text: 518 THE APPROPRIATI VE RIGHT features of exercise of the appropriative right, that the prior rights of others be not adversely affected by diverting the water outside the original drainage area. The practice of taking water out of the watershed in which it origi- nates has been followed from the earliest years of hydraulic mining in the Sierra foothills of California, wherein numerous streams rising in the mountains tend to parallel each other in their descent into the vast central valley. This right of the appropriator to divert, from one water- shed to another, water in excess of the quantity necessary to satisfy the requirements of prior rights, riparian and appropriative, was spe- cifically recognized by the California courts.395 The acknowledged right to take water out of the watershed, however, was always qualified by the limitation that no injury be thereby inflicted upon prior or superior rights.396 See also the discussion below regarding "Some Statutory Authori- zations and Restrictions-California." In an early decision, the Colorado Supreme Court concluded that it was lawful to carry appropriated water out of the watershed in which it originates, across an intervening divide, into another watershed for irrigation of lands in the latter valley, provided it could be done without detriment to holders of existing priorities in the original watershed.397 Other courts held to the same effect.398 In some instances, the Montana Supreme Court used caution in discussing the right to take waters out of the watershed. For example, in one case in 395Miller v. Bay Cities Water Co., 157 Cal. 256, 280-281, 107 Pac. 115 (1910); San Joaquin & Kings River Canal & In. Co. v. Fresno Flume & In. Co., 158 Cal. 626, 627-630,112 Pac. 182 (1910); Gallatin v. Coming In. Co., 163 Cal. 405, 413, 126 Pac. 864 (1912). 396Southern California Investment Co. v. Wilshire, 144 Cal. 68, 72-74, 77 Pac. 767 (1904); Huffner v. Sawday, 153 Cal. 86, 90, 94, 94 Pac. 424 (1908); Scott v. Fruit Growers' Supply Co., 202 CaL 47, 51-55, 258 Pac. 1095 (1927). 397 "In the absence of legislation to the contrary, we think that the right to water acquired by priority of appropriation is not in any way dependent upon the locus of its application to the beneficial use designed." Coffin v. Left Hand Ditch Co., 6 Colo. 443, 449-451 (1882). See also Oppenlander v. Left Hand Ditch Co., 18 Colo. 142, 144, 31 Pac. 854 (1892). 398Sounders v. Robison, 14 Idaho 770, 95 Pac. 1057 (1908), syllabus by the court. Commencing in 1864, miners conveyed waters of Gold Creek across a divide into the watershed of Pioneer Creek: Mannix & Wilson v. Thrasher, 95 Mont. 267, 268, 26 Pac. (2d) 373 (1933). Immaterial whether the lands to which the waters are applied are within or without the watershed of the stream from which the waters are taken: Mettler v. Ames Realty Co., 61 Mont. 152, 159, 201 Pac. 702 (1921). In various decrees of water rights, appropriators were authorized to take the water out of the watershed for use on outside lands: Thrasher v. Mannix & Wilson, 95 Mont. 273, 277-278, 26 Pac. (2d) 370 (1933).

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


CAROLINE D. CABOT vs. ROBERT C. CABOT.
Divorce and Separation, Modification of judgment. Contempt. Contract, Construction of contract, Rescission.
School, he made no order obligating Robert to contribute to the cost of private schooling, leaving these expenses to be paid by Caroline. Neither did the divorce judgment address the issue of the children's college expenses; this was, as we shall discuss, to be expected as they were then in grammar school.
trustee, he would maintain the principal of this trust in "high income producing securities consistent with the manner in which the funds have been maintained in the past and shall exercise his discretion to this end consistent with the duties he owes as trustee." Trust income was to be paid at least annually and used to pay the first $14,000 per year of the children's education costs. To the extent that the children's "education costs" (a term to which we shall return) exceeded the total of $14,000, the parties agreed they would each pay one-half of the excess.
"countervailing equities," a showing not made here, and not merely upon materially changed circumstances. See McCarthy v. McCarthy, 36 Mass. App. Ct. 490, 493 (1994) ("more than a material change in circumstances or, to use the analogous term, a 'countervailing equity,' " is required to modify surviving agreement). This is because (he argues) the integrated agreement governs all of the parties' obligations to one another, including the children's future college expenses; the failure to make provision in the agreement for the payment of these college expenses reflects the parties' intention that neither party was obligated to pay them. See ibid.
In making her findings, the judge appropriately relied on extrinsic evidence. "Where contract language employed by the parties leaves their obligations (and, as in this case, the status of the agreement itself) in doubt, the court will place itself in the position occupied by the parties and 'will examine the subject matter of the agreement and the language employed, and will attempt to ascertain the objective sought to be accomplished by the parties.' " Parrish v. Parrish, 30 Mass. App. Ct. 78, 86 (1991), quoting from Feakes v. Bozyczko, 373 Mass. 633, 635 (1977).
The reference to "education," in the context of the 1985 agreement as a whole, also supports the judge's view that the term refers solely to private grammar and high school costs. The subject of the 1985 agreement was specific to support, uninsured medical expenses of the children, and private school expenses. The agreement states that "[i]n consideration of the foregoing agreement[,] . . . the parties . . . agree on the finality of the terms of this agreement as to . . . education" (emphasis supplied). The agreement provides that trust income was payable to both children until 1991, when one-half would be paid to the son only until 1993, dates coinciding with anticipated completion of the children's preparatory school education. "[T]he scope of a party's obligations cannot 'be delineated by isolating words and interpreting them as though they stood alone.' " Starr v. Fordham, 420 Mass. 178, 190 (1995), quoting from Boston Elevated Ry. v. Metropolitan Transit Authy., 323 Mass. 562, 569 (1949).
the term "education" to mean "schooling up to but not including post high school education." There was no error.
Turning now to Robert's argument that the agreement is integrated, we note that it was for the trial judge to determine whether the 1985 agreement "was the entire agreement of the parties," Alexander v. Snell, 12 Mass. App. Ct. 323, 324 (1981), or whether certain other of the parties' obligations to each other and to their children were the subject of other agreements (written or oral), or remained unaddressed. "Whether there was an integration as [Robert] contend[s] was a question of the intention of the parties on which proof could be received ranging beyond the writing proper." Antonellis v. Northgate Constr. Corp., 362 Mass. 847, 849 (1973). Fred S. James & Co. of New England, Inc. v. Hoffmann, 24 Mass. App. Ct. 160, 163 (1987).
"A fully integrated agreement is a statement which the parties have adopted as a complete and exclusive expression of their agreement." Starr v. Fordham, 420 Mass. at 188 n.8, citing Restatement (Second) of Contracts § 210(1) (1981). Such an agreement will typically contain an "integration clause" stating that it constitutes the parties' sole agreement and that there are no oral or written representations outside of the agreement. See, e.g., Kobayashi v. Orion Ventures, Inc., 42 Mass. App. Ct. 492, 496 n.6 (1997).
children's college costs. Thus, the decision did not, by concluding that neither party had the legal obligation to pay for college, impose a de facto burden to pay such costs upon the parent most desirous of financially assisting a child's college attendance.
(b) Material change in circumstances. The divorce judgment made no provision for payment of the children's college costs because at that time the children were not yet eighteen, see note 9, supra, and no other factors were present supporting an order for this future obligation, Passemato v. Passemato, 427 Mass. at 54. Modification was proper upon a finding that a material and substantial change in the circumstances of the parties had occurred and the judgment of modification was necessary in the best interests of the children. G. L. c. 208, § 28. L.W.K. v. E.R.C., 432 Mass. at 451. "In determining whether there has been a material change in the parties' circumstances, the probate judge must weigh the relevant circumstances; the resolution of the various factors rests with the judge's sound discretion. Unless there is no basis in the record for the judge's decision, we defer to the judge's evaluation of the evidence presented at trial." Bush v. Bush, 402 Mass. 406, 411 (1988) (citations omitted).
to his interest in the former family home, warrant the judge's order.
There is no merit to Robert's claim that the judge was without authority to order payments for education support because, by the time judgment entered, the children had become emancipated. The case on which Robert exclusively relies to support his argument, Gediman v. Cameron, 306 Mass. 138 (1940), is inapposite. [Note 15] First, it was an appropriate exercise of the judge's discretion to make the obligation retroactive. Boulter-Hedley v. Boulter, 429 Mass. 808, 809 (1999) ("there is no statutory mandate that modification of support orders be given retroactive effect; the decision whether to give retroactive effect to such orders rests in the sound discretion of the judge"). Second, in October, 1990, when Caroline filed her complaint (in which she sought college contributions commencing in September, 1992), the children were seventeen and fifteen years old and just beginning the college selection and application process. By the time judgment entered, each child had reached the age of eighteen, triggering the court's authority to issue orders relative to education. See note 9, supra.
children's remainder interests in two other trusts, as to which Robert is the sole lifetime beneficiary, see notes 12 and 14, supra. Because he offers no citation to authority to support his argument, we do not address it. [Note 16] Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
The order neither alters the amount of Robert's one-half interest in the former marital home, nor changes the nature of his interest (which would, upon sale of the property, have been cash), and he points to no prejudice befalling him as the result of the order. There was no abuse of discretion in the judge's exercise of her broad equitable powers to fashion appropriate remedies. Cf. Pare v. Pare, 409 Mass. 292, 301 (1991) (probate judge has discretion to order that husband's child support arrearages be paid out of his interest in former marital residence); Rosenberg v. Merida, 428 Mass. 182, 189-190 (1998) (father's assets in bank account may be attached to secure child support obligation).
There is ample support in the record for the judge's detailed findings to the effect that Robert persistently disregarded clear and unambiguous orders contained in that judgment, and for the conclusion that Robert was in contempt of the 1985 modification judgment. Bisienere v. Buccino, 36 Mass. App. Ct. 749, 753 (1994) (there must be a clear and unequivocal command and an equally clear and undoubted disobedience to support finding of civil contempt).
$14,000 annually, the parties would each pay one-half of the excess.
whether to deny relief on the basis of the plaintiff's conduct [is] a matter committed to the broad discretion of the judge." Fales v. Glass, 9 Mass. App. Ct. 570, 575 (1980), citing Precision Instrument Mfg. Co. v. Automotive Maintenance Mach. Co., 324 U.S. 806, 815 (1945). MacCormac v. Flynn, 313 Mass. 547, 550 (1943). There was no abuse of discretion.
the parties shall divide such excess equally" (emphasis supplied).
("What is a reasonable time depends on the nature of the contract, the probable intention of the parties as indicated by it, and the attendant circumstances").
The judge's findings as to these amounts are supported by the evidence. Further, the awards were within the judge's broad discretion to make. See Patten v. Mayo, 23 Mass. App. Ct. 657, 662 (1987) (Probate Court jurisdiction includes authority to award damages).
Rescission is available when a contract has been abrogated.
Worcester Heritage Soc., Inc. v. Trussell, 31 Mass. App. Ct. 343, 345 (1991). See Runkle v. Burrage, 202 Mass. 89, 99 (1909) ("nothing less than conduct that amounts to an abrogation of the contract, or that goes to the essence of it, or takes away its foundation, can be made a ground for rescission of it by the other party"). "There is ample authority for refusing rescission where there has been only a breach of contract rather than an utter failure of consideration or a repudiation by the party in breach." Worcester Heritage Soc., Inc. v. Trussell, supra at 345. Cf. Rezendes v. Rezendes, 46 Mass. App. Ct. 438 (1999).
4. Conclusion. We affirm the judgments. Caroline may submit her petition for appellate fees together with the necessary supporting material within fifteen days of the issuance of the rescript in this case. Yorke Mgmt. v. Castro, 406 Mass. 17, 20 (1989). Robert shall have fifteen days thereafter to file a response. Caroline's request for double costs and attorney's fees [Note 23] is denied as not all of Robert's appellate arguments can be said to be without reasonable basis in fact or law.
A modification agreement may, by its terms, survive the judgment as an independent and binding contract. To the extent that such an agreement seeks to serve as a bar to future attempts to modify it, it is subject to the same requirements and exceptions as a separation agreement that is incorporated in the original divorce judgment. See Bracci v. Chiccarelli, 53 Mass. App. Ct. 318, 322-323 (2001). The parties make no claim that the 1985 agreement was not judicially determined to be fair and reasonable.
[Note 8] Stansel v. Stansel, 385 Mass. 510, 514 (1982), quoting from Reeves v. Reeves, 318 Mass. 381, 384 (1945), held that separation agreements that survive divorce judgments are valid "when free from fraud and coercion and when fair and reasonable," and will preclude modification of provisions limiting alimony payments on the mere showing of changed circumstances.
The issue has not been raised that to the extent the agreement for unallocated monthly support payments includes child support, it may not have been susceptible to such binding limitations. See Quinn v. Quinn, 49 Mass. App. Ct. 144, 146 (2000); G. L. c. 208, § 28; G. L. c. 209, § 37.
[Note 21] Robert does not challenge the judge's order that "[a]s a further remedy for Robert's breach, the 1985 Modification Judgment shall be modified back to the date Caroline filed the Complaint for Contempt in March, 1990, in that Robert shall pay Caroline's one-half of the excess over $14,000." We have noted that "[i]n limited circumstances, modifications may . . . be made pursuant to a complaint for contempt." Ruml v. Ruml, 50 Mass. App. Ct. 500, 509 n.14 (2000), citing Kennedy v. Kennedy, 17 Mass. App. Ct. 308, 312 (1983).
[Note 22] The parties raise no issue regarding the authority of the Probate Court, under general principles of equity jurisprudence, to rescind an agreement that has been incorporated in a judgment entered pursuant to an action for divorce. We will assume, without deciding the issue, that it has such authority. See, e.g., Beaton v. Land Court, 367 Mass. 385, 392 (1975) (stating "that a court acting under general principles of equity jurisprudence has broad power to reform, rescind, or cancel written instruments . . . on grounds such as fraud, mistake, accident, or illegality").
[Note 23] The request, made pursuant to G. L. c. 211, § 10, is unavailable under that statute, but is available under G. L. c. 211A, § 15, which mirrors it. Avery v. Steele, 414 Mass. 450, 454 (1993).


Generally, citizens have the right to be free from police use of excessive force; meaning an officer may not use unreasonable force. The right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof. Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865 (1989). Over the years the U.S. Supreme Court, federal courts, and state courts have tried to define what force constitutes excessive force in certain situations. This discussion will not cover all situations. Instead, I will focus on a small slice of the law involving police use of excessive force with examples involving resisting arrest, failure to comply with officer orders, overuse of force for an arrest, and give practical advice on how to litigate an excessive force claim.
Section 1983 was enacted on April 20, 1871 as part of the Civil Rights Act of 1871, and is also known as the “Ku Klux Klan Act.” Actions against police officers under this law began in 1961 after the U.S. Supreme Court decided Monroe v. Pape, 365 U.S. 167 (1961) where it held that 13 police officers who broke into petitioners’ home in the early morning, routed them from bed, made them stand naked in the living room, ransacked every room, emptying drawers, ripping mattress covers, and then arrested Mr. Monroe, held him for 10 hours, interrogated him about a murder, refused to take him to a magistrate, refused to permit him to call his family or an attorney, and then released him without criminal charges were acting under “color of state law” and violated Mr. Monroe’s rights as they did not have a search warrant, no arrest warrant, and detained Mr. Monroe without arraignment.
Who Do You Sue When An Officer Has Used Excessive Force?
A Plaintiff must sue each officer in their individual capacity.
1. You can sue a municipality for prospective or injunctive relief under 1983.
2. To sue the municipality for the officer’s conduct one must bring a 1983 claim under Monell v. Dept. of Social Svcs. of city of New York, 436 U.S. 658 (1978). These claims are essentially claims arguing a failure to train or supervise and a claim that the municipality promotes or furthers a policy or custom that allows the individual officer’s illegal behavior to continue.
understanding of the Fourth Amendment. The Fourth Amendment protects against unreasonable searches and seizures and is enforced through the Fourteenth Amendment. Often every excessive force case involves a Fourth Amendment violation.
2. Seizures must be reasonable to pass constitutional muster. State v. Brown, 2014 WI 69, ¶ 19; Whren v. United States, 517 U.S. 806, 809-10 (1996).
3. Reasonable suspicion to justify a seizure exists if “the facts of the case would warrant a reasonable officer, in light of his or her training and experience, to suspect that the individual has committed, was committed, or is about to commit a crime.” State v. Post, 2007 WI 60, ¶ 8, 301 Wis. 2d 1, 733 N.W.2d 634. This is an objective standard and applies to automobile stops as well.
5. Temporarily stopping a car requires reasonable suspicion of criminal activity. Wisconsin courts have routinely confused the difference between reasonable suspicion and probable cause thus causing those terms to be used interchangeable in Wisconsin case law. But, for purposes of excessive force claims it is important to understand that although an officer can stop a person with reasonable suspicion of criminal activity, he/she cannot arrest the person without probable cause.
6. An arrest without probable cause is a per se violation of the Fourth Amendment. And, any amount of force used to effectuate such an arrest is excessive force.
Failure to provide identification or information does not constitute criminal conduct or probable cause of criminal activity.
1. We do not equate the failure to identify oneself with the act of giving false information…. Mere silence, standing alone, is insufficient to constitute obstruction under the statute. Henes v. Morrissey, 194 Wis. 2d 338, 553 N.W.2d 802 (1995); State v. Hamilton, 120 Wis. 2d 532, 542, 356 N.W.2d 169 (1984).
2. In Henes the police stopped Mr. Henes while walking along a highway in the early morning because they thought he was a suspect in a reported auto theft. When Mr. Henes refused to identify himself during this investigatory stop, the officers arrested and charged him with obstructing their investigation. The criminal case was dismissed for lack of probable cause (that’s a Fourth Amendment violation) and then he brought a civil action under 42 U.S.C. 1983 against the officers for false arrest as the officer arrested Mr. Henes for obstruction for his failure to identify himself. The trial court granted Mr. Henes summary judgment and allowed the jury to determine damages ($500) and awarded attorney fees. Morrissey appealed and the Wisconsin Supreme Court decided there was a Fourth Amendment violation but the officer was entitled to qualified immunity because at the time it was not clearly established law that the police officer could not arrest Mr. Henes for obstructing an investigation simply because he failed to identify himself.
1. Qualified Immunity is the government’s way of say you cannot sue us because we were doing our job. So, if we are negligent in the course of our job and we hurt you then you cannot sue us. Like the companion federal cases qualified immunity applies in excessive force cases if the right violated was not clearly established before the officer’s conduct occurred.
2. “If the right violated was not clearly established” really means – was there a prior case in which an officer did something similar in which an appellate court said that conduct is excessive force but because this was the first time we saw it you get qualified immunity?
3. Alternatively, one can say it means that “the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson, 483 U.S. at 640, 107 S. Ct. at 3039.
4. If you are going to bring an excessive force case you should research the conduct you claim was excessive and make sure you can find a case where similar conduct was previously ruled excessive – particularly by the U.S. Supreme Court or the Seventh Circuit.
5. When Defendant raises qualified immunity Plaintiff bears the burden of showing clearly established right violated.
1. Use of excessive force by police officers during an investigatory stop constitutes a Fourth Amendment violation actionable under 42 U.S.C. § 1983. Clash v. Beatty, 77 F.3d 1045, 1047 (7th Cir. 1996).
2. The seminal case Graham v. Connor, 490 U.S. 386 (1989) provides the framework for determining whether an officer used excessive force.
a. The Fourth Amendment as applied to the states by the Fourteenth Amendment protect against unreasonable seizures.
Tennessee v. Garner, 471 U.S. 1, 8 (1985)).
c. The reasonableness test requires “careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396.
d. “An officer’s use of force is unreasonable if, judging from the totality of the circumstances at the time of the arrest, the officer uses greater force than was reasonably necessary to effectuate the arrest.” Phillips v. Community. Ins. Corp., 678 F.3d 513, 519 (7th Cir. 2012) (citing Gonzales v. City of Elgin, 578 F.3d 526, 539 (7th Cir. 2009)).
e. Other considerations include whether the citizen was under arrest or suspected of committing a crime, was armed or was interfering or attempting to interfere with the officer’s execution of his or her duties. Jacobs v. City of Chicago, 215 F.3d 758, 773 (7th Cir. 2000).
the arresting officers if left unattended. McDonald v. Haskins, 966 F.2d 292, 292-93 (7th Cir. 1992).
Cyrus v. Town of Mukwonago, 624 F.3d 856, 863 (7th Cir. 2010).
Where the offense of arrest is a misdemeanor and where the individual is not exhibiting violent behavior, a lesser degree of force than a Taser is reasonable. Cyrus suffered from paranoid schizophrenia and other mental health disorders. His parents called for assistance as they could not find him. There was a report of a man near a home that fit his description and officers from the Town of Mukwonago responded, finding Cyrus near the partially built home wearing only a bathrobe. When Cyrus did not comply with the officer’s command to come to the patrol car, one officer fired his Taser at Cyrus which caused him to fall to the ground, attempt to get up, fall down again, and roll down toward the officers. When the officers tried to get Cryus’ hands from underneath him to arrest him, he refused and so he was tasered several more times. In all the officers admitted to at least 6 shots with their Tasers while the coroner report details at least 12 shot wounds.
Estate of Starks v. Enyart, 5 F.3d 230, 234 (7th Cir. 1993).
front of Starks’ vehicle knowing he was going to drive away.
An officer who does not have probable cause or reasonable suspicion to arrest an individual for wrong-doing and uses force or arrests the individual is per se unreasonable. Officer arrested Mr. Clash after finding a toy gun in his car that his child was using in the parking lot while Mr. Clash was in the store. Upon placing Mr. Clash in the squad car the officer gratuitously shoved him into the car injuring Mr. Clash’s knee. Judge Crabb opined that qualified immunity did not apply. “If the shove was wholly gratuitous, it may have constituted such an ‘elementary violation’ of the Fourth Amendment that plaintiff need not show a precisely analogous case.’” The Seventh Circuit concurred with Judge Crabb. See also Reese v. Herbert, 527 F.3d 1253 (11th Cir. 2008).
Continual use of a baton launcher at a suspect who failed to exit a vehicle on command constituted xcessive force. Tamara Phillips suffered injuries to her ankle and leg necessitating 30 stitches when her skin was ripped from her bone when she was hit four times with a baton launcher for failing to exit her vehicle. She was lying down in the front seat with her feet and lower legs hanging out of the vehicle. Officers asked her to get out and she remained where she was, highly intoxicated at the time. She eventually brought a civil rights claims under 42 U.S.C. 1983 for excessive force against the officers. She lost at trial and appealed arguing she was entitled to judgment as a matter of law because force was used when she posed no threat to the public, was not fleeing, and did not offer any resistance to the arresting officers. The Seventh Circuit reversed finding that the officers used excessive force as a matter of law when they shot a baton launcher 4 times at Ms. Phillips.
1. Interview your client and all witnesses to determine what facts you can prove as to the underlying conduct of each officer and your client.
2. Obtain other evidence such as body camera footage, street camera footage, cell phone video, or other demonstrative evidence that may be available.
3. Request in discovery municipal documents, policies, procedures, and training materials that indicate whether the conduct you assert violated your client’s Fourth Amendment rights occurred because the municipality condoned it, taught it, or turned its eye away from punishing its officers for such conduct. Request personnel files, discipline records, and training records of involved employees.
4. Depose each party for their version of what happened, for their training and experience, for their prior discipline record.
5. Depose training supervisors or other such individuals to determine if the behavior as you assert occurred is acceptable to the municipality.
1. When a defendant moves for summary judgment he/she is asserting there are no material facts in dispute or if there are those facts are inconsequential and therefore they are entitled to judgment as a matter of law. This typically means qualified immunity – our conduct was justified by the situation or it wasn’t clearly established at the time to be a violation of the law, or your claim is barred by the doctrine of Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994).
2. Your defense to these motions should include material facts that support your assertion of excessive force.
3. Your defense should also include case law that the right violated was clearly established at the time of the conduct in your case.


A special thanks to our frequent guest blogger, Carlton Smith, who over the last few weeks has provided us with quite a few posts. Les, Keith and I have been extremely busy with various projects, which Carl knows, and he offered to do some extra writing to ensure the blog had quality content over that period. The posts have all been wonderful, and we are indebted to him for that.
This past June, the D.C. Circuit ruled that there was no separation of powers issue because (1) the Tax Court, while defined as an Article I (Congressional) court in section 7441, was really, for most constitutional purposes, an Article II Executive Agency exercising executive functions, and (2) there is no problem in the President, who heads the Executive Branch, ever having the power to remove officers of an Executive Agency.
The taxpayer has filed for cert., which has not yet been reviewed. Miami attorney, Joe DiRuzzo (who seems to get his hands on cases with most interesting procedure issues), in late December and early January, filed Kuretski-like motions in various Tax Court cases appealable to various Circuits asking the Tax Court to declare the 7443(f) removal power unconstitutional. In a couple of those cases, the Service was given a healthy amount of time to respond, until March 9th. The Service has requested another sixty days to coordinate its response at the highest levels of Counsel’s office (not a direct quote, but pretty close–we can provide a copy of the motion, if you are interested). That is a lot of time to coordinate a response, and it would be reasonable to assume this has something to do with what is or is not happening with the Kuretski. I’m sure we will have continuing coverage as this moves forward (or doesn’t move forward).
As Les discussed here, the IRS has completed a new online directory of tax return preparers …and in completely unrelated news has warned tax return preparers to watch out for new phishing scams from bogus emails targeting preparers.
Do you hate it when your clients fail to pay your bills? Want to stick it to them, and force them to pay tax on the discharge of that indebtedness by issuing a Form 1099-C. OPR thinks that might reflect negatively on your character and fitness to practice before the Service. OPR did not provide an opinion, but found that only an “applicable entity” had to file such a form, which is defined as various government entities, “applicable financial entities” or other organizations that engage in lending. Further, whether a debt can be discharged is a question of fact, and it “generally occurs when a taxpayer receives funds that are not includible in income, because the taxpayer is obligated to repay the obligation,” not when there is a disagreement about fees for services owed. OPR stated that if a practitioner was not following these substantive rules, that could be problematic for the practitioner under Circular 230, as the practitioner would have a duty to know those laws before issuing an IRS form. See in particular Circ. 230, Section 10.22(a).
The District Court for the Western District of North Carolina, in Carriker v. United States, has partially dismissed an accountant’s attempt to collect attorney’s fees for the accountant defending his CPA license before a state board that he claimed was related to an IRS controversy. The Court found these were not proceedings “by or against” the United States under Section 7430. Similarly, the Code did not provide for fees for the accountant’s time helping his lawyer on the project. The claims related to fees for the underlying IRS controversy were not dismissed.
The Service issued a taxpayer favorable PLR on seeking discretionary relief for late recharacterization of a Roth IRA conversion back to a normal IRA in PLR 201506015. Under the PLR, the taxpayer converted his IRA to a Roth, and a few weeks later invested in a company on his financial advisor’s advice. That company, through other investments, either stole or lost the money, and fraudulent provided incorrect statements regarding the investment’s value. Because of this, the taxpayer had no reason to recharacterize his IRA back to a Roth. After the period for making such an election, the taxpayer found out about the fraud. Taxpayers are, under certain circumstances, allowed to convert their traditional IRA to a Roth IRA. This requires the taxpayer to pay the income tax due on the distribution, but no penalty. If the value of the account decreasing significantly immediately after the conversion, taxpayers may want to recharacterize and obtain a refund of the tax due. There are certain time limits within which the election must be made. Under Treas. Reg. § 301.9100-3(b)(1), the Service has discretion to allow late relief in certain circumstances. One of which is when the taxpayer “failed to make an election because, after exercising due diligence, the taxpayer was unaware of the necessity for the election.” The Service found the fraud caused the taxpayer to be “unaware of the necessity for the election” and allowed the late election. This is arguably a broad, taxpayer friendly, view of when a taxpayer will be aware of something and what is a necessity.
The Service has issued its internal guidance regarding Letter 5262-D in estate and gift audits. This guidance discusses how the auditor should handle a case that was not settled based on how cooperative the taxpayer was. It covers when a 30 day letter can be issued, how additional information must be requested, and when a 90 day letter must go out. If you don’t respond to those IDRs, you are probably getting a ticket to Tax Court.
Next time the ABA Tax Section meets in San Francisco, we may need to take a field trip to the bar from this next case. In Estate of Fenta v. Comm’r, the Tax Court found the taxpayer was not entitled to litigation and administrative costs, as the IRS was substantially justified (too bad, because I think the fees would have gone to a low income taxpayer clinic). The action in this case surrounded the Lakeside Lounge, which might be this joint. The Lounge appears to be a dive bar, that earned a substantial portion of its income from the sale of booze, largely in cash transactions. In a fact pattern that would not be surprising to any IRS agent, it was believed that the bar was not reporting all of its income. Below is a quick note on how the Service calculated the deficiency and on why no costs were awarded.
The taxpayer wasn’t excited to hand over the books and records, and after a few summonses, the Service determined the business was not keeping adequate books and records. Using the invoices for the alcohol purchased by the bar, the Service applied the “percentage-markup” analysis (which the California taxing authority had previously used) to determine the under reporting of the income. This is one of the methods used by the IRS during audits of cash intensive businesses – here is a portion of the IRS’ audit guide on the topic. For bars, this is calculated by taking “liquor purchases divided by average drinks per bottle times average price per drink with allowance for spillage.” There are a lot of things practitioners and the Service can quibble about in this calculation. The Service issued its notice of deficiency, and the taxpayer petitioned the court. Prior to a hearing, the matter was largely settled and a stipulated settlement was filed with the court.
In the instant case, it does not appear a qualified offer was made, so the Tax Court did a Section 7430(c)(4)(A) review to determine if the taxpayer substantially prevailed. In this case, the Service largely argued that it was substantially justified in its position because Mr. Fenta failed to provide various receipts until after he filed his petition. Once the Service received those items, it settled. The Court agreed with the Service. Interestingly, the Court did not indicate whether the Service argued that the settlement precluded fees. I was too lazy (busy) to pull the briefs to see if the Service did not argue the same or if the Court found it more appropriate to only discuss the substantially justified argument.
whether a Massachusetts state income tax return filed after the date by which Massachusetts requires such returns to be filed constitutes a “return” under 11 U.S.C. § 523(a) such that unpaid taxes due under the return can be discharged in bankruptcy.
The Court, joining a recent Tenth Circuit decision, held “we conclude that it does not.” The Court found persuasive the holding in Mallo v. Internal Revenue Service, where the Tenth Circuit held late filed returns were not returns for the applicable paragraph in the bankruptcy code. Keith had a great write up of Mallo found here (comments are worth a review also).
From the Federal Tax Crimes Blog, Jack Townsend discusses the DOJ press release regarding another plea deal for a UBS client. Jack quotes the release and then covers his thoughts, which are insightful, as always. Great point about the taxpayer’s lie to the Service in a meeting potentially extending the statute on the underlying crime (and being a crime itself).
We hope you all had a wonderful 4th of July! Here is the Summary Opinions for two weeks ago, which would have been posted last week but we had too much other great content. Last week’s SumOp will be posted later this week.
Special thanks to our guest posters from two weeks ago. Stu Gibson wrote a really wonderful post on Clarke, highlighting the pros and cons of the decision. Not to be outdone, Professors Stephanie Hoffer and Christopher Walker provided additional commentary on the Kuretstki decision, including responses to comments made by Patrick Smith and Kristin Hickman.
From the Post and Shell E-Flash, comes an excellent write up of the In Re Kellogg Brown & Root case decided by the DC Circuit Court of Appeals reaffirming attorney-client privilege to documents created for internal investigations for corporate compliance. The post contains a nice summary of the background on privilege and the four main holdings in the case. The last of which the authors found to be the most important, where the Court reversed the District Court in applying the “primary purpose” test as a “but for” test or a “sole purpose” test. The post also contains a number of practice tips I would commend to readers, including when to mark documents as privileged and when to include counsel to ensure protection of communications.
Wells Fargo had a busy week last week. We will be writing up a post on a case decided last week in favor of Wells Fargo regarding what constitutes the “same taxpayer” in a merger, when offsetting underpayments and overpayments. The case was very timely, as it impacts interest calculations, and Les just submitted a revised Chapter 6 on Interest for Saltzman and Book, which should be available this fall. The US District Court for the District of Minnesota ruled against WF’s last week on its objections to the master’s application of privilege. The Court did not put stock in WF’s claim that the master lacked the authority to determine the matter, and quickly moved to the privilege question. The Court found there was no evidence that the in-house lawyers were reviewing the documents in question for legal accuracy or for legal advice, but instead only for factual accuracy. It is worth mentioning that the attorneys were not the original drafters off the board memorandums in question, and that the Court did not find actual evidence that the memorandums were actually reviewed by in-house counsel. I would suggest in-house and corporate counsel review the suggestions in the Post and Shell blog post above, as it is possible that these memorandums could have been privileged if handled in a different manner.
On Jack Townsend’s Federal Tax Crimes Blog, he has posted a letter from the IRS to Congressman Bill Posey defending the implementation of FATCA. And, also from Jack’s blog, an excerpt from the JCT report on proposed changes to the multilateral convention on tax administration, which has a summary of the laws of international enforcement.
Paul Daugerdas was sentenced last week to 15 years in the slammer for orchestrating one of the largest tax fraud schemes in US history. Here is the DOJ release. Tax Girl has some wonderful and comprehensive coverage here. Every time I see white collar criminals going to jail, I immediately think of Office Space. I would link to the scene, but I think it is too inappropriate for our blog.
I’m not sure this counts as procedure or policy, but we’ve reserved the right to write about other things that interest us. In United States v. Peters, the ED of Missouri, has held that a taxpayer could not characterize a sale forced by a court as an involuntary conversion under Section 1033. It appears that the taxpayers did not actually follow the Section 1033 requirements, which was probably fatal, but what I found interesting was that the holding states this would not have qualified because the taxpayers originally agreed to the sale of the property. Around closing, the taxpayers walked away from the sale, and the purchaser sued for specific performance, and won. The Court concluded that was a voluntary sale, and the other court was simply enforcing the terms of the contract. This makes sense to me, but I had never researched the issue and found the holding interesting. I couldn’t find a free link yet, but the case number is 4:12CV01395 AGF.
I am working with Les on Chapter 5 of Saltz and Book right now, which deals with statutes of limitations, and I think this Chief Counsel Advice will make its way into the revised chapter, as well as the revised chapter on returns (Chapter 4). In CCA 201425011, the Service indicated a P’ship or LLC return that was filed but not signed by an authorized person is not a valid return, but this does not impact the limitations period for the partners, as the partners’ returns are the applicable return for starting the statute. This does not offer any new guidance, but in the CCA the pass-through nature of the return alters the general rule that would otherwise provide that the failure to submit a valid return triggers an indefinite SOL on assessment.
If you intentionally ignore your mail and actively thwart delivery, you aren’t going to be able to claim you never received notice of your notice of deficiency and question the underlying tax. See Onyango v. Comm’r.
Daisy Barton, from www.accounting-degree.org, asked me to post this infographic her page created on tax policy and income inequality. I have not fact checked this content.
In honor of Presidents’ Day (yesterday), here is a copy of the NYT’s front page the day Vice President Agnew admitted to tax fraud. Also, a special thanks to Jamie Andree for her Valentine’s Day Innocent Spouse post. Good stuff this week. Updates on the IDR process, Ty Warner, and the King of Pop. Also some new summons cases, NPR commentary, and the depressing Treasury budget.
Oh, and Keith is featured in the newest edition of the Tax Lawyer, with his article, Taxation with Representation: The Creation and Development of Low-Income Taxpayer Clinics. TaxProfBlog has coverage.
The new IDR process for large cases, which Keith has discussed before here, has been delayed. Initially, the procedures were to be effective January 2, 2014, but have now been pushed out until March 3, 2014 to allow LB&I to clarify how they work. The news release can be found here.
The DOJ has filed a protective appeal in the Ty Warner case relating to the sentencing of the Beanie Baby mogul. Jack Townsend’s Federal Tax Crimes Blog has a post with more details and some quotes found here. Readers will probably recall that Mr. Warner only received probation for his substantial tax evasion. The protective appeal does not mean the DOJ will proceed with the appeal, but is simply a notice protecting its rights while it makes a decision. Mr. Townsend indicates in his post that although the sentence seemed light, the DOJ would likely have an uphill battle to overturn the Judge.
The Tax Times has a post regarding the new federal budget, and the 4.4% cut in the IRS budget for the year. It will be interesting to see what the IRS automates this year (link is to my post last week on the increased use of automated services, and the reduced ability to get advice from a person at the Service). USA Today had a related article about the poor customer service by the Service.
From the MauledAgain blog on February 14, James Maule wrote about income inequality in light of the debate about how terrible things are for the much maligned ultra-rich (except Ty Warner, who should be ecstatic about probation). Related, here is an article about Larry Summers and the Downton Abbey economy.
NPR Investments, LLC –which I’m fairly certain is how Nova, The Street, and Downton Abbey get all their scratch — lost again against the Service, with the Fifth Circuit upholding the District Court’s imposition of penalties, and which found the Service acted properly in issuing a second FPAA a few months after issuing a no-change letter for the same tax year. The Miller and Chevalier blog has coverage, and a copy of the opinion here. The M&C blog did not find the FPAA item as interesting as I did, but I will still cover it in a bit of detail. In general, Section 6223(f) provides that only one FPAA should be issued for any given year. Taxpayer success!?!? But, there is a provision that allows the Service to issue a second when the taxpayer is a real jerk (“absence a showing of fraud, malfeasance, or misrepresentation of a material fact”). The Fifth Circuit found that checking the box indicating the entity was not a TEFRA partnership on its return was sufficient to meet that jerk standard. I believe this is the only Circuit Court to have reviewed this matter. Interestingly, reliance by the Service and the intent of the taxpayer were not particularly important in the analysis.
Some of this has to be sensationalized, right? The Journal of All that is Correct and Respectable, TMZ, is covering the tax troubles of Michael Jackson’s Estate, which apparently took the position that MJ’s net worth at death was around $7MM. The Service, however, thought that amount was slightly closer to $1.125BB. What a Thriller. Dollar here, dollar there, and it starts to add up. The Service told the estate to Beat It and doubled the penalty due to the Bad numbers under Section 6662(h)(1). Apparently, the Service is seeking $702MM, which is enough to make you Scream. These matters are never Black or White, and the amount will probably end up in the middle, but the estate’s position seems Dangerous and borderline (Smooth) Criminal. It is Human Nature to want to reduce your tax bill…I should stop, this is getting pretty silly.
A few summons orders were issued. First, an order quashing an attempt to block the IRS from seeking information from banks in the United States that was done by the Service to assist the Competent Authority for India in investigating the taxpayer in India. The taxpayer argued an improper purpose, but the Court found the Service statements that the competent authority request was valid was sufficient to carry the Service’s slight burden. SCOTUS will be hearing an improper purpose case in Clarke shortly (covered in SumOp before), where it will determine if a taxpayer is entitled to a hearing after alleging improper purpose. We will be following Clarke closely.
The second summons case involved a tax attorney trying to quash a summons based on confidentiality, but the case was dismissed because of procedural defects. In Patel v. United States, decided in March of 2013, the Southern District of Florida dismissed the motion to quash because the filing party (a third party) was not entitled to file a motion to quash, which is reserved for only the taxpayer under Section 7609.
As the director of a low income taxpayer clinic, I do not expect the new Information Document Request (IDR) procedures to have much impact on my clients. I read the new provisions, however, with a smile on my face and will follow with interest their further development.
About 20 years ago the IRS began putting significant emphasis on large cases and obtaining legal assistance in those case. It was a good idea later carried out much more effectively in the reorganization of 1998 with the creation of a division within Chief Counsel’s Office just to provide assistance on these important cases. As with any good bureaucratic idea, the idea to get counsel more involved with large cases came with goals. In this instance the goals were placed on Chief Counsel field managers of which I was one. As the District Counsel in Richmond, I, and my fellow district counsels around the country, were given numerical goals of numbers of hours we were to have our offices devote to large cases. Using goals in this manner sought to ensure that we would not ignore large cases since doing so would adversely affect our evaluations.
So, I set out to offer the services of my office to the large case teams in Virginia auditing the Commonwealth’s largest corporations. The problem I encountered was that they did not want my services. Despite well-crafted explanations of how the attorneys in my office could assist them during their examinations of large corporations, I could not generate referrals of questions that would allow me to come even close to meeting the goal for hours for the year. The reason that the large case managers did not want the services of lawyers no doubt had many bases partially rooted in their culture which could not be changed with the insertion of a goal in my performance plan (and not theirs) and partially rooted in a failure to train them on the benefits we might bring. From my perspective, however, the principal reason I could not get the large case managers and their agents to call upon my office for assistance was grounded in one word – information.
Large case examiners work in teams and spend most of their time at the taxpayer’s worksite. They would get frustrated with the taxpayers for not providing information on a timely basis. Occasionally, they felt that taxpayers purposefully hid information or failed to produce it because the taxpayer knew that doing so would likely result in an adverse determination. In these circumstances, the large case examiners would come to my office and ask what they should do. We would politely listen to them and advise them that the information could be easily obtained through a summons.
Using the word “summons” had the same effect as suggesting there was a vampire in the room. The examiners would immediately do the IRS equivalent of holding up a cross to ward off the evil being and proceed to tell us how they could not possibly dream of issuing a summons. After going through this routine a few times, the large case examiners learned not to ask us for advice on how to get information the large corporations were reluctant to provide, and we learned that advising them to issue a summons was a useless exercise.
This brings us to the second lesson about the government and bureaucratic behavior. The first lesson perhaps too cryptically alluded to above was that goals are great to influence behavior but if only one party has the goal and the other party does not want your services, meeting the goal becomes impossible. Meaningful goals require situations in which the party upon whom the goal is placed has sufficient control of the situation to actually meet the goal. If insufficient control exists, the goal is simply an exercise in frustration.
The second lesson relates to the large case examiners perspective and needs. Twenty years ago these examiners had at least two reasons for not wanting to issue a summons and I suspect these two reasons still exist which is why the new procedures have been issued. The first part of this lesson relates to the professional goals of the large case examiners. They have time frames placed upon them within which they should complete their examinations. Issuing a summons can significantly delay completion and places control outside of the examiners and into the hands of attorneys and the courts. Even though the large case examiners lose control over the time frame for obtaining information they still must report on how their examinations are progressing and explain on a regular basis to higher and higher levels of the organization why they have not achieved the goals set for them. Sure, they can say it is out of their control but who wants to keep saying that. It does not make them look good. That was one of the biggest problems 20 years ago. I suspect it still exists as a reason for resistance to the issuance of summons. The lesson is that if you really want large case examiners to issue summons, reward them for doing so rather than punishing them. Bureaucrats respond to rewards. Of course, no one wants a system that rewards examiners for issuing summonses rather than obtaining the information through a voluntary exchange but rewards could come in ways that do not directly encourage the issuance of summons but rather focus on the quality of the information gathered in the most effective means while lessening the penalty of having to repeatedly write to explain the status of an overage case.
The second lesson has a personal aspect to it as well. As mentioned above, the large case examiners work on the site of the taxpayer. As such, they have strong personal incentives to maintain good relationships with the tax manager and the corporation they are examining. I felt that a subtle part of the reaction I received when suggesting that large case examiners issue a summons to the corporation they were examining came from the examiners’ desire to work in an office with a window rather than in the boiler room. I have no basis for that observation other than a general sense of human nature. I do not know enough about the dynamics of large case examinations to know how to fix this issue, if in fact it is an issue, but I think it is part of the dynamic that plays into the decision on whether to issue a summons. Once the summons is issued the cordial relationship that may otherwise exist between the large case examiners and those within the corporation with who they interface quickly breaks down as battle lines are drawn.
The new procedures clearly go to some lengths to seek to avoid battle lines being drawn. The statute in no way requires such an elaborate dance before issuing a summons but these procedures have a rather drawn out three step process with informal discussions followed by two warning periods. I generally do not like mandatory provisions such as these and think reliance on the judgment of the examiners should prevail; however, the dynamics at play in a large case examination make mandatory provisions a good buffer for the examiners trying to maintain good relations and meet time frames. The use of these procedures might sufficiently change the culture of large case examinations to make information gathering easier instead of the hide and seek game it can sometimes become.
Drawing on my current experience, I can offer a different type of solution. Low income taxpayers never meet the person examining their return because no one person examines their returns. The returns of low income taxpayers get examined in correspondence exam by a pool of IRS employees no one of whom has responsibility for the case. These employees build up no relationships with the taxpayers and have no difficulty at all setting arbitrary deadlines with short fuses. I suggest that each large case exam team have correspondence examination assigned to it for purposes of information gathering. When the large corporation does not quickly respond to the request for information, that information gathering aspect of the case is simply turned over to correspondence exam. Correspondence exam will set short, non-negotiable deadlines. The workers in correspondence exam will not feel any pressure of personal relationships since each time the corporate tax manager calls a different correspondence examiner will answer (after the appropriate wait time) and will accept few excuses for not providing the information within the somewhat arbitrarily set deadline. The correspondence examination function can then make the referral for summons enforcement if the information is not forthcoming with the stated time period leaving the large case examiners to continue their good relations with the corporate tax manager.


Yesterday, President Obama signed the Defend Trade Secrets Act (DTSA), enacting a federal trade secrets law. Much of the law existed under the federal Economic Espionage Act of 1996 (EEA). However, for the first time, the DTSA provides federal jurisdiction for civil cases involving the misappropriation of trade secrets.
Nevertheless, the DTSA (which is grounded in the commerce clause of the U.S. Constitution) will not preempt state law, unlike patent and copyright laws, making the DTSA akin to trademark law coexisting with state law. Under the DTSA, an owner of a trade secret may bring a federal civil action for the misappropriation of a “trade secret that is related to a product or service used in, or intended for use in, interstate or foreign commerce.”3 Civil claims for trade secret misappropriation that are only related to intrastate commerce must still be brought in state courts, unless there is diversity or supplemental jurisdiction. Also, claims under DTSA must be brought within three years after the date on which the misappropriation is discovered or should have been discovered by the exercise of reasonable diligence.
Like most state trade secret law, remedies under DTSA include injunctive relief and monetary relief. However, seizure of property is a new remedy contemplated by the DTSA. A seizure request can be brought on an ex partebasis for the seizure of property necessary to prevent the dissemination of the trade secret that is the subject of the action.
Also, in order to receive all available remedies under the DTSA, employers have an affirmative obligation to provide notice to employees of the immunity provisions.14 Failure to comply with this affirmative obligation will preclude the employer from recovering “exemplary damages or attorney fees.”15 The employer may provide the notice in any contract or agreement with an employee that governs the use of a trade secret or other confidential information or by providing a cross-reference to a policy document provided to the employee that sets forth the employer’s reporting policy for a suspected violation of law.16 Also, the definition of “employees” in the DTSA is very broadly defined in that it includes conventional employees as well as any individual performing work as a contractor or consultant.17 In view of the notice requirement, employers may be advised to review all employment-related contract or agreement documents that govern the use of a trade secret or other confidential information to ensure that these documents provide notice to employees of their rights under the immunity provision of the DTSA. The notice requirement applies to “contracts and agreements that are entered into or updated after the date of enactment [of the DTSA].” Therefore, while employers are not explicitly required to provide notice of the immunity to current employees, it may be advisable to amend contracts (or any other agreements that govern the use of a trade secret or other confidential information) with current employees in accordance with the notice requirement of the DTSA.
The DTSA also protects former employees by restricting employers from preventing former employees from working at another company on the basis of the inevitable disclosure of trade secrets. Using the inevitable disclosure doctrine, employers in certain states can enjoin a former employee from taking a new job at another company that would inevitably result in the use of the company’s trade secrets. The DTSA does not allow for injunctive relief if doing so would “prevent a person from entering into an employment relationship,” thereby rejecting the inevitable disclosure doctrine.
Time will tell whether the DTSA brings conformity to trade secret litigation as the new act does not preclude circuit splits. That being said, the DTSA gives litigants more options in enforcing trade secrets at a juncture where many patent rights are being challenged at the U.S. Patent and Trademark Office. Whether to file a civil trade secret complaint in state or federal court will depend on a multitude of factors, such as the desired results of the plaintiff and whether the immunity provisions will apply. The broad definition of “employee” in the DTSA highlights the importance of non-disclosure agreements and the monitoring of relationships with contractors and vendors (both domestic and abroad) that may have access to confidential information. Moving forward, companies should review their policies and agreements to ensure that they are in compliance with the immunity provisions and have a proper notice in place.
Please click here to view Obama’s remarks at the signing of the DTSA.
1See, Brian Yeh, “Protection of Trade Secrets: Overview of Current Law and Legislation,” p. 6.
2See, Brian Yeh, “Protection of Trade Secrets: Overview of Current Law and Legislation,” p. 6.
3See, 18 U.S.C. §1836 (b)(1).
5See, 18 U.S.C. §1839 (5).
6See, 18 U.S.C. §1839 (6).
7See, 18 U.S.C. §1836 (b)2(A).
9See, 18 U.S.C. §1836 (b)2(F)(iii).
12See, 18 U.S.C. §1833 (b)(2).
14See,18 U.S.C. §1833 (b)(3)(The DTSA does not provide guidance on any verbiage that would constitute sufficient notice).
15See, 18 U.S.C. §1833 (b)(3)(C).
16See, 18 U.S.C. §1833 (b)(3)(B).
17See, 18 U.S.C. §1833 (b)(4)).


Douglas A. Giron, Providence, RI, for appellant.
Christopher H. Little, with whom John E. Bulman and Little Bulman & Reardon, P.C., Providence, RI, were on brief, for appellee.
Before BOUDIN, Circuit Judge, JOHN R. GIBSON,* Senior Circuit Judge, and POLLAK,** Senior District Judge.
Gaurav Mangla appeals from a judgment as a matter of law entered in favor of Brown University following a trial on his breach of contract and promissory estoppel claims. He argues that the district court erred in granting judgment, as a reasonable jury could have found that Brown breached the contract, acted arbitrarily and in bad faith, and that Brown was estopped from denying him admission to the graduate school. He argues that the court improperly raised certain evidence and overlooked and misconstrued other evidence in reaching this decision. We affirm the judgment of the district court.
Mangla applied for admission to the Brown Graduate School in September 1993, and was admitted as a probationary special student, a category of enrollment that permits the taking of graduate level courses but which is not in itself a degree program. His admission in this capacity was recommended by the Computer Science Department and approved by the graduate council. Associate Dean Joan Lusk met with Mangla at that time and explained to him that his admission was probationary because he lacked the requisite academic background or course work in computer science. Lusk further told Mangla that in order to be admitted to the degree program he would need to successfully complete course work in the Computer Science Department. Mangla claims to have satisfactorily completed seven of the eight courses required for a Master's degree.
After completing such course work, Mangla inquired of Dean Lusk about his probationary status, and she instructed him to obtain a faculty advisor for his Master's Project. In response, Mangla obtained a letter signed by Professor Stanley Zdonik, stating that Mangla "will be working under my supervision for his Master's project." Mangla claims that at the time he believed the letter served as a letter of recommendation for admission into the degree program.
In September 1995, Brown informed Mangla that his special student status was discontinued and that he had not been admitted into the Master's program. Mangla thereafter filed a new, formal application for admission into the Master's program. The Computer Science Department faculty reviewed the new application and voted to recommend that Mangla's application be denied. Mangla then appealed to the Graduate Council which voted unanimously to uphold the department's decision.
Mangla brought this action for breach of contract and promissory estoppel for Brown's refusal to admit him into its Master's program. The action was tried before a jury, but at the close of evidence, the judge granted judgment as a matter of law to Brown and dictated detailed findings into the record. The district court first decided that there was no breach of contract because Mangla knew that one of the things he had to do in performing his side of the contract was to obtain a favorable recommendation from the Computer Science Department faculty and there was no evidence that any such recommendation was obtained. The court acknowledged Mangla's testimony that Dean Lusk told him he would absolutely be admitted if he passed his courses or if he got a faculty member to act as his advisor. The court stated, however, that the key testimony was Mangla's admissions that notwithstanding anything that Dean Lusk may have told him, he knew that a recommendation from the faculty was a requirement for his admission into the Master's Program.
The court further found that there was no promissory estoppel because there was no reasonable reliance on any of the alleged representations. There was explicit language in the Graduate School manual that even the department does not have the power to offer admission and that offers of admission have binding force only when made by the Graduate School in writing. The court stated that Mangla's argument that he was entitled to the written offer of admission is nothing more than a circumvention of the explicit requirement set forth in the Graduate School manual. Further, the district court stated that it was quite a stretch to interpret Professor Zdonik's letter as amounting to a recommendation by the Department that Mangla be accepted. Even viewing the letter in the light most favorable to Mangla, the district court determined that it defied logic and reason to read the letter as a recommendation from the Computer Science Department. Thus, the district court held that there was no issue for the jury to decide, and judgment as a matter of law was granted.
In ruling on a motion for judgment as a matter of law, the district court must examine the evidence, and inferences to be drawn therefrom, in the light most favorable to the non-movant. See Roln-Alvarado v. Municipality of San Juan, 1 F.3d 74, 76 (1st Cir.1993). Judgment as a matter of law may then be granted "only if the evidence, viewed from this perspective, is such that reasonable minds could not differ as to the outcome." Id. at 77.
When a judgment as a matter of law is appealed to this court, we must apply precisely the same criteria that constrain the district court. See Gibson v. City of Cranston, 37 F.3d 731, 735 (1st Cir.1994). Accordingly, we review the grant of judgment as a matter of law under a de novo standard. See Jordan-Milton Mach., Inc. v. F/V Teresa Marie, II, 978 F.2d 32, 34 (1st Cir.1992).
Mangla argues that judgment as a matter of law was inappropriate because a reasonable jury could find that Brown University breached a contract with Mangla by refusing to confer regular degree status upon him.
The district court, in this diversity case, was required to apply the substantive law of Rhode Island. However, after careful research, we have discovered no case in which the Rhode Island courts have addressed the contractual relationship between a private academic institution and its students. We therefore resolve Mangla's breach of contract claim according to those legal principles which we believe the Rhode Island courts would most likely adopt. See Lyons v. Salve Regina College, 565 F.2d 200, 202 (1st Cir.1977), cert. denied, 435 U.S. 971, 98 S.Ct. 1611, 56 L.Ed.2d 62 (1978).
The student-college relationship is essentially contractual in nature. See Russell v. Salve Regina College, 938 F.2d 315, 316 (1st Cir.1991). The terms of the contract may include statements provided in student manuals and registration materials. See Lyons, 565 F.2d at 202 (construing College Manual and Academic Information booklet as terms of a contract between a student and college). The proper standard for interpreting the contractual terms is that of "reasonable expectation--what meaning the party making the manifestation, the university, should reasonably expect the other party to give it." Id. (quoting Giles v. Howard University, 428 F.Supp. 603, 605 (D.D.C.1977)).
Caveat. Applicants are asked to take particular notice of the fact that the individual academic departments, while having a major role in evaluating the applications of all candidates, do not have the power to offer admission, and that offers of admission have binding force only when made by the Graduate School in writing over the signature of the Dean of the Graduate School or her representative.
By its terms, this provision divested faculty members of any authority to promise admission or to determine the necessary prerequisites for admission. Because the provision was included in the graduate school catalog, Brown could reasonably expect students to be aware of the policy. Thus, it was reasonable for Brown to expect its students not to rely on oral statements by individual faculty members as binding promises by the university.
Likewise, the statements of Associate Dean Lusk did not give Mangla a right to be admitted. As an apparent representative of the Dean of the Graduate School, Lusk arguably had the authority to offer admission. The caveat, however, restricted the acceptable form of such an offer to a signed writing. Mangla concedes that no such writing exists in this case. Therefore, the language of the graduate school catalog seriously compromises Mangla's claim that Lusk's statements gave him a contractual right to be offered admission.
As Mangla correctly asserts, the graduate school catalog is not a wholly integrated contract but instead is only one part of a more complex contractual relationship between the student and the college. We do not foreclose the possibility that, under certain circumstances, the university could obligate itself through the actions and oral statements of its officials, despite the language of the caveat provision. A reasonable jury, however, could not find that such circumstances exist in this case.
Particularly fatal to Mangla's contract claim in this case was his failure to secure a recommendation from the department faculty. Mangla admitted at trial that he understood that a faculty recommendation was a prerequisite to his admission as a regular degree candidate. Mangla maintains that this requirement was reasonably met by a letter signed by Professor Zdonik, a member of the Computer Science department faculty. The Zdonik letter does not, however, recommend that Mangla be admitted. Rather, the letter, addressed "To whomever it may concern," identifies Mangla as a graduate student working under Zdonik's supervision "for his Master's project" and requests that Mangla be provided with help and the use of resources for his research while living in Princeton, New Jersey. Mangla does not claim to have informed Zdonik of his intent to use the letter as a letter of recommendation. Indeed, Mangla does not even contend the letter was a faculty recommendation, but instead contends that he reasonably believed it was the "equivalent of a recommendation." No reasonable jury could find that the letter signed by Zdonik reasonably fulfilled the prerequisite of a faculty recommendation. As a result, no reasonable jury could conclude that Brown should have reasonably expected Mangla to believe that the university was contractually obligated to admit him.
Mangla argues that a jury could reasonably find that Brown acted arbitrarily or in bad faith in refusing to admit Mangla as a regular degree candidate. Brown responds that Mangla's claim of arbitrariness must fail because the university's decision did not substantially depart from established academic norms.
Under Rhode Island law, contracts contain an implied duty of good faith and fair dealing. See A.A.A. Pool Service & Supply, Inc. v. Aetna Casualty & Surety Co., 121 R.I. 96, 395 A.2d 724, 725 (1978). Because the parties do not contend otherwise, we assume for the purposes of argument that Brown's duty of good faith extended to its review of Mangla's application for admission as a degree candidate. We thus turn our focus to the question of whether Brown met that duty.
The decision to grant or deny admission to a student is a quintessential matter of academic judgment. Courts have long recognized that matters of academic judgment are generally better left to the educational institutions than to the judiciary and have accorded great deference where such matters are at issue. As the Supreme Court stated in Regents of University of Michigan v. Ewing, 474 U.S. 214, 225, 106 S.Ct. 507, 513, 88 L.Ed.2d 523 (1985), "Plainly, [judges] may not override [the faculty's professional judgment] unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment."
Applying the standard of deference enunciated in Ewing, we conclude that no reasonable jury could find that Brown acted arbitrarily or in bad faith in refusing to admit Mangla as a regular degree candidate. The Computer Science Department recommended against Mangla's admission on the ground that Mangla did not demonstrate an ability to undertake the research or independent work required for a Master's thesis or project. The department's position was based in part on negative assessments of Mangla's research capabilities provided by professors who had supervised Mangla's previous attempts at a research project.
Mangla argues the department's decision was arbitrary and in bad faith because he was never informed that he would be judged on his ability to do independent research. Mangla, however, was aware that a Master's thesis or project was a necessary component of the Master's program. We believe it is self-evident that a committee evaluating an application for admission into a Master's program would be concerned with the applicant's prospects of successfully completing the degree requirements.
The evidence establishes that Brown judged Mangla according to legitimate criteria and had a sufficient basis for believing that Mangla did not meet those criteria. Consequently, no reasonable jury could infer that Brown acted arbitrarily or in bad faith when it decided not to admit Mangla as a degree candidate.IV.
Finally, Mangla argues that a reasonable jury could have found Brown liable on a promissory estoppel theory. We reject his argument.
Under Rhode Island law, "A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise." B.M.L. Corp. v. Greater Providence Deposit Corp., et al., 495 A.2d 675, 677 (R.I.1985) (quoting 1 Restatement (Second) Contracts § 90 at 242 (1981)). Thus, the proper focus of our inquiry is again on the reasonable expectations of the party making the manifestation.
As we have previously discussed, Brown should not have reasonably expected Mangla to rely on the oral statements of Dean Lusk or the individual faculty members as binding promises of admission. Therefore, we uphold the district court's ruling that no reasonable jury could find that Brown was estopped from denying Mangla admission as a Master's degree candidate.
We affirm the judgment as a matter of law in favor of Brown University.


text:
Adventure Comics, no. 88 (Oct. 1943). -- Superhero genre.
moon looks like a smile. -- Call no.: PN6726 f.B55 "moon"
Wonderment. -- Stamford, CT : M. Raub, . -- ill. ; 28 cm.
masthead. -- LIBRARY HAS: no. 33-34, 43, 52.
1. French comics. 2. Danish comics. I. Crespin, Michel. II.
Index entry (p. 1153) in Historia de los Comics / J.
An artist of pornographic comics searches for inspiration.
were first published in the London Evening Standard."
1. World politics--1933-1944--Caricatures and cartoons. I.
no. 32 (Oct./Nov. 1952). -- Letters to the editor from E.
York : Fawcett Publications, 1964. -- 1 v. : ill. ; 18 cm.
Fawcett Publications, 1962. -- ca. 150 p. : ill. ; 18 cm.
"Filtering Out the Web Strips that Stink" / Stuart Luman.
1943-1955. -- col. ill. ; 26 cm. -- Published no. 1 (Oct.
no. 1 (Feb./Mar. 1952) - no. 17 (Oct./Nov. 1954), cf.
no. 1 (Mar.-Apr. 1951)-no. 13 (Feb./Mar. 1953), cf.
Overstreet Comic Book Price Guide. -- Microfilm.
(Jerry Bails Microfilm Library of Comic Art) -- Genre: War.
Army Laughs. -- Canton, Ohio : Crestwood Pub. Co., 1951- .
Broadway Laughs. -- Canton, Ohio : Crestwood Pub. Co.,  .
col. ill. ; 26 cm. -- Published v. 8, no. 6 (Mar./Apr.
Book Price Guide. -- Continues: Black Magic. -- Teen humor.
. -- ill. ; 19 cm. -- Began with v. 1, no. 1 (Oct./Nov.
col. ill. ; 26 cm. -- Published v. 1, no. 1 (Feb./Mar.
no. 8; v. 4, no. 6; v. 4, no. 9; v. 7, no. 1 (1950-1955).
York : Crestwood/II Publications, 1990. -- 207 p. : ill.
"Cave Nurses" p. 33-35 in True Comics, no. 16 (Sept. 1942).
"A Lost World" (Arthur Evans) p. 28-32 in True Comics, no.
1. Evans, Arthur, 1851-1941--Comic books, strips, etc. 2.
SUMMARY: British commandos kidnap a Nazi general on Crete.
k. British Commandos. k. Commandos. k. Nazi Generals. k.
ou à Laisser : album par Caran d'Ache (Paris : Plon, 1898).
"The Crevasse" / story and art by the Schuiten Brothers. p.
32 cm. -- (Grands Chapitres) -- Une production Gilou.
The Adventures of Fat Freddy's Cat, no. 4 (1978) ; and 1 p.
the 1978 printing this is called Fat Freddy's Cat no. 151.
suggestions that he looks like a prisoner or a sophomore.
"A Crew In Chains"* (Shark Brodie) / art: George Tuska. 6 p.
The Crew of the Ocean Wave.
take over a yacht, putting the crewmen to sleep with ether.
Call no.: PN6726 f.B55 "Ether"
"The Real Scorpio"* (Dr. Fung) / Bob Powell, story and art.
I. Powell, Bob. II. Dr. Fung. k. Scorpio. k. Crews, Corey.
1994) -- LIBRARY HAS: no. 1.
aliens--Comic books, strips, etc. I. Image Comics. k.
disease, storms, sharks, burning sun and hostile warriors.
shipwrecks, sea monsters, war, starvation, torture, death.
Any questions? -- Call no.: PN6726f.B55 "dental plans"
"Many a Slip" (The Nebbs, July 23, 1942) / by Hess ; W. A.
tent during Rudy's absence, but then they discover Mrs.
-- Story of a bomber crew.
of Star Trek, the Next Generation. -- Genre: Biographical.
cf. Overstreet Comic Book Price Guide. -- Superhero genre.
and dangerous undersea creatures for the exotic pet market.
"They'll Fly Again" p. 26-33 in Real Heroes, no. 8 (Jan.
1943) -- About a bomber crew.
Books. k. Crews. k. Overboard. k. Appeasement. k. Gods.

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


text:
In the Matter of the Disbarment of DONALD A. ROTHROCK, an Attorney at Law.
Donald A. Rothrock. in pro. per., Josiah Coombs, William L. Southwell and J. M. Frame for Petitioner.
On November 22, 1939, a certified copy of the record of the conviction of Donald A. Rothrock, an attorney at law, on a charge of assault with a deadly weapon (Pen. Code, sec. 245) was filed in this court. It was filed pursuant to sections 6101 and 6102 of the Business and Professions Code (added by Stats. 1939, p. 357, formerly section 288, Code Civ. Proc.). The record shows that on October 30, 1939, in the action of the People of the State of California v. Donald A. Rothrock, No. 61939, pending in the superior court, in and for the county of Los Angeles, the defendant therein pleaded "guilty" to count three of an information filed October 7, 1935, charging assault with a deadly weapon, committed in the county of Los Angeles on September 12, 1935. The court sentenced the defendant to serve two months in the county jail. The judgment of conviction has become final and the sentence imposed upon the defendant has been served.
"Conviction of a felony or misdemeanor, involving moral turpitude, constitutes a cause for disbarment or suspension as provided in section 6102.
"The record of conviction shall be conclusive evidence and the clerk of the court in which the conviction is had shall, within thirty days thereafter, transmit a certified copy of the record of conviction to the Supreme Court. The proceedings to disbar or suspend an attorney shall be undertaken by the court upon the receipt of the certified copy of the record of conviction.
"A plea or verdict of guilty is deemed to be a conviction within the meaning of this section."
"Upon the receipt of the certified copy of the record of conviction of an attorney of a crime involving moral turpitude, the court shall suspend the attorney until judgment in the case becomes final. When a judgment of conviction becomes final, the court shall order the attorney disbarred.
"The other provisions of this article providing a procedure for the disbarment and suspension of an attorney do not apply to an attorney convicted of a crime involving moral turpitude, unless expressly made applicable."
On January 5, 1940, the attorney, referred to herein as the "petitioner", or as the "defendant", moved to dismiss [16 Cal. 2d 452] the proceeding herein on the ground that the crime of which he was convicted did not involve moral turpitude. After several postponements of the hearing granted at the request of the petitioner, the matter was submitted on the argument of counsel for the petitioner and counsel for The State Bar and on the briefs filed by the petitioner.
A short resume of the proceedings which took place before the entry of the judgment of conviction will serve to indicate the reason for the lapse of time between the filing of the information and the entry of the plea of guilty to the third count thereof.
Count 1 of the information charged that on September 12, 1935, the defendant attempted to murder one Golda Draper, and that at the time of the commission of the offense he was armed with a revolver. Count 2 charged a similar attack upon one John H. Ganzenbuher. Count 3 charged assault with a deadly weapon, a revolver, upon George Zaris. On October 16, 1935, the defendant entered a plea of "not guilty". On January 22, 1936, after trial by the court sitting without a jury, the defendant was adjudged guilty on all counts and was found to have been armed as charged in the information. On the same day the defendant made an oral motion for a new trial, which was continued to January 31, 1936, for argument.
The proceedings from this point are reflected in the decisions in People v. Rothrock, 8 Cal. 2d 21 [63 PaCal.2d 807] (Dec. 17, 1936); People v. Rothrock, 21 Cal. App. 2d 116 [68 PaCal.2d 364] (May 20, 1937); In re Rothrock, 14 Cal. 2d 34 [92 PaCal.2d 634] (July 12, 1939); and in the minutes of this court in the Matter of the Disbarment of Donald A. Rothrock, Misc. 1497. By the decision first cited this court denied a motion to dismiss an appeal taken by the People from an order of the trial court setting aside its findings of guilty on each of the three counts and continuing the case for arraignment and plea. The order was reversed with directions to enter judgment in accordance with the finding of the court. The disposition of the appeal was based upon the supposed showing in the record that there was no motion for a new trial pending before the court at the time the order was entered. Upon the going down of the remittitur the trial court on February 3, 1937, entered its judgment of conviction on all three counts and sentenced the defendant to imprisonment in the state prison at San Quentin for [16 Cal. 2d 453] the term prescribed by law, the sentences on all counts to run concurrently. The defendant was thereupon committed in accordance with the judgment.
The decision by the District Court of Appeal (21 Cal. App. 2d 116 [68 PaCal.2d 364]) disposed of the merits of the appeal from the judgment of conviction by affirming the judgment. On June 21, 1937, this court entered an order based on the purported final judgment of conviction, removing Donald A. Rothrock from his office as an attorney at law.
On August 12, 1939, pursuant to order of this court, the remittitur theretofore issued on the determination of the appeal (8 Cal. 2d 21 [63 PaCal.2d 807]) from the order setting aside the findings of the trial court was recalled. (In re Rothrock, 14 Cal. 2d 34 [92 PaCal.2d 634].) The recall was ordered because of the mistake of fact made by this court in assuming that the defendant had not made a motion for a new trial, whereas such a motion had been made and was disposed of. The remittitur was corrected to accord the defendant a new trial.
On August 23, 1939, this court set aside its former order of disbarment and declared the status of Rothrock to have been unaffected by said order of disbarment.
The further proceedings in the trial court, as hereinabove noted, resulted in the judgment of conviction entered on the plea of guilty to the third count of the information, charging assault with a deadly weapon upon George Zaris.
The petitioner contends that the offense of assault with a deadly weapon does not involve moral turpitude within the meaning of the foregoing sections of the Business and Professions Code.
The legislature of this state by the adoption of the foregoing code sections has recognized that a violation of the law, without more, does not necessarily brand the attorney committing the same as a person unfit to practice law. It has thus added the further requirement that in the commission of the crime moral turpitude must be involved. The legislature has made the record of conviction conclusive, but it has left to the courts the duty of deciding whether the particular crime involves moral turpitude. In cases such as those involving convictions of murder, forgery, extortion, bribery, perjury, robbery, embezzlement and other forms of theft, no difficulty would attend the determination of the question of moral turpitude from a consideration of the record of conviction alone.
The courts do not appear to have decided the question whether the conviction of an attorney on the charge of assault with a deadly weapon will require his disbarment on the ground that the offense involves moral turpitude. In In re Hatch, supra, this court stated that a conviction of simple assault and battery might indicate that moral turpitude was not involved.  In the final analysis the purpose of any disbarment proceeding is not to punish the attorney--in the case of a criminal act he is amenable to punishment under the penal statutes--but is to afford protection to the public and to the profession by an investigation respecting the moral fitness of the attorney to continue in the practice of the law. (In re Vaughan, 189 Cal. 491 [209 P. 353, 24 A.L.R. 858]; Ex parte Wall, 107 U.S. 265, 288 [2 S. Ct. 569, 27 L. Ed. 552].) The author of the note cited supra (45 Am.St.Rep., at p. 77; see, also, 2 R. C. L., p. 1100) cites decisions recognizing that it is not every criminal act which will justify a disbarment, and to the effect that "acts merely discreditable, but not infamous and not connected [16 Cal. 2d 455] with an attorney's duties, did not justify the striking his name from the rolls". The author comments: "To this, however, we cannot assent without adding the qualification that the discreditable acts must be such that it may fairly be inferred that, though the attorney is guilty of them, his moral character is not such as will probably lead him into an abuse of the privileges of his profession, or a disregard of his duties either to the court or to his clients."  Such a test appears proper to be applied in the case of any conviction where it cannot be said that the attorney is thereby stamped with infamy to such an extent that to retain his name on the rolls would reflect discredit upon the bar and the courts and lower the prestige of the profession. Thus this court, in In re Jacobsen, 202 Cal. 289 [260 P. 294], indicated that the moral turpitude involved in the commission of a crime by an attorney should be such as would be "calculated to injure his reputation for the performance of the important duties which the law enjoins". Therefore, in convictions presenting doubtful cases on the question of moral turpitude, where the perpetrator of the offense is an attorney, the question whether the act involves moral turpitude properly may be resolved by a consideration of the nature of the offense as it bears upon his moral fitness to continue in the practice of the law. A consideration alone of the nature of the offense, therefore, may disclose that conviction thereof would not result in loss of the respect and confidence of his fellow- men, if his name be continued on the roll of attorneys. If that be the result of the consideration of the record of conviction alone, the conclusion may well be determinative of the question of moral turpitude, and the offense of which the attorney was convicted will be held not to involve moral turpitude. If, however, the nature of the offense, considered alone or in connection with the record of conviction and the statutes defining the particular offense, does not disclose that the commission thereof would or would not cast discredit upon the attorney's moral fitness to practice law, then an investigation into the circumstances will be permitted. In re Hatch, supra, and In re Richardson, 15 Cal. 2d 536 [102 PaCal.2d 1076], were such cases.
In Ex parte George, 180 Fed. 785 (deportation under the immigration laws) the alien was convicted "of a felonious assault and sentenced to four months imprisonment". The "assault consisted of his act in striking in a quarrel another Greek with a large piece of firewood. At the same time the brother of petitioner stabbed the same person with a knife." The court said: "It [the assault] certainly does not constitute a misdemeanor involving moral turpitude."
In Weedin v. Yamada, 4 Fed.2d 455 (Wash.), the court upheld an order of deportation in a case where a Japanese subject had pleaded guilty to a charge of "assault with a deadly weapon, instrument or other thing, with an intent to inflict upon the person of another a bodily injury, where no considerable provocation appears, or where the circumstances of the assault show a wilful, malignant, and abandoned heart", under a statute which so defined the crime. The court said: "Such a crime, in our opinion, involves moral turpitude beyond any question."
In United States ex rel. Morlacci v. Smith, 8 Fed.2d 663 (New York) the court, in deciding that the crime of "second degree assault" involved moral turpitude, observed that mere assault and battery concededly did not involve such a degree of depravity (see, also to the same effect Gillman v. State, 165 Ala. 135, 51 So. 722, and Pollok v. State, (Ct. Cr. App. Tex.), 101 S.W. 231, involving conviction of assault and battery as affecting credibility of witnesses), "but an assault with a dangerous weapon, in this case a revolver, and shooting the person, is simply an act which includes something done by the assailant contrary to good morals and proper conduct. Society is entitled to protection from willful acts of that description which frequently result in more serious injury and conseqences than that following the commission of the offense in question ... it is doubtful whether this court has the power to examine the circumstances upon which the conviction and sentence were based."
In United States ex rel. Ciccerelli v. Curran, 12 Fed.2d 394, a subject of Italy was ordered deported on the ground of conviction of a "criminal assault with a gun". The court merely observed: "It seems to be admitted that the crime of assault in the second degree in one involving moral turpitude."
In Ciambelli ex rel. Maranci v. Johnson, 12 Fed.2d 465, also a deportation case, the question was whether a conviction [16 Cal. 2d 457] of assault and battery upon a police officer involved moral turpitude. The court observed that the indictment charged that Maranci was armed with a dangerous weapon, a razor, but that it was not charged nor claimed "that the assault was made with the weapon". The court said: "It has been held that simple assault and battery is not a crime involving moral turpitude ... (citing cases) ... But an assault is one of those offenses which may, or may not, involve moral turpitude, depending upon the circumstances of the particular case. If one ordinarily law-abiding, in the heat of anger, strikes another, that act would not reveal such inherent baseness or depravity as to suggest the idea of moral turpitude. If, on the other hand, one deliberately assaulted an officer of the law with a dangerous weapon and with felonious intent, or for the purpose of interfering with the officer in the performance of his duty, the attendant circumstances showing an inclination toward lawlessness, the act might well be considered as one involving moral turpitude. Between the two lies the line of demarcation which I do not undertake to define accurately. I only determine which side of the line the facts of this case fall." On the facts in that case the court concluded that the assault did not involve moral turpitude.
In a similar case, United States ex rel. Mazzillo v. Day, 95 Fed.2d 391 (New York), involving a conviction of "assault in the second degree", the court also looked into the circumstances of the offense and concluded that an assault on the driver of a cab, inflicting on him a cut on the neck and forcing him to abandon his vehicle, was an offense involving moral turpitude. However, in United States ex rel. Griffo v. McCandless, 28 Fed.2d 287 (Penn.), where the alien had been convicted and sentenced for the offense of "aggravated assault and battery", the court concluded that moral turpitude must be inherent in the charge, that it could not go beyond the record, which was conclusive, and that it was not conclusively implied in the charge of aggravated assault and battery. Likewise in United States ex rel. Magiovi v. Karnuth, 30 Fed.2d 825 (New York), (conviction of an alien on a plea of guilty to a charge of manslaughter in the second degree), it was held that where the offense as defined by statute did not include an evil intent, or commission of the act wilfully or designedly, the court would not look beyond the charge and statutory definition of the crime for the purpose [16 Cal. 2d 458] of deciding whether the offense involved moral turpitude. The court distinguished Weedin v. Yamada and United States ex rel. Morlacci v. Smith, supra, wherein assault with a deadly weapon was held to involve moral turpitude, on the ground that in those cases the crime of assault with a deadly weapon, as defined in the respective state statutes, was committed with an intent to do bodily harm.
The case of State v. Metcalfe, 204 Iowa 123 [214 N.W. 874], involved a proceeding to disbar an attorney on charges of assault with intent to commit murder and shooting and wounding one person with a revolver, and an assault with a shotgun and shooting and wounding another person. The attorney had been convicted on both charges, but the convictions in each case had been reversed. The court, citing authorities, held that affirmative action could be taken in the proceeding, although there were no convictions, if the facts warranted such action. It concluded, however, on the facts--the shooting by the attorney occurring in one case during an altercation with his tenants and in the other while protecting his property from chicken thieves--that the circumstances of neither case involved any misconduct within the sphere of duty as an attorney, or any lack of the qualifications of integrity, honesty and fidelity essential to that relation; that "these acts do not of themselves necessarily evince a lack of moral character in respect to the qualities required for the proper discharge of the duties of an attorney, nor, in the absence of a conviction therefor, require his disbarment. A quarrelsome disposition, a hasty and ungoverned temper, and even an unwarranted assertion, under provocation, of a claimed right of defense of self or property, are not necessarily incompatible with truthfulness, faithfulness and integrity."
[4, 5] In the absence of a statutory definition indicating that evil intent is inherent in the commission of the crime, the courts generally are reluctant to classify the crime of assault with a deadly weapon as one involving moral turpitude as a matter of law. Where the question has arisen in disbarment proceedings, such conduct has been deemed not to call for disbarment as a matter of course. A high degree [16 Cal. 2d 459] of moral standards is required of an attorney, but the courts have not been inclined to impute moral turpitude in the commission of the lesser infractions of the penal laws which carry no reflection upon the attorney's moral fitness to practice law. The commission of such lesser offenses by an attorney in the heat of anger or as the result of physical or mental infirmities does not, without more, cast discredit upon the prestige of the legal profession or interfere with the efficient administration of the law and should not be deemed to involve moral turpitude. Our statute (sec. 245, Pen. Code), does not define assault with a deadly weapon so as to indicate that it is an offense which by these tests involves moral turpitude as a matter of law. That it did not involve moral turpitude in the particular case may be reflected by the record of conviction, which is all that is before the court in this proceeding. That record consists of the charge of the offense to which the defendant pleaded guilty; the plea; and the judgment of conviction. (See sec. 1207, Pen. Code; 8 Cal.Jur., p. 474.) The light sentence imposed on the attorney indicates that the trial court was of the opinion that the offense to which a plea of guilty was entered did not involve moral turpitude. Our consideration of the record leads us to the same conclusion.
The motion is granted and the proceeding is dismissed.

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