finance directors to draft a tax that is not imposed on a per capita basis but rather on specific criteria. Following the guidance provided by Judge Skye’s decision is a helpful first step in that process.
On the best nights, council meetings run smoothly, the council’s work is completed efficiently and everyone goes home early and happy. Such nights are not guaranteed and more often than we desire, controversial issues and unruly behavior derail an otherwise well planned council meeting. Even the most experienced presiding officer will admit that he or she loses control of a meeting from time to time. So what can you as an elected official do to help keep meetings under control? Below are ten tips to keep in mind to tame unruly behavior at council meetings. 1. Understand the Law. State law, the city charter, city ordinances, council rules and even the United States and Oregon constitutions all play a role in how councils conduct their meetings. For example, although Oregon’s public meeting laws require you to allow the public to observe council meetings, these statutes do not require you to permit public participation. Conversely, other state statutes, such as the land use hearing procedures in Chapter 197, require you to permit public participation during your meetings. In addition, your city charter, ordinances and/or council rules may require you to permit public participation during your meeting on various topics. Understanding when public participation is required is the first step in being able to effectively control council meetings.
If public participation is part of your council meeting, the Oregon Attorney General has advised that “the presiding officer may regulate the order and length of appearances and limit appearances to presentations of relevant points.” See Oregon Attorney General Public Records and Meetings Manual. The Attorney General has further explained that “[a]ny person who fails to comply with reasonable rules of conduct or who causes a disturbance may be asked or required to leave and upon failure to do so becomes a trespasser.” Id. Based on recent judicial decisions, however, cities should not eject an individual from a council meeting or otherwise prohibit free speech related activities unless those actions actually disrupt the meeting. See Norse v. City of Santa Cruz, 629 F3d 966, 976 (9th Cir. 2010); Acosta v. City of Costa Mesa, _ F.3d _ (9th Cir. 2013).
Whether public participation is permitted or not, courts have explained that the free speech provisions of the United States and Oregon constitutions protect the behavior of citizens at council meetings. For example, the Ninth Circuit of the U.S. Court of Appeals has expressly stated that the free speech rights of audience members continue to exist even when the public comment portion of the meeting has ended. Thus, in Norse, the City had to prove to a jury that a nazi salute made by a member of the audience actually disrupted a meeting in order to justify the ejection of that audience member. Understanding when and how these free speech rights apply to public participation is another step in being able to effectively control council meetings.
2. Have Rules and Procedures in Place. Making sure that you have rules in place that clearly define the behavior expected at council meetings is also an important step in being able to effectively control council meetings. In order to avoid being overly broad, and therefore violate the free speech provisions of the Oregon and United States constitutions, such rules should prohibit only actual disruptive behavior. See, e.g., Acosta, _ F.3d _. In addition, cities should publicize the rules and procedures and make them widely available to the public. You should work closely with your city attorney to develop such rules.
3. Use Speaker Cards or Sign-Up Sheets. Requiring speaker cards or sign-up sheets permits the presiding officer to know how many people wish to speak on a particular topic and create a plan for handling the public comment. For example, knowing how many people wish to speak on a topic permits the presiding officer to limit the amount of time that each person receives, if necessary, before the public comment period begins. Likewise, these tools prevent groups of individuals fighting for position to be the next in line to address the council, which thereby limits tension in the audience as everyone can remain seated comfortably until they are called upon to speak. The use of speaker cards or sign-up sheets also permits the presiding officer to call groups to the podium together and request, if the group is amenable, to have a spokesperson speak on behalf of the group. Finally, using speaker cards and sign-up sheets is an easy policy to rely upon to request that members of the public refrain from making statements or outbursts from their seats.
4. Explain Your Procedures. Take the time at the beginning of a meeting and/or before a heated agenda item to explain your procedures. Nothing derails an otherwise effective meeting better than confusion. Explaining to the public what the council will be doing, when it will take public comment, how people will be called upon to provide public comment, and how long each individual will have to speak will help to keep confusion at a minimum and keep the meeting on track.
5. Be Consistent. Whatever rules or procedures you establish, you need to make sure to enforce them consistently and uniformly. Not only will an inconsistent application of your rules create potential legal liability for your city, it will cause the public to question your motives and integrity, which will undoubtedly lead to unruly behavior.
6. Be Respectful and Pay Attention. Citizens who attend council meetings, like you, are taking time away from their families, work or other endeavors to participate in the governing process of their city. Whether you agree with an individual’s position or not, being respectful by listening to what the individual has to say and paying attention while they are speaking is important. Members of the public often feel as if they have wasted their time and that their thoughts and ideas have fell on deaf ears when members of the council check email, engage in side conversations or otherwise preoccupy themselves during public comment. The level of frustration that emerges when this occurs often results in unruly behavior and disruptions to council meetings.
It is also important to remain respectful even when members of the public are not. As an elected official you have likely already developed some tough skin, and there is no better time to rely on that attribute then during council meetings. If you permit yourself to be drawn into arguments by responding to personal attacks, you will become a major contributor to the unruly behavior that causes disruption of meetings. Rather than debating these issues, it is better to let the presiding officer or another member of the council respond by informing the public that personal attacks are not welcomed, appreciated or helpful. In addition, when confronted with such situations, it is better to focus on the behavior, not the person. By explaining to the audience the type of behavior you desire rather than attacking the individual who is being disrespectful, you will likely be able to diffuse an otherwise contentious situation.
7. Wait to ask or answer questions or debate points. Public comment is usually limited to a set amount of time. You can easily contribute to unruly behavior when you interrupt an individual providing public comment before that time has expired in order to ask or answer a question or to debate a point that the individual has made. For example, members of the public rightly feel that the time taken to answer your question or the time you took speaking should not count against their allotted time. Because of this, the presiding officer must attempt to determine how much additional time to give the speaker, and when individuals disagree with the presiding officer’s determination, unruly behavior often results. You avoid this issue entirely by waiting until the speaker’s time has expired to ask or answer questions or to make a counterpoint to what was just said. Furthermore, you should keep in mind that public comment is just that – an opportunity for the public to share their opinions with the council. It is not a designated time for the council to answer the public’s questions. Allowing the presiding officer to explain this to the audience and asking staff to respond to the questions at a later time will avoid the unruly behavior that often results when the council engages in debates with members of the public.
8. Lead by Example. We often forget that sitting in front of an audience means that we are constantly on display. How you act during a meeting while you are on display indicates to the audience how you expect them to act. If you are constantly interrupting or talking over your fellow councilors, raising your voice unnecessarily or otherwise demonstrating disrespectful behavior, you are encouraging such behavior from the audience.
9. Take Breaks. We see it in sporting activities all the time. Just as one team gains momentum and the game appears to be slipping away, the other team calls a time out. Quite often, the short time out permits the other team to regroup and get back into the game. This same philosophy works well at council meetings. There is nothing wrong with taking a five minute break to let people cool down and to allow the council to regroup. In addition, during the break, you will have an opportunity to work with your staff including your city recorder, city manager, city attorney or police chief to determine the best manner to keep the meeting under control.
10. Attend Training Opportunities. The more experience you have, the easier it is to resolve and avoid situations that create unruly behavior. The League of Oregon Cities has many opportunities for you to gain experience through their Oregon Local Leadership Institute classes. In addition, your city staff is likely able and ready to provide the council with training about these issues. A great tool you might want to use in such trainings is the council bloopers video the League recently distributed to all members.
As the saying goes, an ounce of prevention is worth a pound of cure. Following the tips above and taking other steps to run an organized meeting will stop must unruly behavior before it even starts.
The Oregon Public Records Act (“Act”) was enacted in 1973 and has been amended numerous times during the last 40 years. Under the Act, the records of public entities such as cities must be made available for inspection and copying to any person, regardless of the person’s identity, motive, or need. There are, however, numerous exemptions that permit a public agency to withhold a document from inspection and copying. In most circumstances, a public agency may disclose a record even if an exemption would otherwise permit the agency to withhold the record from inspection and copying. But, there are some situations in which the law mandates that a record of a public agency remain confidential.
The basic principle behind the Public Records Act is that records should be disclosed whenever possible. To that end, courts narrowly construe exemptions under the Act. In other words, courts generally view the Act in favor of disclosure, unless the law expressly prohibits disclosure.
In 2003 the Oregon Department of Justice led a multistate investigation to determine whether Pfizer Inc. and one if its subsidiaries, Pharmacia Corporation, were marketing some of their products in violation of various consumer protection laws. One aspect of the investigation related to whether the companies were marketing certain products for “off label uses” – uses of drugs that had not been approved by the Food and Drug Administration.
After the parties had reached a settlement agreement, an attorney from California and two reporters filed a public records request with the Department of Justice to receive copies of the exhibits governed by the confidentiality agreement. The first question confronted by the court was whether the confidentiality agreement obligated the Department of Justice to withhold the exhibits to the extent that they are exempt from disclosure under the Act.
The Court of Appeals concluded that the confidentiality agreement did in fact obligate the Department of Justice to withhold exhibits produced by the companies to the extent that the exhibits were exempt from disclosure under the Act. The court reasoned that the contractual obligations agreed to by the Department of Justice required the government to keep the exhibits confidential. However, the court also reasoned that the reference to the public records act quoted above modified and limited this obligation so that it applied only if the exhibits were covered by an exemption under the Act. In other words, the Department of Justice contractually waived its ability to disclose the exhibits if an exemption applied.
After reaching its conclusion on this preliminary question, the court proceeded to analyze each of the exhibits to determine whether an exemption applied. After a detailed analysis, the court concluded that several exhibits were exempt from disclosure as trade secrets under the Act. The court also concluded that several other exhibits were not exempt from disclosure as trade secrets, documents submitted in confidence or documents covered by the attorney work product doctrine mostly due to the fact that those documents were already publicly available by other means.
Confidentiality agreements have always been tricky legal documents to navigate for cities. The Pfizer decision demonstrates that if cities determine to enter into such agreements that they should be sure to include language in the agreements that the confidentiality obligations are subject to the Public Records Act. Furthermore, both cities and the private parties with whom such agreements are being entered into should understand that the ability to keep a document confidential is dependent upon whether an exemption exists under the Act.
The Secretary of State’s Office has updated its manual on restrictions on political campaigning by public employees ORS 260.432. Under ORS 260.432, public employees may not use their work time to support or oppose measures, candidates, recalls, political committees or petitions. The manual, which was previously published in 2008, outlines when and how the law applies.
It is important to remember that the law does not specify any amount of work time that may be used before a violation occurs, so a public employee may be found in violation even though they used a minimal amount of work time. In addition, an elected official or any other employer of a public employee violates the law by requiring or directing public employees to prepare or distribute advocacy materials.
Every year local governments observe an annual ritual – the door-to-door delivery of phone books, which quickly get dumped into the recycling bin. In today’s Internet age, phone books seem to be becoming a thing of the past. Our fingers may still be doing the walking, but they have relocated to a new neighborhood!
Because of this annual ritual, several local jurisdictions passed ordinances that attempted to regulate the distribution of phone books. Phone book companies, as you might expect, disliked these ordinances and challenged them in federal court. Last month, the Ninth Circuit Court of Appeals, the federal appellate district to which Oregon belongs, agreed with the phone book companies and held that phone books are speech that have full protection under the First Amendment.
In Dex Media West, Inc. V. Seattle, the ordinance in question was a 2010 City of Seattle law that required publishers of phone books to obtain permits and pay a fee for each directory distributed in the city. It also established an opt-out registry, through which residents could decline to receive phone books. The publishers were required by the law to advertise the availability of the opt-out registry on the front covers of their phone books. The fees paid by the publishers were intended to cover the cost of operating and promoting the opt-out registry.
In examining the ordinance, the Ninth Circuit explained that “[a]lthough portions of the directories are obviously commercial in nature, the books contain more than that, and we conclude that the directories are entitled to the full protection of the First Amendment.” Because of this level of protection, the ordinance was subject to the legal analysis known as strict scrutiny and was struck down by the Court as a violation of the First Amendment.
This case is an important reminder for local governments about the far reach of free speech protections under the United States and Oregon constitutions. Local governments are encouraged to work closely with us here at BEH before enacting regulations that might implicate free speech rights.
The Ninth Circuit Court of Appeals recently affirmed the denial of a preliminary injunction sought by medical marijuana users who claimed that two California cities that were raiding their medical marijuana dispensaries were violating the users rights under the Americans with Disabilities Act (ADA).
In James v. City of Costa Mesa, plaintiffs brought suit under the ADA claiming that each plaintiff is “a qualified person with a disability as defined in the ADA.” Under Title II of the ADA, public entities “must not intentionally or on a disparate impact basis discriminate against the disabled individual’s meaningful access to public services.” Plaintiffs alleged that city raids and closures of medical marijuana dispensaries interfered with their access to the medical marijuana they use to manage their illnesses, thus, the defendant cities have effectively prevented them from accessing public services in violation of Title II.
the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act. Such term does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law.
Plaintiffs argued medical use of marijuana falls within one of the exceptions because their use of the illegal drug is supervised by a licensed health care professional. The cities disagreed with this interpretation and argued that Section 12210 contains a single exception that covers all uses authorized by the Controlled Substances Act (CSA) or other provisions of law. The Court held that the cities’ interpretation of Section 12210 was correct, and commented that the plaintiff’s interpretation was a substantial departure from the federal policy that does not extend federal protections to federally prohibited, but state-authorized, medical use of marijuana. The Court found that the cities’ interpretation “not only makes the best sense of the statute’s text and the historical context of its passage, but also is the only interpretation that fully harmonizes the ADA and the CSA.” Accordingly, doctor-supervised marijuana use is an illegal use of drugs not covered by the ADA’s supervised use exception.
We may be a little bit closer to determining if “bloggers” are members of the media for purposes of attending executive sessions under the Oregon Public Meetings Law. Under ORS 192.660(4), “representatives of the news media” are allowed to attend executive sessions (with the exception of executive sessions held for the purpose of conducting labor negotiations), but may not be allowed to disclose information from the executive session if the governing body so requires. In recent years, several Oregon municipalities have addressed whether an internet blogger should be allowed to attend an executive session under the media exception. With no case law on this topic, and little direction from the state, municipalities have independently addressed such situations. A recent case, heard in federal court for the District of Oregon, may help shed some light on this topic. In Obsidian Finance Group, LLC v. Cox, plaintiffs brought a defamation claim against Crystal Cox, a self-proclaimed “investigative blogger,” for comments she made about defendants in her blog. The court concluded that the Oregon retraction statutes pertaining to damages for defamatory statements did not apply because these statutes apply only to actions for damages on defamatory statements “published or broadcast in a newspaper, magazine, other printed periodical, or by radio, television, or motion picture.” Because the statutes do not include internet blogs, the court held that the retraction statutes do not apply to blog postings.
So although this case did not address whether bloggers are members of the media for purposes of executive sessions, it does shed light on potential criteria that municipalities and local governments could use in establishing policies of whether or not to include bloggers as member of the “media” in executive sessions. As usual, jurisdictions should consult with their legal counsel before establishing any such policy. In today’s world where anyone can set up a blog and become a “blogger,” local governments who have not already done so should be thinking about how they would handle such situations.

matches: v. v. v. v. v. v. v. V. v. v.


text:
Mrs. Peter J. Heppen, who has done such extensive research for us on the Sparks family through the years, recently did a thorough search of seventeen unpublished and unindexed volumes of California cemetery records preserved in the D.A.R. Library in Washington, D.C. Here we present her findings regarding persons named Sparks. The volune and page numbers refer to this set of seventeen bound volumes of manuscript material in the D.A.R. Library.
THOMAS SPARKS, aged 21 years, born in California, buried on October 30, 1876.
ROSE E. SPARKS, born August 21, 1874; died August 28, 1911. "Mother"
POLLYANN SPARKS, daughter of G. W. & Luanna Sparks, January 12, 1846 - January 8, 1858.
EVA J. SPARKS, born 1898, died 1898.
KATIE SPARKS, bom 1896, died 1909.
GEORGE W. SPARKS, died October 8, 1890, aged 57 years; native of Kentucky.
(Vol. 6, p. 298) Weston Ranch Cemetery. "...Located about 4 miles north of Ord Bend, Glenn County, on the river road to Hamilton City. It is to the east and near the house on the ranch just across the railroad track. This cemetery is in bad condition, only a few of the original graves with headstones remaining." This was written in 1939 by Mrs. L. G. Schnabel and Mrs. Milton Hogle who copied these records.
HUGH E. SPARKS, born April 15, 1829, died December 20, 1858.
ISAAC SPARKS, born February 11, 1820, died November 1, 1867.
(6, p. 250) Willows Cemetery, Glenn County, California. "Located about one-half mile directly east of Willows, on the Glenn Road." Copied July 12, 1939 by Mrs. L. G. Schnabel, Mrs. Bert Otterson, and Mrs. Milton Hogle. Following Sparks stone is in the Protestant Section.
J. V. SPARKS, born June 14, 1855, died April 28, 1900.
(Vol. 6, p. 155-6) Manzanita Cemetery, Placer County, California. "Located about 5 miles north and slightly to the east of Lincoln." Copied June 8, 1939, by Mrs. L. G. Schnabel and Mrs. Milton Hogle.
ARTHUR V. SPARKS, died July 15, 1872, age 12 years, 8 months, 25 days.
LUCELLA V. SPARKS, died July 19, 1872, age 6 years, 6 days.
Children of M. V. and Sarah J. Sparks.
MARTIN V. SPARKS, son of M. V. & Sarah J. Sparks, died June 1, 1865, aged 2 years, 3 months, 23 days.
M. V. SPARKS, 1832-1909. Native of North Carolina.
SARAH J. SPARKS, 1843-1916. Native of Maryland.
"This monument was on the ground, too heavy to move, could not see if other side contained records."
W. M. SPARKS, SR., July 23, 1858 - December 15, 1931.
(Vol. 8, p. 158) Petaluma Cypress Hill Cemetery, Sonoma County, California.
AGNESS SPARK DRESS, daughter of G. & Helene, died December 6, 1887, age 16 years, 7 months, 4 days.
A. H. DRESS, June 12, 1827 - July 16, 1882.
ANNIE SPARKS, wife of Aeneas, 1849-1915.
(Vol. 8, p. 297) Sonoma Valley Cemetery, Sonoma County, California. "This was the first pioneer cemetery in Sonoma."
GEORGE W. SPARKS, native of Kentucky, died October 8, 1896, age 57 years.
(Vol. 9, p. 129) Rosedale Cemetery, 1831 Washington St., Los Angeles, California.Copied by Mrs. Earl C. Frod.
CATHERINE J. SPARKS, wife of O. D., 1860-1899.
(Vol. 9) p. 359) Evergreen Cemetery, 204 N. Evergreen Ave., Los Angeles, California. Established in 1877, contained 54,000 burials by December 1942. Copied by Mrs. D. Guy Watson, Mrs. V. Whittingham and Mrs. Earl C. Frost.
FRED LEROY SPARKS, born 5-6-1892, died 1-3-1900.
(Vol. 10, p. -) Records of Deaths, Sacramento, California, 1849-1885, copied by Mrs. King Becker and Mr. Luke V. Peart.
JAMES SPARKES, died January 10, 185l, aged 21, Native of Illinois.
(Vol. 11, p. 6) Artesia Cemetery, located at 922 Artesia Ave., Artesia, California. Copied through the efforts of Dr. Owen C. Coy.
(Vol. 11, p. 243) San Luis Rey Cemetery. Copied through the efforts of Dr. Owen Coy.
(Vol. 11, p. 259) Camarillo Cemetery, located in the southern part of Ventura County, about 5 miles east of the town of Oxnard. Copied through the efforts of Dr. Owen C. Coy.
W. W. SPARKS, died July 20, 1884, aged 49 years, 26 days.
(Vol. 12, p. 212) Santa Barbara Cemetery, Santa Barbara, California, Copied by the Genealogical Society, Salt Lake City, Utah, 1947.
(Vol. 14, p. 279) Newman Cemetery, Stanislaus County, California. "Located on. Stuhr Road one mile west of Highway 33. Newman was laid out in 1887 when the railroad was built west side of the San Joaquin Valley."
JOSEPH F. SPARKS, died January 27, 1892, aged 81 years, 8 months, 16 days.
DAVID WILLIAM SPARKS, died January 14, 1891, aged 21 years, 11 months, 22 days.

matches: V. V. V. V. V. V. V. V. V.


For the first time in well over a decade, Congress has enacted amendments to the Freedom of Information Act. No changes to the Act's nine exemptions were made. Rather, the amendments address a range of procedural issues impacting FOIA administration, including the codification of several provisions of Executive Order 13,392, "Improving Agency Disclosure of Information."
The amendments consist of ten substantive sections, each of which is summarized and discussed below. For the complete text of the OPEN Government Act of 2007, see https://www.gpo.gov/fdsys/pkg/PLAW-110publ175/pdf/PLAW-110publ175.pdf.
(1) defines the term "news;"
(2) gives examples of news-media entities such as "television or radio stations broadcasting to the public at large;"
(4) includes provisions for a "freelance journalist."
Agencies should consult their existing fee regulations and practices to ensure compliance with this new provision.
Section 4 of the Open Government Act amends 5 U.S.C. § 552(a)(4)(E) by adding two new elements to the attorney fees provision of the FOIA. The FOIA's pre-existing attorney fees provision provides that a court "may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred" in cases in which the "complainant has substantially prevailed." 5 U.S.C. § 552(a)(4)(E). Section 4 of the Open Government Act first defines the circumstances under which a FOIA plaintiff can be deemed to have "substantially prevailed." It adds a provision that states that for purposes of this subparagraph, a FOIA complainant has "substantially prevailed" if the complainant "obtained relief through either -- (I) a judicial order, or an enforceable written agreement or consent decree; or (II) a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial."
Second, section 4 of the Open Government Act also changes the method by which attorney fees and costs are paid to FOIA plaintiffs. Such amounts will no longer be paid by the Claims and Judgment Fund of the United States Treasury. Instead these fees and costs will be paid directly by the agency, using funds "appropriated for any authorized purpose."
Section 5 amends 5 U.S.C. § 552(a)(4)(F) by adding reporting requirements for the Attorney General and the Special Counsel. The pre-existing provision of the FOIA provides that where a "court orders the production of any agency records improperly withheld . . . and assesses against the United States reasonable attorney fees and other litigation costs, and . . . additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding."
Section 5 of the Open Government Act requires that the Attorney General notify the Special Counsel of each civil action described under this provision and submit a report to Congress on the number of such civil actions in the preceding year. The Special Counsel is also directed to submit a report to Congress "on the actions taken by the Special Counsel" under this provision.
Section 6 of the Open Government Act has two provisions that address time limits for complying with FOIA requests, and the consequences of failing to do so. Significantly, this section does not take effect until one year after the date of enactment and will apply to FOIA requests "filed on or after that effective date." Accordingly, agencies have until December 31, 2008 to take any necessary steps to prepare for the implementation of this Section.
First, section 6(a) of the Open Government Act amends 5 U.S.C. § 552(a)(6)(A) which gives the statutory time period for processing FOIA requests, and includes criteria for when that time period begins to run and when that time period may be suspended or "tolled." Specifically, section 6(a) provides that the statutory time period commences "on the date on which the request is first received by the appropriate component of the agency, but in any event not later than ten days after the request is first received by any component of the agency that is designated in the agency's regulations under this section to receive requests." This provision addresses the situation where a FOIA request is received by a component of an agency that is designated to receive FOIA requests, but is not the proper component for the request at issue. In such a situation, the component that receives the request in error - provided it is a component of the agency that is designated by the agency's regulations to receive requests - has ten working days within which to forward the FOIA request to the appropriate agency component for processing. Once the FOIA request has been forwarded and received by the appropriate agency component - which must take place within ten working days - the statutory time period to respond to the request commences.
Section 6(a) further provides for those circumstances when an agency may toll the statutory time period. Specifically, an agency "may make one request to the requester for information and toll" the statutory time period "while it is awaiting such information that it has reasonably requested from the requester." The agency may also toll the time period "if necessary to clarify with the requester issues regarding fee assessment." There is no limit given for the number of times an agency may go back to a requester to clarify issues regarding fee assessments - which sometimes may need to be done in stages as the records are being located and processed. In both situations, section 6(a) specifies that the requester's response to the agency's request "ends the tolling period."
Second, section 6(b) addresses compliance with the FOIA's time limits by amending 5 U.S.C. § 552(a)(4)(A), the provision addressing fees. Section 6(b) adds a clause to that provision providing that "[a]n agency shall not assess search fees (or in the case of a [favored] requester [i.e., one who qualifies as an educational or noncommercial scientific institution, or as a representative of the news media] duplication fees) . . . if the agency fails to comply with any time limit under paragraph (6), if no unusual or exceptional circumstances (as those terms are defined for purposes of (6)(B) and (C), respectively) apply to the processing of the request."
As noted in the language of the new provision, the terms "unusual circumstances" and "exceptional circumstances" are existing terms in the FOIA. "Unusual circumstances" occur when there is a need to search or collect records from field offices, or other establishments; when there is a need to search for and examine a voluminous amount of records; or when there is a need for consultation with another agency or with more than two components within the same agency. Unlike "unusual circumstances," "exceptional circumstances" are not affirmatively defined in the FOIA, but the FOIA does provide that "exceptional circumstances" cannot include "a delay that results from a predictable agency workload of requests . . . unless the agency demonstrates reasonable progress in reducing its backlog of pending requests." 5 U.S.C. § 552(a)(6)(C)(ii). In addition, the statute provides that the "[r]efusal by a person to reasonably modify the scope of a request, or arrange an alternative time frame for processing the request . . . shall be considered as a factor in determining whether exceptional circumstances exist." Id. at § 552(a)(6)(C)(iii).
Section 6(b) therefore precludes an agency from assessing search fees (or in the case of "favored" requesters, duplication fees), if the agency fails to comply with the FOIA's time limits, unless "unusual" or "exceptional" circumstances "apply to the processing of the request."
Finally, section 6(b) amends 5 U.S.C. § 552(a)(6)(B)(ii), which discusses notification to requesters regarding the time limits and the option of arranging an alternative time frame for processing, by directing agencies "[t]o aid the requester" by making "available its FOIA Public Liaison, who shall assist in the resolution of any disputes between the requester and the agency." This provision incorporates an existing aspect of Executive Order 13,392.
The Department of Justice will be providing guidance to agencies in the near future on section 6.
Section 7 amends 5 U.S.C. § 552(a) by requiring agencies to assign a tracking number for each request that will require more than ten days to process. This section further requires agencies to establish a phone number or an Internet site to enable requesters to inquire about the status of their request. This section codifies existing requirements set forth in Executive Order 13,392.
Like section 6, this section does not take effect until one year after the date of enactment of the Open Government Act and will apply to requests "filed on or after that effective date."
Section 8 amends 5 U.S.C. § 552(e)(1) by requiring that new statistics and data be included in the FOIA annual reports that agencies are required to submit to the Attorney General. The FOIA requires that agencies submit the reports to the Attorney General by February 1 of each year and that the reports "cover the preceding fiscal year." 5 U.S.C. § 552(e)(1). The current fiscal year, Fiscal Year 2008, is already into its second quarter. Agencies will therefore need to begin collecting the new statistics required by section 8 so that they can be included in the annual report covering this fiscal year, which will be due on February 1, 2009. The Department of Justice, in conjunction with the Office of Management and Budget (OMB), will issue supplemental guidance on these new reporting requirements in the near future. This is not unlike what occurred in 1997 when the FOIA was last amended, and when the establishment of new reporting requirements resulted in a partial year report compiled under the pre-existing requirements.
Under section 8, in addition to reporting on the median number of days required to process requests, agencies must now provide the "average number of days for the agency to respond to a request beginning on the date on which the request was received by the agency, the median number of days for the agency to respond to such requests, and the range in number of days for the agency to respond to such requests."
Section 8 also requires agencies to provide an extensive breakdown of the time it takes to respond to requests. Specifically, agencies are now required to provide "the number of requests for records to which the agency has responded with a determination within a period up to and including 20 days, and in 20-day increments up to and including 200 days." All other requests must be grouped by number depending upon whether they were processed between 200 and 300 days; between 300 and 400 days, or greater than 400 days.
Additionally section 8 requires agencies to report "the average number of days for the agency to provide the granted information beginning on the date on which the request was originally filed, the median number of days for the agency to provide the granted information, and the range in number of days for the agency to provide the granted information."
Section 8 also sets forth a number of new reporting requirements for administrative appeals. Agencies are now required to provide "the median and average number of days for the agency to respond to administrative appeals based on the date on which the appeals originally were received by the agency, the highest number of business days taken by the agency to respond to an administrative appeal, and the lowest number of business days taken by the agency to respond to an administrative appeal." Likewise, agencies are now required to report on their ten oldest pending administrative appeals.
Section 8 also requires agencies to report "the number of expedited review requests that are granted and denied, the average and median number of days for adjudicating expedited review requests, and the number adjudicated within the required 10 days." Similarly, agencies are also required to report "the number of fee waiver requests that are granted and denied, and the average and median number of days for adjudicating fee waiver determinations."
Finally, the reporting requirements shall be "expressed in terms of each principal component of the agency and for the agency overall." The data used to compile the reports must also be made "available electronically to the public upon request."
As mentioned above, the Department of Justice and OMB will issue guidance for agencies to use in compiling these new statistics for their Fiscal Year 2008 annual FOIA reports. See 5 U.S.C. § 552(e)(4).
Section 9 amends 5 U.S.C. § 552(f), the definitions provision of the FOIA, by including in the definition of "record" any information "maintained for an agency by an entity under Government contract, for the purposes of records management." This provision makes clear that records, in the possession of Government contractors for purposes of records management, are considered agency records for purposes of the FOIA.
Section 10 of the Open Government Act has four organizational elements. The first part of section 10 creates a new office, the Office of Government Information Services, within the National Archives and Records Administration. This new office will have two main functions: (1) to review agency FOIA activities and recommend changes to Congress and the President; and (2) to offer mediation services to FOIA requesters as a "non-exclusive alternative to litigation." This new office may also "issue advisory opinions if mediation has not resolved the dispute."
Second, section 10 directs the Government Accountability Office (GAO) to conduct audits "on the implementation of this section" and to issue reports.
Third, section 10 codifies many of the key provisions of Executive Order 13,392, which are already in place across the government, and which directly address FOIA administration within each agency. Specifically, agencies are directed to designate a Chief FOIA Officer, and one or more FOIA Public Liaisons. Section 10 provides a detailed list of the various duties and responsibilities of the Chief FOIA Officer, who is charged with "agency-wide responsibility for efficient and appropriate compliance" with the FOIA. The Chief FOIA Officer is required to "monitor implementation" of the FOIA and recommend to the agency head "such adjustments to agency practices, policies, personnel, and funding as may be necessary to improve its implementation." The Chief FOIA Officers are to report to the Attorney General, through the head of the agency. The Attorney General, in turn, is given authority to direct the Chief FOIA Officers to submit reports on their agency's performance "at such times and in such formats" as he establishes.
Fourth, FOIA Public Liaisons are given the responsibilities of "assisting in reducing delays, increasing transparency" and also "resolving disputes." Because agencies have already been operating under the requirements of Executive Order 13,392, the bulk of Section 10's requirements are already in place across the government.
Section 11 only applies to the Office of Personnel Management (OPM). This provision requires OPM to examine personnel policies and report to Congress on whether changes in those policies could be made to provide greater encouragement to, and "enhance the stature of," government employees involved in administering the FOIA. OPM is directed to file the report no later than one year after the date of enactment of the Open Government Act.
Section 12 amends 5 U.S.C. § 552(b), the provision listing exemptions and generally requiring agencies to indicate directly "on the released portion of the record" the amount of information deleted, by adding the additional requirement that agencies also indicate "the exemption under which the deletion is made."
The Open Government Act addresses a range of administrative and procedural issues affecting FOIA administration. In several instances it codifies what is already existing practice, such as the assigning of tracking numbers contained in section 7, the designation of Chief FOIA Officers and FOIA Public Liaisons set out in section 10, and for some agencies the marking of exemptions at the point of the deletion as described in section 12.
Other provisions establish new reporting requirements, such as the additional statistics required in agency annual FOIA reports under section 8, the specialized reports required of the Attorney General and the Special Counsel concerning disciplinary actions as described in section 5, and the personnel practices report required of OPM by section 11.
Still other provisions change existing practice, such as section 4 which addresses the "substantially prevailed" standard applicable to an award of attorney fees, and section 6 which specifies procedures for the calculation of the FOIA's time periods and limits the assessment of search (or duplication) fees for certain requests not responded to within the applicable time period.