Messrs. Parker Fulton and Paca Oberlin, both of Cleveland, Ohio, for petitioner.
Petitioner issued a conventional liability policy to the insured, the Pacific Coal & Oil Co., in which it agreed to indemnify the insured for any sums the latter might be required to pay to third parties for injuries to person and property caused by automobiles hired by the insured. Petitioner also agreed that it would defend any action covered by the policy which was brought against the insured to recover damages for such injuries.
While the policy was in force, a collision occurred between an automobile driven by respondent Orteca and a truck driven by an employee of the insured. Orteca brought an action in an Ohio state court against the insured to recover damages resulting from injuries sustained in this collision. Apparently this action has not proceeded to judgment.
Petitioner then brought this action against the insured and Orteca. Its complaint set forth the facts detailed above and further alleged that at the time of the collision the employee of the insured was driving a truck sold to him by the insured on a conditional sales contract. Petitioner claimed that this truck was not one 'hired by the insured,' and hence that it was not liable to defend the action by orteca against the insured or to indemnify the latter if Orteca prevailed. It sought a declaratory judgment to this effect against the insured and Orteca, and a temporary injunction restraining the proceedings in the state court pending final judgment in this suit.
The question is whether petitioner's allegations are sufficient to entitle it to the declaratory relief prayed in its complaint. This raises the question whether there is an 'actual controversy' within the meaning of the Declaratory Judgment Act, Judicial Code § 274d, 28 U.S.C. 400, 28 U.S.C.A. § 400, since the District Court is without power to grant declaratory relief unless such a controversy exists. Nashville, etc., Ry. Co. v. Wallace, 288 U.S. 249, 259, 53 S.Ct. 345, 346, 77 L.Ed. 730, 87 A.L.R. 1191; U.S.C.A. Constitution, Art. III, § 2.
The difference between an abstract question and a 'controversy' contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. See Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-242, 57 S.Ct. 461, 463, 464, 81 L.Ed. 617, 108 A.L.R. 1000. It is immaterial that frequently, in the declaratory judgment suit, the positions of the parties in the conventional suit are reversed; the inquiry is the same in either case. Nashville, etc., Ry. Co. v. Wallace, supra, 288 U.S. page 261, 53 S.Ct. page 347, 77 L.Ed. 730, 87 A.L.R. 1191.
That the complaint in the instant case presents such a controversy is plain. Orteca is now seeking a judgment against the insured in an action which the latter claims is covered by the policy, and sections 9510-3 and 9510-4 of the Ohio Code (Page's Ohio General Code, Vol. 6, §§ 9510-3, 9510-4) give Orteca a statutory right to proceed against petitioner by supplemental process and action if he obtains a final judgment against the insured which the latter does not satisfy within thirty days after its rendition. Compare Maryland Casualty Co. v. United Corporation, 1 Cir., 111 F.2d 443, 446; Central Surety & Insurance Corp. v. Norris, 5 Cir., 103 F.2d 116, 117; United States Fidelity & Guaranty Co. v. Pierson, 8 Cir., 97 F.2d 560, 562. Moreover, Orteca may perform the conditions of the policy issued to the insured requiring notice of the accident, notice of suit, etc., in order to prevent lapse of the policy through failure of the insured to perform such conditions. Hartford Accident & Indemnity Co. v. Randall, 125 Ohio St. 581, 183 N.E. 433; see, also, Lind v. State Automobile Mutual Insurance Association, 128 Ohio St. 1, 190 N.E. 138; State Automobile Mutual Insurance Association v. Friedman, 122 Ohio St. 334, 171 N.E. 591.
It is clear that there is an actual controversy between petitioner and the insured. Compare Aetna Life Ins. Co. v. Haworth, supra. If we held contrariwise as to Orteca because, as to him, the controversy were yet too remote, it is possible that opposite interpretations of the policy might be announced by the federal and state courts. For the federal court, in a judgment not binding on Orteca, might determine that petitioner was not obligated under the policy, while the state court, in a supplemental proceeding by Orteca against petitioner, might conclude otherwise. Compare Central Surety & Insurance Corp. v. Norris, supra, 103 F.2d page 117; Aetna Casualty & Surety Co. v. Yeatts, 4 Cir., 99 F.2d 665, 670.
Thus we hold that there is an actual controversy between petitioner and Orteca, and hence, that petitioner's complaint states a cause of action against the latter. However, our decision does not authorize issuance of the injunction prayed by petitioner. Judicial Code § 265, 28 U.S.C. 379, 28 U.S.C.A. § 379; see Central Surety & Insurance Corp. v. Norris, supra, 103 F.2d page 117; Maryland Casualty Co. v. Consumers Finance Service, Inc., 3 Cir., 101 F.2d 514, 516; Aetna Casualty & Surety Co. v. Yeatts, supra, 99 F.2d page 670.
The judgment of the Circuit Court of Appeals is reversed and the cause is remanded for further proceedings in conformity with this opinion.
Mr. Justice BLACK did not participate in the consideration or decision of this case.
Maryland Casualty Co. v. United Corporation, 1 Cir., 111 F.2d 443; Central Surety & Insurance Corp. v. Norris, 5 Cir., 103 F.2d 116; Maryland Casualty Co. v. Consumers Finance Service, Inc., 3 Cir., 101 F.2d 514; AEtna Casualty & Surety Co. v. Yeatts, 4 Cir., 99 F.2d 665; United States Fidelity & Guaranty Co. v. Pierson, 8 Cir., 97 F.2d 560; Associated Indemnity Corp. v. Manning, 9 Cir., 92 F.2d 168. See also, Employers' Liability Asurance Corp., Ltd., v. Ryan, 6 Cir., 109 F.2d 690; C. E. Carnes & Co. v. Employers' Liability Assurance Corp., Ltd., 5 Cir., 101 F.2d 739; Standard Accident Insurance Co. v. Alexander, Inc., D.C., 23 F.Supp. 807; United States Fidelity & Guaranty Co. v. Pierson, D.C., 21 F.Supp. 678; Builders & Manufacturers Mutual Casualty Co. v. Paquette, D.C., 21 F.Supp. 858; Travelers Insurance Co. v. Young, D.C., 18 F.Supp. 450; Commercial Casualty Insurance Co. v. Humphrey, D.C., 13 F.Supp. 174.
BOARD OF LICENSE COMMISSIONERS OF the TOWN OF TIVERTON, Petitioner v. Louis H. PASTORE, Jr., etc., et al.
The CALIFORNIA BANKERS ASSOCIATION, Appellant, v. George P. SHULTZ, Secretary of the Treasury, et al. George P. SHULTZ, Secretary of the Treasury, et al., Appellants, v. The CALIFORNIA BANKERS ASSOCIATION et al. Fortney H. STARK, Jr., et al., Appellants, v. George P. SHULTZ et al.
SUPER TIRE ENGINEERING COMPANY et al., Petitioners, v. Lloyd W. McCORKLE et al.
Tom E. ELLIS and Robert D. Love, Petitioners, v. Frank M. DYSON et al.
Robert WARTH, etc., et al., Petitioners, v. Ira SELDIN et al.
LINMARK ASSOCIATES, INC. and William Mellman, Petitioners, v. TOWNSHIP OF WILLINGBORO and Gerald Daly.
Joseph VITEK, etc., et al., Applicants, v. Larry D. JONES.
O. Z. EVERS et al., Appellants, v. John T. DWYER et al.
Carol Maureen SOSNA, etc., Appellant, v. State of IOWA et al.
Elliott GOLDEN, as District Attorney of the County of Kings, Appellant, v. Sanford ZWICKLER.
Sanford ZWICKLER, Appellant, v. Aaron E. KOOTA, as District Attorney of the County of Kings.
LAKE CARRIERS' ASSOCIATION et al., Appellants, v. Ralph A. MacMULLAN et al.


text:
SUBSEQUENT HISTORY: [**1] Rehearing and Rehearing En Banc Denied September 20, 1991. Reported at: 1991 U.S. App. LEXIS 22490.
On Appeal from the Decisions of the United States Tax Court.
COUNSEL: Donald C. Alexander, Michael Quigley, Kurt C. Swainston, Cadwalader Wickersham & Taft, Washington, District of Columbia for Petioner-Appellee.
Abraham N.M. Shashy, Jr., Chief Counsel, Internal Revenue Service, Office of Chief Counsel, Washington, District of Columbia, Gary R. Allen, Acting Chief, David M. Moore, Kenneth L. Greene, Argued, Shirley D. Peterson, U.S. Department of Justice, Appellate Section Tax Division, Washington, District of Columbia for Respondent-Appellant.
JUDGES: Boyce F. Martin and Ralph B. Guy, Jr., Circuit Judges; and Lively, Senior Circuit Judge. Martin, Jr., Circuit Judge, concurring. Ralph B. Guy, Jr., Circuit Judge, delivered the opinion of the court, in which Lively, Senior Circuit Judge, joined. Boyce F. Martin, Circuit Judge, delivered a separate concurring opinion.
OPINION: [*310] GUY, JR., Circuit Judge: The Commissioner of Internal Revenue (CIR) appeals an adverse judgment of the United States Tax Court, finding that Disabled American Veterans (DAV), a tax-exempt organization, did not have tax deficiencies over the ten-year period, 1974-85.
CIR raises two issues on appeal: whether monies received by DAV from other organizations for the use of names from DAV's donor list are excludable from unrelated business taxable income (UBTI) as royalties, pursuant [**2] to 26 U.S.C. @ 512(b)(2); and whether the Tax Court correctly rejected the Commissioner's argument that collateral estoppel precludes DAV from presenting its case. We find that the Tax Court was collaterally estopped from considering this issue, and we reverse its decision for this reason.
I. The facts in this case are not in dispute. DAV is a corporation, chartered by an Act of Congress in 1932, and exempt from federal income tax as a "social welfare organization" under @ 501(c)(4) of the Tax Code. n1 The primary purpose of the organization is to aid and assist wartime disabled veterans and their widows and dependents. DAV's principal source of revenue is donations it receives from the public, made almost entirely in response to direct mail solicitations.
n1 All section references are to the Internal Revenue Code of 1954 as in effect for the years in issue, unless otherwise indicated.
DAV maintained its donor list in computerized form, which allowed it to solicit from prior contributors and to direct its mailings to individual donors by identifying them in terms of their zip codes, the amount of their contributions, the date of their latest contributions and in other ways significant to a solicitor of charitable contributions. In addition, this type of record-keeping allowed DAV to reduce its fund-raising costs, both through complying with the bulk mail rates of the post office and through DAV's ability to purge names which did not justify additional mailings. This mailing list maintenance also helped DAV abide by state regulation of charities, as well as Better Business Bureau and National Charities Information Bureau guidelines. Between 15 and 18 percent of the names for DAV's donor list were purged [**4] each year as a result of death, unrecorded changes in address, or failures to contribute.
During the years in question, DAV, in keeping with a practice it had started in 1960, permitted exempt, commercial, and fund-raising organizations to use names from its mailing list for their own fund-raising purposes. It received a fee for this use. DAV also exchanged its lists for the lists of other organizations, submitting potential new lists to stringent testing and evaluation in which 10,000 to 50,000 names were randomly selected from the prospective list and sent sample mailings.
DAV's sale of names, accompanied by the permission for a one-time mailing, is [*311] described as a "list rental," a "rental," a "list reproduction," or a "list use." Both parties agree that the terms "rent" and "rental" are ones commonly used in the industry and have no factual or legal significance relating to the determination of whether petitioner's receipts from such transactions were "royalties" or "rents" within the meaning of the Tax Code.
DAV's "list rental activity" was a continuous, ongoing activity, to which it devoted what amounted to two full-time positions each year. DAV did not utilize volunteers [**5] or other unpaid workers in this activity. The organization entered into transactions directly with list users or through list brokers (professional marketers whose business it was to facilitate list rental transactions). Its "rental" information was printed on "rate cards." DAV sent its rate cards to mailing list brokers with whom DAV previously had dealings, and listed its rates in the Standard Rates and Data Service, a directory of mailing lists. DAV was also a member of the Direct Mail Marketing Association, a trade association composed of organizations using direct mail techniques in their operations. Officials of DAV regularly attended meetings and conventions of organizations involved in direct mailing efforts.
DAV delivered the rented list to the list user on magnetic tape or on a variety of preprinted labels, such as heat transfer, gummed, or Cheshire labels. DAV allowed list users to order selected segments of its donor list. For example, a list user could request a segment based on amount of donation, recency of donation, multiple donors, new donors, or zip codes. DAV would not engage in a rental that involved less than 10,000 names.
DAV, like other list owners, imposed [**6] conditions on the use of the names from its donor list. It retained the right to approve the dates a list user intended to mail materials, to examine and approve the materials to be mailed by the list user, and to require the removal of any reference to DAV in the materials mailed. DAV inserted "dummy" names in the rented list (i.e., names of people connected with DAV) in order to monitor the use of the names it rented to list users. DAV's National Finance Committee was responsible for review and approval of any proposed list user and of the acceptability of the mailing piece. A list rental would be approved only upon a majority vote of the members of the Committee. Occasionally DAV declined to "rent" or "exchange" segments of the DAV mailing list.
DAV set its rates in accordance with what other organizations were charging DAV for the use of names from their lists. The rates charged to other exempt and fund-raising organizations were higher than those charged to commercial organizations. During the years at issue, DAV's rates ranged from $ 20 to $ 45 per 1,000 names for commercial list users, and from $ 26 to $ 50 per 1,000 names for exempt and fund-raising list users. DAV increased [**7] its rates from $ 2 to $ 7 per 1,000 names for lists that were segmented as to amount of contribution, and from $ 1 to $ 6 for lists that were based on multiple donors, recent donors, and zip codes, and for names on heat transfer labels rather than magnetic tape.
With respect to its 1974, 1975, and 1977 tax years, DAV filed an Exempt Organization Business Income Tax Return, Form 990-T, and did not report the payments it received from its list rental business as unrelated business taxable income on those returns. For the 1978 through 1985 tax years, DAV did not file any Forms 990-T or otherwise report as income the payments it received.
In an earlier case, Disabled American Veterans v. United States, 227 Ct. Cl. 474, 650 F.2d 1178 (1981) [**9] (DAV1), the same two parties as are represented here, litigated the issue of DAV's failure to pay taxes on income received for the use of its mailing list for the years 1970 through 1973. The court found that revenue produced from DAV's activity not only constituted UBTI, but did not qualify as royalties under section 512(b)(2). n2 It therefore held that DAV had to pay taxes on the amounts received.
n2 Section 512 of the Code addresses Unrelated Business Taxable Income (UBTI) and lists several exceptions and modifications to the basic rule of taxability. Section 512(b)(2) is one such modification. It states: There shall be excluded all royalties (including overriding royalties)whether measured by production or by gross or taxable income from the property, and all deductions directly connected with such income.
In the current case, the Tax Court determined that the Court of Claims in DAV1 was wrong in its legal analysis and that payments for the use of the list constituted royalties and therefore the revenue received by DAV was not taxable. It also determined that it had the power to revisit the issue because of what it said was a change in the legal climate surrounding the issue. The Commissioner brings this appeal, arguing that the Tax Court was in error because DAV was collaterally estopped from relitigating the same issue decided in DAV1, and, in the alternative, that the Tax Court erred in holding that payments received by DAV for the use of names from its donor list are "royalties" within the meaning of section 512(b)(2) of the Tax Code.
For the same reason that personal property rentals constituting unrelated business income are taxable, it is concluded that DAV's receipts from the rental of its mailing list cannot be classified as "royalties" as that term is used in section 512(b)(2) of the code. Rather, DAV's list rental income constitutes UBTI pursuant to sections 511-13 of the code. Disabled American Veterans v. United States, 650 F.2d at 1189-90 n3 (citations omitted).
n3 DAV1 addressed additional issues which are not before us today. These supplemental issues did not affect the Court of Claims ruling on the "royalties" issue.
In a case of this nature, collateral estoppel prevents relitigation of issues and "relieves [*313] the government and the taxpayer of 'redundant litigation of the identical question of the statute's application to the taxpayer's status.'" Commissioner v. Sunnen, 333 U.S. 591, 599, 92 L. Ed. 898, 68 S. Ct. 715 (1948) (citation omitted). "Where two cases involve income taxes in different taxable years, collateral estoppel must be used with its limitations carefully in mind so as to avoid injustice. It must be confined to situations where the matter raised in the second suit is identical in all respects with that decided in the first proceeding and where the controlling facts and applicable legal rules remain unchanged." Id. at 599-600 (emphasis added).
DAV also argues that collateral estoppel should not apply in this case because it would contravene an overriding public policy and result in manifest injustice. In this regard, DAV cites this court's ruling in United States v. Berman, 884 F.2d 916 (6th Cir. 1989), which it argues stands for the proposition that collateral estoppel in tax cases should not be applied when unfairness would result. In Berman, however, we concluded that no estoppel occurred because the litigant against whom estoppel was sought lacked an incentive to adequately litigate the issue in the first proceeding. That clearly has not occurred here, and Berman is therefore inapposite.
[or] an interposed alteration in the pertinent statutory provisions or Treasury regulations can make the use of that rule unwarranted." Sunnen, 333 U.S. at 600-601. DAV cites several decisions in which courts recognized that a change in legal climate may be caused by an administrative determination of an agency which is empowered to interpret and apply its enabling legislation. See Graphic Communications Int'l Union, Local 554 v. Salem-Gravure, 269 U.S. App. D.C. 162, 843 F.2d 1490, 1493 (D.C. Cir. 1988), cert. denied, 489 U.S. 1011, 109 S. Ct. 1119, 103 L. Ed. 2d 182 [*314] (1989); Brock v. Williams Enter., 832 F.2d 567, 574 (11th Cir. 1987). In these cases, however, the administrative [**15] change was an express overruling of a prior position.
To be a royalty, a payment must relate to the use of a valuable right. Payments for the [**16] use of trademarks, trade names, service marks, or copyrights, whether or not payment is based on the use made of such property, are ordinarily classified as royalties for federal tax purposes. Similarly, payments for the use of a professional athlete's name, photograph, likeness, or facsimile signature are ordinarily characterized as royalties. On the other hand, royalties do not include payments for personal services.
Rev. Rul. 81-178 at 252 (citations omitted). After concluding that this activity was income from an unrelated trade or business, the Commissioner stated: Since the payments are for the use of the organization's trademarks, trade names, service marks, copyrights, and its members' names, photographs, likenesses, and facsimile signatures such payments are royalties within the meaning of section 512(b)(2).
Id. The ruling also distinguished a situation in which the agreements with the businesses were concerned solely with endorsing the products and required personal appearances by members of the organization in connection with the endorsed products. In that situation, the ruling stated that the payments would not be non-taxable royalties [**17] but, rather, taxable income. Id. at 252-53.
In the case before us, the Tax Court agreed with DAV thatRevenue Ruling 81-178 "casts doubt on the soundness of the analysis that only income from passive sources qualifies as royalties that are excluded from UBTI, which suggests the appropriateness of our consideration of the issue in this case." It found that the Revenue Ruling stated legal principles to be used in interpreting "royalties" for purposes of section 512(b)(2), which were not discussed in the Court of Claims' analysis and, therefore, allows relitigation of this issue. We disagree.
We leave open the question as to whether a revenue ruling ever effects a significant enough change in the "legal climate" to bar collateral estoppel because we find that, even if such a ruling could result in such a change,Revenue Ruling 81-178 in this case did not.
As DAV acknowledges, revenue rulings are not binding upon courts. Nor do they even have the force of Treasury regulations. "Interpretive regulations are not law, they are simply the interpretation of statutes previously enacted." Caterpillar Tractor Co. v. United States, 218 Ct. Cl. 517, 589 F.2d 1040, 1043 (1978). [**18] These rulings may be binding upon the Commissioner in the absence of withdrawal, modification, or revocation. See, e.g., Silco, Inc. v. United States, 779 F.2d 282, 287 (5th Cir. 1986). Their precedential effect "may be invoked by any taxpayer as if it were issued to him personally and, to the extent that it addresses issues in his case the ruling will normally be dispositive." Beneficial Found., Inc. v. United States, 8 Cl. Ct. 639, 645 [*315] (1985) (citations and footnotes omitted, emphasis added).
Revenue Ruling 81-178 addresses the specific question of the use of trade dress of the particular athletic organization involved and only generally directs itself to the broader issue of royalties. More importantly, the ruling did not offer new or additional guidance in the interpretation of the law relating to whether the royalty exception to section 512 is available only for passive income. n4 In fact, there is no indication in the revenue ruling itself that the Commissioner ever had any intent to abandon the prior judicial interpretation that royalties for the purpose of section 512(b)(2) be passive in nature. n5 Rather, the ruling is simply a conclusion [**19] from a specific set of facts that payments received for the use of those intangible assets are "ordinarily" considered royalties. Nothing in the ruling indicates either that they must be royalties or that the ruling would apply if a different set of assets was at issue. Whether revenues received from the use of a donor list could ever be royalties is itself highly questionable. As Judge Swift suggested in his dissent from the Tax Court opinion: "The transactions before us look more like one-time rentals of information in exchange for fixed rental income than licenses over a period of time of intangible property rights in exchange for royalty income."
n5 DAV attempts to support its argument that the Commissioner rejected the passivity requirement in Rev. Rul. 81-178 by references to two General Counsel Memoranda concerning the creation of that ruling. Such informal, unpublished opinions of attorneys within the IRS are of no precedential value, and we are not prepared to rest a specific interpretation of a law passed by Congress on what may be nothing more than the general considerations of these government employees. If it truly had been the intent of the Commissioner to change the interpretation of the passivity requirement, we believe he would have included such guidance in his ruling.
Other decisions issued since Rev. Rul. 81-178 also indicate that the ruling does not represent a change in the legal climate on the passivity requirement issue. In NCAA v. Commissioner of Internal Revenue, 92 T.C. 456 (1989), rev'd on other grounds, 914 F.2d 1417 (10th Cir. 1990), the Tax Court concluded that income from sales of advertisements published in programs [**21] from the NCAA basketball championship tournament was unrelated business income and was not a royalty, and therefore was taxable under sections 511-513. The court cited the Claims Court's finding in DAV1 that the income was not passive and therefore not a royalty. n6 In response to the argument that Rev. Rul. 81-178 supported a different interpretation, the Tax Court stated in NCAA that " Rev. Rul. 81-178 is merely respondent's interpretation of certain sections and regulations and is not binding upon us."
n6 In reversing this decision, the Tenth Circuit determined that the advertising revenue was not unrelated business taxable income and therefore the court had no "need to consider whether the income should nonetheless be excluded from taxation as royalty under I.R.C. @ 512(b)(2)." NCAA, 914 F.2d at 1418 n. 2.
n7 DAV also suggests that the cases cited by the Commissioner in Revenue Ruling 81-178 stand for the principle that there is a distinction between a payment for the use of an intangible asset and the activity which gave rise to the value of such asset. We disagree. Each of these decisions was available to the Court of Claims when it ruled in DAV1 as well as to other courts when they ruled on this issue and none of them so interpreted these decisions.
In addition to the ruling in NCAA, several other courts have followed the holding in DAV1. In Illinois State Troopers v. CIR, 833 F.2d 717 (7th Cir. 1987), the Seventh Circuit held the sale of space for business listings in a magazine published by a tax exempt organization did not constitute passive [*316] income "such as the compensation paid by a licensee to the licensor for the use of the licensor's patented invention." Id. at 723 (citing DAV1, 650 F.2d at 1189).
Unless we are prepared to overrule the controlling authority of this and other courts on this issue, the well-established principles of stare decisis and collateral estoppel are directly applicable and require us to follow the above-referenced substantial authority and to hold for respondent.
It requires more than mere belief that a case was wrongly decided to avoid the application of the collateral estoppel doctrine. Although adoption of new statutory provisions or new administrative regulations that clearly change the basic legal rules may allow a party to escape the bar of collateral estoppel, "the [**24] exception is not available merely because the defeated party wishes to reargue the law." 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure @ 4425 (1981). DAV's remedy lay either through the appeals process or with the legislature. In this regard, Congress has already taken action on this matter and passed legislation that would allow revenue received from other tax exempt organizations for the use of donor mailings lists to be excluded as royalties pursuant to @ 512(b)(2). n8 We view this limited relief afforded by Congress to be inconsistent with the view of the law urged by DAV.
n8 The parties spend a significant amount of time discussing the legislative history of this new law. Because we find that DAV was collaterally estopped from bringing this action, we need not enter this discussion.
CONCUR: MARTIN, JR., Circuit Judge, concurring.
While I agree with the result reached by the majority, I disagree with the application of collateral estoppel to the facts of this [**25] case. I respectfully disagree with the majority's conclusion thatRevenue Ruling 81-178 did not significantly change the legal climate with respect to the interpretation of "royalty" for purposes of section 512(b)(2) of the Internal Revenue Code.
In DAV1, the court of claims laconically stated that "DAV's list rentals are the product of extensive business activity by DAV and do not fit within the types of 'passive' income set forth in section 512(b)." 650 F.2d at 1189. The court of claims' opinion does not provide any further analysis of the issue other than noting that "the 'royalties' there referenced are those which constitutes passive income, such as the compensation paid by a licenser for the use of the licenser's patented invention." Id. A fair reading of DAV1 suggests the court rested its conclusion solely on the fact that DAV's list rentals were not "passively" generated. InRev. Rul. 81-178, however, the Commissioner rejects this passive versus active test in determining what was to be considered a royalty for purposes of section 512(b)(2). Instead, [*317] [**26] Rev. Rul. 81-178 focused solely upon whether the payment related to the use of a valuable right.
The majority reads Rev. Rul. 81-178 as nothing more than "a conclusion from a specific set of facts that payments received for the use of those intangible assets are 'ordinarily' considered royalties." The significance of Rev. Rul. 81-178, however, does not lie in its factual similarity to the present case, but rather in its analysis of what is properly considered a royalty. Indeed, all cases, in their simplest terms, are nothing more than conclusions based upon a specific set of facts, with their relevance primarily stemming from the principles they employ and help to establish. There is no question, at least in my mind, that Rev. Rul. 81-178 utilized an entirely different mode of analysis in reaching its conclusion than did the court of claims in DAV1, and furthermore, that the analysis employed in Rev. Ruling 81-178 is directly applicable to the issue before us.
Needless to say, I also believe that Rev. Rul. 81-128 did carry enough force in order to evidence a change in the "legal climate" sufficient [**27] to preclude the application of collateral estoppel. In my opinion, this case is not unlike those cases in which courts have recognized that a change in legal climate may be caused by an administrative agency which is empowered to interpret and apply its enabling legislation. See Graphic Communications Int'l Union, Local 554 v. Salem-Gravure, 269 U.S. App. D.C. 162, 843 F.2d 1490, 1493 (D.C. Cir. 1988), cert. denied, 489 U.S. 1011, 109 S. Ct. 1119, 103 L. Ed. 2d 182 (1989); Brock v. Williams Enter., 832 F.2d 567, 574 (11th Cir. 1987). Although revenue rulings are not binding upon courts, they are binding upon the Commissioner in the absence of withdrawal, modification, or revocation. Silco, Inc. v. United States, 779 F.2d 282, 287 (5th Cir. 1986).
Notwithstanding my opinion that the application of collateral estoppel is inappropriate in this case, I would nevertheless reach the same conclusion as did the majority of reversing the decision of the tax court. This exceedingly complex case centers around a single inauspicious question: Are the monies received by DAV for the use of its donor list by other organizations properly classified as royalties pursuant to 26 U.S.C. [**28] @ 512(b)(2). Unfortunately, the term "royalties" is not defined in any precise manner for purposes of @ 512(b)(2) in the Code. We thus must look to other evidence in order to determine what Congress meant. Should the term "royalties" encompass the income DAV receives for the use of its donor list or not?
This question appears to have been conclusively answered by Congress when it enacted section 513(h) in 1986. Section 513(h) specifically excludes payments to an exempt organization from another exempt organization for list rentals. Thus the income is non-taxable unrelated business income. 26 U.S.C. @ 513(h). The legislative history of section 513(h) indicates that Congress was responding to the court of claims decision in DAV1 in enacting this section. See H.R. Conf. Rep. No. 841, 99th Cong., 2d Sess., pt. 2, at 822 (1986), reprinted in 1986-3(vol. 4) C.B. 822. Congress, in enacting this section, obviously felt that the court of claims decision in DAV1 was the proper interpretation of "royalties" for purposes of @ 512(b)(2) with respect to the payments received by an exempt organizations from a commercial organization. Why else would Congress have written @ 513(h) to apply only [**29] to exempt organizations if it had disagreed with court of claims' interpretation of the term "royalties" in @ 512(b)(2)?
The acceptance of DAV's position that the monies it receives from list rental are royalties under @ 512(b)(2) would totally eviscerate section 513(h). Section 513(h) would be reduced to mere surplusage under DAV's interpretation of @ 512(b)(2) which would hold that all list rentals, and not just those to other exempt organizations, are excludable from unrelated business taxable income. Although @ 513(h) was enacted after the relevant time period at issue in this case, its implications cannot be ignored. Once Congress has made its intentions clear, I think we should try to carry out those intentions. I do not think this issue is still open for debate. There is [*318] simply no way to reconcile Congress' intent as evidenced by the enactment of @ 513(h) and the position advanced by DAV. I would reverse the decision of the tax court and find that the monies received by DAV from list rentals are not excludable from unrelated business taxable income as royalties under @ 512(b)(2).

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Filing a non-capital stay application in the United States Supreme Court is an opaque process. A form of "emergency" application, stay applications are borne of urgent circumstances. Haste is of the essence. Especially under these pressured conditions, deciphering the rules to identify the correct procedures for a high court stay application can be difficult and confusing. This article explores some of the practical and procedural considerations you should keep in mind when applying for a non-capital stay from the Court – or more precisely, when filing an application for a temporary stay of the decision below pending the timely filing and disposition of a petition for a writ of certiorari. This article primarily focuses on unpacking the governing rules, illuminating the Court's docketing and review process, and underscoring the importance of seeking relief from the court below. Because the substantive standards for a stay are discussed amply elsewhere, this discussion only summarizes the relevant criteria.
Stay applications, as an initial matter, are filed with the Clerk and addressed to the individual Justice "allotted to the Circuit from which the case arises." S. Ct. R. 22.3, 28.1. In contrast to the dozens of copies required for filing a cert petition, the rules only oblige an original and two copies of a stay application, plus proof of service conforming to Rule 29. S. Ct. R. 22.1.
Generally speaking, you should expect to hear the Justice's decision within a few days. If the Justice does not deny the stay application outright, it is a standard practice – though by no means a rule – for the Justice to call for a response before granting a stay. The Clerk's office will call directly each party's counsel of record with a schedule. The Rule also provides that the Justice might refer the stay application "to the Court for determination." S. Ct. R. 22.6. In that eventuality, the Justice might also issue a temporary stay while that process moves forward. For example, on June 6, 2009, Justice Ginsburg issued a temporary stay in the matter of Indiana State Police Pension Trust v. Chrysler LLC, No. 08A1096, which concerned the bankruptcy sale of Chrysler to the Italian automaker Fiat. She then referred the matter to the full Court, which promptly denied the application on June 9, 2009.
Ordinarily, the Court neither expects nor permits a response to a stay application unless requested by the reviewing Justice. For those who would oppose the stay application, that rare call for a response might result in a catastrophically short deadline. In another recent example, a group of anonymous applicants successfully secured a temporary stay of a Ninth Circuit decision that would have allowed Washington State officials to release the names of people who signed a ballot measure on gay rights legislation. John Doe v. Reed, No. 09A356 (Oct. 20, 2009). Witness the dizzying speed at which this process occurred. Justice Kennedy received the application on Friday, October 16, 2009. That same day, the Justice called for a response – to be filed by 3 pm the following Monday, only three days later. On October 19th, the day the response was due, Justice Kennedy issued an initial temporary stay, then referred the application to the whole court. On Tuesday, just four days after the stay application was submitted, the full Court granted the stay pending the filing and disposition of a petition for a writ of certiorari. Sixteen days later, on November 5, 2009, the petitioners filed their cert petition.
If a Justice denies your application, the rules permit you to "renew it to any other Justice," although the Rule cautions that "a renewed application is not favored." S. Ct.R. 22.4. But recognize that the phrase "not favored" is an understatement. Justice Douglas had a penchant for granting resubmitted stay applications, and even those decisions were usually vacated by the full court. In recent decades, it is a reliable principle that one Justice will not disturb another Justice's decision on a stay application. Eugene Gressman, et al.; SUPREME COURT PRACTICE, § 17.12 (9th ed. 2007).
Technically the resubmission is directed to a second Justice – a formality likely to trigger irksome media speculation about the leanings of the Justice in question. Functionally, however, the resubmission is a request for full Court review of the denied application, as it is the current practice of Justices to refer the resubmitted application automatically. By way of illustration, unlike the original application, which is filed with a mere two copies, the resubmitted application is filed with ten copies of the original application. S. Ct. R. 22.4. The resubmitted and referred application will then be calendared for the next available conference. A majority vote of the participating Justices is required to grant it, which in most circumstances, means the vote of five Justices (in contrast to the four votes required for cert). SUPREME COURT PRACTICE, § 17.10.
Note that resubmission is not a second chance to tinker with your stay arguments; you must resubmit the identical application. However, you may supplement the application with information relating to changed factual circumstances. For example, if your cert petition has been filed between the original submission and resubmission, you may so note in the transmittal letter to the Clerk and provide copies of the newly filed petition for the Justices' review.
Unlike the booklet format of cert petitions, stay applications fall under Rule 33.2, which is the 8 ½- x 11-inch format, "stapled or bound at the upper left hand corner." Notice that there are no page or word limits for stay applications. Absent a rule, you will be faced with a tactical conundrum regarding your application's length. On the one hand, a short filing (which rarely should exceed approximately 20-25 pages) is digestible, especially if you already have your cert petition drafted and the draft can be appended as an exhibit. A longer filing might signal that the error at issue is not especially clear, and that if it takes so long to explain why you need a stay, you probably should not get one. On the other hand, a longer filing allows you to illuminate the complexities of the situation and to illustrate their urgency.
Similarly, there are no specific rules on the form or number of discretionary exhibits, other than requiring that any appendix be presented in a double spaced format. You should exercise caution in selecting discretionary exhibits beyond those required by Rule 23.3 (discussed below). Recall that the exhibits will not be bound neatly in a slim printed volume, and increasing the volume of exhibits is not a desirable tactic. If you must rely upon a substantial amount of record material to substantiate your position, consider citing to the record below rather than taxing chambers with a heavy stack of appended excerpts.
You should also consult Rule 34 for general requirements relating to captions and table preparation. Note that Rule 34.1(a) requires space for a docket number. Because the Clerk's office numbers all stay applications on the "A" docket, the docket number portion of the caption should appear as "A___".
Above all, do not surprise the Clerk's office with a stay application. If possible, at least one business day before you file, call the office (202-479-3000) and ask for the Emergency Applications Attorney. By consulting with the office in advance, you will enable it to prepare your Justice's chambers to expect an application requiring speedy review. You will also open a channel of communication that will be vital on filing day.
Roughly ninety percent of all stay applications are filed through the United States Postal Service. Avoid this method and try to arrange for hand-delivery instead. USPS filing will delay your application by several days: on top of the travel time through the mails, you will need to calculate at least one additional day's delay as Court security screens the package. Even hand-delivery can lead to unexpected delays if you are not careful. Whether it is a commercial carrier, local counsel, or a DC-based law school buddy doing you a favor, whoever delivers the papers to Court security must ensure that the papers are not sealed in any kind of envelope or box. Only papers open to the security guards' inspection (also known as an "open box" filing) have the potential to reach chambers that same day. Otherwise, security protocols require papers that have been sealed in a box or envelope to be sent off-site for screening – which likewise translates into at least a day's delay. While the reviewing Justice will not be aware of which filing method you selected, the sooner you get the application into the Justice's hands, the more urgency you convey.
On the day of filing, call the Emergency Applications Attorney and notify him or her that the papers are on their way. Call again when the papers have been filed. This way, the attorney will be on the lookout for your papers, and where appropriate, may even proactively arrange for them to be brought up from security. The ideal time of day to file a stay application is mid-morning. Otherwise, the transmittal of your papers from security to the Clerk's office risks delays caused by the shifting of the guard.
Finally, the transmittal letter should make the Emergency Applications Attorney's job easier. As previously noted, that attorney must process a certain amount of information into the docket before sending the papers up to chambers. Distilling that information into the cover letter obviates the attorney's need to waste time digging through your application and exhibits, and in some cases, their need to conduct independent research on the status of the lower court's docket.
Rule 23.3 (discussed further below), such as the date that the court below denied a stay pending review and disposition of a petition for certiorari, and (6) if applicable, the date that a petition for certiorari was filed and its status. For the information pertaining to lower court Orders or docket entries, identify in the cover letter where in the appendix or among the exhibits those materials can be found. Do not omit any of these Orders from your filing; the Emergency Applications Attorney will not docket your application until he or she has clarified the status of those Orders. If you have omitted that information, he or she may even research the case on the lower court docket to ascertain that you have complied with the relevant rules. Finally, the attorney will verify that the application has been signed by a member of the Supreme Court Bar.
Rule 23.3 requires the application to identify "the judgment sought to be reviewed" and append "a copy of the order and opinion, if any." In addition, and more importantly, absent "the most extraordinary circumstances" a stay application "will not be entertained unless the relief requested was first sought in the appropriate court or courts below." S. Ct. R. 23.3. In other words, you cannot seek a stay from the United States Supreme Court until you have sought a stay from (most likely) the selfsame court that issued the order or opinion that you are hoping to get reversed on cert. Failure to comply with Rule 23.3 is a basis for denying a stay.
The rule requires that you append a copy of the lower court's order denying the stay. If an Order reflecting the denial is unavailable at the time you file your application, a copy of the docket entry reflecting the denial will suffice, or a recitation of why the Order is not attached combined with a summary of the action below. SUPREME COURT PRACTICE, § 17.9. As discussed above, you should identify how you have complied with Rule 23.3 in the cover letter to the Clerk, and explain where in the application you have substantiated your compliance with the rule. While the Supreme Court's rules do not require the filing of a petition for certiorari prior to your stay application, note that some state courts do impose that requirement before they will grant a stay pending the cert petition's disposition. Id.
The Supreme Court's rules provide no deadlines governing stay applications. Ideally, your Supreme Court stay application should be drafted and ready to file by the time the lower court denies the application for temporary relief. Once the lower court's decision has been rendered, do not wait more than a few days before filing your Supreme Court stay application.
When seeking relief from the lower court, consider asking in the alternative for a stay that endures at least as long as it takes for the United States Supreme Court to review a subsequent stay application. While this lesser relief is not ideal, it blunts the edge of urgency for those reviewing the application at the United States Supreme Court. And such a limited stay might even buy you that extra bit of time to get your cert petition filed without becoming moot during the stay review process.
Finally, you should either append or integrate your jurisdictional statement showing that the Court has jurisdiction to review the decision below. SUPREME COURT PRACTICE, § 17.9. Anecdotal evidence suggests that a sufficiently interested Justice may request a copy of the draft jurisdictional statement, so drafting it should be a priority. You may also request that the Justice treat your application in the alternative as a cert petition, though in most cases you will probably wish to file a more polished petition. In that event, of course, the application would have to be referred to the full Court, since only the Court (or more precisely, four Justices of the Court) may actually grant certiorari.
Now, a few words about substance. A full discussion of the substantive criteria for a stay is beyond this article's scope. See generally SUPREME COURT PRACTICE § 17.13; see also Rapp, Cynthia (ed.), A COLLECTION OF IN CHAMBERS OPINIONS BY THE JUSTICES OF THESUPREME COURT OF THE UNITED STATES, (Green Bag Press, 2004).Rule 23 recognizes that a Justice may grant a stay "as permitted by law," see Rule 23.1,"[a] party to a judgment sought to be reviewed" will most likely seek "to stay theenforcement of that judgment" pursuant to 28 U.S.C. § 2101(f). See Rule 23.2. The statute provides that a Justice may stay the mandate, or execution and enforcement of a judgment for a reasonable time while the aggrieved party seeks a writ of certiorari.
The criteria governing the issuance of a stay pending certiorari tracks the familiar requirements for an injunction. The Court considers "whether the applicant has demonstrated '(1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari or to note probable jurisdiction; (2) a fair prospect that a majority of the Court will conclude that the decision below was erroneous; and (3) a likelihood that irreparable harm will result from the denial of a stay.'" Indiana State Police Pension Trust v. Chrysler LLC, 129 S. Ct. 2275, 2279 (2009) (per curiam) (quoting Conkright v. Frommert, 129 S. Ct. 1861, 1862 (2009) (Ginsburg, J., in chambers)). The "fair prospect" test asks whether "plausible arguments exist for reversing the decision below and [whether] there is at least a fair prospect that a majority of the Court may vote to do so." See California v. American Stores Co., 492 U.S. 1301, 1306 (1989) (O'Connor, J., in chambers). In a close case, the Court may also consider whether (4) the balance of the equities justifies a stay. Chrysler, 129 S. Ct. at 2276. As a general practice it is prudent to pull the particular Circuit Justice's individual "in chambers" opinions accompanying the grant or denial of stay applications, which can provide a rough guide to how the Justice has dealt historically with these considerations in a variety of fact-bound circumstances.
Ultimately, it is a bit tough to file a U.S. Supreme Court stay application with a straight face. After all, the Court grants less than one percent of petitions for certiorari annually. With those slender odds, the very idea that a Justice would agree that your particular petition has a "reasonable probability" of swaying four cert votes seems an almost laughable proposition. And yet, as the substantive criteria suggest, that is a large part of your task when seeking a stay.
While a U.S. Supreme Court stay application is a species of "emergency" application, the process can run reasonably smoothly – if you take advantage of every opportunity to plan ahead. If you have any reason to predict that a lower court's adverse ruling might prompt the need for a high court stay application, immediately begin familiarizing yourself with the requisite rules and procedures. In particular, anticipate Rule 23.3's obligations and review the lower court's requirements for securing a stay pending the filing and disposition of a cert petition. To the extent feasible, start mapping out the jurisdictional statement for your cert petition and the shell of your stay application. And with a bit of luck, perhaps your application will be one of the few that are granted.
Ms. Chanoine is an associate in Mayer Brown LLP's Supreme Court & Appellate Group in New York (hchanoine@mayerbrown.com). Prior to joining Mayer Brown, Ms. Chanoine served as an attorney in the Federal Programs Branch of the Department of Justice, (Civil Division) through the Attorney General's Honors Program. Ms. Chanoine clerked for the Hon. Sonia Sotomayor on the Second Circuit Court of Appeals.


Following are summaries of bills enacted into law that may directly affect filings made and business conducted with the Secretary of State’s office. Unless otherwise indicated, these measures took effect on January 1, 2003. To research any legislation or existing law, please refer to the California Legislative Information website.
This act enacts the California Corporate Disclosure Act, which requires additional information to be included in the statement of information filed by domestic stock and foreign corporations. It changes from biennial to annual the filing requirement for statements of information filed by domestic stock and foreign corporations. The act requires the Secretary of State to make the information in the statements available and open to the public for inspection, and specifies that by December 31, 2004, the Secretary of State must make the information available through an online database. It establishes a Victims of Corporate Fraud Compensation Fund, to be administered by the Secretary of State, and it requires the Secretary of State to adopt regulations regarding the administration of the fund and the eligibility of victims to receive compensation. In addition to the current $20 filing fee for statements of information, the bill requires the payment of a $5.00 disclosure fee each time the required statement of information is filed. Half of the $5.00 fee will be used to further the provisions of the bill, including the establishment of the online database, and the other half will be used to compensate victims of corporate fraud.
The Secretary of State has adopted regulations relating to the administration of the Victims of Corporate Fraud Compensation Fund and the eligibility of victims to receive compensation.
This act, effective September 20, 2002 as an urgency statute, amends the purpose clause required to be included in articles of incorporation for nonprofit mutual benefit corporations pursuant to Corporations Code section 7130. It also provides a new purpose clause specifically for corporations subject to the California Credit Union Law. The act prohibits the Secretary of State from filing articles of incorporation for a credit union or a corporation that has "credit union" or related words in its name unless the articles of incorporation have been endorsed by the Commissioner of Financial Institutions. It provides that in the event of a conflict between the California Credit Union Law and any other law applicable to nonprofit mutual benefit corporations generally, the California Credit Union Law will apply. The act also specifies that no amendment to the articles of incorporation of a credit union, and no restated articles, certificate of correction, or certificate of revocation of a credit union shall be effective unless the approval of the Commissioner of Financial Institutions is filed with the Secretary of State.
This act requires a common interest development association to file specified information with the Secretary of State. The information is to be submitted on a form and for a fee, not to exceed $30, prescribed by the Secretary of State. For an incorporated association, the form will be filed within 90 days of filing its articles of incorporation and thereafter at the same time the association files its biennial statement with the Secretary of State pursuant to Corporations Code § 8210. For an unincorporated association, the form will be filed in July of 2003, and biennially in that same month thereafter. An incorporated association that does not comply with this requirement faces the possibility of suspension and monetary penalties. All information in the form is subject to the Public Records Act except for specified information, which is confidential and will not be available for public inspection.
This act makes several changes to the Davis–Stirling Common Interest Development Act. The provision that affects the Secretary of State’s office is amended Civil Code § 1363.5(a), which requires the Articles of Incorporation filed with the Secretary of State by a common interest development association to include information concerning whether the association’s managing agent, if any, is certified pursuant to new Business and Professions Code § 11502.
This act allows a corporation to file a short–form certificate of dissolution if all of the following information applies: (1) the certificate of dissolution is being filed within 12 months from the date the articles of incorporation were filed; (2) the corporation does not have any debts or liabilities; (3) the tax liability will be satisfied on a taxes paid basis or a person, corporation, or other business entity assumes the tax liability of the dissolving corporation; (4) a final franchise tax return has been filed with the Franchise Tax Board; (5) the corporation has not conducted any business from the time of the filing of the articles of incorporation; (6) that the corporation acquired no assets, or that they have all been distributed to the persons who are entitled to them; (7) that the dissolution has been authorized by the appropriate persons; and (8) that the corporation has not issued any shares, and if payments for shares have been received from investors, those payments have been returned.
This act prohibits nonprofit public benefit corporations and nonprofit religious corporations from filing a certificate of dissolution with the Secretary of State in the case of a voluntary dissolution unless attached to the certificate is a document issued by the Attorney General either waiving objections to the distribution of the corporation’s assets or confirming that the corporation has no assets.
This act establishes procedures for a domestic corporation to convert into a domestic other business entity. It also permits the formation of a domestic corporation upon the conversion of a domestic or foreign other business entity or foreign corporation. The filing fee for a conversion pursuant to this act is $250 until January 1, 2005, and $150 thereafter.
This act requires the Secretary of State to include with instructional materials provided in conjunction with any of the following filings a notice that the filing will obligate the filer to pay an annual tax to the Franchise Tax Board for the taxable year in which the filing occurs: (1) certificate of limited partnership; (2) application for registration as a foreign limited partnership; (3) application for registration as a limited liability partnership; and (4) application for registration as a foreign limited liability partnership. It also changes similar language, which is already in statute relating to limited liability companies and foreign limited liability companies to specify that the notice must inform the filer that the filing will obligate the filer to pay an annual tax to the Franchise Tax Board for the taxable year in which the filing occurs, rather than in the calendar year. This act also requires the Franchise Tax Board to notify a limited liability company or limited liability partnership that files a return designated as its final return that the annual tax continues to be due annually until a certificate of cancellation is filed with the Secretary of State.
This act creates the Bay Area Water Supply and Conservation Agency (Agency). The provisions that affect the Secretary of State’s office are new Water Code §§ 81326, 81327, and 81456.7. These provisions specify that if a sufficient number of public entities adopt resolutions to form the Agency, the Clerk of the Board of Supervisors of San Mateo County shall file a certificate with the Secretary of State indicating the name of the Agency and the names of each public entity that is a member of the Agency. The Secretary of State is required, within 10 days of receipt of the certificate, to issue a certificate of formation indicating that the Agency has been formed and identifying the public entities that are members of the Agency. The Secretary of State is then required to transmit a copy of the certificate of formation to each public entity that is a member. The Agency is required to notify the Secretary of State in writing within 10 days of admission whenever a new public entity becomes a member of the Agency.
This act creates the Sonoma–Marin Area Rail Transit District. The provision that affects the Secretary of State’s office is new Public Utilities Code § 105335, which provides that if the voters elect to dissolve the district, the board of the district must adopt a resolution dissolving the district, and a certified copy of the resolution must be filed with the Secretary of State.
This act establishes an enhanced smog check program in the San Francisco Bay Area Basin. The provision that affects the Secretary of State’s office is Section 10 of the bill, which specifies that the bill shall only become operative if the all of the following conditions are met: (1) petitioners in Sacramento Metropolitan Air Quality Management District, and Yolo Solano Air Quality Management District v. the United States Environmental Protection Agency, in the United States Court of Appeals for the Ninth Circuit (Petition Number 02–70848), move to withdraw from the lawsuit, with prejudice, on or before October 4, 2002; (2) the court issues an order granting the motion; and (3) the petitioners file a certified copy of that petition with the Secretary of State.
This act specifies the rights and requirements of a homeowner in bringing an action for construction defects. The provision that affects the Secretary of State ’s office is new Civil Code § 912(e), which requires a builder to maintain the name and address of an agent for notice with the Secretary of State, unless the builder elects to use a third party for that notice under specified circumstances.
This act relates to the California Victim Compensation Board. The provision that affects the Secretary of State’s office is new Government Code § 13957.2(a), which allows the board to establish maximum rates and service limitations for reimbursement of medical and medical– related services and for mental health and counseling services, and requires the board to file an informational copy of these service limitations and maximum rates with the Secretary of State.
This act creates the Mosquito Abatement and Vector Control District Law. The provision that affects the Secretary of State’s office is new Health and Safety Code § 2043(b), which permits the board of trustees of a mosquito abatement and vector control district to adopt a resolution to change the name of the district. A copy of the resolution must be filed with the Secretary of State.
This act provides that an employee organization primarily comprised of peace officers that is a chapter of, or affiliated with, a general nonprofit corporation formed for the purpose of acting as an employee organization for peace officers in California that represents less than 7,000 retired or active peace officers is not qualified to be the exclusive or majority bargaining agent until January 1, 2007, if it has not filed with the Secretary of State by January 1, 2003, a notice designating an agent for service of process.
This act creates the California Bay–Delta Authority. The provision that affects the Secretary of State’s office is new Water Code § 79475, which provides that this act will be repealed as of January 1, 2006, unless the Secretary of the Resources Agency determines that federal legislation has been enacted authorizing the participation of the appropriate federal agencies in the authority. Upon making that determination, the Secretary of the Resources Agency is required to notify the Secretary of State in writing with regard to that determination.
This act creates a consolidated transportation agency in San Diego. The provision that affects the Secretary of State’s office is new Public Utilities Code § 132372.4, which requires the agency to file an executed copy of each authorized lease and agreement with the Secretary of State. The act authorizes the Secretary of State to receive one dollar ($1.00) for each copy filed.


"H. The Department of Transportation shall convene a work group of stakeholders to examine the current statutory and regulatory processes for identifying the location of, and the owners or leaseholders of, fiber optic cable and conduit, as well as other similar communications infrastructure and utilities, that are located under or across from public property or in close proximity to or in an existing or newly acquired public easement or right-of-way, in order to determine whether the current process for relocating such infrastructure as necessary for the construction of a public roadway and associated appurtenances, whether such project is locally or state administered, is appropriately efficient, timely, and cost effective, in order to avoid unnecessary and costly delays in construction. Stakeholders shall include, but are not limited to, representatives from local government, cable and telecommunications industries, the road construction industry, underground utility locating contractors, and the State Corporation Commission. The Department shall assess whether the current permitting and utility registration and relocation procedures and requirements are adequate and reasonable, and shall submit its findings and any recommendations for improving such process to the General Assembly by November 30, 2018."
Authority: Title 33.2, Chapter 3; Code of Virginia; Chapters 8, 9, and 12, Acts of Assembly of 1989, Special Session II.
5. $20,265,939 the first year and $20,089,434 the second year in federal funds shall be allocated for the Surface Transportation Block Grant Program Set-Aside to 23 USC 133(h).
6. $424,441,132 the first year and $345,367,043 the second year in appropriation represents the estmated project participation costs from localities and regional entities.
7. $150,908,817 the second year in this appropriation represents the bond proceeds to be used for the Route 58 Corridor Development Program.
8. $2,736,051 the first year and $4,183,261 the second year in state funds shall be allocated to the Virginia Transportation Infrastructure Bank pursuant to § 33.2-1500 et seq, Code of Virginia.
9. $1,368,025 the first year and $2,091,630 the second year in state funds shall be allocated to the Transportation Partnership Opportunity Fund pursuant to § 33.2-1529.1, Code of Virginia.
B. Notwithstanding § 33.2-358, Code of Virginia, the proceeds from the lease or sale of surplus and residue property purchased under this program in excess of related costs shall be applied to the State of Good Repair Program pursuant to § 33.2-369, Code of Virginia. Proceeds must be used on Federal Title 23 eligible projects.
C. The Director of the Department of Planning and Budget is authorized to increase the appropriation as needed to utilize amounts available from prior year balances in the dedicated funds and adjust items to the most recent Commonwealth Transportation Board budget.
D. Funds appropriated for legacy formula construction programs shall be used for the purposes enumerated in subsection C of § 33.2-358, Code of Virginia, or as previously appropriated.
E. Included in the amounts for specialized state and federal programs is the reappropriation of $145,700,000 the first year and $131,300,000 the second year from bond proceeds or dedicated special revenues for anticipated expenditure of amounts collected in prior years. The amounts will be provided from balances in the Capital Projects Revenue Bond Fund, Federal Transportation Grant Anticipation Revenue Bond Fund, Northern Virginia Transportation District Fund, State Route 28 Highway Improvement District Fund, U.S. Route 58 Corridor Development Fund and the Priority Transportation Fund. These amounts were originally appropriated when received or forecasted and are not related to FY 2017 and FY 2018 estimated revenues.
F. The Director of the Department of Planning and Budget is authorized to increase the appropriation as needed to utilize amounts available from prior year balances in the Consession Payments Account to support project activities.
G. For funds allocated in § 58.1-1741, Code of Virginia, to state of good repair purposes for fiscal year 2019 and fiscal year 2020, the distribution of funding in subsections (B) and (C) of § 33.2-369, Code of Virginia, will not apply. The Commonwealth Transportation Board may allocate funds to state of good repair purposes for reconstruction and replacement of structurally deficient state and locally owned bridges and reconstruction and rehabilitation of pavement on the interstate system and primary state highway system determined to be deteriorated by the board, including municipality-maintained primary extensions, as well as to work related to the condition assessment and pavement rehabilitation of secondary highways and other related work to improve secondary highways.


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This 6 February 2019 video from the USA is called Senator Bernie Sanders delivers a response to President Donald Trump‘s 2019 State of the Union address.
For the first time in American history, a president of the United States, in a nationwide television address, denounced the growing popular support for socialism. “We are alarmed by new calls to adopt socialism in our country,” Trump declared. He pledged, “Tonight, we renew our resolve that America will never be a socialist country.” His audience, Democrats and Republicans alike, registered their approval with applause.
Behind all the bombast and the inevitable declaration that “the state of the union is strong”, Trump’s remarks had the character of a speech from the bunker. The ruling class fears not only the mounting challenges to its global position, but, even more significantly, the signs of growing social discontent and the renewal of strike activity.
This is not only an American phenomenon. The past year has been characterized by a growth of the class struggle internationally.
What is true of France is true of the United States. Trump’s declaration gives a glimpse of the profound crisis of American capitalism and the real driving force of the political upheavals in Washington. It is the only thing that history will remember of his speech, which otherwise, consisted of the usual empty display of official pomp and ceremony, an endless and tedious barrage of lies and platitudes from the speaker, along with crass exploitation of victims of tragedies like the Pittsburgh synagogue massacre.
In the State of the Union speeches under previous administrations, the anti-socialist nightmares of the ruling elite were focused on the Soviet Union, China or another foreign country. Under Trump, these fears were directed against an internal enemy, radicalized American workers and youth.
As Trump’s blunt declaration suggests, the capitalist ruling class is not responding passively to the growing challenge from below. It is building up the police and military forces, as well as seeking to mobilize fascistic elements like those attracted to Trump’s nationalism and anti-immigrant racism.
Trump’s demand for a wall on the US-Mexico border has become a symbol of his efforts to develop an openly fascistic movement in the United States, which will mobilize the police, the military and gangs of thugs against the working class. In the week leading up to the State of the Union, Trump repeatedly hinted that if Congress refuses to fund the border wall by the deadline of February 15, he will declare a national emergency and order the Pentagon to build the wall without legislative authorization.
The Democratic Party adheres to a more traditional approach to the suppression of the class struggle … Democratic representatives demonstrated this during the State of the Union, rising to applaud every mention of the US military and police. While the Republicans chanted “USA! USA!” in response to Trump’s initial references to the economic “miracle”, the Democrats replied with the same nationalistic chant when Trump made reference to the record number of women now seated in Congress.
The representatives of both parties applauded Trump’s pledge to accelerate trade warfare with China, his denunciations of the NAFTA trade deal, and his boasts about imposing a new government in Venezuela, where he has made repeated threats of military intervention.
No speech by Trump will reverse the deepening crisis of American and world capitalism, and the consequent shift in political sentiments among American working people. Significantly, a CNN poll released the day before the State of the Union found 70 percent believed that the Trump administration was performing badly, with 43 percent saying it was the “worst in their lifetimes.” Other polls consistently show growing support for socialism and hostility to capitalism.
Socialism is resurging because capitalism has failed. The class struggle, long suppressed, is beginning to burst into the open. The great task is to provide this objective class movement with a program, perspective and political leadership, to put an end to capitalism and the danger of economic catastrophe, dictatorship and war.
This 5 February 2019 from the United States Congress is called Trump pushes anti-abortion agenda.
What you just heard is a president declaring war on women’s reproductive freedom.
President Trump’s disgusting lies and vicious attacks on abortion rights tonight were designed to serve only one purpose: to provide political cover for the Supreme Court to overturn Roe v. Wade.
The Supreme Court could start chipping away at Roe v. Wade as soon as THIS WEEK. This is an all-hands-on-deck moment. Will you donate $5 to help save abortion rights?
Yes, I’ll chip in $5 to help fight back against Trump’s war on legal abortion.
It started when they attacked the reproductive health acts in New York and Virginia–bills that codified the protections of Roe v. Wade.2 These bills are widely supported by voters, so the anti-choice right is using wildly inflammatory and dishonest rhetoric to score political points.
What they really want to do is to criminalize abortion, shut down clinics, and throw women in jail.
Remember: This is the president who said that “there must be some form of punishment” for women who choose abortion.5 That’s what this is about, and we will fight back.
Trump just walked off the stage after giving his version of the state of our union. It’s no surprise that after bragging about his so-called accomplishments, he used the spotlight to spew more hatred and division.
In the middle of his speech, Trump stereotyped immigrants, pushed false facts, and announced he’s sending more than 3,000 additional troops to the “very dangerous” border to prepare for the “tremendous onslaught” of “large, organized caravans”. It was fear-mongering at its worst.
And after he riled up his base with these ugly attacks, painting immigrants as the #1 enemy of our country, he declared he will build his wall.
The real state of our union is that this administration has caused endless chaos, pain, and destruction. Trump has repeatedly ignored facts that don’t fit neatly into his right-wing agenda; he has cruelly ripped families apart at the border, leaving thousands of children in limbo; and he continues to dehumanize immigrants every chance he gets.
This 6 February 2019 video from the USA is called “Liar-in-Chief”: Representative Ilhan Omar Slams Trump’s SOTU Remarks on Border, Venezuela, Israel & More.
This entry was posted in Economic, social, trade union, etc., Human rights, Women's issues and tagged Donald Trump by petrel41. Bookmark the permalink.
Brett Kavanaugh just declared war on Roe v. Wade.
Last night, Kavanaugh joined three other anti-choice justices to support a law that would have shut down most of Louisiana’s abortion clinics.1 Thankfully, Kavanaugh wasn’t in the majority–but it’s a short-term victory. The case will come back for a final decision.
Now more than ever, it looks like it’s only a matter of time before such a clinic shutdown law is allowed to go into effect, severely gutting Roe v. Wade.
To fight back, we’re teaming up with the New Orleans Abortion Fund, which provides women with the financial help they need to access abortion care–and those needs are likely about to increase dramatically. Meanwhile, UltraViolet is mobilizing to block new anti-abortion laws in other states to keep abortion legal AND accessible.
Will you chip in $5 today? Your contribution will be split 50/50 between UltraViolet and the New Orleans Abortion Fund.
And that’s exactly what Kavanaugh voted to do, even writing a dissent saying he didn’t find the onerous requirements of the law that burdensome. Justice Roberts voted to uphold the Hellerstedt decision and block the Louisiana clone, even though he voted against Hellerstedt in the first place.3 We can’t rely on the good faith of Chief Justice Roberts to uphold precedent and protect Roe. We need to stop these unconstitutional laws from being passed, period.
With so much at stake, it’s all hands on deck to save abortion rights. Will you chip in $5? Your contribution will be split 50/50 between UltraViolet and the New Orleans Abortion Fund.
Make no mistake: Despite his ruling, Justice Roberts is not a friend. Roberts has voted for every other abortion restriction he’s ruled on.6 When the Court takes up Roe v. Wade in the future–whether by a challenge to Louisiana’s shutdown law, Iowa’s six-week abortion ban, or any of the other 20 cases moving through the system right now—Roberts will vote against Roe. And now we know for sure that Kavanaugh will, too.
A challenge to Roe v. Wade is coming, and it will happen soon. We need to be ready–or we could lose one of the most important rights women hold, the right to control our own bodies.

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In British Columbia, the court has gone further. In Burke v. John Doe, 2013 BCSC 964, Master MacNaughton ordered that certain unknown defendants could be served with Mr. Burke’s defamation suit via private notification to a message board account advising them that they are named as defendants and explaining how to access the notice of civil claim.
 Personal service provides certainty that a party has notice of a proceeding. However, it has long been understood that is not necessary for the court to be certain that a method of substituted service ensure that notice will be received. It is sufficient if the alternate method is reasonably likely to bring the process to the attention of the person served.
 The particular method of service proposed by Mr. Burke has not been the subject of any decisions of this court, although substituted service through active email accounts and other social media sites such as Facebook has been permitted both in this court, elsewhere in Canada, and in other Commonwealth countries.
 Many such applications are not reported. They are granted on affidavit evidence which confirms that the person proposed to be served maintains an active email or profile on social media sites. They reflect the reality of today’s methods of communication which are increasingly electronic.
 In Knott Estate v. Sutherland,  A.J. No. 1539 (Alta. Q.B.), Master Breitkreuz ordered service of a statement of claim and notice to a defendant by sending a notice of the action to the defendant’s Facebook page. Similarly, in Bryne v. Howard,  FMCAFAM 509 (Fed. Mag. Ct.), service of a child support application via Facebook, and other electronic means, was deemed effective and in Mothership Music Pty Ltd. v. Darren Ayre (T/As Vip Entertainment & Concepts Pty Ltd),  NSWDC 42, service of an injunction application was permitted by email transmission and by Facebook.
In a case involving facts similar to this, Blaney v. Persons Unknown, (1 October 2009) IHQ/12/0653 (Ch.), a journalist and commentator who operated the “Blane Blarney” website, obtained an injunction against an anonymous internet poster who was impersonating him through a Twitter account. Counsel was unable to provide me with a copy of the case despite efforts to obtain it from various sources. However, according to reports of it published in the Canadian Lawyer’s Weekly (Leonard Polsky and Stacey Wade, “Status update: service by Facebook September 30, 2011) and in Online defamation: confronting anonymity” a paper written by Anna Vamialis and published by the Oxford University Press, the High Court granted the plaintiff leave to serve the defendant poster with an injunction by sending a message to his Twitter account which included a link to a website on which the injunction order was displayed.
A family law example in BC is that of SJF v. RMN, 2013 BCSC 1812, in which a distraught father unsure where his ex-wife had taken their children obtained an order allowing him to server her with his notice of family claim by leaving a copy of the claim at her last known address and notifying her via Facebook that she had been served.
The overall concern of the court is to ensure that those who are facing legal action are properly notified of the action they are facing and have the opportunity to address the plaintiff’s or claimant’s claims. Some defendants have been known to be creative in finding ways to avoid being found and/or refusing to aid in arranging their own service. To counteract that, the courts need to allow counsel to be just as creative in using any/all ways to notify defendants of the claims against them. Otherwise the system as we know it comes to a halt.

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One of the objects of the national bank system is to secure, in the event of insolvency, a just and equal distribution of the assets of national banks among unsecured creditors, and to prevent such banks from creating preference in contemplation of their failure. Compare 88 U. S. S. 56� Bank v. Colby, 21 Wall. 609, 88 U. S. 613-614; Davis v. Elmira Savings Bank, 161 U. S. 275, 161 U. S. 284, 161 U. S. 290. To that end, R.S. § 5242, 12 U.S.C. § 91, prohibits preferential payments. That prohibition is not directed solely to managing officers. The duty not so to defeat the just and equal distribution of the assets commanded by the act rests upon all who obtain such knowledge by reason of their connection with the bank -- upon directors and employees, as well as upon the executive officers. [Footnote 3] By R.S. § 5147, as amended, 12 U.S.C. § 73, each director is required to take an oath that he "will not knowingly violate or willingly permit to be violated any of the provisions of this title." Finn v. Brown,@ 142 U. S. 56, 142 U. S. 68. Ekstrom violated his oath and the duty under R.S. § 5242, which it imposed when he used knowledge of the bank's perilous condition, gained in his position of trust, to cause the withdrawal of funds by his company with a view to assuring it a preference over other depositors who lacked that knowledge.