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Murder. Emanuel Superior Court. Before Judge Hartley.
Junior Vaughn and his wife, Helen Vaughn, were indicted for the murder of Ray Gene Oglesby. They were tried separately and each was convicted of murder. We affirmed Helen Vaughn's conviction, Vaughn v. State, 247 Ga. 136 (274 SE2d 479) (1981), but reversed her husband's because his written confession was admitted in violation of Edwards v. Arizona, 451 U. S. 477 (101 SC 1880, 68 LE2d 378) (1981). Vaughn v. State, 248 Ga. 127 (281 SE2d 594) (1981). Junior Vaughn was retried and again convicted of murder and sentenced to life in prison. The state contended that Mr. and Mrs. Vaughn, employees of Ray Oglesby, murdered Oglesby by putting arsenic in his beer.
In the appeal, Junior Vaughn enumerates a single error: "[T]hat the trial court erred in permitting the state's attorney to ask a hypothetical question of an expert witness whom the state had called in that said hypothetical question was based on facts not in evidence at that time nor were these facts placed in evidence subsequently thereto."
The testimony at issue is that of Dr. Richard Staiman, the pathologist who performed the autopsy on the victim. Dr. Staiman testified that during the autopsy, he removed tissues from the victim's body and sent them to the State Crime Lab for toxicology studies, and that he received a report on the studies. Omitting questions rephrased due to objections, the following testimony was elicited. The district attorney asked: "Did you receive a report from the Georgia State Crime Laboratory?" "I did." "Did that report indicate that the tissues sent to them by you contained arsenic?" "It did." "Based on that report, assuming that it's correct, Dr. Staiman, do you have an opinion as to what caused the death of Ray Gene Oglesby?" At that point the defendant objected, arguing that an expert witness cannot base his opinion on hearsay and that the fact that the lab reports showed the presence of arsenic was not in evidence except by way of hearsay testimony by Dr. Staiman himself. After the objection was overruled, the district attorney resumed examination of the witness: "After submitting the tissue to the State Crime Laboratory, you indicated by your testimony, that you received a report. The report indicated that there were quantities of toxic substances in the tissue, is that correct?" "Yes." "Now, based upon the report of the State Crime Laboratory and on the autopsy that you performed, do you have an opinion as to what caused the death of Ray Gene Oglesby?" "Yes." "What would your opinion be?" "It's my opinion that he died of acute arsenic poisoning."
Later in the trial, William Wall, the forensic toxicologist and employee of the State Crime Laboratory whose tests conducted on the victim's tissues formed the basis of the State Crime Laboratory's report, testified that he found significant levels of arsenic in the tissues. Thus the facts which composed the question put to Dr. Staiman were introduced into evidence, albeit after Dr. Staiman had testified.
This issue has previously been decided in a case which also involved arsenic poisoning. In Gossett v. State, 203 Ga. 692 (7) (48 SE2d 71) (1948), a doctor who qualified as an expert was asked whether, assuming the toxic changes in the victim were caused by arsenic, it was possible or probable that the arsenic was ingested by mouth or taken intravenously. His answer, which was objected to, was that: " 'From what I saw, assuming, according to your hypothetical question, that it was arsenic poison, I would say that it was ingested, definitely.' "Id. at 694. This Court held that assuming that the question was subject to the objection made when it was asked, any error was later cured when another witness testified that in examining the victim's body, he found large concentrations of arsenic, especially in the stomach. Therefore this enumeration of error is without merit. Gossett v. State, supra; Code Ann. 38-1710.
The defendant relies on Evans v. DeKalb County Hospital Auth., 154 Ga. App. 17 (2) (267 SE2d 319) (1980). In Evans, the trial court ruled that an expert medical witness could not give an opinion on the cause of death based on an autopsy report and medical depositions that had not yet been admitted into evidence. That ruling was correct. However, where the trial court allows the question, as was done here, the later introduction of the evidence on which the hypothetical question is based cures the error. Gossett v. State, supra.
H. Reginald Thompson, District Attorney, Richard A. Malone, Acting District Attorney, Michael J. Bowers, Attorney General, Virginia H. Jeffries, Staff Assistant Attorney General, for appellee.
Michael J. Moses, for appellant.

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Sep 18, 2018 ... BARRY M. SMITH AND ROCHELLE SMITH, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent. Docket No. 14900-15.
Nov 1, 2018 ... T.C. Memo. 2018-184. UNITED STATES TAX COURT. W.T. SNIPES, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
Aug 1, 2018 ... TERRY JAY GRANT AND TWILA ROSE GRANT, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent. Docket No. 7887-16.
Mar 18, 2019 ... JIM STUART BROOKS, Petitioner v. COMMISSIONER OF ... intervene pursuant to Rule 325(a) and King v. Commissioner, 115 T.C. 118.
Apr 4, 2019 ... JILL SCHERMER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, ... Daniel V. Triplett, Jr., for respondent. MEMORANDUM OPINION.

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1. Objections, on constitutional grounds, to the Agricultural Marketing Agreement Act of 1937, and to certain features of an order of the Secretary of Agriculture made thereunder, overruled upon the authority of the Rock Royal case, ante p. 307 U. S. 533. P. 307 U. S. 595.
2. The finding and proclamation required of the Secretary of Agriculture by § 8(e) of the Agricultural Marketing Agreement Act of 1937 to justify an order based on purchasing power during the post-war period specified in that section, rather than upon the pre-war period mentioned in § 2 -- that is to say, a finding and proclamation that the purchasing power of the commodity regulated cannot be satisfactorily determined for the pre-war period from available statistics of the Department of Agriculture -- need not be repeated in connection with an amendment of the order which does not involve any change of the base period, although it is declared by § 8(17) that the provisions of § 8(e) applicable to orders "shall be applicable to amendments to orders." P. 307 U. S. 595.
3. A referendum to producers, under § 8c(9)(B) and § 8c(19) of the above-mentioned Act, of amendments to an order regulating the handling of milk in the marketing area of Boston and vicinity, was properly restricted to producers who sold their fluid milk to handling plants licensed by the state law to distribute or sell fluid milk in the marketing area and which had shipped milk or cream to that area during the representative period. So held in the light of the object of the regulation, which was to remedy marketing evils caused by a surplus of fluid milk. P. 307 U. S. 597.
but which were licensed to sell fluid milk in that area, and could have done so; (c) by allowing the vote to producers not registered as required by the state law, but whose milk was sold in the marketing area by licensed handlers; or (d) by permitting the vote to producers who sold to stations which shipped less than 50 percent of the milk to the area during the representative period.
4. At such a referendum, a cooperative association of producers may vote for its members. P. 307 U. S. 509.
.	5. An order of the Secretary of Agriculture which regulated the prices of milk sold by producers to licensed handlers for a marketing area, and which required such handlers to pay through an equalization fund -- construed as including milk bought of unregistered farms and sold in violation of the state law. P. 307 U. S. 599.
6. Assuming that, under the Agricultural Marketing Agreement Act of 1937, reinstatement of a suspended order should be supported by a finding that the reinstatement will tend to effectuate the policy of the Act, the omission can be supplied by an appropriate finding on repromulgation of the order with amendments. P. 307 U. S. 602.
21 F.Supp. 321, 26 F.Supp. 672, affirmed.
Certiorari, 306 U.S. 627, 629, to review decrees of a District Court granting mandatory injunctions in two suits brought by the United States and the Secretary of Agriculture to enforce a marketing order regulating prices of milk and milk products in an area comprising the City of Boston and adjacent settlements. The original defendants were three milk dealers. Two milk producers, one of whom is the petitioner in No. 865, intervened as defendants. Upon interlocutory appeal, the Circuit Court of Appeals gave an opinion which is reported as H. P. Hood & Sons, Inc. v. United States, 97 F.2d 677. The writs of certiorari were issued while the cases were pending in that court upon appeals from the final decrees.
These cases involve the constitutionality of the Agricultural Marketing Agreement Act of 1937 [Footnote 1] as applied in an order of the Secretary of Agriculture regulating the handling of milk in the Greater Boston, Massachusetts, Marketing Area.
Whiting Milk Company from violating the terms of Order No. 4 as amended. A temporary mandatory injunction issued on November 30, 1937. A supersedeas followed soon after, conditioned upon payment by the three handlers into the registry of the court of the amounts billed to them by the Market Administrator for equalization charges and marketing services under the Order. Answers to the bills asserted constitutional infirmities in the Act and fatal weaknesses in the Order as amended. A Special Master was charged with the duty of finding the facts in these and similar suits. His report was filed on January 27, 1939. Shortly thereafter, the District Court confirmed the report, sustained both the Act and the Order, and entered a decree for the plaintiffs. 26 F.Supp. 672. The defendants took an appeal to the Circuit Court of Appeals and, after the cases were docketed, filed petitions for writs of certiorari. The writs were granted because important questions of Federal law undecided by this Court were involved and pending appeals in other cases with similar issues were ready for argument. 306 U.S. 627.
The pertinent provisions of the Marketing Act have been summarized in United States v. Rock Royal Cooperative, ante, p. 307 U. S. 533. They will not be repeated here.
Order No. 4, as amended, which the plaintiffs seek to enforce, is the culmination of an extended effort by the Secretary to work out a plan to regulate the marketing of milk in the Boston area. Order No. 4 was originally issued on February 7, 1936, under the Agricultural Adjustment Act. [Footnote 2] All steps leading to its issuance were taken. On November 30, 1935, the Secretary gave notice of a public hearing on a proposed marketing agreement and order. Hearings were held. A marketing agreement was tentatively approved which handlers failed to accept.
On January 25, 1936, the Secretary found and proclaimed that the purchasing power of milk could not be satisfactorily determined for the pre-war base period from available statistics in the Department of Agriculture, but could for the post-war period. August, 1919, to July, 1929, was declared the base period for the purpose of issuing an order. On February 5, 1936, the Secretary made a determination, as required by Section 8c(9), as to the necessity for issuing an order. The President approved the determination, and the Order issued. It remained in effect until August 1, 1936, shortly after the District Court for the District of Massachusetts held that the Act under which the Order was issued was unconstitutional. [Footnote 3] On that day, the Secretary suspended the Order for an indefinite time.
After the passage of the Marketing Act, the Secretary, on June 24, 1937, gave notice of a hearing upon proposed amendments to Order No. 4. On the following day, he terminated the suspension of the formal and administrative provisions as of July 1, and of the price-fixing provisions as of August 1. Hearings were held. A proposed marketing agreement failed of approval by the handlers. On July 17, 1937, a referendum took place. It will be discussed later at some length because of contentions which question its validity. On July 27, 1937, acting pursuant to § 8c(9), the Secretary determined that the failure of the handlers to sign tended to prevent effectuation of the declared policy of the Act; that issuance of the proposed amendments to the Order was the only practical means of advancing the interests of milk producers in the area, and that the issuance was approved by over 70 percent of the producers who, during May, 1937, were engaged in the production of milk for sale in the area. The President approved the determination.
On July 28, 1937, "Order No. 4, Amendment No. 1" issued. In it, the Secretary made findings upon the evidence introduced at the hearings upon the proposed amendments and ratified the original findings insofar as they were not in conflict with the new ones. He made no finding or proclamation, as he had in the original Order, that satisfactory statistics were not available for the pre-war period, but were for the post-war period. It is not disputed that the latter was used as the base period for the purpose of computing the prices to be used in the amended Order.
"in such handling of milk, which is sold as milk or cream in the Marketing Area, as is in the current of interstate commerce or which directly burdens, obstructs or affects interstate or foreign commerce in milk and its products."
"To producers, through the Market Administrator, by paying to or receiving from the Market Administrator, as the case may be, the amount by which payments made . . . are less than, or exceed, the value of milk as required to be computed for such handler. . . ."
The defendants urge that the decree of the District Court should be reversed because of error under the Constitution, under the statute, under the Order itself. It is contended that the equalization provisions of the amended Order violate the due process clause of the Fifth Amendment; that the price-fixing features of the Act and Order constitute an invalid exercise of the power to regulate commerce and an invasion of the powers reserved to the states under the Tenth Amendment; [Footnote 4] and that the Act involves delegation of legislative power. The amendments to the Order are said to be void because an essential finding required by the statute is lacking. The referendum among producers is assailed as improperly conducted. And the defendants in No. 772 raise the point that the Market Administrator failed to comply with the provisions of the amended Order.
Constitutionality. There is nothing to be added to the discussion of the constitutionality of the Act in United States v. Rock Royal Cooperative, ante, p. 307 U. S. 533. The discussion there of the validity of the amended Order, insofar as similar issues are raised in this case, is also determinative.
Order Amended without Finding as to Base Period. Order No. 4, as amended, is the controlling regulation in these cases. As authorized by § 8e, [Footnote 5] it used a post-war period as the base period to determine prices. The finding and proclamation by the Secretary as to the absence of statistics for the pre-war period, available for use, were made for the original issue of Order No. 4, but not for the amendments. Section 8c(17) makes certain sections, including 8e, applicable to amendments of orders. It reads thus: "The provisions of this section, section 8d, and section 8e applicable to orders shall be applicable to amendments to orders. . . ." Defendants contend that this requires a finding and proclamation under § 8e each time an order which includes a post-war base period is amended in any particular.
Validity of the Referendum. The referendum is challenged as conducted contrary to the terms of the Act. Section 8c(9)(B) authorizes the Secretary of Agriculture to issue an order, notwithstanding the failure of handlers to approve a marketing agreement, if he makes certain determinations, one of them that the issuance is approved by at least two-thirds of the producers who, during a representative period, "have been engaged in the production of such commodity for sale in the marketing area. . . ." [Footnote 8] Under § 8c(19), the Secretary "may conduct a referendum among producers" to ascertain whether two-thirds approve. He restricted voting in the referendum under scrutiny to producers who had delivered milk to a station approved for the shipment of milk to the marketing area and which had shipped milk or cream to the marketing area during the representative period.
amendments to the Order solely through ballots cast by their boards of directors. Inclusion of the southern and western shippers of cream or elimination of any one of the remaining groups might have changed the result of the referendum.
The Act does not supply the Secretary with detailed directions as to the manner of holding a referendum. Its language is general. The Secretary "may conduct a referendum among producers." [Footnote 10] What producers? Those "engaged in the production of [milk] for sale in the marketing area. . . ." [Footnote 11] Every producer who voted was so engaged. Each delivered milk to the plant of a handler licensed [Footnote 12] to distribute and sell fluid milk in the marketing area. The Order is aimed at the handling of milk marketed in the area. The problems to be solved are those engendered by the necessary, yet troublesome, surplus of fluid milk. Every handler to whom the voters delivered contributed to that surplus.
The milk of the southern and western producers outside the milkshed could not be sent into the marketing area in fluid form, for their handlers were not licensed to sell milk in the area. The station in Indiana, used in the hearings as illustrative of the situation, held a license for the emergency shipments of sweet cream only. The exclusion of the southern and western producers therefore was proper. They are located outside the Boston milkshed; they do not produce any part of the burdensome surplus of fluid milk.
There was no error in permitting the remaining groups of producers to vote. That some handlers to whom voting producers delivered milk shipped only cream during the representative period is immaterial. The farmers, it was found, cannot tell when they bring in their milk whether it will be sold by the handlers as milk or cream. As these handlers could have sent the fluid milk to the area, and in most instances did at times other than the representative period, the milk delivered to them was a potential part of the surplus. The producers who lacked certificates of registration were properly included. Their milk was sold in the area by licensed handlers. [Footnote 13] Nor can it make any difference that less than 50 percent of the milk of some stations was shipped the marketing area during the representative period. There is nothing in the Act that compels adopting 50 percent as determinative. It was enough that the handlers of these producers did send some part, and could have sent all.
Two cooperatives voted for their members in favor of the amendments to the Order. [Footnote 14] No poll was taken of the individual producer members. Nor was there any subsequent approval by them of the action taken on their behalf by the cooperatives. Section 8c(12) directs the Secretary to consider the approval or disapproval of cooperatives as the approval or disapproval of members. This is complete authority for the action of the Secretary. He need not require further referendums by cooperatives themselves. Presumably they will vote with an eye to the best interest of their members.
which he had billed to them under the Order. The defendants H. P. Hood & Sons and Noble's Milk Company contend that the bills include in their computation milk plainly excluded by the terms of the Order because the product of dairies without the certificates of registration required by Massachusetts General Laws, Chapter 94, §§ 16A et seq. Under these sections, no person may sell milk known to have been produced on unregistered farms. It is not disputed that milk from such farms figured in the operation of the equalization pool. The explanation of the plaintiffs is that the Order covers this milk.
"That the issuance of the amendment to the order and all of the terms and conditions of the order, as amended, will tend to effectuate the declared policy of the act."
We are of the view that this finding cured any omission, if such a finding prior to reinstatement were necessary, as to which we express no opinion. While Order No. 4 was partly in effect prior to this amendment, the finding covered the entire Order No. 4 as amended, and the language of the Order promulgating the amendments is an approval of Order No. 4 as amended, as tending to effectuate the declared policy of the Act.
Other contentions are made which have been considered, but they do not seem to require any statement.
* Together with No. 809, Whiting Milk Co. v. United States et al., and No. 865, Branon v. United States et al. also on writs of certiorari to the Circuit Court of Appeals for the First Circuit.
Act of May 12, 1933, 48 Stat. 31, as amended August 24, 1935, 49 Stat. 750.
United States v. David Buttrick Co., 15 F.Supp. 655, reversed in 91 F.2d 66.
"Sec. 8e. In connection with the making of any marketing agreement or the issuance of any order, if the Secretary finds and proclaims that, as to any commodity specified in such marketing agreement or order, the purchasing power during the base period specified for such commodity in section 2 of this title cannot be satisfactorily determined from available statistics of the Department of Agriculture, the base period, for the purposes of such marketing agreement or order, shall be the post-war period, August 1919-July 1929, or all that portion thereof for which the Secretary finds and proclaims that the purchasing power of such commodity can be satisfactorily determined from available statistics of the Department of Agriculture."
Armstrong Paint & Varnish Works v. Nu-Enamel Corp., 305 U. S. 315, 305 U. S. 329.
"Order No. 2, amended June 5, 1936 (1 Fed.Reg. 549); Order No. 3, amended April 13, 1936 (1 Fed.Reg. 185), and March 29, 1937 (2 Fed.Reg. 616), and March 31, 1939 (4 Fed.Reg. 1404); Order No. 4, amended July 28, 1937 (2 Fed.Reg. 1331), and January 13, 1939 (4 Fed.Reg. 249); Order No. 5, amended March 29, 1937 (2 Fed.Reg. 614); Order No. 7, amended October 24, 1936 (1 Fed.Reg. 1662); Order No. 11, amended November 17, 1936 (1 Fed.Reg.1979); Order No. 12, amended February 24, 1937 (2 Fed.Reg. 354); Order No. 15, proclamation dated September 10, 1938 (3 Fed.Reg. 2222), amendment dated September 10, 1938 (3 Fed.Reg. 2222); Order No. 20, amended August 15, 1938 (3 Fed.Reg. 2015)."
Mass.Ann.Laws, c. 94, §§ 12-48.
Mass.Ann.Laws, c. 94, § 40.
See United States v. Rock Royal Cooperative, ante, p. 307 U. S. 533, 307 U. S. 556.
Mass.Ann.Laws, c. 94, §§ 40, 43.
"(1) The Secretary of Agriculture shall, subject to the provisions of this section, issue, and from time to time amend, orders applicable to processors, associations of producers, and others engaged in the handling of any agricultural commodity or product thereof specified in subsection (2) of this section. Such persons are referred to in this title as 'handlers.' Such orders shall regulate, in the manner hereinafter in this section provided, only such handling of such agricultural commodity, or product thereof, as is in the current of interstate or foreign commerce, or which directly burdens, obstructs, or affects interstate or foreign commerce in such commodity or product thereof."
"Section 1. Sales and Use Classification. -- Milk purchased or handled by handlers shall be classified as follows:"
"1. All milk sold or distributed as milk, chocolate milk, or flavored milk and all milk not specifically accounted for as Class II milk shall be Class I milk; and"
"2. Milk specifically accounted for (a) as being sold, distributed, or disposed of other than as milk, chocolate milk, or flavored milk and (b) as actual plant shrinkage within reasonable limits shall be Class II milk."
"Section 1. Periodic Reports. -- On or before the eighth day after the end of each delivery period, each handler shall, except as set forth in section 1 of article VI, with respect to milk or cream which was, during such delivery period, (a) received from producers, (b) received from handlers, or (c) produced by such handler, report to the Market Administrator in the detail and form prescribed by the Market Administrator, as follows:"
"1. The receipts at each plant from producers who are not handlers;"
"2. The receipts at each plant from any other handler, including any handler who is also a producer;"
"3. The quantity, if any, produced by such handler; and"
"4. The respective quantities of milk which were sold, distributed, or used, including sales to other handlers, for the purpose of classification pursuant to article III."
"Section 1. Computation of Value of Milk for Each Handler. -- For each delivery period, the Market Administrator shall compute, subject to the provisions of article VI, the value of milk sold or used by each handler, which was not purchased from other handlers, by (a) multiplying the quantity of such milk in each class by the price applicable pursuant to sections 2, 3, and 4 of article IV and (b) adding together the resulting value of each class."
"Section 1. Time and Method of Payment. -- On or before the 25th day after the end of each delivery period, each handler shall make payment, subject to the butterfat differential set forth in section 3 of this article, for the total value of milk received during such delivery period as required to be computed pursuant to section 1 of article VII, as follows:"
"1. To each producer, except as set forth in paragraph 2 of this section at the blended price per hundredweight computed pursuant to section 2 of article VII, subject to the differentials set forth in section 4 of this article, for the quantity of milk delivered by such producer;"
"2. To any producer, who did not regularly sell milk for a period of thirty days prior to the effective date hereof to a handler or to persons within the Marketing Area at the Class II price, in effect for the plant at which such producer delivered milk, for all the milk delivered by such producer during the period beginning with the first regular delivery of such producer and continuing until the end of two full calendar months following the first day of the next succeeding calendar month;"
"3. To producers, through the Market Administrator, by paying to or receiving from the Market Administrator, as the case may be, the amount by which the payments made pursuant to paragraphs 1 and 2 of this section are less than, or exceed, the value of milk as required to be computed for such handler pursuant to section 1 of article VII, as shown in a statement rendered by the Market Administrator on or before the twentieth day after the end of such delivery period."
Mass.Ann.Laws, c. 6, and c. 94, §§ 16A, 16F, 40, 41, 43.
shall be regulated; second, in what areas the commodity shall be regulated; third, the period of regulation, and fourth, the character of regulation to be imposed, and, for these reasons, cannot be sustained.
"Through the exercise of the powers conferred upon the Secretary of Agriculture under this title, to establish and maintain such orderly marketing conditions for agricultural commodities in interstate commerce as will establish prices to farmers at a level that will give agricultural commodities a purchasing power with respect to articles that farmers buy, equivalent to the purchasing power of agricultural commodities in the base period,"
"To protect the interest of the consumer by (a) approaching the level of prices which it is declared to be the policy of Congress to establish in subsection (1) of this section by gradual correction of the current level at as rapid a rate as the Secretary of Agriculture deems to be in the public interest and feasible in view of the current consumptive demand in domestic and foreign markets, and (b) authorizing no action under this title which has for its purpose the maintenance of prices to farmers above the level which it is declared to be the policy of Congress to establish in subsection (1) of this section."
Assuming that any of these proposed ends or aims were in themselves capable of reasonable definition, it is nevertheless evident that the Secretary is to form a judgment by balancing a price raising policy against a consumer protection policy, according to his views of feasibility and public interest.
the inescapable result that, after such definite finding as to each proposed aim, there must be an exercise of judgment as to the extent to which that aim should be accomplished in the light of other and conflicting aims. And there would still remain the fact that the conclusion might be against any regulation by reason of the Secretary's restrained judgment that, in the circumstances, regulation is not "feasible."
Enough has been said to show that a law is to come into being on the basis of the Secretary's sole judgment as to its probable effect upon the milk industry, its probable effect upon the consumer, its probable consonance with the public interest, and its feasibility. The resolution of all such problems is of the essence of lawmaking.
the Act is in truth to raise prices paid farmers for milk. The upward limit is really left to the Secretary's uncontrolled discretion.
Turn now to another alleged standard which is to control the Secretary's action. He is not to raise prices so fast as to injure the interest of the consumer, but is to raise them gradually by correction of the current level at as rapid a rate as he deems to be in the public interest and feasible in view of consumptive demand. It is fair to ask whether this constitutes a standard at all. What is the public interest? Must not Congress ascertain and declare it? What is feasible in the way of regulation? Is not this a matter for legislative judgment? How is anyone to tell whether the Secretary has disobeyed the mandate of Congress in these respects?
producers the dollar value of milk sold in the area to which the Secretary's order applies. The differences between the permissible schemes are not matters of mere detail, but are basic and fundamental.
In respect of the choice of method, the only guide is the declaration of policy embodied in § 2. If the Secretary is of opinion that one method is more likely to raise prices than another, he is at liberty to put into the form of an order what is tantamount to a statute prescribing the method of his choice. Thus, the Secretary is to decide not only whether there is to be a law, but, as well, the nature of the law to be enacted.
What was said concerning unconstitutional delegation of legislative power in Panama Refining Co. v. Ryan, 293 U. S. 388, and Schecter Poultry Corp. v. United States, 295 U. S. 495, applies with equal force here. Comparison of the provisions of the Act respecting flue-cured tobacco, which are summarized in Mulford v. Smith, ante, p. 307 U. S. 38, with those applicable to milk will disclose the fundamental difference between the administrative character of the powers delegated in the case of tobacco and the legislative character of those delegated in the case of milk. No authority cited by the Government presents a situation comparable to that here disclosed. It would not be profitable to analyze each of the cases, because, in each, the question of the nature of the statutory standard and its application in the administration of the statute involved depended upon the field which the legislation covers. Where delegation has been sustained, the court has been careful to point out the circumstances which made it possible to prescribe a standard by which administrative action was confined and directed. Such a standard, as respects milk marketing, is lacking in the Agricultural Marketing Agreement Act of 1937.
* See § 8c(3), 8c(4), 8c(16).


On appeal the mariner argued that the Coast Guard should be responsible for searching public records to ascertain a criminal record history, as he (the mariner himself) was only a high-school graduate and a “simple seafarer” and had neither the resources nor the competence to conduct a comprehensive search as did the Coast Guard.
Not helping the mariner’s case was the fact that he had an extensive criminal record, much of which had not been previously disclosed in prior applications to U.S.C.G. Long Beach.
The mariner’s appeal for clemency was rejected as not properly before the Commandant on appeal. The Commandant set forth the clemency procedures found at 46 CFR §5.901-905.
The mariner’s argument had a certain logic and equity to it, but it was not accepted by the Vice Commandant. Remember this case if an insured tries to make this point with you!
This was an appeal by the Coast Guard of the dismissal of its Complaint by the Administrative Law Judge (ALJ) for repeated failure on the part of the Coast Guard to comply with ALJ-ordered discovery and a subpoena. The ALJ refused to grant two Coast Guard motions to allow telephonic testimony at the hearing, based on the importance of the witnesses, the need for all sides to assess credibility and the short travel distances involved for the witnesses. In response to this denial, the Coast Guard apparently showed up at the hearing and refused to call any witnesses. The ALJ then dismissed the Coast Guard’s Complaint at the opening of the hearing.
The Coast Guard appealed claiming that it was reversible error for the ALJ to deny its motions for telephonic discovery, and that the judge was biased, has pre-judged the case and should have been dismissed or recused. The Vice Commandant had no difficulty affirming the ALJ’s dismissal, stating that the denial of the Coast Guard’s motion was within the ALJ’s sound discretion, and that a mere denial of a motion is not evidence of prejudice on the part of an ALJ.
This will be a good case to cite if you wish to oppose a Coast Guard motion for telephonic testimony at a hearing. The importance of the witness, need of the ALJ and all sides to assess credibility and short travel distances were all reasons for live testimony cited by the ALJ and affirmed by the Vice Commandant.
USCG v. CLARENCE V. MARSHALL, JR.
Respondent was standing a bridge watch aboard his vessel when two fellow crew members, reportedly intoxicated, approached him and a fight ensued. Both sides claimed intoxication and racial slurs on the part of the other. The fighting parties were separated, removed from the vessel and transported separately to the company office where the incident was reported to the police. In addition, the respondent himself was ordered by his employer to take a chemical test and refused. The Coast Guard then charged the respondent with misconduct for refusal to test but, after the hearing, the Administrative Law Judge (ALJ) dismissed the Coast Guard’s Complaint for failure to prove “reasonable cause” to order a chemical test at the outset. The Coast Guard appealed the ALJ’s dismissal.
Refusal to consent to a chemical test is therefore not misconduct under 33 CFR 95.04 where there is no evidence of intoxication as set forth by 33 CFR §95.035(a)(2), and there is therefore no “reasonable cause” to require the test in the first place.
Only a law enforcement officer or a marine employer may direct an individual operating a vessel to undergo a chemical test when reasonable cause exists. 33 CFR §95.035(a). Reasonable cause exists when: (1) the individual was directly involved in the occurrence of a marine casualty; or (2) the individual is suspected of being in violation of the standards in §95.020 or §95.025. 33 CFR §95.035(a)(1)-(2). Section 95.020 sets the standards of intoxication at .10% alcohol by weight in blood for operation of a recreational vessel, .04% alcohol by weight in blood for operation of a non-recreational vessel, or observable effects of an intoxicant on a person’s manner, disposition, speech, muscular movement, general appearance or behavior. 33 CFR §95.020 (a)-(c). This case clearly defines “reasonable cause” and makes it clear that the Coast Guard must show facts to support the existence of reasonable cause as an element of its proof.


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Scenic Philadelphia, Appellant v. Philadelphia Zoning Board of Adjustment and H.A. Steen Industries, Inc.
Scenic Philadelphia (Objector) appeals from the February 6, 2014 Order of the Court of Common Pleas of Philadelphia County (trial court) denying, for lack of standing, Objector's appeal from a Decision of the Philadelphia Zoning Board of Adjustment (ZBA). Objector's appeal to the trial court challenged the ZBA's denial of its appeal of the Philadelphia Department of Licenses and Inspection's (L&I) issuance of a zoning permit (Permit) to H.A. Steen Industries, Inc. (Applicant) to erect a double-faced digital monopole outdoor advertising sign. On appeal, Objector argues that (1) the trial court erred in determining that Objector lacked standing; (2) the ZBA was without authority to issue a corrected Decision; and (3) the ZBA's Decision is not supported by the record. Because we agree that under current Supreme Court jurisprudence Objector lacked standing, we affirm the trial court's Order.
The Zoning Code, as set forth in Title 14 of The Philadelphia Code, was repealed and reenacted effective August 22, 2012. Because this action commenced January 26, 2012, the previous version of the Zoning Code governs this appeal.
On March 14, 2012, the ZBA conducted a public hearing on the appeal. (FOF ¶ 4.) The ZBA framed the issues before it as "whether L&I (i) followed the proper procedures in reviewing the application for the sign at issue; [and] (ii) properly issued the Permit." (FOF ¶ 5.) At the hearing, counsel before the ZBA included Samuel Stretton and Stephanie Kindt for Objector, Leslie Gerstein for Applicant, and Andrew Ross for the City of Philadelphia (City). (FOF ¶ 6.) At the beginning of the hearing Mr. Stretton submitted an exhibit package to the ZBA, which included notarized Letters of Engagement of several members belonging to Objector's organization. (FOF ¶ 7.) Ms. Kindt also testified on behalf of Objector. (FOF ¶ 13.) Objector presented the testimony of Ms. Kindt to establish why Objector's appeal to the ZBA did not include certain allegations of error on the part of L&I in issuing the Permit. (ZBA Hr'g Tr. at 19, R.R. at 57.) Ms. Gerstein submitted a memo to the ZBA on behalf of Applicant challenging Objector's standing as well as the merits of the appeal. (FOF ¶ 7.) The City and Applicant also challenged Objector's standing at the hearing. (FOF ¶ 8.) Neither the City nor Applicant presented the sworn testimony of any witnesses.
Following the hearing, the ZBA issued a Notice of Decision on April 10, 2012, sustaining the appeal by Objector. Subsequently, Applicant appealed to the trial court. According to the ZBA, the Notice of Decision was incorrectly drafted and did not accurately reflect the votes of the ZBA members, and on February 4, 2013 the ZBA issued a corrected Notice of Decision denying the appeal. Consequently, Applicant discontinued its appeal from the ZBA's April 10, 2012 Decision.
Objector appealed the ZBA's corrected Decision to the trial court and Applicant filed a praecipe to intervene. After hearing the parties' arguments on January 29, 2014, the trial court denied the appeal due to Objector's lack of standing. On April 25, 2014, the trial court issued its 1925(a) Opinion.
On appeal, Objector argues that (1) the trial court erred in determining that Objector lacked standing; (2) the ZBA was without authority to change the disposition of its initial opinion after more than thirty days had passed and the case was already on appeal to the trial court; and (3) the ZBA erred in affirming the Permit for the proposed sign since there was no evidence presented and no hardship shown. We shall first address whether Objector lacked standing to appeal the issuance of the Permit.
Our review in a zoning case, where the trial court has taken no additional evidence, "is limited to determining whether the [ZBA] committed a manifest abuse of discretion or an error of law." Valley View Civic Association v. Zoning Board of Adjustment, 462 A.2d 637, 639 (Pa. 1983). The ZBA will be found to have "abused its discretion only if its findings are not supported by substantial evidence[,] . . . mean[ing] such relevant evidence [that] a reasonable mind might accept as adequate to support a conclusion." Id. at 640.
In order for an appellant to have standing to appeal a determination of the ZBA, they must demonstrate that they are an "aggrieved person." Spahn, 977 A.2d at 1149. For a party to be "aggrieved," the party must show an interest that is "substantial, direct, and immediate." Id. (citing William Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269, 280 (Pa. 1975)). For an interest to qualify as "substantial, there must be some discernible effect on some interest other than the abstract interest all citizens have in the outcome of proceedings." Id. at 1151; see also William Penn, 346 A.2d at 280-81 (noting that "it is not sufficient for the person claiming to be 'aggrieved' to assert the common interest of all citizens in procuring obedience to the law"). An interest is direct where the party demonstrates "some causation of harm to his interest." Spahn, 977 A.2d at 1151. In order for an interest to be considered "immediate, there must be a causal connection between the action complained of and the injury to the person challenging it." Id. Therefore, to meet the three requirements for an aggrieved party, the party must demonstrate that the challenged action personally harms his or her interest in a way that is greater than that of another citizen. Id. at 1151-52.
Objector argues it has standing as an organization to challenge the ZBA's granting of the Permit. Objector is an organization that has been active since the 1980s in drafting billboard legislation and opposing illegal billboards. Because Objector's mission is to improve the quality of life in Philadelphia and prevent illegal billboards, it maintains it has standing to challenge the ZBA's granting of the Permit based on this Court's decisions in Society Hill Civic Association v. Philadelphia Board of License & Inspection Review, 905 A.2d 579 (Pa. Cmwlth. 2006), and Pittsburgh Trust for Cultural Resources v. Zoning Board of Adjustment of City of Pittsburgh, 604 A.2d 298 (Pa. Cmwlth. 1992). Moreover, during the hearing, Objector presented Letters of Engagement and affidavits of five of its members. Objector contends that all of these members reside adjacent to the Property where the proposed sign would be located and could see it at night. Consequently, Objector asserts that it also has standing based on where its members live in relation to the proposed sign.
In Pittsburgh Trust, both the Pittsburgh Cultural Trust (Trust) and Penn-Liberty Association (Penn-Liberty) contested the Pittsburgh ZBA's granting of a special exception and variances allowing the applicant to open an amusement arcade in the Penn-Liberty historic district of downtown Pittsburgh. Pittsburgh Trust, 604 A.2d at 300. The applicant challenged the standing of the Trust and Penn-Liberty. Id. at 301. In assessing whether the Trust had standing, this Court considered the fact that the Trust was headquartered at the Benedum Center in the Penn-Liberty historic district; had made "a substantial financial investment in the Penn-Liberty history district," and also had a "fundamental commitment [to] nurturing cultural activity in [the] area" of the proposed arcade. Id. at 304. Because the proposed arcade would be located within 200 feet of the Benedum Center, we concluded that the Trust was sufficiently aggrieved to have standing. Id. As for Penn-Liberty, we determined that for an association to have standing, "it must be alleged that at least one of the association's members has or will suffer a direct, immediate and substantial injury to an interest as a result of the challenged action." Id. (quotation omitted). Because Penn-Liberty comprised approximately 60 dues paying property owners in the Penn-Liberty area who all had a "substantial, direct and immediate interest in maintaining the integrity of [the] historic district and in encouraging upscale commercial establishments that w[ould] be adversely impacted by an amusement arcade," we determined that Penn-Liberty also had standing. Id.
Similarly, in Society Hill, the Society Hill Civic Association (Society Hill) challenged L&I's decision to uphold a decision of the Philadelphia Historical Commission allowing a property owner "to reconstruct marble cornices with fiberglass on the facades of certain historically designated properties located in the Society Hill section of Philadelphia." Society Hill, 905 A.2d at 581. The property owner contended that Society Hill lacked standing. Id. at 585. Because Society Hill's purpose was to promote the preservation and restoration of historic buildings, included over 900 dues paying members dedicated to protecting historic buildings, and had actively negotiated with the property owner over the preservation of several townhouses, this Court concluded that Society Hill had standing to appeal. Id. at 586.
In Spahn, both this Court and our Supreme Court clarified our holdings from Pittsburgh Trust and Society Hill. In Spahn, our Supreme Court consolidated three separate appeals from this Court involving, inter alia, standing in zoning cases. Spahn, 977 A.2d 1132. In the third consolidated case in Spahn, Society Created to Reduce Urban Blight (Objector's predecessor, hereinafter "SCRUB"), several other organizations, and several individuals appealed the ZBA's granting of a variance to Keystone Outdoor Advertising to erect a 2400 square foot billboard. Id. at 1139-40. In its appeal, SCRUB argued it had organizational standing based on Society Hill and Pittsburgh Trust. Spahn, 977 A.2d at 1150. On appeal to this Court, we held that "neither Society Hill . . . nor Pittsburgh Trust stands for the proposition that a civic group must be granted standing in any zoning litigation involving the mission of that group, no matter how remote the impact." Society Created to Reduce Urban Blight (SCRUB) v. Zoning Hearing Board of Adjustment of City of Philadelphia, 951 A.2d 398, 402 (Pa. Cmwlth. 2008). Because SCRUB "fail[ed] to show or allege any interest beyond the common interest of all citizens in procuring obedience to the law," we determined it lacked standing. Id. at 403.
SCRUB also argued that it had standing because its members' residences were in the general area of the proposed billboard. Id. at 403-04. We noted that "the distance between [an objector's] property interest and the property subject to the challenged zoning decision can be critical because proximity of the properties may be sufficient to establish a perceivable adverse impact." Id. at 404. We further concluded that "an adjoining property owner, who testifies in opposition to a zoning application before" the ZBA, "has sufficient interest in the adjudication to have standing." Id. However, we also determined that "absent an assertion of a particular harm," an objector without a property interest in the immediate vicinity does not have standing. Id. Thus, because none of SCRUB's members lived in the immediate area of the proposed billboard, had businesses there, or demonstrated that they would be adversely affected by the ZBA's decision, we determined that SCRUB did not have standing based on its own members' standing. Id.
On appeal from this Court's decision, our Supreme Court adopted the reasoning of this Court regarding SCRUB's failure to establish standing, determining that SCRUB's interest was no "greater than any other citizen of Philadelphia." Spahn, 977 A.2d at 1152. The Supreme Court determined further that although SCRUB's mission to enforce the Zoning Code, oppose "illegal billboards, and foster community development" was laudable, it was "no different from the abstract interest that all citizens have in the outcome of the proceedings." Id. In addition, the Supreme Court concluded that Society Hill and Pittsburgh Trust were factually distinguishable from SCRUB's situation. Spahn, 977 A.2d at 1152. Specifically, the Supreme Court noted that unlike Society Hill, where the organization was intimately involved in preservation negotiations and participated in public hearings, and Pittsburgh Trust, where the organization had made significant investments and whose offices were within 200 feet of the proposed arcade, SCRUB had not demonstrated that it was aggrieved. Spahn, 977 A.2d at 1152. With respect to whether SCRUB had standing based on its members' residences, the Supreme Court concluded that the members were not aggrieved because they did not live in the vicinity of the proposed billboard but, rather, lived over a mile away. Id.
Here, Objector did not establish that it has standing as an organization to oppose the ZBA's affirmance of L&I's issuance of the Permit. As our Supreme Court held in Spahn, Objector cannot establish standing simply by virtue of its organizational purpose. As laudable as Scenic Philadelphia's mission may be, this interest is no different than "the abstract interest that all citizens have" in ensuring obedience to zoning laws. Spahn, 977 A.2d at 1152; SCRUB, 951 A.2d at 402. Moreover, although Objector relies on Society Hill and Pittsburgh Trust to argue that it has standing, as we noted in SCRUB, those cases do not stand for the proposition that organizations are granted standing whenever the mission of the organization is implicated. SCRUB, 951 A.2d at 402. Unlike Society Hill, Objector has not been involved with negotiations with Applicant over the preservation of the area of the Property. Further, in contrast to Pittsburgh Trust, Objector has neither alleged that it has significant investments in the Property area nor presented evidence to demonstrate that its offices or members are located in the immediate vicinity of the proposed sign. Therefore, under Spahn, Objector does not have standing arising from its organizational purpose to oppose illegal billboards.
In addition, although organizations such as Objector can establish standing based on their members' own standing, Pittsburgh Trust, 604 A.2d at 304, in the instant case Objector did not establish that any of its members are aggrieved. Objector specifically argues that its members have standing because they live adjacent to the proposed sign. Under SCRUB, a member living in the "immediate vicinity" of the Property or asserting a particular harm resulting from the proposed sign would have standing to appeal the ZBA's decision. SCRUB, 951 A.2d at 404. However, the record is devoid of any evidence to demonstrate where Objector's members live in relation to the Property or that they will otherwise be adversely affected by the proposed sign. In fact, none of Objector's members appeared and testified at the ZBA hearing to voice their objections to the proposed sign. Because Objector did not demonstrate that its members have an interest in the Permit that is "substantial, direct and immediate," Objector does not have standing to pursue an appeal on their behalf. Spahn, 977 A.2d at 1149. Thus, Objector has not established standing under any of its various arguments.
While Objector specifically points to the Letters of Engagement as evidence that its members live in the area of the proposed sign, there is nothing in the Letters of Engagement to indicate where the members live. (Letters of Engagement, R.R. 189-93.) Objector also argues that its members will be able to see the proposed sign at night, yet there is no evidence in the record to substantiate this claim.
Accordingly, for the foregoing reasons, we are constrained to affirm the Order of the trial court.
NOW, April 17, 2015, the Order of the Court of Common Pleas of Philadelphia County, entered in the above captioned matter, is AFFIRMED.

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


EDWARD PERUTA, et al. v. CALIFORNIA, et al.
Justice Thomas, with whom Justice Gorsuch joins, dissenting from the denial of certiorari.
California generally prohibits the average citizen from carrying a firearm in public spaces, either openly or concealed. With a few limited exceptions, the State prohibits open carry altogether. Cal. Penal Code Ann. §§25850, 26350 (West 2012). It proscribes concealed carry unless a resident obtains a license by showing “good cause,” among other criteria, §§26150, 26155, and it authorizes counties to set rules for when an applicant has shown good cause, §26160.
, may not obtain a permit for concealed carry of a firearm in public spaces.
42 U. S. C. §1983, alleging that this near-total prohibition on public carry violates their Second Amendment right to bear arms. They requested declaratory and injunctive relief to prevent the sheriff from denying licenses based on his restrictive interpretation of “good cause,” as well as other “relief as the Court deems just and proper.” First Amended Complaint in No. 3:09–cv–02371, (SD Cal.) ¶¶149, 150, 152. The District Court granted respondents’ motion for summary judgment, and petitioners appealed to the Ninth Circuit.
In a thorough opinion, a panel of the Ninth Circuit reversed. 742 F. 3d 1144. The panel examined the constitutional text and this Court’s precedents, as well as historical sources from before the founding era through the end of the 19th century. Id., at 1150–1166. Based on these sources, the court concluded that “the carrying of an operable handgun outside the home for the lawful purpose of self-defense . . . constitutes ‘bear[ing] Arms’ within the meaning of the Second Amendment.” Id., at 1166. It thus reversed the District Court and held that the sheriff’s interpretation of “good cause” in combination with the other aspects of the State’s regime violated the Second Amendment’s command that a State “permit some form of carry for self-defense outside the home.” Id., at 1172.
The Ninth Circuit sua sponte granted rehearing en banc and, by a divided court, reversed the panel decision. In the en banc court’s view, because petitioners specifically asked for the invalidation of the sheriff’s “good cause” interpretation, their legal challenge was limited to that aspect of the applicable regulatory scheme. The court thus declined to “answer the question of whether or to what degree the Second Amendment might or might not protect a right of a member of the general public to carry firearms openly in public.” Peruta v. County of San Diego, 824 F. 3d 919, 942 (2016). It instead held only that “the Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public.” Id., at 924 (emphasis added).
The en banc court’s decision to limit its review to whether the Second Amendment protects the right to concealed carry—as opposed to the more general right to public carry—was untenable. Most fundamentally, it was not justified by the terms of the complaint, which called into question the State’s regulatory scheme as a whole. See First Amended Complaint ¶63 (“Because California does not permit the open carriage of loaded firearms, concealed carriage with a [concealed carry] permit is the only means by which an individual can bear arms in public places”); id., ¶74 (“States may not completely ban the carrying of handguns for self-defense”). And although the complaint specified the remedy that intruded least on the State’s overall regulatory regime—declaratory relief and an injunction against the sheriff’s restrictive interpretation of “good cause”—it also requested “[a]ny further relief as the Court deems just and proper.” Id., ¶152.
Nor was the Ninth Circuit’s approach justified by the history of this litigation. The District Court emphasized that “the heart of the parties’ dispute” is whether the Second Amendment protects “the right to carry a loaded handgun in public, either openly or in a concealed manner.” Peruta v. County of San Diego, 758 F. Supp. 2d 1106, 1109 (SD Cal. 2010). As the Ninth Circuit panel pointed out, “[petitioners] argue that the San Diego County policy in light of the California licensing scheme as a whole violates the Second Amendment because it precludes a responsible, law-abiding citizen from carrying a weapon in public for the purpose of lawful self-defense in any manner.” 742 F. 3d, at 1171. The panel further observed that although petitioners “focu[s]” their challenge on the “licensing scheme for concealed carry,” this is “for good reason: acquiring such a license is the only practical avenue by which [they] may come lawfully to carry a gun for self-defense in San Diego County.” Ibid. Even the en banc court acknowledged that petitioners “base their argument on the entirety of California’s statutory scheme” and “do not contend that there is a free-standing Second Amendment right to carry concealed firearms.” 824 F. 3d, at 927.
524 U. S. 125, 143 (1998) (Ginsburg, J., dissenting); alterations and some internal quotation marks omitted). The most natural reading of this definition encompasses public carry. I find it extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen. See Drake v. Filko, 724 F. 3d 426, 444 (CA3 2013) (Hardiman, J., dissenting) (“To speak of ‘bearing’ arms solely within one’s home not only would conflate ‘bearing’ with ‘keeping,’ in derogation of the [Heller] Court’s holding that the verbs codified distinct rights, but also would be awkward usage given the meaning assigned the terms by the Supreme Court”); Moore v. Madigan, 702 F. 3d 933, 936 (CA7 2012) (similar).
The relevant history appears to support this understanding. The panel opinion below pointed to a wealth of cases and secondary sources from England, the founding era, the antebellum period, and Reconstruction, which together strongly suggest that the right to bear arms includes the right to bear arms in public in some manner. See 742 F. 3d, at 1153–1166 (canvassing the relevant history in detail); Brief for National Rifle Association as Amicus Curiae 6–16. For example, in Nunn v. State, 1 Ga. 243 (1846)—a decision the Heller Court discussed extensively as illustrative of the proper understanding of the right, 554 U. S., at 612—the Georgia Supreme Court struck down a ban on open carry although it upheld a ban on concealed carry. 1 Ga., at 251. Other cases similarly suggest that, although some regulation of public carry is permissible, an effective ban on all forms of public carry is not. See, e.g., State v. Reid, 1 Ala. 612, 616–617 (1840) (“A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional”).
Finally, the Second Amendment’s core purpose further supports the conclusion that the right to bear arms extends to public carry. The Court in Heller emphasized that “self-defense” is “the central component of the [ Second Amendment] right itself.” 554 U. S., at 599. This purpose is not limited only to the home, even though the need for self-defense may be “most acute” there. Id., at 628. “Self-defense has to take place wherever the person happens to be,” and in some circumstances a person may be more vulnerable in a public place than in his own house. Volokh, Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1515 (2009).
Even if other Members of the Court do not agree that the Second Amendment likely protects a right to public carry, the time has come for the Court to answer this important question definitively. Twenty-six States have asked us to resolve the question presented, see Brief for Alabama et al. as Amici Curiae, and the lower courts have fully vetted the issue. At least four other Courts of Appeals and three state courts of last resort have decided cases regarding the ability of States to regulate the public carry of firearms. Those decisions (plus the one below) have produced thorough opinions on both sides of the issue. See Drake, 724 F. 3d 426, cert. denied sub nom. Drake v. Jerejian, 572 U. S. ___ (2014); 724 F. 3d, at 440 (Hardiman, J., dissenting); Woollard v. Gallagher, 712 F. 3d 865 (CA4), cert. denied, 571 U. S. ___ (2013); Kachalsky v. County of Westchester, 701 F. 3d 81 (CA2 2012), cert. denied sub nom. Kachalsky v. Cacace, 569 U. S. ___ (2013); Madigan, 702 F. 3d 933; id., at 943 (Williams, J., dissenting); Commonwealth v. Gouse, 461 Mass. 787, 800–802, 965 N. E. 2d 774, 785–786 (2012); Williams v. State, 417 Md. 479, 496, 10 A. 3d 1167, 1177 (2011); Mack v. United States, 6 A. 3d 1224, 1236 (D. C. 2010). Hence, I do not see much value in waiting for additional courts to weigh in, especially when constitutional rights are at stake.
561 U. S. 742. Since that time, we have heard argument in, for example, roughly 35 cases where the question presented turned on the meaning of the First Amendment and 25 cases that turned on the meaning of the Fourth Amendment. This discrepancy is inexcusable, especially given how much less developed our jurisprudence is with respect to the Second Amendment as compared to the First and Fourth Amendments.
For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it. I respectfullydissent.


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Bluster; brag; untruthful boasting; audacious exaggeration; an impudent lie; a bouncer.
Еще значения слова и перевод BOUNCE с английского на русский язык в англо-русских словарях.
Что такое и перевод BOUNCE с русского на английский язык в русско-английских словарях.
More meanings of this word and English-Russian, Russian-English translations for BOUNCE in dictionaries.
BOUNCE — (n.) A heavy, sudden, and often noisy, blow or thump.
BOUNCE — (n.) A sudden leap or bound; a rebound.
BOUNCE — (v. t.) To bully; to scold.
BOUNCE — (v. t.) To eject violently, as from a room; to discharge unceremoniously, as from employment.
BOUNCE — (v. t.) To cause to bound or rebound; sometimes, to toss.
BOUNCE — (v. t.) To drive against anything suddenly and violently; to bump; to thump.
BOUNCE — (v. i.) To boast; to talk big; to bluster.
BOUNCE — (v. i.) To leap or spring suddenly or unceremoniously; to bound; as, she bounced into the room.
BOUNCE — (v. i.) To strike or thump, so as to rebound, or to make a sudden noise; a knock loudly.
BOUNCE — ( v. t. ) To eject violently, as from a room; to discharge unceremoniously, as from employment.
BOUNCE — ( v. t. ) To drive against anything suddenly and violently; to bump; to thump.
BOUNCE — ( v. t. ) To cause to bound or rebound; sometimes, to toss.
BOUNCE — ( v. t. ) To bully; to scold.
BOUNCE — ( v. i. ) To leap or spring suddenly or unceremoniously; to bound; as, she bounced into the room.
BOUNCE — ( v. i. ) To boast; to talk big; to bluster.
BOUNCE — ( n. ) An explosion, or the noise of one.
BOUNCE — ( n. ) A sudden leap or bound; a rebound.
BOUNCE — ( n. ) A heavy, sudden, and often noisy, blow or thump.
BOUNCE — ( n. ) A dogfish of Europe (Scyllium catulus).
BOUNCE — ( adv. ) With a sudden leap; suddenly.


text:
The Complainant is Pfizer Inc., New York, United States of America, represented by Kaye Scholer, LLP, United States.
The Respondent is Worldwide Opportunities, TurnkeyWorld.com of Anguilla, United Kingdom of Great Britain and Northern Ireland (“United Kingdom” or “UK”).
The disputed domain name <viagra.biz> is registered with UdomainName.com LLC.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 2, 2009. On April 3, 2009, the Center transmitted by email to UdomainName.com LLC a request for registrar verification in connection with the disputed domain name. On April 3, 2009, UdomainName.com LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Complainant filed an amendment to the Complaint on April 8, 2009. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 9, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was April 29, 2009. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent's default on April 30, 2009.
The Center appointed Marie-Emmanuelle Haas as the sole panelist in this matter on May 5, 2009. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
Pfizer Inc is among the largest pharmaceutical companies in the world with global operations in more than 150 countries. Pfizer discovers, develops, manufactures and markets leading prescription medicines for human and animals. In particular, Pfizer has expended millions of dollars and extensive resources on research, development and marketing of VIAGRA brand sildenafil citrate, the first approved oral medication for the treatment of erectile dysfunction.
Pfizer's VIAGRA brand sildenafil citrate product was approved by the United States Food and Drug Administration (the “FDA”) on March 27, 1998, and the mark has been used on or in connection with the sildenafil citrate product in the United States since April 6, 1998. Even prior to FDA approval, Pfizer's VIAGRA brand sildenafil citrate received enormous media attention, including a cover story in Newsweek Magazine and discussions on such popular television programs as “20/20” and “Today”. The approval in 1998 was highly publicized, including front page coverage in the New York Times the following day, and feature articles in other major publications such as USA Today.
The United States trademark VIAGRA, (registration No. 2,162, 548 was issued on June 2, 1998). The mark is owned by the Complainant or by its wholly owned subsidiaries. Pfizer and its affiliates also own trademark registrations for the VIAGRA mark in approximately 140 countries around the world.
In June 1997, the Complainant registered the domain name <viagra.com> and maintains an active web site at the URL “www.viagra.com”.
The domain name <viagra.biz> was created on March 12, 2009. It directs to a parking web site that offers on its first page headings about themes concerning directly the VIAGRA product's characteristics.
The Complainant alleges that the medication at issue was highly publicized and has also been the subject of intense media attention, public scrutiny and commentary throughout the world.
Numerous UDRP decisions have recognized Complainant's well-established rights in its famous VIAGRA mark. See, e.g., Pfizer Inc. v. Jeff Ferris, WIPO Case No. D2006-1242 (November 21, 2006) (VIAGRA “is both a strong and famous mark”); Pfizer Inc. v. Pretzel Publishing, WIPO Case No. D2005-1329 (March 3, 2006); Pfizer Inc. v. CheapViagraStore, WIPO Case No. D2005-0159 (March 30, 2005); Pfizer Inc. v. Carlos Rosario, WIPO Case No. D2005-0067 (Mar. 28, 2005); Pfizer Inc v. Phillip Pizzurro, WIPO Case No. D2004-0600 (October 2, 2004); Pfizer Inc v. Generic Viagra Pills, WIPO Case No. D2004-0592 (October 2, 2004); Pfizer Inc v. Kent Gormat aka kgormat, WIPO Case No. D2004-0591 (October 2, 2004); Pfizer Inc v. RegisterFly.com, WIPO Case No. D2004-0586 (October 2, 2004); Pfizer Inc. v. Order Viagra Online, WIPO Case No. D2002-0366) (July 11, 2002); Pfizer Inc. v. Martin Marketing, WIPO Case No. D2002-0793 (November 15, 2002); Pfizer Inc. v. Myviagra/Wilbert Smith, WIPO Case No. D2002-0463 (July 25, 2002). Accord, Pfizer, Inc. v. Y2K Shipping & Trading, Inc., 2004 U.S. Dist. LEXIS 10426, *31 (S.D.N.Y. March 30, 2004) (finding that defendant's competing erectile dysfunction product diluted Pfizer's “famous VIAGRA mark”).
The Complainant explains that the Respondent, seeking to capitalize on the fame of the Complainant's VIAGRA trademark, and recognizing the importance of the Internet as a means of communication between the Complainant and the public, registered without authorization the domain name <viagra.biz>, on or about March 12, 2009.
The domain name redirects visitors to a web site at “http://searchportal.information.com”, with the title “Erectiledysfunction.biz”, that contains pay-per-click links to numerous web sites that advertise and sell products not made or authorized by Pfizer, including the LEVITRA product that competes with Pfizer's VIAGRA product as well as various products purportedly offered for the treatment of erectile dysfunction.
The Complainant contends that the domain name <viagra.biz> is identical or confusingly similar to the mark VIAGRA, in which Pfizer has rights, because the disputed domain name wholly incorporates Pfizer's registered VIAGRA mark. Furthermore, it considers that the domain name is so clearly similar to its domain name <viagra.com> and to its trademark VIAGRA, that it is likely to cause confusion among the Complainant's customers and the consuming public.
The Complainant is not affiliated in any way with Respondent and has never authorized Respondent to register or use the domain name at issue or the VIAGRA mark. The Respondent registered the domain name knowing of the Complainant's mark and without authorization or license from the Complainant. Therefore, the Respondent has no right or legitimate interest in the VIAGRA mark (or any variant spelling) or in the disputed domain name.
The Complainant's adoption and registration of the mark VIAGRA in the United States and throughout the world precedes Respondent's registration in March, 2009 of the disputed domain name.
The Complainant considers that the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name without intent for commercial gain. Rather, it is apparent that Respondent has intentionally registered <viagra.biz> explicitly for the purpose of making illegitimate or unfair use of Pfizer's marks by using the domain name to collect revenue promoting web sites that advertise and sell products that are not made or authorized by Pfizer and that are offered for the same uses as Pfizer's VIAGRA product.
The Respondent's lack of rights or legitimate interests is confirmed by the Respondent's use of the disputed domain name for a for-profit web site promoting products that compete directly with Pfizer's products. Such a use is not in connection with the bona fide offering of goods and services.
The Respondent is well aware of the vast and valuable goodwill and reputation represented and symbolised by the VIAGRA trademark. According to the Complainant, given the lack of a legitimate basis for such use of Pfizer' VIAGRA mark as a domain name, the only reasonable inference is that the Respondent has acted with a bad faith intent to profit from Pfizer's name and reputation.
a. Pfizer's VIAGRA mark is an invented and coined mark that has a strong worldwide reputation, of which the Respondent was undoubtedly aware at the time the subject domain name was registered. The Respondent's repeated references to erectile dysfunction and products that compete with VIAGRA confirm Respondent's awareness of Pfizer's VIAGRA mark. Moreover, by virtue of Pfizer's registration of the VIAGRA mark in the United States and other jurisdictions, the Respondent had constructive knowledge of Pfizer's rights in the mark at the time the domains were registered.
b. The Respondent, aware of the fame and goodwill associated with the VIAGRA mark worldwide, registered a domain name that is intended to be and is identical or confusingly similar to Pfizer's mark, both visually and aurally. It is settled that the registration of a domain name incorporating a well-known, widely recognized mark is itself evidence of bad faith registration, and, on this basis, several panels have found bad faith registration of domain names incorporating Pfizer's VIAGRA mark.
c. The domain <viagra.biz> deliberately and misleadingly includes wholesale Pfizer's registered mark VIAGRA, which is used to identify Pfizer as the sole source of the drug and distinguish Pfizer's product from the goods and services of others.
d. the Respondent is not, nor ever has been, a representative of Pfizer or licensed to use the VIAGRA mark.
VIAGRA is a world famous mark that is recognized worldwide by consumers and professionals.
The Respondent, with knowledge of Pfizer's rights in the VIAGRA mark, is using the <viagra.biz> domain name to redirect visitors to a for-profit web site that generates revenue by promoting web sites selling Pfizer's competitors' products. Numerous UDRP decisions hold that use of a complainant's mark (including the VIAGRA mark at issue here) to generate visitors to such a for-profit site constitutes bad faith. See Pfizer Inc. v. Fizer Inc., WIPO Case No. D2005-0285 (May 11, 2005) (respondent's receipt of click through fees from links on its web site is “clear evidence of bad faith”); Pfizer Inc. v. Alex Schreiner/ Schreiner & Co., WIPO Case No. D2004-0731 (October 24, 2004) (misdirecting browsers of BLU-VIAGRA.COM to online pharmacy purportedly selling “genuine Viagra from Pfizer” deemed “bad faith”); Pfizer Inc. v. Phillip Pizzurro, supra, (finding bad faith where domain VIAGRA-GENERIC.COM was “used in connection with the promotion and sale of competing products”); Pfizer Inc. v. Generic Viagra Pills, WIPO Case No. D2004-0592, supra, (same for GENERICVIAGRA.INFO). See also Yahoo! Inc. v. Carrington, NAF Case No. 184899 (October 20, 2003) (redirecting users to competing web sites of Complainant's while earning profits in the form of referral found to be bad faith use); Sony Ericsson Mobile Communications International AB, Telefonaktiebolaget LM Ericsson, Sony Corporation v. Party Night Inc., WIPO Case No. D2002-1128 (January 27, 2003) (bad faith use to redirect users likely seeking complainant's web sites to unaffiliated sites where respondent receives payment from the operators of those sites); Williams-Sonoma, Inc. v. Zuccarini d/b/a Country Wali, WIPO Case No. D2002-0582 (August 9, 2002) (bad faith use where respondent profited by redirecting users to other commercial web sites for commercial gain).
UDRP panels also routinely hold that use of a mark in a domain name to promote the sale of products in competition with the mark owner's products, as the Respondent here is doing, constitutes bad faith. See, e.g., Pfizer Inc. v. Medlink Telecom GmbH, WIPO Case No. D2002-0547 (August 19, 2002); Pfizer Inc. v. Lorna Kang, WIPO Case No. D2002-0480 (July 3, 2002); Pfizer, Inc. v. Seocho and Vladimir Snezko, WIPO Case No. D2001-1199 (December 10, 2001); Pfizer Inc. v. Enamecorp.com, WIPO Case No. D2001-0791. See also, e.g., Casio Keisanki Kabushiki Kaisha (Casio Computer Co., Ltd.) v. Jongchan Kim, WIPO Case No. D2003-0400 (July 15, 2003); Downstream Technologies, LLC v. Bartels System GmbH, WIPO Case No. D2003-0088 (April 14, 2003); Google, Inc v. wwwgoogle.com and Jimmy Siavesh Behain, WIPO Case No. D2000-1240 (November 14, 2000).
Numerous UDRP decisions also hold that it is bad faith to use a complainant's mark to generate visitors to a for-profit site such as a purported search engine or portal site like the one at issue here. See Pfizer Inc. v. Fizer Inc., supra, (May 11, 2005); Pfizer Inc. v. Asia Ventures, Inc., WIPO Case No. D2005-0256 (May 6, 2005); Pfizer Inc. v. NA, WIPO Case No. D2005-0072 (April 12, 2005); Pfizer Inc. v. BargainName.com, WIPO Case No. D2005-0299 (April 28, 2005).
As a direct consequence of the Respondent's conduct, the public will be misled as to the source, sponsorship or origin of the information and products offered on the links connected to the subject web site. The Respondent's purposefully deceptive domain name anticipates, relies upon on and profits from this consumer confusion or mistake and constitutes bad faith use of the domain name. See Policy paragraph 4 (b)(iv).
The fourth of the identified “bad faith” factors enumerated in UDRP Rule 4(b)(iv) applies with particular force here. The rule states that it is bad faith to register and use a domain name to intentionally attract Internet users to web sites for commercial gain “by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement” of the Respondent's sites or “of a product or service” on Respondent's sites. Here, as set forth above, the Respondent has registered and is using the subject domain name intentionally to misdirect and divert customers looking for information about Pfizer and its VIAGRA product to a for-profit web site that promotes web sites selling non-Pfizer products that are in competition with Pfizer's product. This creates a likelihood of confusion with Pfizer's marks as to the source, sponsorship, affiliation, or endorsement of the site to which the domain name resolves, the online retailers to which that site links, and the non-Pfizer products sold on those sites.
The Respondent's actions are intentional, wilful and in bad faith, and were committed with full knowledge of the ownership by the Complainant of the VIAGRA trademark and the Complainant's exclusive rights to use and license such mark.
The Complainant is required under paragraph 4(a)(i) of the Policy to prove that the Domain name is identical or confusingly similar to a trademark in which the Complainant has rights.
The Complainant has established rights in the VIAGRA mark through its registration and use in the United States and elsewhere.
The disputed domain name in this case is <viagra.biz>.
The Panel concludes that the Respondent's domain name is identical to the Complainant's VIAGRA mark for purposes of paragraph 4(a)(i) of the Policy.
The Respondent did not answer the Complaint in order to contest the Complainant's position.
The Respondent is not affiliated with the Complainant and the Complainant has not authorized the Respondent to use the Complainant's trademark VIAGRA; also the Complainant has not granted any license or otherwise permitted to the Respondent to use its trademark.
Furthermore, the Respondent is not known under the name VIAGRA or any similar name.
The Complainant has provided evidence of its rights in the VIAGRA trademark and that the disputed domain name was registered by the Respondent on or about March 12, 2009. At the time of the registration, the Complainant had acquired a considerable reputation in the VIAGRA trademark in respect of a drug addressing erectile dysfunction throughout the world.
The fact that the disputed domain name gives access to parking website implies that the Respondent is getting profits. As alleged by the Complainant, this website provides links to various online pharmacies that sell products directly competing with Pfizer's VIAGRA product as well as various products purportedly offered for the treatment of erectile dysfunction.
The Respondent must be aware of the VIAGRA trademark and is trying to take advantage of its reputation. This kind of use does not constitute a “legitimate non-commercial or fair use of the domain name”.
Therefore, the condition set out by paragraph 4(a)(ii) of the Policy has been met by the Complainant.
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.
The fame of the Complainant's mark has to be taken into consideration in the appreciation of the Respondent's bad faith (See, for example: AT&T Corp. v. LaPorte Holdings, Inc., WIPO Case No. D2004-1088, “Bad faith can be presumed based on the fame of Complainant's marks, such that the Respondent was aware or should have been aware of Complainant's well-known marks and claims of rights thereto”).
The VIAGRA trademark is worldwide known and has to be protected against cybersquatting.
The Complainant uses the VIAGRA trademark in order to be identified as the sole source of the medication provided under that trademark. Therefore, the public, when visiting the web site at the domain name <viagra.biz> may be mistaken as to the source of information and origin of the products advertised on the web site.
The Respondent would seem to profit from pay-per-click revenue generated by the web site available from the disputed domain name, which constitutes commercial gain. This is further evidence of the Respondent's bad faith use pursuant to Policy paragraph 4(b)(iv). See Asian World of Martial Arts Inc v. Texas International Property Associates, WIPO Case No. D2007-1415.
The Respondent is seeking to capitalize on the notoriety of the VIAGRA trademark.
The Respondent's use of <viagra.biz> is in violation of paragraph 4(b))(iv) of the Policy as the Respondent is intentionally attempting to attract, for commercial gain, Internet users to its web site, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of its web site.
The Panel's opinion is that there is obvious evidence that the Respondent registered and used the disputed domain name in bad faith.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <viagra.biz> be transferred to the Complainant.

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By J. Anthony Marino, Esq., and Carol L. Newman, Esq.
The California law which for many years has governed the management and operation of common interest developments (“CIDs”), including condominiums, known as the Davis-Stirling Common Interest Development Act (“the Act”), Civil Code §s1350 et seq., is being repealed in its entirety effective January 1, 2014. It will be replaced by a new statutory scheme, AB 805 (“the new Act”), which will probably continue to be referred to as “Davis-Stirling.” All of the existing code numbers will be changed to commence with Civil Code §4000.
“Existing law, the Davis-Stirling Common Interest Development Act defines and regulates common interest developments.
“This bill, on and after January 1, 2014, would comprehensively reorganize and recodify the Davis-Stirling Common Interest Development Act. The bill would also revise and recast provisions regarding notices and their delivery, standardize terminology, establish guidelines on the relative authority of governing documents, and establish a single procedure for amendment of a common interest declaration. The bill would guarantee the right of an owner of a separate interest to make changes in that separate interest, as specified, in a common interest development other than a condominium project, in which that right currently exists. The bill would establish an express list of conflicts of interest that may disqualify members of a board of directors of an association that manages a common interest development from voting on certain matters.
The purpose of this article is not to provide a comprehensive summary of the law governing condominiums, but to summarize the changes in the law that will occur as a result of the passage of the new Act.
The new Act attempts to “comprehensively reorganize” the Act. One of the criticisms of the old Act was that it seemed to be, at least in part, a somewhat disjointed series of statutes which were not well organized unless one knew where to look for a particular statute covering a particular topic. The new law is designed to be easier to navigate, more logical in its groupings of provisions, more concise, and simply more user-friendly and easier to understand.
Additionally, the terminology used in the old Act was not consistent or comprehensive, because in many cases two or more different terms were used to describe the same thing, and definition sections did not necessarily apply to all uses of the defined terms in the Act or include definitions of terms located elsewhere in the Act. The new law standardizes some terminology to attempt to eliminate ambiguity and inconsistency.
These changes were deemed necessary because most CIDs are small and may not be able to afford a general counsel or overall professional management. In fact, more than half of all CIDs in California consist of 25 or fewer separate interests. Levy & Erlanger, 2010 California Community Association Statistics (2010). The new law was designed, at least conceptually, to be understandable by non-lawyer board members of smaller CIDs. Whether or not that this goal has been accomplished remains to be seen.
The new law is structurally more logical. It begins with provisions governing the application of the new law itself. Then it addresses the creation of CIDs and the nature of what a CID is (a form of property ownership). It concludes with provisions governing the operation of the CID association as among the property owners themselves and between the CID and third parties.
The new law will be given a one-year deferred operation date, to allow affected persons to adjust to the new law, and will provide that any substantive changes will not retroactively invalidate actions and documents which were completed before the effective date of the new Law which were proper under the current law. New Civil Code §4010 (hereafter all sections of the new statute are referred to as “New §”.) The new law provides a simplified procedure for updating references in the governing documents to the new Act by board resolution. New §4235.
For the most part, the changes were intended to be non-substantive and non-controversial, but proposed substantive changes which were not adopted in this enactment were noted by the California Law Revision Commission for future study. (See footnote 1 above.) The substantive improvements are discussed below.
Supremacy of the Act: A frequently encountered issue not resolved in the current Act is whether the governing documents, to the extent they are inconsistent with the Act, supersede the Act, or vice versa. The new Act makes it clear, for the first time, that in the event of inconsistency, the Act prevails over the governing documents. New § 4205(a).
Relative Priority of the Governing Documents: Similarly, the revised Act for the first time expressly declares the relative priority/ authority of the most common governing documents in the event of inconsistencies among them. New § 4205(b)-(d) provides that that the CC&R’s supersede the articles of incorporation; the articles and CC&R’s control the bylaws; and all of the above control the operating rules.
Members Must Receive Text of Proposed Amendment: The new Act adds a new requirement that an association must provide members with the text of any proposed amendment of the governing documents when holding a member election to approve the proposed amendment. New § 5115(e). The Act previously did not require written notice of the text of a proposed amendment.
Contents of CC&R’s: Existing law specifies what information must be included in a CID’s recorded declaration, i.e., the CC&R’s, and allows the “original signator of the declaration” to include any other information that the “original signator” deems appropriate. Civil Code § 1353. The new Act replaces the phrase “original signator” with the defined term “declarant,” which permits a successor-in-interest to the original signator to add provisions to the CC&R’s, using proper procedures for amending the CC&R’s. New §s 4130 and 4250(b).
Amendment of the CC&R’s: Existing law is not consistent with regard to the procedures for amending the CC&R’s, depending on the purpose of the amendment. Civil Code §s 1355(a), 1357. The new Act establishes a single exclusive procedure for amendment of the CC&R’s. New § 4270. That procedure also expressly recognizes that some CC&R’s may require that a person other than a member (owner) approve an amendment, and makes clear that a governing document lower in priority than the CC&R’s cannot govern the procedure for amendment of the CC&R’s.
Court-Authorized Amendment of CC&R’s: Under the existing law, the Superior Court may approve an amendment to the CC&R’s, even if the required member approval was not obtained. Civil Code § 1356. Before making such a decision, the Court must find, among other things, that an election which complied with the governing documents was held to approve the amendment. The revised Act also requires the Court to find that the election was conducted in accordance with the election provisions of the Act and any other applicable law. New § 4275(c)(2).
Amendment or Revocation of Condominium Plan: Existing law specifies that a condominium plan may be amended or revoked by recording an instrument executed by all of the persons whose signatures were required to establish the plan. Civil Code § 1351(c). It is unclear whether an amendment or revocation of the condominium plan must be signed by the original signators, or whether their successors in interest may sign. The new Act clarifies that the amendment or revocation must be signed by those persons who are current holders of the specified interests. New § 4295.
Reversals of Operating Rule Changes: Current law allows members of an association to vote on whether to reverse a recent change to an operating rule pursuant to election procedures set forth in the Corporations Code. Civil Code § 1357.140. The new Act instead cites to equivalent provisions of the new Act. New § 4365.
Right of Access to Separate Interest: The new Act clarifies that both owners and occupants (e.g., renters) are entitled to physical access to the owner’s separate interest. New § 4510.
Property Use: The new Act provides property owners with a more complete summary of their property use rights. New § 4730.
Modification of Separate Interest: The new Act broadens the owner’s right to make changes to his/her separate interest in any type of CID, not just a condominium project. New § 4760.
Grant of Exclusive Use of Common Area: The existing provisions are broadened to include, among other things, accommodating a disability. New § 4600.
Notice of Board Meetings: All associations will be required to provide advance notice of a Board meeting, including an agenda, regardless of whether the time and place of the meetings is fixed in the governing documents. New § 4920. Further, the requirement that notices of a Board meeting be “posted” in a prominent place in the common area will be deleted, in favor of “general delivery” of Board meeting notices, pursuant to New §s 4045, 4920.
Definition of “Board Meetings”: A “Board meeting” is no longer defined as a gathering of the majority of directors, but instead as the number of directors sufficient to constitute a quorum. New § 4090.
§ 1365.6. The new law replaces the reference to for-profit corporations with a reference to the equivalent provisions of non-profit corporation law, and expressly prohibits a self-interested director from voting on specified types of matters. New §s 5350(a), (b).
Elections: Several changes have been made.
Procedure. Under current law, the elections procedure applies only to certain types of elections. The new law allows an association to use the statutory procedure for any type of member election, so long as a decision to use the statutory procedure in other types of elections is authorized in an operating rule. New § 5100(b).
Notice of results. The new law also requires that “general notice” of election results be provided to all members, replacing the existing more ambiguous requirement that the results be “publicized.” New §s 4045, 5120(b); compare Civil Code § 1363.03(g).
Destruction of ballots. The current law appears to allow the destruction of ballots nine months after an election, which is three months before the end of the period in which an election can be challenged. Civil Code §s 1363.03(h), 1363.09. The new Act requires that the ballots be retained for the full twelve-month period in which elections can be challenged. New § 5125.
Campaign communications. Existing law restricts the use of association funds for campaign communications (anything that features the name or photograph of a candidate) in connection with a pending board election. Civil Code § 1363.04. The new Act adds an exception for communications required by law. New § 5135(b)(2).
Association Records. Under existing law, members may inspect and copy “association records,” as defined in Civil Code §1365.2. The new Law broadens the scope of “association records” to include the governing documents, and to include those records already defined as “enhanced association records.” New §s 5200(a)(11), 5200(a)(13).
Annual Reports and Notices. The new law reorganizes the information which an association must distribute to its members on an annual basis into three annual reports, based on subject matter: (1) an annual budget report including the budget and related financial disclosures, (2) an annual financial statement review, if required, and (3) an annual policy statement, including all other annual informational disclosures that an association must make. New §s 5300, 5305, 5310; see Civil Code §s 1365(a), (c), (d), (e), 1365.1, 1365.2.5, 1363.850, 1369.490, 1378. The new Act preserves the option for an association to send members a summary and notice of the availability at no cost of the full budget, as opposed to the budget itself, and extends that option to the annual policy statement. New §s 5310(b), 5320. All annual reporting requirements will now be located in one place in the Code, and greater flexibility as to how they are distributed will be permitted.
Regular and Special Assessments. Under existing law, an association may not increase regular assessments unless it has either distributed a pro forma budget in compliance with Civil Code Section 1365(a) or obtained the approval of the members in a member election. In addition, the association must obtain the approval of the members before increasing regular assessments by more than 20% or imposing a special assessment that is more than 5% of the association’s budgeted gross expenses for the fiscal year. The proposed law continues these provisions (new §§5600-5740) with a minor change to remove the superseded reference to the Corporations Code election procedure.
Assessment Payment Priority. Existing law provides that a member’s payment for assessments should be applied first to the assessments owed, before being applied to any collection costs, interest, or penalties. The Commission concluded (40 Report 262) that, under the existing provision, it is not entirely clear whether the payment priority rule is conditioned on the association having provided the member with a written notice of delinquency. New §5655 makes clear that the payment priority rule applies in all cases, regardless of whether or when the member has received a notice of delinquency.
Lien Release. Under existing law, if it is discovered through ADR that the asso- ciation had recorded an assessment lien in error, the association is required to release the lien and reverse all costs, fees, and interest associated with the error. New §5685 would continue the rule, but expand its application so that it applies whenever the association has recorded an assessment lien in error, without regard for how the error is discovered.
Schedule of Monetary Penalties. If an association policy authorizes the imposition of a monetary penalty for a violation of the governing documents, §1369(g) requires that the association adopt a schedule of monetary penalties and deliver it to the members. If the penalty schedule is later amended, the amended penalty schedule must be delivered to the members. New §5310(a)(8) requires that the schedule be included in the policy statement that is delivered to the members annually. New §5850 also makes clear that penalties may apply to guest or tenant activities, that the penalty imposed for a violation of the governing documents is limited to the penalty in effect at the time of the violation, and that new or revised penalty schedules may be delivered by a supplement.
Notice and Opportunity to be Heard. Before disciplining a member for a violation of the governing documents, the association must provide the member with notice of the alleged violation and an opportunity to be heard by the board. See §1363(h). New §5855 broadens that notice and hearing requirement to also apply when an association attempts to impose a monetary charge as a means of reimbursing the association for costs incurred by the association in the repair of damage to com- mon area and facilities caused by a member or the member’s guest or tenant.
Alternative Dispute Resolution: Sections 1369.510 and following require that ADR be offered before a civil action is filed by or against an association to enforce a provision of the governing documents, the Davis- Stirling Common Interest Development Act, or a provision of the Corporations Code. The non-filing party is not required to accept the offer. However, in an action in which fees and costs may be awarded, the court may consider whether the refusal of ADR was reasonable, when determining the amount of the award. Under existing law, that rule only applies in an action to enforce the association’s governing documents. New §5960 would broaden the rule, to apply in any action in which fees and costs may be awarded.
In summary, numerous changes to the existing law, some major and some minor, have been made. All CID’s and their property managers, attorneys, and accountants need to be made aware of the new law so that they continue to operate within its requirements.
 The California Law Revision Commission is poised to recommend that the law governing commercial and industrial CID’s be separated from the law governing residential CID’s. See California Law Revision Commission Pre-Print Recommendation #H-856, Aug. 2012.