The U.S. District Court, for the Northern District of California, held that website HTML code is copyrightable subject matter and did not follow the U.S. Copyright Office’s opinion that HTML code and the Cascading Style Sheets (“CSS”) is not subject to a copyright claim. Media.net Advertising FZ_LLC v. Netseer, Inc., Case No. 14-cv-3883 (USDC, ND CA January 12, 2016) (Available Here).
Plaintiff Media.net is a leading provider of online contextual-advertising services and offers its customers a website-based advertisement creation platform (the “Platform”) which allows its users to create custom advertisements. Website publishers using the Platform can place a Media.net ad unit on their websites so that when a website visitor clicks on the ad unit, the visitor is taken to a “search-results page” which displays relevant advertisements. For example, if a website visitor clicked on a keyword relating to travel, the search results page could show advertisements promoting deals on hotel rooms. Plaintiff obtained a copyright registration for its Original Results Page and for its Revised Results Page.
Defendant Netseer is a competing contextual-advertising provider. Defendant also provides advertising units that its customers can place on their websites. Like Plaintiffs Platform, when a user clicks on Defendants advertising unit. the user is directed to a search-results page that offers relevant advertisements. Plaintiff alleges Defendant directly copied Plaintiffs hypertext markup language (“HTML”) code, including arbitrarily-named variables and portions of the code that have no function, and used such code to create Defendants own search results page.
Netseer moved to dismiss Media.net’s complaint under Rule 12(b)(6) motion. Courts “accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party,” Manzarek v. St. Paul Fire & Marina Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008) and courts may dismiss a claim “only if ii appears beyond doubt that the plaintiff could prove no set of facts in support of his claim which would entitle him to relief.” Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011). Further, courts should grant the plaintiff leave to amend “‘if ii appears at all possible that the plaintiff can correct the defect.”‘ Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013)(quoting Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000)(en banc).
The Ninth Circuit has held that the Copyright Office’s decisions and opinions are not entitled to the level of deference afforded under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Inhale, Inc. v. Starbuzz Tobacco. Inc., 755 F.3d 1038, 1041 (9th Cir. 2014), as amended July 9, 2014, cert denied, 135 S. Ct. 758 (2014) (“Because Chevron deference does not apply to internal agency manuals or opinion letters, we defer to the Copyright Office’s views expressed in such materials “only to the extent that those interpretations have the ‘power to persuade.”‘). Instead, the Ninth Circuit has long held that the Copyright Office’s interpretations of copyright law are entitled to the lower level of deference applicable under Skidmore v. Swill & Co., 323 U.S. 134, 140 (1944); United States v. Mead Corp., 533 U.S. 218, 227 (2001)(“[A]gencies charged with applying a statute necessarily make all sorts of interpretive choices, and while not all of those choices bind judges to follow them, they certainly may influence courts facing questions the agencies have already answered.”). Under Skidmore, the degree to which a court defers to an agency’s opinion or interpretation ”will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with eartier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Skidmore 323 U.S. at 140; see Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000) (holding agency manuals are entitled to Skidmore deference, “but only to the extent that those interpretations have the power to persuade.”).
In order to prevail on its copyright infringement claims, Plaintiff Media.net is required to prove “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ’n, 499 U.S. at 361. Defendant Netseer sought summary judgment on the basis that Plaintiff’s copyright registrations do not contain copyrightable material.
Plaintiff acknowledges that the look and feel of its search results website page is not subject to copyright protection. However, Media.net has a copyright registration for its Original Results Page and for its Revised Results Page. “A copyright registration is ‘prima facie evidence of the validity of the copyright and the facts stated in the certificate” and creates a rebuttable presumption of validity. United Fabrics lnt’l, Inc. v. C & J Wear, Inc., 630 F.3d 1255, 1257 (9th Cir. 2011)(quoting 17 U.S.C. § 410(c)). The party disputing validity “must simply offer some evidence or proof to dispute or deny the plaintiffs prima facie case of infringement.” Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 345 F.3d 1140, 1144 (9th Cir. 2003). If that party successfully rebuts the presumption, the burden shifts back to the plaintiff to demonstrate a valid copyright.
Specifically, Defendant asserts Plaintiffs HTML code consists solely of uncopyrightable Cascading Style Sheets (“CSS”), which renders Plaintiffs copyright registrations invalid.
In response, Plaintiff argues its copyright registrations are valid because its HTML code is a “literary work” under section 102(a) of the Copyright Act. Opp’n at 11; see 17 U.S.C. § 102(a)(1) (“Copyright protection subsists … in original works of authorship fixed in any tangible medium of expression …. Works of authorship include … literary works[.]”). Plaintiff offers expert Mitchell, a computer science professor at Stanford University, who opines that the code “contain[s] a substantial amount of expressive conduct.” In particular, he points to “names of class styles” in CSS, since a programmer can name a “class style” however he so desires. Plaintiff essentially argues that this infuses the HTML code with creativity sufficient to establish copyrightability.
HTML code “is the standard markup language used in the design of websites” and “establishes the format and layout of text and graphics when a user views a website by instructing the user’s browser to present material in a specified manner.” Copyright Compendium (Third)§1002.4. HTML is contained between the start tag and closing tag . At the hearing, Defendant’s expert Shelton explained that HTML originally had two functions: (1) to present content and (2) to include information about how to present that content, such as font, size, color, and margins. In 1996, however, web developers began using CSS to separate a webpage’s content from its presentation. CSS thus controls the presentation of content of a webpage – that is, the look and feel to the user – without containing content. CSS are “a method of presenting structured documents a used to format and layout the organization and a uniform presentation of webpages in a written markup language, such as HTML.” Copyright Compendium (Third) §1002.5. CSS begins with the opening tag and ends with the tag. The Court further discusses “style” and “class” and notes that CSS styles are inherited into a web page.
There are different ways to build CSS into HTML. CSS are not typically contained in the same document as the HTML code but instead may be stored in a different file. The CSS is an external file which is imported into the HTML file, using an external style sheet that is imported into the webpage. Consequently, there is only HTML and content within the web pages; the presentation of the content in the CSS is contained elsewhere. If there is no style defined (pursuant to the CSS or in the HTML code itself), the web browser uses its default style settings. Developers may also insert “comments” in both HTML and CSS for other developers to see.
“The sine qua non of copyright is originality.” Feist Publ’n Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 345 (1991). Originality means that (1) the author independently created the work, and (2) the work “possesses at least some minimal degree of creativity.” Id. at 345. The required amount of creativity is “extremely low; even a slight amount will suffice.” Id. Because of this low standard, ” [t]he vast majority of works make the grade quite easily, as they possess some creative spark, “no matter how crude, humble or obvious’ it might be.” Ets-Hokin v. Skyy Spirits Inc., 225 F.3d 1068, 1076 (9th Cir. 2000)(quoting Feist Publ’n 499 U.S. at 345).
“The Copyright Office continually engages in the drawing of lines between that which may be and that which may not be copyrighted.” Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989, 994 (2d Cir. 1980). The Copyright Office has drawn such a line here. The Office will register HTML code as a literary work if it was created by a human being and if it “contain[s] a sufficient amount of creative expression.” Copyright Compendium (Third) §1006.1(A). Evidently, the fact that an HTML code produces a webpage, the look and feel of which is not subject to copyright protection, does not preclude its registration. In contrast, “[b]ecause procedures, processes, and methods of operation are not copyrightable, the Office generally will refuse to register claims based solely on CSS.” Copyright Compendium (Third) §1007.4.
In the present case, the Court found that portions of Media.net’s HTML code meet the requisite level of creativity to be copyrightable. Specifically, Plaintiffs HTML code employs names of classes, which provides the opportunity for a developer to express creativity. The Expert indicated that “.inset” is an example of a class name and the programmer could use any name for the class – such as “xyz”. Also, Plaintiff’s HTML code also contains comments. Like class names, a developer can write anything in a comment. Further, the choice of class name has a consequence for both the HTML code and the CSS. When the developer seeks to refer to a class in the HTML document, the names must match: In other words, when the developer incorporates the class into the HTML, the developer must use the name that he gave the class in the CSS in the HTML The developer cannot build a style into its HTML code without referencing the class name that was established in the CSS. In this way, CSS and the HTML are so inextricably linked that it is impossible to evaluate one without the other. Accordingly, the Court found that Plaintiff’s copyright registrations contain copyrightable subject matter and are valid. However, the Court granted Defendant’s motion for more definite statement and required Plaintiff to list the copyrighted material and the alleged infringing material.


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The American Bar Association (State and Local Government Section) has published its annual compilation of land use-related articles and reports released in 2011. At the Cutting Edge 2011, edited by Dwight Merriam, is an essential resource for land use lawyers, planning professionals, and others interested in keeping up with current trends and issues affecting land use law.
underutilization and the public use doctrine.
Three Ancel Glink attorneys contibuted to this year's publication. David Silverman authored an article on promoting green transportation. Brent Denzin and Julie Tappendorf co-authored an article on land banking of vacant property.
Visit ABA's website (publications page) to get yours today!
The OMA electronic training program for elected and appointed officials is now available on the Illinois Attorney General's website. As we reported previously, public officials currently in office have a year to complete their training (by January 1, 2013) and officials who take office after January 1, 2012, have 90 days after taking office to complete their training. (Practical tip 1: although the program appears to be available now, you might want to wait until after January 1st to complete the training -- see "glitch" discussion below).
You can access the OMA training program by clicking the "Electronic Training" link on the Attorney General's website. Then, you will need to register as an OMA Public Body Member, requiring you to create an account using the online registration form. This account will allow you to review your training records and print out your training certificate once you successfully complete the program (assuming you can get past screen 14 - more on that later). (Practical tip 2: When you choose your own password, make sure it is 8 characters in length (not 7, not 9, but exactly 8) and the password must contain a "special character." Not a number. Trust me, it doesn't work unless you follow the password instructions to the letter...I mean, special character).
After you create your account, you will be able to access the training program. There are 58 screens you have to progress through to complete the training. For obvious reasons, I won't share any of this information because if you are required by law to complete the training program, you need to find out for yourself!
One important tip about the training program - make sure you give yourself plenty of time to get through the training. The program froze up more than once, requiring me to log off and restart. Fortunately, you can choose to go back to where you left off when you logged off. Unfortunately, I never got past screen 14 because the program froze each time I answered the question. In all likelihood, these program glitches will be fixed by January 1, 2012, the effective date of the training requirement. Apparently, I was premature in trying to cross this one off the "to-do" list. I will, as my grandmother used to say, "hold my horses" and try again next week.
Today's story offers a lesson for municipalities and contractors: state agency approval may not shield activity from federal environmental laws.
The EPA and Department of Justice (DOJ) announced that Wright Brothers Construction Co. and the Georgia Department of Transportation (GDOT) have agreed to pay a $1.5 million penalty and spend more than $1.3 million to offset environmental damages to resolve alleged violations of the Clean Water Act (CWA). The civil penalty is one of the largest ever under the CWA provisions prohibiting the unauthorized discharge of dredged or fill material into waters of the United States.
The complaint alleges that between 2004 and 2007, Wright Brothers, with approval from GDOT, buried all or portions of seven primary trout streams in violation of the CWA. Wright Brothers was hired by GDOT to dispose of excess soil and rock generated during two GDOT highway expansion projects in northeast Georgia. The contracts between GDOT and Wright Brothers specifically required Wright Brothers to obtain written environmental clearance from GDOT prior to using any site as a fill site. GDOT approved sites that included streams considered to be waters of the United States. These actions resulted in the unauthorized disposal of more than one million cubic yards of excess rock and soil, impacting approximately 2,800 linear feet of stream.
Under the settlement, Wright Brothers and GDOT must perform injunctive relief measures, including purchasing 16,920 mitigation credits at an estimated cost of $1.35 million to offset the impacts to waters of the United States that cannot be restored. The credits must be purchased from mitigation banks servicing the area in which the violations occurred. A mitigation bank is a wetland, stream, or other aquatic resource area that has been set aside for the purpose of providing compensation for impacts to aquatic resources that occurred under a federal, state, or local permit.
Wright Brothers and GDOT will also remove piping and restore the bed and bank of a 150-foot stream channel that was impacted from the disposal activities. When complete, the restoration activities and injunctive relief measures will mitigate the 2,800 feet of stream impacted by the CWA violations.
The settlement is subject to a 30-day comment period and final court approval.
For more information on the settlement, visit the EPA's website.
Post authored by Brent Denzin.
The EPA announced a settlement with the Metropolitan Water Reclamation District (MWRD) to address the problem of raw sewage being released into Chicago area waterways during rain storms. MWRD has also agreed to pay a civil penalty of $675,000 and make an enormous investment in storm water/flood abatement projects.
First, the settlement requires MWRD to implement a $25 million to $50 million green infrastructure program that will reduce storm water runoff in communities. Among other green infrastructure projects, MWRD agreed to distribute rain barrels and develop projects to build green roofs, install rain gardens, or use pervious paving materials in urban neighborhoods.
Second, the settlement includes a requirement to complete the Deep Tunnel—an enormous public works project designed to detail floodwaters, in a series of stages in 2015, 2017, and 2029.
Third, the settlement requires MWRD to control trash and debris in overflows using skimmer boats to remove debris from the water so it can be collected and properly managed, making waterways cleaner and healthier.
For more information, check out the DOJ's website.
On February 8, 2012, the Metro West Council of Government will present a seminar titled "Eliminating Waste, Saving Money: Strategic Steps to Reduce Costs of Environmental Compliance and Mitigate Flood Impacts." The seminar will focus on quick and easy steps to protect communities from environmental liability and reduce impacts of flooding—while saving money in the process.
Ancel Glink Attorney Brent Denzin will address various ways communities can streamline their codes and ordinances. Brent will also provide tips for compliance practices. Eric Neagu of Weaver Boos Consultants will discuss ways communities can reduce costs by incorporating green infrastructure and reducing flooding and storm water pollution.
The seminar will be held at the Sugar Grove Fire Protection District building located at 25 Municipal Drive, Sugar Grove, Illinois, from 9:00 a.m. to 10:30 a.m.
With only two weeks left in 2011, and many lucky folks heading out of the office for the rest of the year, we thought it would be helpful to provide a brief summary of some of the new laws affecting municipalities that take effect on January 1, 2012.
Public Officials Must Complete Electronic Open Meetings Act Training.
As we reported on September 21, 2011, P.A. 97-0504 added a new training requirement for all elected and appointed public officials. Officials holding office on January 1, 2012, have one year to complete the training. Officials taking office after January 1, 2012 will have 90 days to complete the training. Officials who have already completed an OMA training program do not have to take it again.
The electronic training program is administered by the Public Access Counselor (PAC). Upon completion of the training, each official must submit a certificate of completion to the PAC. A certificate of completion covers the official for any committee or subcommittee of the public body and for every other public body of which the official may be a member.
Municipalities Must Post Employee Salary Information.
Under the new law, “total compensation package” is defined as salary, employer-paid health insurance premiums, housing allowance, vehicle allowance, clothing allowance, bonuses, loans, vacation days which will be earned in that year and sick days which will be earned in that year.
If an employer maintains a website, it can post the information on its website or post the information available at its main office. However, if an employer selects this option, it must also post directions on its website on how to access the information. If the employer does not have a website, it must post the information at its main office.
Contractors Subject to New Record-Keeping Obligations under Prevailing Wage Act.
P.A. 97-0571 amends the Prevailing Wage Act to require contractors and subcontractors to keep records for at least 3 years from the date of the last payment on a contract or subcontract. The new law also requires contractors to file a monthly certified payroll signed by the contractor or agent certifying that he or she has examined the payroll records. Contractors now have 3 days (instead of 7) to make records available for inspection by the public agency. For certain violations, contractors can be barred from public works projects for a four year period.
Municipalities Can Recover Overpayment of Wages and Benefits.
P.A. 97-0120 amends the Illinois Wage Payment and Collection Act to authorize municipalities to make deductions from employee wages or final compensation for overpayments that result from a typographical or mathematical error made by the municipality or to collect a debt owed to a municipality. The amount of the deduction cannot exceed 15% of the net amount of the payment. Prior to making the deduction, the municipality must certify that (i) the employee has received notice of a wage deduction and opportunity for a hearing. (ii) the employee has been afforded a hearing by the municipality to dispute the debt.
Back Seat Passengers Now Have to Buckle Up.
P.A. 97-0016 requires all back seat passengers to wear a seatbelt, but exempts passengers of emergency vehicles and taxi cabs.
The Chicago Bears are not going to the playoffs.
Can a Taxpayer Sue for Illegal Municipal Expenditures Without Showing Pecuniary Harm?
In Highway J Citizens Group v. Village of Ritchfield, a citizens group challenged an annexation by the Village of Ritchfield, Wisconsin of certain property located in the Town of Polk. Plaintiffs claimed that the annexation did not meet the statutory contiguity requirement and resembled a "balloon on a string," contrary to state annexation laws. The complaint alleged that the annexation caused damages to members of the citizens group who resided in the Town of Polk due to lost property tax revenue and to members of the group who reside in the Village of Ritchfield (the annexing municipality) because the Village was required to make substantial annual payments to the Town as a result of the annexation.
The trial court dismissed the case, finding that plaintiffs lacked standing to challenge the annexation. The appellate court affirmed on the same basis. The appellate court held that a taxpayer cannot "simply challenge an ordinance merely because he or she disagrees with the legislative body." Instead, a taxpayer must have "sustained, or will sustain, some pecuniary loss before he or she has standing." Because the members of the citizens' group were not owners of property within the annexed territory, they had no direct, legal interest in the annexation. According to the court, plaintiffs' allegations of pecuniary harm were no different than the harm suffered by any other taxpayer in the Town of Polk or Village of Ritchfield.
So, why do we care about an unpublished decision out of Wisconsin? Well, just last month, plaintiffs filed a petition for certiorari to the United States Supreme Court. In their brief, plaintiffs argue that the Supreme Court and five of the Circuit Courts of Appeal (First, Second, Sixth, Ninth, and D.C.) do not require actual pecuniary harm to establish municipal taxpayer standing. According to plaintiffs, the Third, Fourth, and Seventh Circuits do require a showing of actual pecuniary harm. It is this alleged Circuit split that forms the basis for plaintiffs' writ of cert to the Supreme Court.
While this particular case focuses on the narrow issue of whether a municipal taxpayer has standing to challenge an annexation, the question presented to the Supreme Court could have broader application in taxpayer challenges to any municipal expenditure.
It remains to be seen whether the Supreme Court will grant cert and answer the plaintiffs' question: Does a taxpayer have standing to sue for illegal municipal expenditures without having to show pecuniary harm?
In January, the U.S. Supreme Court will hear oral argument in a case involving governmental enforcement of federal environmental laws against private property owners. In Sackett v. EPA, a property owner challenged the EPA’s use of so-called “administrative compliance orders.” The EPA uses these administrative orders to allege that a property owner is in violation of an environmental law provision and to demand that the owner bring the property into compliance. The Supreme Court will decide whether a property owner can immediately go to court to challenge the EPA's order or whether the owner must wait to challenge the order until after the EPA sues the property owner in a civil or criminal action.
The case involved a challenge to an EPA compliance order that asserted that the Sacketts had violated the Clean Water Act when they filled in a wetland on their property without a permit. The compliance order required the Sacketts to remove the fill material and restore the property to its original condition. The owners requested a hearing before the EPA, which was denied. The Sacketts then filed a lawsuit with the district court claiming that the compliance order was arbitrary and capricious, violated their due process rights, and was unconstitutionally vague. The district court dismissed the Sacketts' case. On appeal, the Ninth Circuit affirmed, concluding that the Sacketts were not entitled to pre-enforcement judicial review of the EPA compliance order.
The question presented to the Supreme Court is deceptively simple - Is a property owner entitled to judicial review of an EPA administrative compliance order? The issues surrounding that question, however, are far from simple and have kept quite a few environmental advocates and opponents (and their lawyers) busy. In fact, 14 amici briefs were filed in support of the Sacketts, including briefs filed by the National Association of Home Builders and the American Civil Rights Union, among others. A common theme among these briefs is the assertion of a conflict between these environmental laws and the Fifth Amendment right that no person be deprived of property without due process of law.
Those of us who work in the land use field are very interested in seeing how the Court will resolve the alleged conflict between environmental protection and property rights.
We will keep you posted on this case. For more information about this case, visit Scotusblog.
Never more than 140 characters.
Like most other municipalities throughout the state and across the country, the City of Chicago has in place an ordinance that regulates the height of weeds on private property. The City’s weed ordinance was recently the subject of a constitutional challenge by a property owner who was cited, and found to have violated, the ordinance. The appellate court upheld both the weed ordinance and the City’s administrative proceedings in Schacter v. City of Chicago.
In this case, the property owner had asserted a number of procedural and substantive challenges to the administrative proceedings, as well as constitutional challenges to the weed ordinance. Specifically, the owner alleged that the weed ordinance: (1) was vague and subjective; (2) invited arbitrary enforcement; (3) had been arbitrarily enforced; (4) failed the "strict scrutiny" test because it limited the right to property in an overly broad manner; and (5) bore no rational relationship to any legitimate or intended public purpose.
Municipalities have traditionally justified and supported their “weed ordinances” with recitals that emphasize the health and safety benefits to the regulation (control of rodents, prevention of disease, etc). Based on this decision, aesthetics alone may provide sufficient justification and support for a municipality’s property maintenance regulations.
Check out the winter issue of Ancel Glink's e-newsletter, In the Zone: Current Trends in Land Use Law, for updates on land use and economic development topics. This edition focuses on "controversial land uses" including municipal regulation of landfills, billboards, cellular facilities, and agricultural uses.
This article compares three recent Illinois cases that considered challenges to municipal regulation of various controversial land uses, including billboards, landfills, and agricultural uses.
In our first case, the court upheld a municipal zoning decision resulting in the removal of a billboard - a common eyesore that many local governments desire to eliminate.
An even more onerous land use - a landfill - is the subject of our second case. The court in this case considers what constitutes a fundamentally fair landfill siting hearing, a procedural due process concept that can also be applied to traditional zoning hearings.
Our third case reminds municipalities of the importance of carefully defining controversial land uses in local zoning ordinances - here, agricultural uses and the boarding of horses.
We also discuss another controversial land use that might create the biggest paradox in a community - the erection of cellular towers; no one wants one nearby, but no one is willing to put down their phone. This article summarizes how courts have reviewed cellular zoning decisions in light of the FCC's latest administrative order adopting "shot clock regulations" to place time limits on a municipality's review and consideration of a cellular tower application.
Perhaps, the biggest thing to happen during the recent veto session of the Illinois General Assembly is what did not happen, as a tax package designed to keep several high-profile firms in Illinois earned only eight votes in the Illinois House, after passing out of the Senate with a veto-proof majority. CME, CBOE and Sears are each seeking millions of dollars in tax relief before a tax increase kicks in next July. Observers expect that this will not be the end of the tax relief effort, and the legislature may take action on a new plan as early as Monday, December 12th.
Yesterday, I reported on the six binding opinions issued by the Illinois Attorney General (PAC) in 2011. Today, I have summarized the four binding opinions issued in 2010.
Spoiler alert - just as in 2011, the PAC ruled against the public body in each of the 2010 opinions summarized below.
An individual filed a FOIA request seeking a copy of a public body's water meter card showing reading for a six month period. The public body responded that the requestor could inspect a copy of the records, but the public body was not obligated to provide a copy of the records. On appeal, the PAC determined that the public body violated FOIA by not furnishing copies of the records as required by Section 3(b) of FOIA.
An individual filed a FOIA request for certified payroll records and contracts with various contractors. The public body charged a fee for the copies that were provided to the requestor as well as a fee for duplicate copies that were retained by the public body. The individual appealed the duplicate fee charges to the PAC. The PAC determined that although FOIA requires a public body to retain a copy of the original request and response, the public body is not entitled to pass on duplicate copy costs to the requestor. In short, the PAC determined that the public body violated FOIA.
Reporters filed a FOIA request for autopsy records of Christopher Kelly (fundraiser for former Governor Blagojevich) and Michael Scott (President of the Chicago Board of Education), both suicide victims. The requested documents included photographs, toxicology reports, police reports, and various other records. The public body requested pre-authorization from the PAC to deny the request based on the "personal privacy" exemption, arguing that the privacy interests of the victims' families outweighed the public's interest in the release of these records. The PAC denied the pre-authorization request except as it related to post-mortem photographs, ordered the public body to release the records, and determined that the public body violated FOIA by not releasing the records.
A reporter filed a FOIA request for a copy of a settlement agreement in an employment discrimination case. The public body denied the request, stating that it did not have a copy of the settlement agreement because the lawsuit was defended by the public body's insurance carrier. The PAC determined that Section 2.02 of FOIA expressly states that settlement agreements are public records subject to release to the public and that the public body violated FOIA by not providing a copy of the settlement agreement.
UPDATED 4/9/2012: Under state law, the Public Access Counselor of the Office of the Illinois Attorney General, is authorized to issue binding opinions in response to requests for review submitted by members of the public. The PAC was granted this authority in 2010 when the General Assembly amended both the OMA and FOIA. A request for review can be filed when a Freedom of Information Act request has been denied by a public body or when a public body has allegedly violated the Open Meetings Act. According to a story published by the Chicago Tribune today, most of the complaints filed with the PAC involve FOIA requests rather than open meetings. For example, last year, the PAC handled more than 5,200 new matters regarding public access, but only about 200 were for allegations of open meetings violations.
According to the AG's website, the PAC has issued just 11 binding opinions in the two years since the PAC was created -- four in 2010 and seven in 2011 and all involving FOIA appeals. I have summarized the 2011 opinions in this post and will provide a summary of the 2010 opinions in a future blog.
Spoiler alert - the PAC ruled against the public body in each of the seven opinions from 2011 that are summarized below and, in all but two of the opinions, the requestor appealing the FOIA denial was a reporter.
An individual filed a FOIA request seeking arrest records and gunshot residue test report. The request was denied based on the criminal history record exemption under Section 2.15 and because the public body did not possess the gunshot residue report. On appeal, the PAC first determined that since the gunshot residue report was not in the public body 's possession, the denial was permissible. However, the PAC also determined that the arrest records were not exempt under FOIA and, therefore, the public body violated FOIA by improperly denying the records.
A reporter filed a FOIA request seeking records containing the number of sworn officers assigned to each district. The public body denied the request under Section 7(1)(v), claiming that the information related to the mobilization and deployment of police personnel. The PAC determined that the records were not exempt because the public body failed to demonstrate how the number of officers assigned to a district could reasonably be expected to jeopardize the effectiveness of security measures or safety of the officers or public. In short, the PAC found that the public body violated FOIA.
A reporter filed a FOIA request seeking various records relating to a university’s presidential search. The university sought pre-authorizations to withhold certain information under Section 7(1)(c) as personal privacy information, which was partially denied by the PAC. The university then partially denied the FOIA request. A subsequent request was filed, seeking the documents previously denied and the university denied the subsequent request, asserting that providing the requested documents would be unduly burdensome and that the request was a “repeated request” from the same person for the same records. The PAC found that the university violated FOIA because the public body did not either (1) previously disclose the requested records or (2) property deny the previous request.
A reporter filed a FOIA request seeking a copy of a settlement agreement between a public body and a former employee. The public body denied the request under Section 7(1)(s) which permits a public body to withhold records relating to insurance or self-insurance claims and loss or risk management information because the settlement amount was paid by the public body’s insurance carrier. The PAC determined that the settlement agreement was not exempt under FOIA because (1) FOIA was recently amended to expressly provide that settlement agreements are public records subject to release and (2) Section 7(1)(s) only protects proprietary information regarding policies, procedures, and practices of the self insurance or risk management pool or association, and not information relating to individual claims or losses, including the amount to settle a claim. In short, the PAC found that the public body violated FOIA.
A reporter filed a FOIA request seeking 50 individual reports containing “nerve conduction velocity” results conducted as part of workers compensation claims involving employees at a particular correctional center. The requestor subsequently clarified his request to the public body that personal identifying information could be redacted. The public body denied the request, claiming that the tests were risk management records protected by Section 7(1)(s). Based on similar analysis as contained in PAC Opinion 11-004, the PAC found that the records were not "proprietary" insurance or risk management documents and that the public body violated FOIA.
As I discussed in more detail in a separate blog post on November 17, 2011, the PAC issued a binding opinion regarding the denial of reporter's FOIA request for text messages, emails, and other electronic records on public officials’ personal cell phones and other devices. The public body had argued that the records were not “public records” subject to release, but the PAC disagreed and determined that the public body violated FOIA.
An individual filed a FOIA request for electronic and paper copies of mining plans with the Department of Natural Resources. The Department responded that the records were available on microfiche and invited the requester to schedule an appointment for inspection. The requester filed a request for review with the PAC, arguing that the Department's response was a denial of his request for a printed copy of the reclamation plan. The PAC agreed, finding that the Department violated FOIA by refusing to provide copies of the records.
On December 1, 2011, the Illinois Supreme Court decided Forest Preserve of DuPage County v. First National Bank of Franklin Park, 2011 IL 110759 (2011). The case involved a challenge to a condemnation action filed by the District to take 204 acres of land consisting of an existing public golf course and undeveloped land. The landowners challenged the condemnation on a number of grounds, including the jury’s determination of value as of the date of the filing of the action. In this decision, the Supreme Court determined that the taking occurs when the government (1) deposits the amount of compensation that has been ascertained and awarded and (2) acquires title and the right to possess the property and not at the time of filing of the action.
This case began with the filing of the condemnation action by the District in 1999. The next seven years were spent sorting out the legal rights and responsibilities between the landowners. No final action could be taken on the condemnation action until the landowners’ legal issues were resolved. Finally, in 2007, a jury trial on the condemnation action was held where it was determined that the fair market value of the property was approximately $11 million, a valuation only slightly above what the District offered the landowners in 1999. The jury based the property valuation on the value as of the filing date in 1999. The landowners challenged that valuation, contending that the property had increased in value from 1999 to 2007 to be more than twice that amount or $25.5 million. The appellate court vacated the jury verdict on the issue of fair market value, and sent the case back to the trial court to determine whether the jury verdict awarded just compensation to the landowners as required under the state and federal constitutions. On appeal, the Supreme Court affirmed the appellate court.
The dispute as to fair market valuation arose because provisions of Illinois’ Eminent Domain Act suggest that the date of valuation is the date on which the condemnation action is filed. In vacating the jury’s valuation, the Illinois Supreme Court relied on the U.S. Supreme Court’s decision in Kirby Forest Industries, Inc. v. United States, 467 U.S. 1 (1984), which held that the constitutional fifth amendment right to just compensation entitles a landowner to fair market value on the date of taking, which it defined as payment and the passing of title. The Illinois Supreme Court explained that establishing a taking at this point in time would (1) enable Illinois trial courts to hold post-trial Kirby hearings to ensure that just compensation is properly awarded to landowners and (2) align Illinois eminent domain law with federal eminent domain law, ensuring its constitutionality.
Post authored by David Silverman.
On December 1, 2011, the Illinois Supreme Court held that benefits under the Public Safety Employees Benefits Act (PSEBA) begin on the date of termination of employment, reversing an appellate court’s decision that PSEBA benefits attach on the date of the injury.
The case, Nowak v. City of Country Club Hills, involved a police officer who was injured in the line-of-duty. Three years after his injury, he was awarded a line-of-duty disability. The officer claimed that he was entitled to reimbursement of the portion of his health insurance premiums that he paid while still employed during the three year period from his injury to the disability determination. The trial court held that PSEBA attaches on the date of the determination of the disability. The appellate court reversed, holding that benefits kick in on the date of the injury.
The Illinois Supreme Court reversed the appellate court’s decision, agreeing with the trial court that PSEBA benefits do not begin until the officer’s employment was terminated. The Court first examined the language of the statute, finding that it was silent on the issue of when the employer’s obligation attaches. Because the statute could be reasonably interpreted in one of two ways (as the trial court and appellate court established in their differing opinions) the Supreme Court found the language ambiguous and turned to the legislative history for guidance. Relying on statements made by legislators in debating the bill, as well as a public policy analysis, the Court determined that the legislature intended PSEBA to be a post-employment benefit, meaning that PSEBA benefits will attach on the date that it is determined that an officer’s injury is “catastrophic” and therefore eligible for a line-of-duty disability pension, not on the date of injury.
An employer who employs a full-time law enforcement…officer…who…suffers a catastrophic injury or is killed in the line of duty shall pay the entire premium of the employer’s health insurance plan for the injured employee, the injured employee’s spouse, and for each dependent child of the injured employee until the child reaches the age of majority…820 ILCS 320/10(a).
On November 28, 2011, the U.S. Court of Appeals for the Ninth Circuit ruled that it would rehear en banc its May 2, 2011 decision in Nordyke v. King. That case involved a challenge to a municipal gun show ordinance. The plaintiffs had promoted gun shows at the Alameda County fairgrounds from 1991 until the county enacted the ordinance in 1999 after a shooting. Plaintiffs initially challenged the ordinance based on First Amendment and Equal Protection grounds, which were rejected by the U.S. District Court. The plaintiffs appealed to the Ninth Circuit after the District Court refused to allow them to add a Second Amendment claim in an amended complaint.
In the May decision, a three-judge panel of the Ninth Circuit affirmed dismissal of the plaintiffs’ First Amendment claim, holding that it was not convinced that Alameda had adopted the law to limit free expression among "gun culture" members or that the sale of guns at shows was a form of advocacy or commercial speech protected by the First Amendment. The panel had also ruled in favor of the County on plaintiffs’ Equal Protection Clause argument.
However, the panel ruled in favor of the plaintiffs on their Second Amendment argument, holding that they should be allowed to amend their complaint to add a Second Amendment claim because of recent decisions by the U.S. Supreme Court in the six years since they had initially raised their claim. Specifically, the panel stated that: “Since then, all of the Supreme Court’s modern Second Amendment case law has been created. See McDonald v. Chicago, 130 S. Ct. 3020 (2010); District of Columbia v. Heller, 554 U.S. 570 (2008).” The panel then remanded the case to the District Court.
Based on this ruling, the full Ninth Circuit will have a chance to review Alameda County’s ordinance based on the analysis contained in McDonald and Heller.

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Cellular One Group v. Card Resources Corp.
Complainant is Cellular One Group ("Complainant" or "Cellular One"), a Delaware partnership, located and doing business at 5001 LBJ Freeway, Suite 700, Dallas, Texas, USA.
Respondent is Card Resources Corp. ("Respondent" or "Card Resources"), located at 40 Exchange Place, Suite 400, New York, New York, 10005 USA.
The domain name at issue is "digitalone.net". The registrar is Network Solutions, Inc. (the "Registrar") located at 505 Huntmar Park Drive, Herndon, Virginia, 20170 USA.
The WIPO Arbitration and Mediation Center (the "Center") received the Complaint of Complainant via email on September 6, 2000. On September 8, 2000, the Center received hardcopy of the Complaint. The Center sent an Acknowledgment of Receipt of Complaint to Complainant. The Complainant paid the required fee.
On September 14, 2000, after sending a Request for Verification to the Registrar requesting verification of registration data, the Registrar confirmed, inter alia, that it is the registrar of the Domain Name and that the Domain Name is registered in the Respondent's name.
On September 15, 2000, the Center verified that the Complaint satisfies the formal requirements of the ICANN Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
On September 19, 2000, the Center sent a Notification of Complaint and Commencement of Administrative Proceeding to the Respondent together with copies of the Complaint, with a copy to the Complainant. This notification was sent by the methods required under paragraph 2(a) of the Rules.
On October 10, 2000, the Center advised Respondent that it was in default for failing to file its Response. No Response has been received.
On November 8, 2000, the Center sent a communication to the Complainant.
On November 22, 2000, after the Center received a completed and signed Statement of Acceptance and Declaration of Impartiality and Independence from Richard W. Page (the "Sole Panelist"), the Center notified the parties of the appointment of a single member panel consisting of the Sole Panelist.
Cellular One owns numerous U.S. and international trademark applications and registrations for the mark DIGITALONE and for related designs, derivations and logos for a wide variety of goods and services, including electronic products and telecommunications services. These U.S. and international applications and registrations are hereinafter referred to as the "Trademarks." The Complainant�s Trademarks predate any use or registration of the Domain Name "digitalone.net", are in full force and effect, and have not been abandoned.
In an effort to promote the goods and services provided by its licensees under the brand name DIGITALONE, Complainant has engaged in advertising and media campaigns including print publications and word of mouth. Cellular One owns three domain name registrations using the DIGITALONE mark, namely "digitial-one.net", "digitalone.cc" and "digitalone.ws". Through its ongoing and costly media and advertising campaigns, and by its licensees providing service under the Trademarks, Complainant has created monetary value, reputation and goodwill in the Trademarks.
The Registrar�s record for "digitalone.net" was created on December 13, 1999, after the registrations and applications comprising the Trademarks.
Cellular One is not related to Respondent, has no contracts or agreements with Respondent, has no business relationship or transactions with Respondent. Cellular One has not granted its permission or consent to the use and appropriation of DIGITALONE in Respondent�s domain name, in any manner whatsoever.
A. Complainant contends that it has registrations and applications with the United States Patent and Trademark Office for DIGITALONE and the variants comprising the Trademarks. Complainant further contends that the Domain Name is identical with and confusingly similar to the Trademarks pursuant to the Policy paragraph 4(a)(i).
B. Respondent has not contested Complainant�s assertion that Complainant has the registrations and applications comprising the Trademarks or that the Domain Name is confusingly similar to the Trademarks.
Respondent does not contest Complainant�s contention that Respondent has no rights or legitimate interest in the Domain Name.
Respondent does not contest Complainant�s contention that the registration and use of the Domain Name is in bad faith.
Even though Respondent has not filed a Response or offered evidence contesting Complainant�s assertions, the Sole Panelist will review the existing proof to determine whether Complainant has established the necessary elements of its claim.
Complainant contends that it has registrations and applications with the United States Patent and Trademark Office comprising the Trademarks. Complainant further contends that the Domain Name is identical with and confusingly similar to the DIGITALONE mark and the variants contained in the Trademarks pursuant to the Policy paragraph 4(a)(i).
Complainant has sufficiently proven the existence of the registrations and applications comprising the Trademarks. Furthermore, this proof is uncontested. Therefore, the Sole Panelist finds that Complainant has the prior right to use the mark DIGITALONE and the variants comprising the Trademarks.
Complainant asserts that the Domain Name is identical with and confusingly similar to the DIGITALONE mark and the variants contained in the Trademarks because visually, the domain name is exactly the same as the Trademarks. The Domain Name "digitalone.net" contains the entire DIGITALONE mark. Phonetically, the Domain Name is the same as the Trademarks. The speaker has no alternative but to say "digitalone" as the main part of the pronunciation. The Domain Name has the same commercial meaning to the public as the Trademarks. It means nothing other than the business associated with Cellular One. "Digitalone" is not a dictionary word. Because of this similarity in sight, sound and meaning, members of the public who find "digitalone.net" on Internet search engines or elsewhere are likely to believe falsely and mistakenly that the source or origin of the domain name is Cellular One, or that the Domain Name is sponsored by, endorsed by, approved by, licensed by, connected, associated or affiliated with Cellular One.
Therefore, the Panel finds that the Domain Name is identical with and confusingly similar to the DIGITALONE mark and the variants comprising the Trademarks pursuant to the Policy paragraph 4(a)(i).
Respondent has no relationship with or permission from Complainant for the use of the DIGITALONE mark or its variants comprising the Trademarks.
Therefore, the Sole Panelist finds that Respondent has no rights or legitimate interest in the Domain Name pursuant to the Policy paragraph 4(a)(ii).
The Sole Panelist finds that the allegations of Complainant are insufficient to establish any of the four nonexclusive criteria set forth in the Policy paragraph 4(b).
The four criteria established by the Policy paragraph 4(b) are nonexclusive. In addition to these criteria, other factors alone or in combination can support a finding of bad faith.
One such factor is that Respondent has made no use of the Domain Name. Cellular One alleges that Respondent has not developed any active web site at "www.digitalone.com" or made any other use of the Domain Name "digitalone.net". Respondent has not contested these allegations. Such failure to use a domain name in a bona fide manner has been found to constitute bad faith. See Telstra Corp. v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000); Leland Stanford Junior Univ. v. Zedlar Transcription & Translation, FA 0006000094970 (NAF July 11, 2000); Revlon Consumer Prods. Corp. v. Yosef, D2000-0468 (WIPO July 27, 2000) (citing cases where panel found inaction constitutes bad faith).
In addition, on or about May 10, 2000, Complainant notified Respondent that the Domain Name violated the U.S. intellectual property rights of Complainant, and requested that Respondent cease and desist this conduct and transfer the name. Respondent has ignored Complainant�s request to transfer ownership of the Domain Name. Failure to respond to a complainant�s efforts to make contact provides "strong support for a determination of �bad faith� registration and use." Encyclopaedia Britannica v. Zucarini, D2000-0330 (WIPO June 7, 2000).
Complainant alleges that Respondent had actual knowledge of the Trademarks and their fame, and nevertheless proceeded to register the Domain Name. Complainant further alleges that Respondent had constructive knowledge of Complainant�s prior rights in the Trademarks because of the registration of the DIGITALONE mark. Respondent does not contest these allegations. Actual or constructive knowledge of the Complainant�s rights in the Trademarks is a factor supporting bad faith. See Expedia, Inc. v. European Travel Network, D2000-0137 (WIPO April 18, 2000); Document Technologies v. International Electronic Communications, Inc., D2000-0270 (WIPO June 6, 2000) (Respondent�s knowledge of complainant�s mark at the time of registration of the domain name suggests bad faith).
Complainant cites as precedent and authority, Cellular One Group v. Paul Brien, D2000-0028 (WIPO March 10, 2000). In that case, Complainant filed a WIPO complaint against the Registrant of domain name "cellularonechina.com". The WIPO panel agreed with Complainant, based on facts essentially the same as those set forth in this Complaint, that the Registrant unlawfully registered an identical or confusingly similar domain name in bad faith. Moreover, the Panel inferred bad faith use of "cellularonechina.com", because the domain name included Complainant�s entire trademark. In light of Cellular One�s trademark registrations and applications, "it is not possible to conceive of a plausible circumstance in which Respondent could legitimately use the domain name." See Telstra Corp. Ltd. v. Nuclear Marshmallows, WIPO Case No. D2000-0003 � 7. The Sole Panelist concludes that, in the instant case, it is a likewise permissible inference to conclude bad faith use of the domain name since Respondent�s domain name is composed entirely of Complainant�s trademark and the impossibility of conceiving of a legitimate use of the Domain Name.
Therefore, the Sole Panelist finds that, independent of the four nonexclusive criteria in the Policy paragraph 4(c), Complainant has shown sufficient facts to support a finding that the Domain Name was registered and used in bad faith pursuant to the Policy paragraph 4(a)(iii).
The Sole Panelist concludes (a) that the Domain Name "digitalone.net" is identical with and confusingly similar to the DIGITALONE mark and the variants constituting the Trademarks, (b) that Respondent has no rights or legitimate interest in the Domain Name and (c) that Respondent registered and used the Domain Name in bad faith. Therefore, pursuant to paragraphs 4(i) of the Policy and 15 of the Rules, the Sole Panelist orders that the Domain Name be transferred to Cellular One Group.


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G.R. No. L-21738 March 1, 1968 - IN RE: CHOA EK YONG v. REPUBLIC OF THE PHIL.
G.R. No. L-23066 March 1, 1968 - REPUBLIC OF THE PHIL. v. VICENTE S. UMALI, ET AL.
G.R. No. L-23426 March 1, 1968 - LEOPOLDO SY-QUIA, ET AL. v. MARY MARSMAN, ET AL.
G.R. No. L-22667 March 1, 1968 - JOSE DE ASIS, ET AL. v. ANGELINA DUMADAUG, ET AL.
G.R. No. L-24115 March 1, 1968 - EUFEMIA V. SHAFFER v. VIRGINIA G. PALMA, ET AL.
G.R. No. L-28473 March 6, 1968 - TAHIR LIDASAN v. COMMISSION ON ELECTIONS, ET AL.
G.R. No. L-28598 March 12, 1968 - NAGA TAGORANAO v. COMMISSION ON ELECTIONS, ET AL.
G.R. No. L-28725 March 12, 1968 - BATANGAS LAGUNA TAYABAS BUS COMPANY v. JOSUE L. CADIAO, ET AL.
G.R. No. L-24213 March 13, 1968 - VICTORIAS MILLING CO., INC. v. COURT OF TAX APPEALS, ET AL.
G.R. No. L-25420 March 13, 1968 - PHILIPPINE LONG DISTANCE TELEPHONE COMPANY v. FREE TELEPHONE WORKERS UNION, ET AL.
G.R. No. L-25460 March 13, 1968 - INOCENCIO C. TAN v. PEOPLE OF THE PHIL.
G.R. No. L-26437 March 13, 1968 - RAQUEL G. DOCE v. BRANCH II OF THE COURT OF FIRST INSTANCE OF QUEZON, ET AL.
G.R. No. L-25001 March 15, 1968 - PEOPLE OF THE PHIL. v. RODOLFO B. ALBAPARA, ET AL.
G.R. No. L-21610 March 15, 1968 - CENTRAL AZUCARERA DON PEDRO v. DON PEDRO SECURITY GUARDS UNION, ET AL.
G.R. Nos. L-20662 & L-20663 March 19, 1968 - PHILIPPINE MARlNE OFFICERS’ GUILD v. COMPAÑIA MARITIMA, ET AL.
G.R. No. L-24466 March 19, 1968 - PEOPLE OF THE PHIL. v. JAIME CAPITO @ JIMMY, ET AL.
G.R. No. L-24826 March 20, 1968 - ST. PAUL FIRE & MARINE INSURANCE COMPANY v. MACONDRAY & CO., INC., ET AL.
G.R. No. L-24918 March 20, 1968 - FELIX DE VILLA v. ANACLETO TRINIDAD, ETC., ET AL.
G.R. Nos. L-20589-90 March 21, 1968 - ERNESTO DEL ROSARIO v. VICTORINO DE LOS SANTOS, ET AL.
G.R. No. L-23565 March 21, 1968 - INSULAR LIFE INSURANCE CO., LTD. v. SOCIAL SECURITY COMMISSION, ET AL.
G.R. No. L-25640 March 21, 1968 - VICTORIAS MILLING CO., INC. v. WORKMEN’S COMPENSATION COMMISSION, ET AL.
G.R. No. L-26538 March 21, 1968 - MELECIO ROSARIO, ET AL. v. TAYUG RURAL BANK, INC., ET AL.
G.R. Nos. L-26922 and 26923 March 21, 1968 - EUFRACIO FAGTANAC, ET AL. v. COURT OF APPEALS, ET AL.
G.R. No. L-19378 March 27, 1968 - ACOJE MINING COMPANY, INC. v. COMMISSIONER OF INTERNAL REVENUE, ET AL.
G.R. No. L-20046 March 27, 1968 - ROMEO PAYLAGO, ET AL. v. INES PASTRANA JARABE, ET AL.
G.R. No. L-22265 March 27, 1968 - COLLECTOR OF INTERNAL REVENUE v. GOODRICH INTERNATIONAL RUBBER CO.
G.R. No. L-22984 March 27, 1968 - MARGARITO SARONA, ET AL. v. FELIPE VILLEGAS, ET AL.
G.R. No. L-23467 March 27, 1968 - AMALGAMATED LABORERS’ ASSOCIATION v. COURT OF INDUSTRIAL RELATIONS, ET AL.
G.R. Nos. L-24123, L-24124, L-24125 & L-24126 March 27, 1968 - GREGORIO ROBLES v. CONCEPCION FERNANDO BLAYLOCK, ET AL.
G.R. No. L-25471 March 27, 1968 - BENGUET CONSOLIDATED, INC., ET AL. v. BCI EMPLOYEES & WORKERS UNION-PAFLU, ET AL.
G.R. No. L-22535 March 28, 1968 - ALFREDO VILLARUEL v. MANILA PORT SERVICE, ET AL.
G.R. No. L-24440 March 28, 1968 - PROVINCE OF ZAMBOANGA DEL NORTE v. CITY OF ZAMBOANGA, ET AL.
G.R. No. L-27757 March 28, 1968 - RICARDO DEQUITO v. LEOPOLDO LOPEZ, ET AL.
G.R. No. L-20802 March 29, 1968 - REPUBLIC OF THE PHIL. v. REPUBLIC SURETY & INSURANCE CO., INC.
G.R. No. L-21890 March 29, 1968 - MANILA PORT SERVICE, ET AL. v. COURT OF APPEALS, ET AL.
G.R. No. L-22062 March 29, 1968 - GREGORIO Y. ROMERO v. MUNICIPAL MAYOR OF BOLJOON, ET AL.
G.R. No. L-26830 March 29, 1968 - CIPRIANO A. FALCON, ET AL. v. FELICIANO OROBIA, ET AL.
G.R. No. L-23375 March 30, 1968 - FRANCISCO ORFIDA v. PEDRO PANUELOS, ET AL.
G.R. No. L-28539 March 30, 1968 - SALVADOR Q. PEDIDO, ET AL. v. COMMISSION ON ELECTIONS, ET AL.

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Morrison, Fred L. (January, 1987). Legal Issues in The Nicaragua Opinion. American Journal of International Law 81: 160-166. "Appraisals of the ICJ's Decision. Nicaragua vs United State (Merits)"
The opinion of the International Court of Justice in the Nicaragua 1 case will be of interest primarily because of its general pronouncements on questions of international law. Its impact on the immediate controversy appears slight; the United States Government has strongly indicated its view that the Court lacked jurisdiction over the controversy, 2 has vetoed subsequent proposed Security Council resolutions on the subject, 3 and is appropriating additional funds for the contested activities, without apparent reference to the Court's decision. This Comment is limited to the general theoretical and legal issues and will not treat the underlying factual issues, the Court's disposition of the immediate case or the implications of the opinion for the evolution of the dispute.
Two of these issues are substantive: the ruling of the Court on sources of new international law and its interpretation of the limits on the use of self-defense to aggression. Two are procedural: its treatment of nonappearing states and the consequences of its bifurcation of jurisdiction and merits phases. Each of these topics merits more substantial treatment than is possible in the short space available here. The basic issues can only be outlined.
The most significant new pronouncement is the Court's treatment of the genesis of new customary international law. It will have ramifications far beyond the immediate controversy.
This and other innovations were occasioned by a peculiarity of the now revoked 1946 United States Declaration accepting the jurisdiction of the Court. That document excluded "disputes arising under a multilateral treaty, unless . . . all parties to the treaty affected by the decision are also parties to the case before the Court." 5 Thus, Nicaragua's claims based directly upon alleged violations of the United Nations Charter and inter-American treaties were excluded from consideration, even on the assumption that jurisdiction [*161] was established. 6 Nicaragua had anticipated this problem and had originally pleaded its case in the alternative under the Charter and treaties and under customary international law. 7 Its problem was in establishing a customary law separate from the Charter and treaty obligations.
The Court found -- in rather substantial detail -- that much of the alleged customary law was established principally through its elaboration of two resolutions of the United Nations General Assembly, Resolution 2625 (XXV) on the Principles of Friendly Relations and Resolution 3314 (XXIX) on the Definition of Aggression. The status of General Assembly resolutions has been a subject of academic and political controversy for many years, although few have argued for a direct law-creating effect for them. This decision goes much farther than its predecessors in transforming them from exhortations or "soft law" principles into "hard law" prescriptions, at least in the eyes of the Court.
This appears to base the international legal obligation more on a kind of broadly expanded Ihlen declaration, 10 a view that has some peculiar and potentially drastic consequences. Every resolution that purports to express a legal norm, even a "soft law" exhortation or aspiration, has the potential of being recognized by the Court as a binding and strictly enforceable obligation, at least for those states which did not expressly dissent from it.
This is clearly much broader than the traditional obligation in accordance with the Ihlen declaration. It permits an obligation to be created by silence (by not objecting to a consensus resolution), without a showing of reliance by the other party.
[*162] The new international law thus created would apparently be binding only between the states that acquiesced in the declarations in question, and as such would give rise to a new body of multilateral, but not universal, law. The consequence is a solution less drastic than one that would recognize a universal validity for such resolutions. It will nevertheless enhance the legal status of those resolutions and consequently the importance of express negative votes in international organizations (not necessarily only the General Assembly), if the state is not fully satisfied that every provision of the proposed resolution, separately and literally applied, is acceptable to it. 11 In effect, the decision changes General Assembly resolutions from a step in the evolution of international law to the end result of that process.
The concern about this expansion of justiciable rules of law is compounded by the Court's method of interpretation of the two resolutions in question. It dealt with single articles or paragraphs, with little reference to the resolutions as a whole. 12 It appears to be a technique of interpretation even more based on text than is called for by the Vienna Convention on the Law of Treaties. 13 If this technique is followed, the practice of seeking diplomatic compromises through "balancing" the language of different articles in resolutions appears futile -- if not doomed.
Finally, this approach creates a substantial shift in responsibility for decisions. International treaties, creating new international law, have traditionally been negotiated at international conferences, signed, subjected to careful review both in the executive branch and in the legislature, and finally submitted for ratification. An equal obligation can apparently be created, under the Court's new theory, when a representative to an international organization permits a resolution to pass by consensus, failing to record an express negative vote. This is an act of a much lower official, preceded by much less consideration of the obligations incurred, confined almost exclusively to the executive branch and made without opportunity for public review or comment. Whether states are willing to accept this expanded view of the binding effect of resolutions remains to be seen.
The Court gave particular credence to the General Assembly's Definition of Aggression. 14 That resolution was the result of committee consideration and deliberation that lasted nearly 30 years. The deliberations were extended [*163] because there were essentially two competing concepts. One was formalistic and concentrated on the first use of certain forms of armed force. The other was a more contextual view, asserting that certain forms of coercion could be the equivalent of aggression. 15 A compromise solution was reached that enumerated some aggressive acts, but left the identification of others to the Security Council in individual situations and preserved the provisions of the Charter concerning the lawful use of force. 16 The opinion rests solely on the enumeration of aggressive acts and fails to discuss the implications of the other provisions. This fragmentation of the resolution totally distorts the character of the consent given to it. It changes the impact of the resolution from a balance between the two competing definitions to an imbalance in which the "enumerative list of aggressive acts" approach, long opposed by the United States, carries the day.
The opinion also states that only the substantive, and not the procedural, limitations on the use of force have become customary international law. 17 It nevertheless recognizes a rule (apparently substantive and not procedural) that collective self-defense can be exercised only on the basis of a contemporaneous assertion by the victim state that it has been attacked and a request for outside assistance. 18 This requirement flies in the face of the networks of collective self-defense treaties, and may well be unrealistic in an electronic age.
While these substantive issues will be of general importance, two additional procedural issues will be of interest mostly to those who follow the work of the Court itself.
Since the United States did not appear in the merits phase of the proceeding, the Court examined the merits on the basis of the evidence available to it. 19 In doing so, it explicitly took into account a document prepared by the United States Government and made available to the Court, but not formally presented to it. 20 The Court has long been willing to consider the statements of nonappearing parties in at least some circumstances. "Telegraphic nonappearances," in which the state indicates its refusal to appear [*164] and briefly articulates its objections to jurisdiction in a telegram to the Court, are frequent. 21 In at least two other cases in recent years, the views of absent parties have been brought to the Court by extraordinary means. The French submitted a "White Book" to the Court's library in Nuclear Tests, 22 and Iceland managed to get most of its case before the Court in Fisheries Jurisdiction 23 by means of press statements that were duly included in the written proceedings of its British opponents. Given the paucity of defendants that have appeared voluntarily in recent years, 24 the Court must either recognize such communications or deal with an entirely one-sided presentation. Since, in reality, the effectiveness of its judgments is based to a large measure on their persuasiveness, the former is clearly the wiser course. Following civil law approaches, the Court has never been as fastidious about the rules of evidence as is customary in common law jurisdictions. Its candid recognition of such extraordinary communications and regulation of the extent to which they are considered merely clarifies an existing practice.
The jurisdiction of the Court is established by the Statute and the relevant jurisdictional documents (declarations under 36(2), compromissory clauses or treaties). 27 It exists vel non without regard to the conduct of the respondent state subsequent to the filing of the application. To extend the doctrine of forum prorogatum to objecting parties will only encourage them to stay even farther from the forum -- surely an undesirable result.
As it has done in several recent cases, the Court sua sponte separated the issues of jurisdiction and admissibility from the merits, an action that raises two interesting issues. The Court began to use this procedure regularly about a decade ago, primarily to permit it to examine jurisdiction when the [*165] respondent state did not appear. 28 Thus, in the absence of jurisdiction, it would not be burdened with the argument on the merits; in the presence of jurisdiction, the respondent might decide to appear in later phases.
The Court's Rules provide explicit procedures for preliminary objections raised by the respondent party, 29 but deal only summarily with procedures for a jurisdictional phase raised by the Court itself. 30 Although the procedures for dealing with preliminary objections are frequently applied by analogy in the case of a jurisdictional phase, there are clear differences. The burden of raising the objection, the order of argument, the burden of persuasion and the preclusive effect are (or may be) different. In a close case, the decision to separate the phases might have an outcome-determinative effect. It may well be time to study this issue and to establish formal standards for this new (and welcome) procedure.
One particular point might be addressed in that analysis. What is the proper course of action, in the second phase of a case, for a judge who believed (in the first phase) that there was no jurisdiction? In the present case, two judges who had voted against jurisdiction also voted against the claim on the merits, apparently basing their subsequent votes largely on the lack of jurisdiction. 31 Two other judges who opposed jurisdiction in part nevertheless participated in those parts of the decision over which they had found no jurisdiction. 32 Although balanced in this case, the effect of such procedural differences could well determine the outcome in future cases. The proper role in later phases for a judge who initially asserts lack of jurisdiction deserves explicit study and possibly explicit regulation.
The above comments look forward -- to the issues that the case raises for the shaping of an international legal order for the future. I have intentionally not dealt with the underlying jurisdictional issues of the case, the factual controversies or the application of the law to the facts of the particular situation, but that silence should not be taken as agreement. The more general issues should attract scholarly discussion. They are not new. The creation of new international legal norms is a matter of general and continuing interest that transcends the boundaries of particular subfields of international law. The standards for the legitimate use of force have engaged that discussion since the inception of the debate over the definition of aggression and will continue to do so. For those concerned with the future role of the Court, the more procedural issues will also be of interest.
n1 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ REP. 14 (Judgment of June 27).
n2 Department Statement, Jan. 18, 1985, DEP'T ST. BULL., No. 2096, March 1985, at 64. See also departmental statements following the June 27 decision.
n3 See, e.g., UN Doc. S/PV.2704, at 54-55 and 57-61 (1986) (rejecting a resolution proposed in UN Doc. S/18250 (1986)).
n4 The decision is, of course, not a binding precedent. See Statute of the International Court of Justice, Art. 59, 59 Stat. 1055 (1945), TS No. 993.
n5 This was part of reservation (c) to the 1946 Declaration accepting the jurisdiction of the Court, 61 Stat. 1218 (1947). It is commonly known as the Vandenberg reservation.
n6 In its decision of Nov. 26, 1984, the Court had found that this objection to jurisdiction was not exclusively of a preliminary character and postponed its decision to the merits stage. Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ REP. 392, 425, para. 76 (Judgment of Nov. 26). In the opinion on the merits, the discussion is at 1986 ICJ REP. at 31-38 and 146, paras. 42-56 and 292(1). This objection applied only to jurisdiction claimed under the 1946 Declaration.
n7 Application of Nicaragua, Apr. 9, 1984, paras. 15-19 (claim under Charter and treaties) and 20-25 (claim under customary law).
n8 1986 ICJ REP. at 98, para. 186.
n9 Id. at 100, para. 188.
n10 Legal Status of Eastern Greenland, 1933 PCIJ, ser. A/B, No. 53 (Judgment of Apr. 5).
n11 For this view, see Wolfrum, Gewohnheitsrecht und Stimmverhalten, 1986 VEREINTE NATIONEN 93.
n12 For example, in paragraph 195, 1986 ICJ REP. at 103, the Court refers to Article 3(g) of the Definition of Aggression as a statement of customary international law on the subject, without referring to Article 8 ("In their interpretation and application the above provisions are interrelated and each provision should be construed in the context of the other provisions") or to Articles 4 and 6, which appear to preserve a right of individual and collective self-defense.
n13 Article 31(1) of the Vienna Convention calls for interpretation of the terms of a treaty "in their context and in light of its object and purpose." The context clearly includes the entire text of the treaty, not isolated paragraphs.
n14 GA Res. 3314 (XXIX) (Dec. 14, 1974).
n15 For a discussion of some of the earlier history of this effort, see A. J. THOMAS, JR. & A. THOMAS, THE CONCEPT OF AGGRESSION IN INTERNATIONAL LAW 21-44 (1972).
n16 For a statement of the U.S. understanding of the connection of the articles, see Rosenstock, 70 DEP'T ST. BULL. 498 (1974). The definition enumerates specific acts in its Article 3, but does so "subject to and in accordance with the provisions of article 2." That article gives the Security Council the power to conclude otherwise, "in light of other relevant circumstances." Article 8, the definition's rule of interpretation, says that it must be read as a whole. The Court referred only to Article 3.
n17 1986 ICJ REP. at 105, para. 200.
n19 ICJ Statute, supra note 4, Art. 53.
n20 1986 ICJ REP. at 25 and 44, paras. 31 and 73. The document, Revolution Beyond our Borders, was originally published as a U.S. government document. It was later submitted to the United Nations and circulated as UN Docs. A/40/858 and S/17612(1985). Copies were made available to the Court.
n21 Examples can be found in United States Diplomatic and Consular Staff in Tehran, 1980 ICJ REP. 3 (Judgment of May 24), and in the Nuclear Tests Cases (Austl. v. Fr.; NZ v. Fr.), 1974 ICJ REP. 253, 457 (Judgments of Dec. 20).
n22 1974 ICJ REP. 253, 457.
n23 Fisheries Jurisdiction (UK v. Ice.; FRG v. Ice.), Merits, 1974 ICJ REP. 3, 175 (Judgments of July 24).
n24 If cases brought before the Court by contemporaneous compromis are excluded, it has been more than a decade since a state appeared before the Court as a defendant -- other than the United States in the jurisdictional phase of this case.
n25 1986 ICJ REP. at 23, para. 27.
n26 ICJ Statute, supra note 4, Art. 53(2).
n27 This includes Article 36(6).
n28 Jurisdictional phases were previously ordered in Fisheries Jurisdiction, Aegean Sea Continental Shelf and Nuclear Tests, after the respondent states had objected to jurisdiction in preliminary communications to the Court but did not appear formally in the proceedings.
n29 Rules of Court, ICJ ACTS AND DOCUMENTS, No. 4, Art. 79, paras. 1-5 (1978).
n31 See Dissenting Opinions of Judges Oda, 1986 ICJ REP. 212, 214-46, paras. 1-72, and Sir Robert Jennings, 1986 ICJ REP. at 528, 528-29.
n32 Judge Ruda, who had opposed jurisdiction under the FCN Treaty, nevertheless participated in the determination of questions arising under that Treaty, explaining his reasons in 1986 ICJ REP. at 176-77, paras. 16-17 of his opinion. Judge Ago, who had dissented from jurisdiction under the 1946 Declaration, explained his reasons for nevertheless participating in the decision on merits arising under that head of jurisdiction in 1986 ICJ REP. at 181-82, para. 2 of his separate opinion.
n33 Judge Lachs; see 1986 ICJ REP. at 170-71, pt. III of his separate opinion.
n34 Intervention was allowed in Haya de la Torre (Colom. v. Peru), 1951 ICJ REP. 71 (Judgment of June 13). It was refused, after hearing, in Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application to Intervene, 1981 ICJ REP. 3 (Judgment of Apr. 14), and Case Concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), Application to Intervene, 1984 ICJ REP. 3 (Judgment of Mar. 21). The application of Fiji to intervene in Nuclear Tests became moot. Application to Intervene, 1974 ICJ REP. 530, 535 (Orders of Dec. 20).
n35 See Sztucki, Intervention under Article 63 of the ICJ The "Salvadoran Incident," 79 AJIL 1005 (1985); Chinkin, Third-Party Intervention before the International Court of Justice, 80 AJIL 495 (1986).

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