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The Organisation of American States is a regional inter-governmental organisation as defined by Article 52 of the UN Charter. The OAS Charter was adopted at the Ninth International Conference of American States in 1948 and entered into force in 1951. It has been amended several times. The 1967 Protocol of Buenos Aires changed the structure of the organisation in several aspects and elevated the status of the Inter-American Commission on Human Rights to that of a ‘principal organ’ of the OAS.
Various provisions of the OAS Charter refer to human rights but only in vague terms. Article 3 (j) of the 1948 Charter referred to the ‘fundamental rights of the individual’ among the principles which the Charter promotes. While the Charter does not list or define the human rights it refers to, the Inter-American Court has ruled that ‘[t]hese rights are none other than those enunciated and defined in the American Declaration’ (Advisory Opinion No. 10, OC-10/89, 14 July 1989, para. 41).
The General Assembly is the supreme organ of the OAS (Article 54 OAS Charter). It meets once a year in a regular session in a place selected in accordance with the principle of rotation. Among other functions, the General Assembly shall ‘decide the general action and policy of the Organisation’. The 35 member states of the OAS have the right to be represented in the General Assembly.
The General Assembly elects the members of the Inter-American Commission on Human Rights and approves the budget and the annual reports of both institutions. The judges of the Inter- American Court of Human Rights are elected by the states parties to the American Convention on Human Rights, and not by the General Assembly.
The Permanent Council is composed of one representative of each member state of the OAS, especially appointed by the respective Government, with the rank of Ambassador (Article 80 OAS Charter). Since 1985, the Permanent Council has assumed the role of reviewing the annual reports of the Commission and the Court before their submission to the General Assembly. When discussing the Court’s Annual Report, the General Assembly may consider only the resolutions approved by the Permanent Council. Therefore if this organ decides against considering or commenting on the recommendations made by the Court, the General Assembly is unable to act on the recommendations.
These are ad hoc meetings held at the request of any government whenever problems of an ‘urgent nature and of common interest’ to the member states arises (Article 61 OAS Charter). The first such meeting was convened in 1939 in Panama City, Panama following the outbreak of hostilities in Europe and the most recent was held in 2008 in Washington, D.C. to address concerns of common defence and the maintenance of peace and security in the hemisphere.
The General Secretariat is the central and permanent organ of the OAS, with its seat in Washington, D.C. (Articles 107 and 121 OAS Charter). It performs the functions assigned to it in the Charter (Articles 112 and 113), in other inter-American treaties and agreements and those entrusted by the General Assembly, the Meeting of Consultation of Ministers of Foreign Affairs or the Councils. The Secretariat is headed by the Secretary General, elected by the General Assembly for a five-year term (Article 108). The Secretary General may participate in all meetings of the OAS, with voice but without vote (Article 110).
Since its creation in 1959 by the Fifth Meeting of Consultation of Ministers of Foreign Affairs, the Inter-American Commission on Human Rights has evolved into a unique organ within the Inter-American system. The Protocol of Buenos Aires transformed the Commission into a formal organ of the OAS and prescribed that the Commission’s principal function should be ‘to promote the observance and protection of human rights’ (Articles 52 and 106 OAS Charter).
The Commission is characterised by a unique ‘dual role’, which reflects its origin as a Charterbased body and later transformation into a treaty body when the American Convention came into force. As an OAS Charter organ the Commission performs functions in relation to all member states of the OAS (Article 41 ACHR) and as a Convention organ its functions are applicable only to states parties to the American Convention on Human Rights (ACHR).
The Commission is composed of seven members ‘elected in a personal capacity’ (Article 36 ACHR) and meets for eight weeks a year (Article 15 Commission Regulations) in Washington D.C. It also carries out in loco visits.
It receives, examines and investigates individual complaints or petitions which allege violations of the rights guaranteed under the American Declaration or the American Convention.
It refers cases to the Inter-American Court of Human Rights under the American Convention and appears before the Court. Before the Court, the Commission, acting as guardian of the Convention and of the Inter-American system for the protection of human rights, presents its own case while the alleged victim has independent legal counsel presenting his/her case. ?It requests advisory opinions from the Court regarding questions of interpretation of the American Convention.
It monitors the general human rights situation in the member states. It carries out on-site visits to observe the general human rights situation in a country or to investigate specific situations.
It publishes special reports on the general human rights situation of member countries when it considers it appropriate.
It undertakes research and publishes documents, such as the study of both domestic and international authorities and precedents in the context of the Proposed Declaration on the Rights of Indigenous Peoples.
Article 44 of the Convention establishes that the individual petition procedure is automatic for all states parties (Article 20(b) of the Commission’s Statute provides the same with regard to the Declaration for other OAS member states). The petitions procedure is not limited to victims but is open to ‘any person or group of persons, or any non-governmental entity legally recognized in one or more member states of the Organization’. This is a major advantage given that the victims may not know or have access to the protection machinery. In practice, however, to ensure effective follow- up, there needs to be some link between the victim and the persons or organisation presenting the case.
Petitions may refer to a specific event, practice or even to widespread human rights abuses, encompassing numerous violations and victims. The petition must, however, refer to specific victims and provide a detailed description of the act or situation that gives rise to the complaint.
Like other international human rights bodies, the Commission and Court require that domestic remedies be exhausted in order for an individual petition to be admitted for consideration. Article 46(2) ACHR stipulates, however, that domestic remedies need not be exhausted when they are ineffective, when the victim has been denied access or prevented from exhausting them or there has been unwarranted delay in rendering a final judgement.
Although a petition must be filed within six months of the exhaustion of domestic remedies, an exception can be made where the state has interfered with the petitioner’s ability to file or where the complaint is lodged by a third party on the victim’s behalf. In these cases, the Commission may admit complaints filed a ‘reasonable’ time after exhaustion of domestic remedies.
Although the Convention does not explicitly grant the Commission the faculty to request interim measures, the wide powers conferred upon it by Article 41 have been interpreted in the Rules of Procedure, which establish that ‘in serious and urgent cases, and whenever necessary according to the information available, the Commission may, on its own initiative or at the request of a party, adopt precautionary measures to prevent irreparable harm to persons’ (Article 25(1) Commission’s Rules of Procedure). Measures may be taken when three conditions are satisfied: the situation is urgent, the circumstances could lead to irreparable harm, and the facts appear to be true.
The possibility of a rapid response is assured by the power granted to the Chairman of the Commission who may act when the Commission is not in session. The Commission may act ex officio or at the request of a petitioner. It should be noted that as with other cases presented to the Commission, the petitioner need not necessarily be the victim or his representative but can also be, for example, an NGO with knowledge of the case. This is especially important in refugee cases as many potential victims of refoulement may live in remote rural areas.
Unlike the judicially enforceable, convention-based measures that may be exercised by the Court, the precautionary measures of the Commission are not binding but they do put the government in question ‘on notice’ and communicate the seriousness with which the Commission views the case.
When the state concerned is a party to the Convention, the Commission may also exercise the power bestowed on it by Article 63(2) which permits it to request that the Court adopt binding provisional measures in ‘cases of extreme gravity and urgency’.
Where a friendly settlement is not reached, Article 50 of the Convention establishes that the Commission is to draw up a report of its ‘conclusions’ and any ‘recommendations as it sees fit’. If, after three months, the matter has not been settled or referred to the Court by the Commission or the state concerned, Article 51 stipulates that the Commission must issue a second report stating its ‘opinion and conclusions’, making ‘pertinent recommendations’ where this is ‘appropriate’. In place of adopting and publishing a final report, the Commission may present a case to the Court.
In the face of gross, systematic violations of human rights carried out by undemocratic governments in the Americas during its formative years, the Commission developed the practice of doing factfinding through country visits and reporting on the human rights situation in selected OAS member states by means of country reports. This has proven to be one of the most effective mechanisms in the system. Country reports are often produced after a Commission in loco visit to the country or hearings on the situation in the state. The country reports are generally published separately from the Commission’s annual report but sometimes ‘mini-country reports’ are published in the annual report. Although the Convention does not specifically provide for the practice of country reports (Article 41 (c) merely refers to the preparation of those reports the Commission ‘considers advisable’), the Rules of Procedure do establish a legal basis for the practice and set out the procedural aspects for them, including the possibility for states to comment on draft reports.
The Commission carries out country visits and country reporting at its own discretion, generally when it believes violations to be widespread. The reports typically focus on the general human rights situation in a country but raise issues of specific concern.
The effectiveness of country visits is hard to measure as the impact appears to lie mainly in dissuading future violations. The visits also provide the Commission with information, and therefore credibility, for its country reports. Since country reports usually deal with large scale violations of human rights and are frequently cited by NGOs as authoritative descriptions of the human rights situation in a given country, governments may find them particularly embarrassing.
Since 2000, the Commission has issued special thematic reports on relevant topics, including the rights of indigenous peoples, terrorism, status of human rights defenders, access to justice for women victims of violence in the Americas and demobilisation in Colombia. In addition, the Commission has published the reports of special rapporteurs such as the Special Rapporteur for Freedom of Expression, the Special Rapporteur for the Rights of Women and the Special Rapporteur for Migrant Workers and Their Families.
The Annual Report of the Commission includes a broad range of information, inter alia, information on individual cases, on-site visits, requests for precautionary measures and ‘mini-country reports’ as well reporting on the activities of the rapporteurships.
The Court came into being in 1979 following the entry into force of the American Convention. The Court is the supreme judicial organ established by the American Convention and exercises both contentious and advisory jurisdiction. The Court is composed of seven judges elected for a term of six years who may be re-elected once. The Court is a part-time body, with its seat in San Jose, Costa Rica.
The Court’s advisory jurisdiction is unique in several ways. In addition to the Inter-American Commission and other authorised bodies of the OAS, all OAS member states have the right to request advisory opinions regardless of whether they are parties to the American Convention or whether they have recognised the Court’s jurisdiction over contentious matters. Furthermore, OAS member states may consult the Court regarding the interpretation not only of the Convention, but also of any other treaty pertaining to the protection of human rights in the Americas. They may also consult the Court on the compatibility of their domestic laws, bills and proposed legislative amendments with the American Convention or any other treaty concerning human rights (Article 64 ACHR).
The Court began functioning in 1979, but the first decision on merits was in 1987 in a case against Honduras, which originated in a petition received by the Commission on 7 October 1981.
States parties do not accept the contentious jurisdiction of the Court merely by becoming parties to the Convention. The acceptance of its jurisdiction is optional and requires a separate declaration or special agreement. A declaration of acceptance of the Court’s jurisdiction may be made at the time of ratification or adherence to the Convention or at any subsequent time (Article 62(1) ACHR).
Declarations may be unconditional, recognising the Court’s jurisdiction as binding ipso facto, without requiring special agreement. States can also accept the Court’s jurisdiction on the condition of reciprocity (inter-state cases), for a specified period or for specific cases. In addition, all states parties to the Convention may at any time, on an ad hoc basis, permit the Court by special agreement to adjudicate a specific dispute relating to the application of the Convention (Article 62(3) ACHR).
The jurisdiction of the Court comprises all cases concerning the interpretation and application of the provisions of the Convention that are submitted to it provided the parties to the dispute have accepted its jurisdiction.
Only states parties to the Convention and the Commission have the right to submit a case to the Court (Article 61(1) ACHR). Individuals cannot bring a case directly to the Court; they have to file a complaint with the Commission; the Court can only deal with individual complaints when they have been considered and referred to it by the Commission. States parties can bring cases directly to the Court. It should be noted also that, unlike the European Convention, the American Convention does not require that those filing complaints with the Commission be the victims of the alleged violations themselves; any ‘person or group of persons, or any non-governmental entity legally recognised in one or more member states’ may lodge petitions with the Commission.
The proceedings before the Court in contentious cases terminate with a judgement, which is final and not subject to appeal. The Court may be requested to interpret the meaning or scope of any judgement at the request of any party to the case (Article 67 ACHR and Article 46 Rules of Procedure).
While the decisions of the Court are only binding on the parties to the case, the Court’s interpretation of the rights contained in the Convention are authoritative and have a greater practical significance than their formal status would suggest.
If the Court finds that there has been a violation of the Convention, it shall rule that the injured party be ensured the enjoyment of the right or freedom that was violated and, if appropriate, rule that the consequences of the measures or situation that constitute the violation be remedied and award compensation. The Court has a distinctive reparations scheme that is not limited to monetary compensation but has also included ordering the state to locate mortal remains of a victim, to publish the court’s judgement in a national newspaper and acknowledge wrong-doing as well as to adopt national legislation that incorporates international human rights norms into the state’s legal system. When reparations are awarded, the Court has generally reserved for itself the faculty of supervising compliance with the judgement (see, e.g., Aloeboetoe v. Suriname and Maqueda v. Argentina).
States parties to the Convention undertake to comply with the Court’s judgement in any case to which they are parties. The part of the judgement that stipulates compensatory damages may be executed in the country concerned in accordance with domestic procedure governing the execution of judgements against the state (Article 68 ACHR).
The Court reformed its rules of procedure significantly in 2009, inter alia, including provisions establishing the Court’s practice of holding hearings away from its seat and the recording of audio of the hearings and the deliberations. The appointments of the deputy state agent or agents were regulated and clarified as well as the procedure of provisional measures, replacement of witnesses and designation of expert witnesses. The Court extended deadlines for submitting briefs and set deadlines for the submission of the amici curiae. In order to improve the way the Court receives and processes evidence, the declarations of the alleged victims are no longer qualified as testimonial declarations and, therefore, are no longer needed to be given under oath. In this sense, the declarations of the alleged victims shall be assessed, within the context of the case, taking into account the special characteristics of such statements. In order to clarify its case-law, the Court deemed it fit to omit any reference to the next-of-kin of the alleged victims, as according to its legal opinion they shall, under certain circumstances, be considered as alleged victims and may be beneficiaries of the reparations as long as they have been identified as such in the Commission’s application. In this way, said next-of-kin shall be considered alleged victims and all provisions referring to victims shall be applicable. Finally, the Court established its practice of holding private hearings on the procedure to monitor compliance with its judgments and the possibility of commissioning the Secretariat to carry out the preliminary proceedings for taking evidence in those cases where it is impossible for the Court to proceed.
The same Diplomatic Conference that adopted the OAS Charter proclaimed the American Declaration of the Rights and Duties of Man (ADHR) (2 May 1948). Although it was adopted as a nonbinding instrument, its character has gradually changed. Nowadays it is deemed to be the authoritative interpretation of ‘the fundamental rights of the individual’, which Article 3 (j) of the OAS Charter proclaims as one of the principles of the Organisation. The Inter-American Court confirmed the legal force of the American Declaration in Advisory Opinion No. 10 on the Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights (see paras 43 and 45).
The Commission receives individual complaints alleging violations of the Declaration with respect to OAS member states that are not parties to the ACHR.
The American Convention on Human Rights (ACHR) was adopted on 20 November 1969 and entered into force on 18 July 1978. As of March 2010, 25 states have adopted the Convention. The Convention confers competence with respect to matters relating to the fulfilment of its obligations to two organs: the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. The supervisory system provided by the Convention is legally binding only on the states parties to it.
Although the ACHR contains primarily civil and political rights, Article 26 expresses the general commitment of states parties to adopt measures with a view to the full realisation of economic, social and cultural rights (see textbox on ‘progressive realisation of economic, social and cultural rights’).
Chapter I: General Obligations: obligation to respect rights (Article 1) and domestic legal effects (Article 2).
Chapter II: Civil and political rights: right to juridical personality (Article 3); right to life (Article 4); right to humane treatment (Article 5); freedom from slavery (Article 6); right to personal liberty (Article 7); right to fair trial (Article 8); freedom from law (Article 9); right to compensation (Article 10); right to privacy (Article 11); freedom of conscience and religion (Article 12); freedom of thought and expression (Article 13); right to reply (Article 14); right to assembly (Article 15); freedom of association (Article 16); rights of the family (Article 17); right to a name (Article 18); rights of the child (Article 19); right to nationality (Article 20); right to property (Article 21); freedom of movement and residence (Article 22); right to participate in government (Article 23); right to equal protection (Article 24); and right to judicial protection (Article 25).
Chapter III: Economic, social and cultural rights (Article 26).
Chapter IV: suspension of guarantees, interpretation and application (Articles 27 to 31). Chapter V: personal responsibilities (Article 32).
Chapter VI: competent organs (Article 33).
Chapter VII: Inter-American Commission on Human Rights (Articles 34 to 51).
Chapter VIII: Inter-American Court of Human Rights (Articles 52 to 69).
Chapter IX: common provisions (Articles 70 to 73).
Chapter X and XI: general and transitory provisions (Articles 74 to 82).
The ACHR differs from the ICCPR, because it contains guarantees of the right to reply (Article 14) and to property (Article 21). In addition, it has a more elaborated and advanced text than the ECHR in regard to, for example, to right to participate in government (Article 23) and a guarantee of the right to equal protection (Article 24).
The Protocol of San Salvador was adopted in 1998 to give effect to the provisions of Article 26 ACHR. It entered into force on 16 November 1999. As of March 2010, the Protocol had 14 parties.
The states parties to the Protocol undertake to adopt the necessary measures, both domestically and through international co-operation, especially economic and technical, for the purpose of achieving progressively and pursuant to their internal legislation the full observance of the rights recognised in the Protocol. Although the Protocol takes into account the states’ degrees of development and restrictions of available resources, progressive implementation is, nonetheless, an obligation.
The Protocol contains mostly the same rights as the ICESCR: the right to work (Article 6); the right to just, equitable and satisfactory conditions of work (Article 7); trade union rights (Article 8); the right to social security (Article 9); the right to health (Article 10); the right to education (Article 13); and the right to the benefits of culture (Article 14). However, the Protocol improves on the provisions of the ICESCR by giving recognition to a number of rights which are not included in the Covenant, such as the right to a healthy environment (Article 11); the right to the formation and the protection of the family (Article 15); the rights of children (Article 16); the protection of the elderly (Article 17); and the protection of the handicapped (Article 18).
The Protocol establishes the possibility to submit to the Inter-American Commission, through the individual petition mechanism, complaints alleging violations of the right to organise and to join unions and national federations of unions or international trade union organisations, protected under Article 8(1)(a), as well as violations of the right to education, protected under Article 13. The Court may examine these cases under its contentious jurisdiction (Article 19(6)).
This Protocol was adopted on 8 June 1990. As of March 2010, the Protocol had 11 parties. It expands upon Article 4 ACHR (right to life). No reservations may be made to the Protocol but, at the time of ratification or accession, the states parties may declare that they reserve the right to apply the death penalty in wartime in accordance with international law, for extremely serious crimes of a military nature. However, this exception must be provided for in domestic law and its application is subject to strict reporting conditions set out in the Protocol.
The Convention on Torture was adopted on 9 December 1985, entered into force on 28 February 1987. As of March 2010, the Convention had 17 parties. The Convention expands upon the provisions of Article 5 ACHR, which prohibits torture and cruel, inhuman or degrading punishment or treatment and can be invoked before the Inter-American Court to interpret the provisions of Article 5 ACHR. Furthermore, the Court has given itself jurisdiction to apply the Convention directly (see, for example, Villagrán Morales et al. v. Guatemala). The Convention excludes the defence of superior orders, as well as any state of emergency, any other kind of public emergency, the suspension of constitutional guarantees or political instability as justification for torture. States undertake to submit reports on ‘any legislative, judicial, administrative, or other measures’ they adopt in application of the Convention to the Inter-American Commission (Article 17).
Adopted on 9 June 1994, the Convention on the Forced Disappearance of Persons came into force on 28 March 1996. As of March 2010, 13 states had ratified the Convention. It addresses an issue that has plagued Latin America for decades. Violations of the Convention can be brought to the attention of the Inter-American Commission and follow the same process as petitions under the American Convention. Ratification is not limited to states parties to the American Convention, but is open to all member states of the OAS. The Convention includes a definition of ‘forced disappearances’ in its Article 2 (see III§3.A).
This Convention was adopted at the same time as the Convention on the Forced Disappearance of Persons and came into force on 2 March 1995. As of March 2010, 32 states had ratified the Convention. It condemns any act or conduct ‘based on gender which causes death or psychological harm or suffering to women, whether in the public or the private sphere’.
The definition of violence under the Convention includes domestic violence in the widest sense; that is, within any inter-personal relationship and whether or not the perpetrator resides with the victim. It also includes violence occurring in the community, or perpetrated or condoned by the state or its agents, wherever it occurs. States parties have specific duties under the Convention to adopt the required legislative measures to prevent and punish all forms of violence against women. States report on measures they have adopted to prevent and prohibit violence against women in their national reports to the Inter-American Commission of Women, a specialised organisation of the OAS, which aims to promote and protect the rights of women in the Americas. If provisions of the Convention have allegedly been violated, any person, group of persons or legally recognised NGO can lodge petitions with the Inter-American Commission.
This Convention provides a good example of the trend towards the accountability of private actors in international law. It clearly spells out that ‘violence against women is an offence against human dignity and a manifestation of the historically unequal power relations between women and men’ and ‘shall be understood as any act or conduct, based on gender, which causes death or physical, sexual or psychological harm or suffering to women, whether in the public or the private sphere’ (Article 1, emphasis added). It is still, however, the state concerned that remains responsible, as the violations have to be ‘condoned by the state or its agents’.
Adopted on 7 June 1999, this Convention entered into force on 14 September 2001. As of March 2010, 17 states had ratified it. Its Preamble refers to a number of international conventions, declarations and resolutions aimed at the protection of persons with physical, mental or sensory impairment, ‘whether permanent or temporary, that limits the capacity to perform one or more essential activities of daily life, and which can be caused or aggravated by the economic and social environment’.
The Convention is in four parts: a) the objectives concerning the prevention and elimination of discrimination and the integration of persons with disabilities into society; b) the obligations of states parties; c) definitions of discrimination and disability; and d) implementation mechanisms.
States parties undertake to take all the necessary measures, including legislation, to promote the integration of persons with disabilities into society, ‘under conditions of equality’. Their obligations range from ensuring that buildings and vehicles be designed so as to allow access by persons with disabilities, to giving priority to the prevention, early detection and treatment. States parties also undertake to increase public awareness so as to eliminate stereotypes, prejudices, and discrimination in employment.
The Convention establishes a supervisory mechanism, the Committee for the Elimination of All Forms of Discrimination against Persons with Disabilities, composed of one representative from each state party. The Committee is charged with reviewing state reports to be submitted every four years on ‘follow-up on the commitments’ undertaken in the Convention (see IV§9, disabled persons).
The case-law of the Inter-American Court of Human Rights is not as extensive as that of the European Court of Human Rights and although the American Convention contains all of the traditional civil and political rights, the case-law in contentious cases has dwelt primarily upon a few of the most basic rights. These include the right to life (Article 4); the right to personal liberty (Article 7); the right to humane treatment (Article 5); the right to a fair trial (Article 8); the right to judicial protection (Article 25); and the right to equal protection before the law (Article 24).
Although cases regarding these rights still find their way onto the Court’s docket, the Court has slowly been widening its scope to deal with a broader range of issues, including the wrongful dismissal of judges and civil servants, film censorship, the withdrawal of citizenship and removal from positions of authority of government critics and the land rights of indigenous peoples. In addition, the Inter-American Commission invoked Article 26 of the American Convention before the Court, and the Court addressed the problem by implicitly admitting jurisdiction to apply Article 26 in its contentious cases (see Torres Benvenuto et al. (Five Pensioners case) v. Peru ).
The reasons for the limited case-law of the Inter-American system are manifold. One is that the Inter-American Court is a young institution, meeting for the first time in 1979. The first cases in which the Court decided that a state party had violated the Convention were in 1988 in the so-called Honduran Disappearance Cases (Velásquez Rodríguez v. Honduras and Godínez Cruz v. Honduras). The European Court began its work twenty years earlier.
Secondly, for various reasons relatively few contentious cases have been submitted to the Court. In the early years of the Court, only a few states had made optional declarations accepting its contentious jurisdiction. Furthermore, individuals do not have the right to submit an application directly to the Court (jus standi); they do, however, have standing before the Court since 2001 in the reparations phase and since 2004 at every stage of the proceedings. States are generally reluctant to present cases to the Court, but may elect to submit cases to the Commission (see, e.g., Nicaragua v. Costa Rica (declared inadmissible)). In the end, what is most determinative of the volume of the Court’s work is the extent to which the Inter-American Commission is prepared to submit cases. Under the latest amendments to the Rules of Procedure of the Commission, when the state has not complied with its recommendations within a given period, the Commission is required to submit the case to the Court, unless a qualified majority decides not to do so. Previously, the Commission had the discretion whether or not to submit a case, even in cases of non-compliance, and could submit a case only by a decision of a qualified majority. Under the new system, it is more likely that cases will be submitted to the Court.
Although most of the cases which the Inter-American organs of human rights have dealt with have involved gross violations of human rights, the political reality of the continent has changed from what it was at the system’s inception, and it can be anticipated that the jurisprudence will evolve to include other issues.
In relation to the above, it should be noted that while the case-law of the Inter-American Court is relatively limited in terms of the number of judgements and scope, the Court has nonetheless contributed significantly to the progress of international human rights with cases such as its landmark decision in Velásquez Rodriguez v.Honduras.

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Mountain States Power Co. v.
"where jurisdiction is based solely upon the ground of diversity of citizenship, or the repugnance of such order to the Constitution of the United States, where such order (1) affects rates chargeable by a public utility, (2) does not interfere with interstate commerce, and (3) has been made after reasonable notice and hearing, and where a plain, speedy, and efficient remedy may be had at law or in equity in the courts of such State."
Held inapplicable to a suit in Montana, in view of Rev.Code of Montana, 1921, § 3906, which purports to deny all preliminary relief in such cases in the state courts. P. 299 U. S. 168.
2. A "plain, speedy and efficient remedy" in the state courts cannot be said to exist in the presence of a state statute which denies it and which has not been authoritatively declared unconstitutional by the courts of the State. P. 299 U. S. 170.
Appeals from decrees of a three-judge District Court which dismissed, for lack of jurisdiction, two suits to set aside orders requiring the appellant to reduce its charges for electricity.
Each of these causes presents the same point of law.
Appellee, Public Service Commission of Montana, issued an order requiring the appellant Company to reduce its charges for electricity in Baker, No. 38; also another requiring reduction in Forsyth, No. 39. They were attacked as confiscatory by separate bills in the United States District Court. That court, three judges sitting, granted motions to dismiss for lack of jurisdiction. These direct appeals question its action.
"The district courts shall have original jurisdiction as follows:"
"First. Of all suits of a civil nature at common law or in equity, brought by the United States, or by any officer thereof authorized by law to sue, or between citizens of the same State claiming lands under grants from different States; or, where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000, and (a) arises under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or (b) is between citizens of different States, or (c) is between citizens of a State and foreign States, citizens, or subjects."
"That the first paragraph of section 24 of the Judicial Code, as amended, is amended by adding at the end thereof the following:"
to enjoin, suspend, or restrain the enforcement, operation, or execution of any order of an administrative board or commission of a State, or any ratemaking body of any political subdivision thereof, or to enjoin, suspend, or restrain any action in compliance with any such order, where jurisdiction is based solely upon the ground of diversity of citizenship, or the repugnance of such order to the Constitution of the United States, where such order (1) affects rates chargeable by a public utility, (2) does not interfere with interstate commerce, and (3) has been made after reasonable notice and hearing, and where a plain, speedy, and efficient remedy may be had at law or in equity in the courts of such State."
"Any party in interest being dissatisfied with an order of the commission fixing any rate or rates, fares, charges, classifications, joint rate or rates, or any order fixing any regulations, practices, or services, may within ninety days commence an action in the district court of the proper county against the commission and other interested parties as defendants, to vacate and set aside any such order on the ground that the rate or rates, fares, charges, classifications, joint rate or rates, fixed in such order is unlawful or unreasonable, or that any such regulation, practice, or service, fixed in such order, is unlawful or unreasonable. . . ."
"No injunction shall issue suspending or staying any order of the commission except upon application to the court or judge thereof, notice to the commission having been first given and hearing having been had thereon; provided, that all rates fixed by the commission shall be deemed reasonable and just, and shall remain in full force and effect until final determination by the courts having jurisdiction."
the state courts to issue appropriate preliminary relief. Following Montana Power Co. v. Public Service Commission et al., 12 F.Supp. 946, the court below sustained this view.
While the inhibition has not been definitely sustained by the Supreme Court of the State against an attack based upon unconstitutionality, it was recognized without suggestion of disapproval in Billings Utility Co. v. Public Service Comm'n, 62 Mont. 21, 32, 203 P. 366; State ex rel. Public Service Comm'n v. Great Northern Utilities Co., 86 Mont. 442, 446, 284 P. 772. And see State ex rel. Board of Railroad Comm'rs v. District Court, 53 Mont. 229, 233, 163 P. 115.
Except for the Johnson Act, appellant's bills of complaint would state causes of action within the jurisdiction of the federal court. Obviously also, the amendment relied upon has no application unless there is "a plain, speedy and efficient remedy" in the state courts. And we cannot conclude that such remedy exists where, as here, a state statute definitely denying it has not been authoritatively condemned. In the circumstances, it is impossible to know what position the courts of the State would take. A "plain, speedy, and efficient remedy" cannot be predicated upon the problematical outcome of future consideration.
Porter v. Investors' Syndicate, supra, is not controlling. Section 3906 Montana Codes was not there in question. And, while the opinion may suggest reasons for challenging its validity, the Montana courts have not spoken; until they do, we cannot treat the statute as nonexistent. The essential remedy in the state courts does not emerge from the probability that the statute expressly prohibiting it may hereafter be declared ineffective. Pacific Telephone Co. v. Kuykendall, 265 U. S. 196, 265 U. S. 203-205.


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A Legal Blog from Western Maryland. Formerly, the Maryland Advocate Version 2.0 BETA!
This piece is a quick reference guide to some of the most common Maryland Judiciary Case Search System abbreviations. The guide is not produced by or affiliated with the State of Maryland.
Paul Notarianni is the administrator for this site.
This entry was posted in - Notes and Forms, ---- Paul Notarianni and tagged Abbreviations, Case, Judiciary, Maryland, Search. Bookmark the permalink.
K-9 Alert Not Sufficient to Search Occupants. State v. Wallace.
Officer Cannot Stick Head in Car Window to take a Sniff. State v. Grant.
Other Crimes Evidence and Witnesses. Sessoms v. State.
Passenger Standing and Terry. Arizona v. Johnson.
Illegal Deferred Sentence. Montgomery v. State.
Is 4th Degree Burglary Impeachable?
Elements of Affray and defenses. Dashiell v. State.
Standard for Preventative Detention. Wheeler v. State.
STETs are Plea Agreements. State v. Thompson.
DWS Mens Rea. State v. McCallum.
Considering Other Pending Cases at Bail. Bigley v. Warden of Maryland Correctional Facility for Women.
Spreadsheets = Hearsay. Davies v State.

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PHILLIPS, Governor of Oklahoma, et al., v. UNITED STATES et al.
Appeal from the District Court of the United States for the Northern District of Oklahoma.
Messrs. John B. Dudley and Randell S. Cobb, both of Oklahoma City, Okl., and Villard Martin, of Tulsa, Okl., for appellants.
Francis M. Shea, Asst. Atty. Gen., for appellees.
As part of a flood control and hydroelectric development, the Grand River Dam Authority, an agency of the State of Oklahoma, was empowered to construct the Grand River Dam, with authority to borrow money and accept grants from the United States. Oklahoma Laws of 1935, Art. 4, c. 70, 82 Okl.St.Ann. § 861 et seq. For the construction of the dam the United States allotted twenty million dollars to the Authority. Eight and one-half millions, in round numbers, were to be used as a grant, and eleven and one-half for the bonds of the Authority. Construction began in February, 1938, and by the spring of last year much of the work was nearing completion. During this period, the Governor of Oklahoma unsuccessfully pressed against the Authority claims for the flooding of roads within the dam area. The action which the Governor finally took to enforce his own views in this matter is the source of the present litigation. On March 13, 1940, he declared martial law in an area surrounding part of the dam-site and ordered the Adjutant General of the state to occupy it. The following day the Governor in conjunction with other state officials obtained an ex parte order in a state court restraining further work on the dam by the Authority. Thereupon the United States began the present suit in a federal district court. A temporary order was issued against the Governor and the other officials restraining them from interference with the Grand River project by further prosecution of their suit in the state court and by the use of military force. Deeming the suit to be one arising under § 266 of the Judicial Code, as amended, 28 U.S.C. 380, 28 U.S.C.A. § 380, a district court of three judges was convened which, after hearing, entered an interlocutory injunction in the terms of the temporary restraining order. This is the decree that is now before us.
But unless § 266 required the present suit to be heard by three judges, under the Jurisdictional Act of 1925 we are without authority to entertain this direct appeal from a district court. § 238 of the Judicial Code, as amended, 28 U.S.C. 345, 28 U.S.C.A. § 345. Having concluded that there is a fatal bar to our entertaining the appeal, we are without power to consider the other issues that were argued here.
By § 266, which is set forth in the margin, 1 Congress provided an exceptional procedure for a well-understood type of controversy. The legislation was designed to secure the public interest in 'a limited class of cases of special importance'. Ex parte Collins, 277 U.S. 565, 567, 48 S.Ct. 585, 586, 72 L.Ed. 990. It is a matter of history that this procedural device was a means of protecting the increasing body of state legislation regulating economic enterprise from invalidation by a conventional suit in equity. While Congress thus sought to assure more weight and greater deliberation by not leaving the fate of such litigation to a single judge, it was no less mindful that the requirement of three judges, of whom one must be a Justice of this Court or a circuit judge, entails a serious drain upon the federal judicial system particularly in regions where, despite modern facilities, distance still plays an important part in the effective administration of justice. And all but the few great metropolitan areas are such regions. Moreover, inasmuch as this procedure also brings direct review of a district court to this Court, any loose construction of the requirements of § 266 would defeat the purposes of Congress, as expressed by the Jurisdictional Act of February 13, 1925, to keep within narrow confines our appellate docket. Moore v. Fidelity & Deposit Co., 272 U.S. 317, 321, 47 S.Ct. 105, 106, 71 L.Ed. 273. The history of § 266 (see Pogue, State Determination of State Law, 41 Harv.L.Rev. 623, and Hutcheson, A Case for Three Judges, 47 Harv.L.Rev. 795), the narrowness of its original scope, the piece-meal explicit amendments which were made to it (see Act of March 4, 1913, 37 Stat. 1013, and Act of February 13, 1925, 43 Stat. 936, amending § 238 of the Judicial Code), the close construction given the section in obedience to Congressional policy (see, for instance, Moore v. Fidelity & Deposit Co., supra; Smith v. Wilson, 273 U.S. 388, 47 S.Ct. 385, 71 L.Ed. 699; Ex parte Collins, supra; Oklahoma Gas Co. v. Packing Co., 292 U.S. 386, 54 S.Ct. 732, 78 L.Ed. 1318; Ex parte Williams, 277 U.S. 267, 48 S.Ct. 523, 72 L.Ed. 877; Ex parte Public National Bank, 278 U.S. 101, 49 S.Ct. 43, 73 L.Ed. 202; Rorick v. Board of Com'rs, 307 U.S. 208, 59 S.Ct. 808, 83 L.Ed. 1242; Ex parte Bransford, 310 U.S. 354, 60 S.Ct. 947, 84 L.Ed. 1249), combine to reveal § 266 not as a measure of broad social policy to be construed with great liberality, but as an enactment technical in the strict sense of the term and to be applied as such.
To bring this procedural device into playto dislocate the normal operations of the system of lower federal courts and thereafter to come directly to this Courtrequires a suit which seeks to interpose the Constitution against enforcement of a state policy, whether such policy is defined in a state constitution or in an ordinary statute or through the delegated legislation of an 'administrative board or commission'. The crux of the business is procedural protection against an improvident state-wide doom by a federal court of a state's legislative policy. This was the aim of Congress and this is the reconciling principle of the cases.
To the test of this principle must be put the argument that the present case is within § 266.
The claim proves too much. Probably most of the actions of governors trace back to the common provision charging them with taking care that the laws be faithfully executed. Some constitutional or statutory provision is the ultimate source of all actions by state officials. But an attack on lawless exercise of authority in a particular case is not an attack upon the constitutionality of a statute conferring the authority even though a misreading of the statute is invoked as justification. At least not within the Congressional scheme of § 266. It is significant that the United States in its complaint did not charge the enabling acts of Oklahoma with unconstitutionality, but assailed merely the Governor's action as exceeding the bounds of law. In other words, it seeks a restraint not of a statute but of an executive action. But the enforcement of a 'statute', within the meaning of § 266, is not sought to be enjoined merely because a state official seeks shelter under it by way of defense against a charge of lawlessness. As Mr. Justice Cardozo said of a related problem affecting the business of the federal courts, 'we do not travel back so far.' Gully v. First Nat. Bank, 299 U.S. 109, 116, 57 S.Ct. 96, 99, 81 L.Ed. 70.
On its face, § 266 precludes a reading which would bring within its scope every suit to restrain the conduct of a state official whenever, in the ultimate reaches of litigation, some enactment may be said to authorize the questioned conduct. The special procedure only attends 'the application for' an interlocutory injunction restraining enforcement of a statute. In other words, the complainant must seek to forestall the demands of some general state policy, the validity of which he challenges. No one questions Oklahoma's authority to give her Governor 'Supreme Executive power' nor to make him Commander-in-Chief of her militia. What is here challenged is a single, unique exercise of these prerogatives of his office. This view is reinforced by the proviso added to § 266 by the Act of March 4, 1913, 37 Stat. 1013, whereby suit in a federal court against the enforcement of a statute can be stayed if appropriate provision is made for testing its validity in the state courts. Of course, a suit cannot be brought in the court of a state to enforce a governor's declaration of martial law. In short, this is not a case for which the procedural structure of § 266 was devised. If the Governor's action is subject to restraint in the District Court, the procedural road to be taken is the normal course of litigation in a federal district court and not the short cut of § 266.
Sterling v. Constantin, 287 U.S. 378, 53 S.Ct. 190, 77 L.Ed. 375, which is invoked as a precedent, was a very different case. There martial law was employed in support of an order of the Texas Railroad Commission limiting production of oil in the East Texas field. The Governor was sought to be restrained as part of the main objective to enjoin 'the execution of an order made by an administrative * * * commission', and as such was indubitably within § 266. Compare Railroad Commission v. Rowan & Nichols Oil Co., 311 U.S. 570, 61 S.Ct. 343, 85 L.Ed. 358, and Railroad Commission v. Humble Oil & Refining Co., 311 U.S. 578, 61 S.Ct. 347, 85 L.Ed. 363.
Had a timely appeal been taken to the circuit court of appeals the decree below could have been reviewed there, though rendered by three judges. Healy v. Ratta, 289 U.S. 701, 53 S.Ct. 522, 77 L.Ed. 1456; Id., 1 Cir., 67 F.2d 554; Id., 292 U.S. 263, 54 S.Ct. 700, 78 L.Ed. 1248. While this Court cannot hear the merits, it will, where the question of jurisdiction was not obviously settled by prior decisions, enforce the limitations of § 266 by an order framed to save appellants their proper remedies. Oklahoma Gas Co. v. Packing Co., 292 U.S. 386, 392, 54 S.Ct. 732, 734, 78 L.Ed. 1318. We therefore vacate the decree and remand the cause to the court which heard the case so that it may enter a fresh decree from which appellants may, if they wish, perfect a timely appeal to the circuit court of appeals.


Iram P. Valentin is a business-minded litigator, who routinely represents the interests of clients in various industries, including, but not limited to, the legal, insurance, financial, real estate, collections, and construction industries. In addition, he has successfully litigated complex matters on behalf of businesses in the restaurant, hospitality, transportation and manufacturing industries. Mr. Valentin is Certified by the Supreme Court of New Jersey as a Civil Trial Attorney and has secured several defense jury verdicts.
Mr. Valentin served as a law clerk to the Honorable Joseph P. Perfilio, J.S.C., Superior Court of New Jersey, Union County. A graduate of the College of the Holy Cross and Fordham University School of Law, he was a Notes & Articles Editor on the Fordham Journal of Corporate & Financial Law, a premier banking and finance law journal. While at Fordham, Mr. Valentin interned for the Honorable Denny Chin, U.S. District Court for the Southern District of New York, and at the New York Stock Exchange Division of Enforcement, as well as participated in the Securities Arbitration Clinic, appearing before the NASD. Mr. Valentin is fluent in Spanish.
Roseblatt v. Stripto, et al.(New Jersey, Appellate Division, 2017) – In this legal malpractice action, the Appellate Division affirmed the trial court’s evidentiary ruling and grant of summary judgment in favor of Mr. Valentin’s client due to plaintiff’s failure to secure adequate expert testimony to establish proximate cause.
Estate of Caruso v. Fin. Recoveries (U.S.D.C., N.J., 2017) -In this putative class action for alleged violations of the FDCPA, the United States District Court granted partial summary judgment in favor of Mr. Valentin’s client, finding that plaintiff failed to show a particularized harm and, therefore, lacked Article III standing to maintain an action under 15 U.S.C. § 1692f(8), and also failed to establish the existence of a private cause of action for an alleged failure to post a bond under N.J.S.A. 45:18-1.
Fox Paper, Ltd. v. Hanover Ins. Co., et al. (New Jersey, Law Division, 2016) – In this insurance broker malpractice action, the trial court held, among other things, that a conflict existed between the substantive law of New York and New Jersey as it related to the duty of a broker to an insured and, thus, New York’s substantive law would apply.
Wolf v. Escala, et al. (U.S.D.C., N.J., 2015) – In this social worker malpractice action, the United States District Court dismissed §1983, constitutional, professional malpractice, unjust enrichment, and disgorgement claims.
Brown v. Lopez, et al. (New Jersey, Appellate Division, 2013) – In this decision, the Appellate Division upheld the grant of summary judgment in favor of the attorney for the seller of real estate, finding that there was nothing in the record to support the conclusion that he knowingly assisted the seller in defrauding the plaintiff or that he made any misrepresentations to her.
Lewandowski v. Hi-Tech Homes, Inc., et al. (New Jersey, Appellate Division, 2013) – In this decision, the Appellate Division affirmed the award of counsel fees to Mr. Valentin’s client due to Plaintiffs’ decision to take an improvident voluntary dismissal after summary judgment was filed by the Defendants. The matter was remanded to the trial court for a determination of the amount of the award.
Lieber v. Marcus (U.S.D.C., N.J., 2012) – In this decision, which was upheld in 2014, after motion for reconsideration, the United States District Court ruled that New Jersey’s Entire Controversy Doctrine and the doctrine of collateral estoppel precluded a second action raising legal malpractice claims not perfected in a prior state court action.
Mendoza v. Metropolitan Group Property & Casualty Ins., et al. (New Jersey, Law Division, 2012)- Mr. Valentin represented Metropolitan Group (MetLife) in defense of a case brought by a Plaintiff seeking insurance proceeds. At trial, the burden was shifted to the defense to show that the Plaintiff had made a material misstatement of fact or fraudulent statement in connection with the insurance claim. Mr. Valentin secured a defense jury verdict in favor of MetLife.
Triarsi v. BSC Group Services, LLC, et al. (New Jersey, Appellate Division, 2011) – In this decision published at 422 N.J. Super. 104, the Appellate Division clarified the application of the Affidavit of Merit statute to insurance professionals.
West 133rd Street Realty Corp. v. F&L (New Jersey, Law Division, 2011) – Mr. Valentin represented an attorney in legal malpractice action arising from the attorney’s representation of a corporation in the sale of commercial real estate. A no-cause jury verdict was secured for the defense.
Viglione v. Biagiotti, Marino, et al. (New Jersey, Law Division, 2010) – Mr. Valentin represented an attorney in legal malpractice action arising from attorney’s representation of client in divorce action. A no-cause verdict was secured for the defense at binding arbitration.
Mancini v. McAllister Fuels (New Jersey, Appellate Division, 2010) – Mr. Valentin represented a regional energy company in a toxic tort and wrongful death action. The Appellate Division affirmed the grant of summary judgment due to plaintiff’s failure to secure sufficient expert testimony.
Bergen v. Able Energy (New Jersey, Appellate Division 2009) – Mr. Valentin represented a regional energy company against personal injury claims brought by employees in connection with a propane explosion. The Appellate Division affirmed the grant of summary judgment in favor of the employer and affirmed the finding that the employees’ claims against employer were barred by the exclusivity provision of the Workers’ Compensation Act.
Shah v. S&K (New Jersey, Law Division, 2009) – Mr. Valentin represented an attorney in legal malpractice action resulting from the attorney’s appointment as an attorney-in-fact during an underlying divorce action. A no-cause jury verdict was secured for the defense.
Rego v. Giordano (New Jersey, Law Division, 2008) – Mr. Valentin represented an attorney in legal malpractice action arising from the the attorney’s handling of a fire insurance claim. The court allowed defendants to prosecute plaintiffs for committing a fraud on the court when it was discovered that they had altered documents in discovery. A defense jury verdict was secured, whereupon the court dismissed plaintiffs’ suit.


Award of Money in an Arizona Divorce | Hildebrand Law, PC. Award of Money in an Arizona Divorce | Hildebrand Law, PC.
Under Arizona community property laws, all earnings by either spouse during marriage are presumed to belong to the community. If a spouse incurs a separate debt during the marriage, a creditor cannot collect the debt from community property. In the Martin v. Martin case, the parties signed a valid prenuptial agreement before marriage. That agreement provided there would be no community property during their marriage.
After their marriage, they entered into a new agreement opting to transfer all of their property to community property. They appear to have done so to prevent a credit from collecting on a separate debt. So, were they successful? Well, that was the question raised in the case of Martin v. Martin, 752 P.2d 1026, 156 Ariz. 440 (1986).
Mary and Richard Martin were married in 1950 and remained married for over 30 years. Richard effectively managed the money on his own and did not involve Mary in the couple’s finances. In 1979, the couple moved to California for Richard’s job. They also bought a home in Arizona as a retirement property. Mary moved into the Prescott home. Richard stayed alone in California for three years, sending Mary money for the mortgage and living expenses.
In 1982, Mary filed for dissolution. The Court ordered Richard to pay Mary $1700 a month in temporary alimony during the case. The court also authorized him to remove that amount from the couple’s bank account every month.
Award of Money in an Arizona Divorce.
After a trial, the family law judge divided the community property between the couple. The court awarded Mary property worth $184,843 to Mary and $215,211 to Richard. The judge also ordered Richard to pay Mary $2,000 per month for spousal maintenance.
The trial court also ordered Richard to pay Mary two sums, $46,688 and $9,473. The first represented 50% of the monies Richard earned during the three years of separation. The second sum represented amounts Richard withdrew from the community savings accounts. Those withdrawals were more than the amounts allowed under the court order.
Richard appealed the order. The Court of Appeals found that the trial court had no authority to give a spouse a money judgment. It sent the case back to the trial court to remove the $46,688 and $9,473 from the judgment.
Mary asked for the Arizona Supreme Court to review this ruling.
The Supreme Court first reviewed the Arizona statute that controls the disposition of property in a dissolution of marriage case, A.R.S. § 25-318. The law first directs the trial court to assign each spouse his or her separate property. It also requires the court equitably divide the parties’ community property.
The law specifically authorizes the trial court, when dividing community property, to consider wrongful, unreasonable and improper uses of the common property. That is, the statute authorizes the trial court to compensate one spouse for the misuse of the common property by the other spouse. It may do so by awarding the innocent spouse a greater share of the community property to offset the value of the lost property.
The Supreme Court noted that the trial court did not award Mary a greater share of the existing marital property to compensate her for any dissipation of that property. Nor is there evidence that the separate maintenance award was intended to compensate her for dissipation of community property.
Instead, the trial court simply arrived at the amounts found to have been improperly or excessively spent, and ordered Richard to pay these amounts to Mary.
The Supreme Court stated that unless the statute, A.R.S. § 25-318, authorizes the trial court to order the payment of money from one spouse to another in a dissolution action, the order, in this case, cannot be authorized. It looked at the history of the law and its various sections to determine what the legislature intended when it enacted the law.
The Court focused on the language of A.R.S. § 25-318 that allows the court to make the division of property equitably, “though not necessarily in kind.” After discussion, the Court determined that that section of the statute authorizes a court to make an award of money instead of merely dividing property.
This would make sense, since sometimes it is virtually impossible to divide property 50/50, like equipment of a business, inventory, or stock in the closely held business. The statute allows the court to make an equitable division of this kind of property by awarding an amount of money to one spouse representing that spouse’s share of the value of the property, but the specific property would be set aside to the other spouse.
The Court found that its conclusion was also supported by A.R.S. § 25-318(C) which allows a court to put a lien on the property awarded to one spouse to secure payment of an amount awarded to the other.
It reviewed cases from other states holding that when the court finds that one spouse has improperly taken marital property, the value of the property is added to the other existing marital property, and the total divided equitably. Then it adopted that rule as well.
The Court found that a divorce judge may award a spouse a sum of money representing the value of her interest in community assets which are not available for division. The assets may be unavailable because of the other spouse’s excess expenditures or his concealing or destroying the property.
It upheld the trial court’s judgment ordering Richard to pay Mary the two sums of cash.


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Where the Union's constitution and bylaws are silent on the subject of voluntary resignation from the Union, the Union committed an unfair labor practice when it sought court enforcement of fines imposed for strikebreaking activities by employees who had resigned from the Union, even though the Union constitution expressly prohibited members from strikebreaking. NLRB v. Textile Workers, 409 U.S. 213 .
148 U.S. App. D.C. 119, 459 F.2d 1143, affirmed.
Bernard Dunau argued the cause for petitioner. With him on the briefs were Plato E. Papps, Louis P. Poulton, and C. Paul Barker.
In this companion case to NLRB v. Boeing Co., ante, p. 67, we must decide whether our decision in NLRB v. Textile Workers, 409 U.S. 213 , authorizes the Board to find that a union commits an unfair labor practice in seeking court enforcement of fines imposed for strikebreaking activities by employees who have resigned from the union, even though the union constitution expressly prohibits members from strikebreaking. We hold that it does.
On September 16, 1965, the day after the expiration of the collective-bargaining agreement between Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO (the Union), and the Boeing Co. (the Company), the Union called a lawful strike and picketed the Company's Michoud, Louisiana, plant to further its demands for a new contract. The strike continued for 18 days, during which time 143 of the 1,900 production and maintenance employees represented by the Union crossed the picket line to work. All of these employees had been members of the Union before the strike, 1 but 61 resigned their membership prior to returning to work and another 58 resigned after they returned to work. 2 These resignations were tendered in registered or certified letters to the Union. Neither its constitution nor its bylaws contained [412 U.S. 84, 86] any provision expressly permitting or forbidding such resignations.
The strike ended on October 4, 1965, after ratification of a new collective-bargaining agreement by the Union membership. During late October and early November, the Union notified all employees who had crossed the picket line to work during the strike that charges had been preferred against them under the Union constitution for "Improper Conduct of a Member" because of their having "accept[ed] employment . . . in an establishment where a strike or lockout exist[ed]." They were advised of the dates of their Union trials, which were to be held even in their absence, and of their right to be represented by any counsel who was a member of the International Union. Fines were imposed on all employees who had worked during the strike without regard to whether or not such employees had resigned or had remained members. 3 None of the disciplined employees processed intra-union appeals. To the extent that fines were not paid, 4 the Union sent written notices to the offending employees stating that the matter had been referred to an attorney for collection. Suits were initiated in state court against nine employees for the purpose of collecting the fines plus attorneys' fees and interest. None of these suits has been resolved.
The Company filed an unfair labor practice charge with the National Labor Relations Board alleging that the Union had violated 8 (b) (1) (A) of the National Labor Relations Act, 61 Stat. 141, 29 U.S.C. 158 (b) [412 U.S. 84, 87] (1) (A). 5 The General Counsel issued a complaint, and the Board held that the Union violated 8 (b) (1) (A), by fining those employees who had resigned from the Union before returning to work during the strike, and by fining those who had resigned after returning to work to the extent that such fines were based on post-resignation work. No violation was found in the Union's fining members for crossing the picket line to work during the strike or in its fining those employees who resigned after they returned to work for work performed prior to resignation. The Board ordered the Union to cease and desist from fining employees who had resigned from the Union for their post-resignation work during the strike and from seeking court enforcement of such fines. It further ordered reimbursement to employees who had already paid fines for any amount imposed because of post-resignation work. The Court of Appeals sustained these holdings, 148 U.S. App. D.C. 119, 459 F.2d 1143 (1972), and, on the Union's petition for review, we granted certiorari. 409 U.S. 1074 .
In NLRB v. Textile Workers, 409 U.S., at 217 , we held that "[w]here a member lawfully resigns from a union and thereafter engages in conduct which the union rule proscribes, the union commits an unfair labor practice when it seeks enforcement of fines for that conduct." Since in that case there was no provision in the Union's constitution or bylaws limiting the circumstances in which a member could resign, we concluded that the members [412 U.S. 84, 88] were free to resign at will and that 7 of the Act. 29 U.S.C. 157, 6 protected that right to return to work during a strike which had been commenced while they were union members. 7 The Union's imposition of court-collectible fines against the former members for such work was, therefore, held to violate 8 (b) (1) (A).
Here, as in Textile Workers, the Union's constitution and bylaws are silent on the subject of voluntary resignation from the Union. 8 And here, as there, we leave open the question of the extent to which contractual restriction on a member's right to resign may be limited by the Act. Since there is no evidence that the employees here either knew of or had consented to any limitation on their right to resign, we need "only to apply the law which normally is reflected in our free institutions - the right of the individual to join or to resign from associations, as he sees fit `subject of course to any financial obligations due and owing' the group with which he was associated." Textile Workers, supra, at 216.
The Union contends, however, that a result different from Textile Workers is warranted in this case because, [412 U.S. 84, 89] even though its constitution does not expressly restrict the right to resign during a strike, it does impose on members an obligation to refrain from strikebreaking. The Union asserts that this provision has been consistently interpreted to bind a member, notwithstanding his resignation, to abstain from strikebreaking for the duration of an existing strike. It urges that this provision may be enforced as a matter of contract law against one whose membership has ceased, because it was an obligation he undertook while a member.
[ Footnote 1 ] The expired collective agreement contained a maintenance-of-membership provision that required new employees, as a condition of continued employment, to become members of the Union unless they notified both the Union and the Company within 40 days of accepting employment that they did not wish to join. Further, Union members were required to maintain their membership during the life of the contract.
[ Footnote 2 ] The remaining employees who returned to work during the strike did not resign from the Union.
[ Footnote 3 ] A standard fine of $450 was imposed on each of the disciplined employees. The amount was reduced, however, for those few members who appeared at their hearings, apologized for their actions, and pledged loyalty to the Union.
[ Footnote 4 ] None of the $450 fines has been paid, but reduced fines have been paid in a few instances.
[ Footnote 5 ] Section 8 (b) (1) (A) of the Act provides, in relevant part: "It shall be an unfair labor practice for a labor organization or its agents - "(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein . . . ."
[ Footnote 6 ] Section 7 of the Act provides, in relevant part: "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities . . . ."
[ Footnote 7 ] It was stipulated in that case that all 31 of the employees who resigned from the Union during the strike and returned to work participated in the strike vote, and voted in favor of the strike. NLRB v. Textile Workers, 409 U.S. 213, 219 n. 2 (BLACKMUN, J., dissenting).
[ Footnote 8 ] Since the collective-bargaining agreement expired prior to the times of the resignations, the maintenance-of-membership clause therein was no impediment to resigning.
[ Footnote 10 ] In its reply brief, the Union argues that in Textile Workers there was no limiting rule on post-resignation return to work during the course of the strike, but that in this case, the Union constitution proscribed such conduct. In Textile Workers, however, there was a duly enacted rule prohibiting any member from aiding and abetting the employer during the strike and subjecting violators to a $2,000 fine. On its face, the constitutional proscription here advanced is no broader than that rule.
In NLRB v. Textile Workers, 409 U.S. 213 (1972), the strikebreaking employees, while they were members of the union, had all voted to strike. On the day following the inception of the strike, these employees also voted in favor of a union resolution that anyone aiding or abetting the company during the strike would be subject to a fine. * And all had participated in the strike prior to resigning from the union.
I was in solitary dissent in Textile Workers, id., at 218. I emphasized there that "it seems likely that the three factors of a member's strike vote, his ratification of strikebreaking penalties, and his actual participation in the strike, would be far more reliable indicia of his obligation to the union and its members than the presence of boilerplate provisions in a union's constitution," id., at 220; that the Court's opinion seemed to me "to exalt the formality of resignation over the substance of the various interests and national labor policies that [were] at stake," id., at 221; that 7 of the National Labor Relations Act "does not necessarily give him [the employee] the right to abandon these [union] activities [412 U.S. 84, 91] in midcourse once he has undertaken them voluntarily," id., at 222, quoting from 446 F.2d 369, 373; and that the policy of 7 would not be frustrated by a holding that an employee, in the circumstances of that case, could "knowingly waive his 7 right to resign from the union and to return to work without sanction." 409 U.S., at 222 -223.
The present case, however, is a very different situation. None of the Boeing employees who resigned from the Union had been given notice of a strikebreaking penalty before the strike vote or before their participation in the strike. The imposition of a penalty was never ratified formally by the union membership. The members were not notified that post-resignation strikebreaking was proscribed and would subject them to union discipline. And the provision in the Union's constitution, referred to by the Court, ante, at 89, as to a member's general obligation to refrain from strikebreaking, surely does not make up for this lack of notice, and it would not do so even if it were clearly applicable, which it is not, to strikebreaking after resignation from the Union.
Without effective notice of obligations that are supposed to be assumed, there can be no waiver of member's 7 right to refrain from participation in a legal strike. In the absence of such notice, 8 (b) (1) (A) bars the union from subjecting a member to a choice between the substantial obligation of weathering the strike and that of being subjected to court-collectible fines for failure to do so.
I, therefore, join in the Court's judgment.

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AMIR AHMED, an individual resident of Texas, Defendant.
This matter comes before the Court on Defendant's Motion to Dismiss Pursuant to FRCP Rules 12(b)(2) and 12(b)(6), and Alternatively, Motion to Compel Arbitration. Dkt. #6. Defendant argues that he does not have minimum contacts with Washington and that this Court does not have personal jurisdiction over him, that Plaintiff fails to adequately allege either of its claims, and that Plaintiff should, in any event, be compelled to arbitrate its claims. Plaintiff opposes the Motion. Dkt. #9. For the reasons stated below, the Court finds that it does not have personal jurisdiction over Defendant and grants Defendant's Motion to Dismiss.
Plaintiff initiated this action against Defendant in state court for: (1) “tortious interference with a business relationship” and (2) “conspiracy in restraint of trade, ” a violation of Washington's Consumer Protection Act (Chapter 19.86, Revised Code of Washington). Dkt. #1, Ex. A at ¶ 1. From August, 13, 2007, to June 30, 2015, Plaintiff had a contract with DISH Network LLC (“DISH”) to “sell [DISH] services on a nationwide basis.” Id. at ¶¶ 17, 24. Plaintiff competed with other entities contracting with DISH to sell DISH services. Id. at ¶ 14. Dish One Satellite LLC (“DishOne”), jointly owned by DISH and unknown individuals, is one such entity that contracts with DISH to sell DISH services on a nationwide basis. Id. at ¶¶ 11, 15-16. Plaintiff therefore competed with DishOne for customers. Id. at ¶ 18.
Defendant is DISH's Senior Vice President of Sales and in that capacity oversees nationwide sales of DISH services. Id. at ¶¶ 19-20. Defendant's compensation includes a portion of the profits generated by DishOne's sales of DISH services. Id. at ¶ 21. Defendant, acting in his own financial interest, convinced DISH to cancel Plaintiff's contract in order to increase DishOne's profits and, accordingly, Defendant's compensation. Id. at ¶¶ 22-23.
The Court will first address Defendant's argument that the Court lacks personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). Where a defendant moves to dismiss a complaint for lack of personal jurisdiction, the plaintiff bears the burden of demonstrating that jurisdiction is appropriate. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). Where, as here, the motion is based on written materials rather than an evidentiary hearing, the plaintiff's pleadings and any affidavits need only make a prima facie showing of facts supporting personal jurisdiction. Id. Any conflicts over jurisdictional facts must be resolved in the plaintiff's favor. Id.
Pursuant to Federal Rule of Civil Procedure 4(k)(1)(A), federal courts ordinarily follow state law to determine their jurisdiction over persons. Daimler AG v. Bauman, 571 U.S. 117, 125 (2014). Washington's long-arm statute extends personal jurisdiction to the broadest reach that the United States Constitution permits. Byron Nelson Co. v. Orchard Management Corp., 95 Wash.App. 462, 975 P.2d 555, 558 (Wash.Ct.App. 1999). The Court therefore must determine whether the exercise of jurisdiction comports with federal constitutional requirements. See Easter v. Am. W. Fin., 381 F.3d 948, 960 (9th Cir. 2004).
The Due Process Clause protects a defendant's liberty interest by only subjecting a defendant to binding judgements in forums with which the defendant has established “certain minimum contacts . . . such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.'” Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). Thus, in determining personal jurisdiction, courts focus “on the relationship among the defendant, the forum, and the litigation.” Shaffer v. Heitner, 433 U.S. 186, 204 (1977).
Personal jurisdiction exists in two forms, general and specific. Dole Food Co. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002). General jurisdiction exists over a non-resident defendant when there is “continuous and systematic general business contacts that approximate physical presence in the forum state.” Schwarzenegger, 374 F.3d at 801. Here, Plaintiff does not appear to argue, and the record does not support, that Defendant is subject to general jurisdiction in Washington. Dkt. #9 at 7-9. The Court, therefore, needs only to consider specific jurisdiction.

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