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Criminal Law - Punishment - Death Penalty - Aggravating Factors. Eighth Amendment requirements that aggravating circumstances reasonably justify imposition of the death penalty by genuinely narrowing the class of persons subject to such punishment are met by RCW 10.95.020, which specifies certain aggravating factors, any one of which is sufficient to separate a defendant from others who also commit first degree murder, which must be found at the time a defendant is found to be guilty.
 Constitutional Law - Construction - Similar State and Federal Provisions. State constitutional provisions protecting individual rights may be more liberally construed than the interpretation given similar provisions of the federal constitution.
 Criminal Law - Punishment - Death Penalty - Special Sentencing Procedure - Aggravating Factors - Proof. Due process and cruel punishment constitutional protections and the rules of evidence restrict the admission of aggravating information in the special sentencing phase of a capital case to (1) the defendant's record of convictions, (2) those aggravating factors set forth in RCW 10.95.020, (3) rebuttal evidence necessary to rebut mitigating evidence offered by the defendant, provided its probative value exceeds its prejudicial effect, and (4) the facts and circumstances of the murder if the sentencing jury is not the jury which convicted the defendant. Those portions of RCW 10.95.060 and .070 which permit the admission of other types of aggravating information are invalid under Const. art. 1, 3, 14.
 Criminal Law - Punishment - Death Penalty - Special Sentencing Procedure - Mitigating Factors - Proof. In the special sentencing phase of a capital case, any relevant mitigating information which pertains to the defendant's character or record or any of the circumstances of the offense may be admitted under RCW 10.95.060(3) and .070, regardless of its admissibility under the rules of evidence.
 Criminal Law - Punishment - Death Penalty - Special Sentencing Procedure - Polygraph Results. A defendant may offer the results of polygraph examinations of prosecution witnesses as a mitigating factor during the special sentencing phase of a capital case provided the trial court finds the examiner to have been qualified and the test to have been conducted under proper conditions. The State may cross-examine the examiner as to his qualifications and training, the conditions under which the test was conducted, limitations and possibilities of error in polygraph interrogations, and, subject to the discretion of the court, other matters pertinent to the subject.
 Criminal Law - Punishment - Death Penalty - Special Sentencing Procedure - Mitigating Factors - Definition - Necessity. The term "mitigating circumstances" as applied to the special sentencing phase of a capital case does not need to be specifically defined so long as the instructions adequately guide the jury as to the nature and function of mitigating circumstances.
NAMES OF CONCURRING OR DISSENTING JUDGES: Rosellini, Dore, and Dimmick, JJ., dissent in part by separate opinions; Utter, J., did not participate in the disposition of this case.
NATURE OF ACTION: The previous decision of the court at 98 Wn.2d 173 was vacated by the United States Supreme Court and the case remanded for reconsideration. In the previous decision the aggravated first degree murder conviction of the defendant was affirmed but the cause remanded for resentencing.
Supreme Court: Holding that the restrictions previously imposed upon the State as to the nature and extent of evidence admissible during the special sentencing phase remained valid and that the defendant could introduce polygraph results in mitigation, the court REAFFIRMS the conviction and REMANDS for a new sentencing hearing to consider whether or not to impose the death penalty.
COUNSEL: TIMOTHY K. FORD and DOUGLAS TUFTS, for appellant.
MAJORITY OPINION: Defendant Dwayne Earl Bartholomew was convicted of aggravated first degree murder and received a sentence of death in December 1981. On automatic review, pursuant to RCW 10.95.100, we affirmed the conviction, but reversed his sentence when we found portions of the capital punishment statute in violation of the Eighth and Fourteenth Amendments. The United States Supreme Court granted a writ of certiorari, vacated our judgment found in STATE v. BARTHOLOMEW, 98 Wn.2d 173, 654 P.2d 1170 (1982), DEFENDANT'S CERT. DENIED, 103 S. Ct. 3548 (1983), and remanded the case for reconsideration in light of ZANT v. STEPHENS, _____ U.S. _____, 77 L. Ed. 2d 235, 103 S. Ct. 2733 (1983). The facts in this case are adequately set forth in STATE v. BARTHOLOMEW, 98 Wn.2d at 177-80.
We first consider whether provisions of the capital punishment statute, RCW 10.95, remain invalid under the United States Constitution after reconsideration in light of ZANT v. STEPHENS. Our prior decision modified the death penalty statute in three significant ways.
"First, the portion of RCW 10.95.060(3) that authorizes the admission of evidence of a defendant's prior criminal activity (other than convictions) is inconsistent with the Eighth Amendment standards we have articulated. Therefore, we invalidate the provision authorizing the admission of "evidence of the defendant's previous criminal activity regardless of whether the defendant has been charged or convicted as a result of such activity." That portion of the statute may be severed without affecting the validity of the remainder of the statute. RCW 10.95.900.
Second, the remaining provisions in RCW 10.95.060 and the provisions of RCW 10.95.070 must be construed subject to the Eighth Amendment strictures we have identified in this opinion. Specifically, the liberal authority provided by RCW 10.95.060(3) to receive "any relevant evidence" must be limited to mitigating evidence only.
Similarly, the jury's liberal mandate under RCW 10.95.070 to consider "any relevant factors" shall be limited to mitigating factors only. The admission of evidence of aggravating factors and consideration by the jury of aggravating factors must be restricted to maintain the constitutionally required channeled discretion. Specifically, evidence of nonstatutory aggravating factors must be limited to defendant's criminal record and such evidence of additional nonstatutory aggravating factors as may be admitted by the court pursuant to the balancing test set forth above.
Finally, the provision in RCW 10.95.060(2) that the prosecution shall be allowed to make an opening statement and shall first present evidence must be limited in accordance with this opinion. This means that in most cases the only evidence with which the prosecution may open is defendant's criminal record. In the event that the sentencing jury is not the jury which convicted defendant of aggravated first degree murder, the prosecution may in addition present evidence of the facts and circumstances of the murder, as provided by the second paragraph of RCW 10.95.060(3).
We based this prior decision on our interpretation of the Supreme Court's decisions interpreting the Eighth and Fourteenth Amendments, and establishing procedural requirements in capital punishment cases. JUREK v. TEXAS, 428 U.S. 262, 49 L. Ed. 2d 929, 96 S. Ct. 2950 (1976); GREGG v. GEORGIA, 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976); FURMAN v. GEORGIA, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972). The question before us, then, is whether ZANT v. STEPHENS mandates a different result than our prior decision in this case. We hold that it does not.
In ZANT v. STEPHENS, a Georgia state court found the defendant guilty of murder and imposed the death penalty. Under the Georgia capital punishment statute, a jury must find that at least one statutory aggravating circumstance has been proved beyond a reasonable doubt before it can sentence someone to death. 103 S. Ct. at 2737. At the sentencing phase of the trial, the jury designated in writing the three statutory aggravating circumstances it found. 103 S. Ct. at 2737-38. One of the aggravating circumstances the jury found was that the defendant had "'a substantial history of serious assaultive criminal convictions'". 103 S. Ct. at 2738. While the defendant's appeal was pending before the Georgia Supreme Court, that court held in another case that the statutory aggravating circumstance - a substantial history of serious assaultive criminal convictions - was unconstitutionally vague. ARNOLD v. STATE, 236 Ga. 534, 539-42, 224 S.E.2d 386 (1976). In the defendant's appeal, the Georgia Supreme Court considered whether this finding impaired the defendant's death sentence. The Georgia court concluded that the two other aggravating circumstances found by the jury adequately supported the sentence. The question before the United States Supreme Court was whether the invalidation of one of the multiple statutory aggravating circumstances found by a jury in imposing the death penalty requires that the sentence must be invalidated under the Eighth Amendment.
"[A]n aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.
(Footnote omitted.) 103 S. Ct. at 2742-43. Aggravating factors serve such a narrowing function under the Washington statutory scheme. The Washington capital punishment statute differs from the Georgia statute considered in ZANT v. STEPHENS in that the Washington scheme requires the consideration of aggravating factors at the guilt determination phase, rather than at the sentencing phase as required by the Georgia statute. Under the Washington statute, of that class of persons guilty of first degree murder, the jury may consider the death penalty only if one of the aggravating circumstances set forth in RCW 10.95.020 is also found to exist. This genuinely narrows the class of persons subject to the death penalty as constitutionally required.
"[S]tatutory aggravating circumstances play a constitutionally necessary function . . . But the Constitution does not require the jury to ignore other possible [nonstatutory] aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death.
(Footnote omitted.) 103 S. Ct. at 2743. This statement is of some significance to our prior decision. Prior to ZANT v. STEPHENS and at the time of our prior decision, constitutional limits placed on the admission of aggravating factors in capital cases were an open question. In our prior decision we noted that EDDINGS v. OKLAHOMA, 455 U.S. 104, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982), LOCKETT v. OHIO, 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978), and other recent Supreme Court decisions require the admission of nearly all mitigating information proffered by a defendant at a capital sentencing hearing. 98 Wn.2d at 194-95. We also noted that "[w]hile such liberal reception of mitigating information is mandated by LOCKETT v. OHIO, et al, the Court has not yet considered specifically whether the same principles apply to aggravating factors." 98 Wn.2d at 194-95.
In a limited way, ZANT v. STEPHENS answers the question as to limits the constitution places on the prosecution's presentation of nonstatutory aggravating factors at the sentencing phase of a capital case. According to the Supreme Court, the sentencing jury may consider nonstatutory aggravating factors. However, the Court in ZANT v. STEPHENS does not say that nonstatutory aggravating factors should have the same liberal reception as mitigating information proffered by the defendant. There remain several federal and state constitutional limits on the admission of evidence of such aggravating factors. These federal and state constitutional requirements mandate the same results reached in our prior decision.
"We think that the Georgia court wisely has chosen not to impose unnecessary restrictions on the evidence that can be offered at such a hearing and to approve open and far-ranging argument. . . . SO LONG AS THE EVIDENCE INTRODUCED AND THE ARGUMENTS MADE AT THE PRESENTENCE HEARING DO NOT PREJUDICE A DEFENDANT, it is preferable not to impose restrictions. We think it desirable for the jury to have as much information before it as possible when it makes the sentencing decision.
(Italics ours.) SEE ZANT v. STEPHENS, 103 S. Ct. at 2748; CALIFORNIA v. RAMOS, 103 S. Ct. at 3457 n.23.
"Conceivably, any aggravating information could be said to prejudice a defendant, but presumably the Court intended to restrict the concept to undue or unreasonable prejudice.
At the very least, the Court's recognition that a defendant may be prejudiced by the reception of information at his sentencing suggests that different criteria apply to aggravating factors than apply to mitigating factors.
98 Wn.2d at 195. The Court's decision in ZANT v. STEPHENS says nothing which contradicts this conclusion from our prior decision.
Another standard for the admission of aggravating evidence comes from our reading of the Supreme Court's decision in GARDNER v. FLORIDA, 430 U.S. 349, 51 L. Ed. 2d 393, 97 S. Ct. 1197 (1977). In GARDNER, a Florida court sentenced a defendant to death, basing its decision in part on a sentencing report prepared by probation officers but never disclosed to the defendant. In overturning the defendant's death sentence, the Court noted the need for accurate and reliable information at the sentencing phase of capital cases.
"It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.
. . . [C]onsideration must be given to the quality, as well as the quantity, of the information on which the sentencing judge [or jury] may rely. . . .
If, as the State argues, it is important to use such information in the sentencing process, we must assume that in some cases it will be decisive in the judge's choice between a life sentence and a death sentence.
If it tends to tip the scales in favor of life, presumably the information would be favorable and there would be no reason why it should not be disclosed. On the other hand, if it is the basis for a death sentence, the interest in reliability plainly outweighs the State's interest in preserving the availability of comparable information in other cases.
430 U.S. at 358-59 (plurality opinion).
"any relevant evidence which it [the court] deems to have probative value REGARDLESS OF ITS ADMISSIBILITY UNDER THE RULES OF EVIDENCE, INCLUDING HEARSAY EVIDENCE AND EVIDENCE OF THE DEFENDANT'S PREVIOUS CRIMINAL ACTIVITY REGARDLESS OF WHETHER THE DEFENDANT HAS BEEN CHARGED OR CONVICTED AS A RESULT OF SUCH ACTIVITY.
Nevertheless, if we are in error in our consideration of these federal decisions, as the dissent suggests, we do not hesitate to hold that those portions of RCW 10.95.060(3) quoted above are offensive to article 1, sections 3 (due process) and 14 (cruel punishment) of the Washington State Constitution.
 We note that our interpretation of the due process and cruel punishment clauses of our state constitution is not constrained by the Supreme Court's interpretation of the Eighth and Fourteenth Amendments. We have, in the past, interpreted Const. art. 1, 14 to provide broader protection than the Supreme Court's interpretation of the Eighth Amendment. STATE v. FAIN, 94 Wn.2d 387, 617 P.2d 720 (1980). Additionally, in interpreting the due process clause of the state constitution, we have repeatedly noted that the Supreme Court's interpretation of the Fourteenth Amendment does not control our interpretation of the state constitution's due process clause. OLYMPIC FOREST PRODS., INC. v. CHAUSSEE CORP., 82 Wn.2d 418, 511 P.2d 1002 (1973); PETSTEL, INC. v. COUNTY OF KING, 77 Wn.2d 144, 459 P.2d 937 (1969).
"The federal constitution only provides minimum protection of individual rights. Accordingly, it is well established that decisions from the federal courts "do not limit the right of state courts to accord . . . greater rights."
STATE v. HEHMAN, 90 Wn.2d 45, 49, 578 P.2d 527 (1978); STATE v. FITZSIMMONS, 94 Wn.2d 858, 859, 620 P.2d 999 (1980); FEDERATED PUBLICATIONS, INC. v. KURTZ, 94 Wn.2d 51, 56, 615 P.2d 440 (1980); SEE ALSO PRUNEYARD SHOPPING CTR. v. ROBINS, 447 U.S. 74, 81, 64 L. Ed. 2d 741, 100 S. Ct. 2035 (1980); OREGON v. HASS, 420 U.S. 714, 719, 43 L. Ed. 2d 570, 95 S. Ct. 1215 (1975); SEE ALSO Brennan, STATE CONSTITUTIONS AND THE PROTECTION OF INDIVIDUAL RIGHTS, 90 Harv. L. Rev. 489 (1977); Wilkes, THE NEW FEDERALISM IN CRIMINAL PROCEDURE: STATE COURT EVASION OF THE BURGER COURT, 62 Ky. L.J. 421 (1974), and cases cited therein.
[3, 4] We, therefore, hold that the due process and cruel punishment provisions of this state's constitution are offended by the provisions of RCW 10.95.060(3) in any case involving capital punishment by (1) allowing the introduction of any evidence regardless of its admissibility under the rules of evidence, including hearsay evidence, and (2) by allowing evidence of defendant's prior criminal activity regardless of whether defendant was charged or convicted as a result of such activity.
Since the death penalty is the ultimate punishment, due process under this state's constitution requires stringent procedural safeguards so that a fundamentally fair proceeding is provided. Where the trial which results in imposition of the death penalty lacks fundamental fairness, the punishment violates article 1, section 14 of the state constitution.
We deem particularly offensive to the concept of fairness a proceeding in which evidence is allowed which lacks reliability. The rules of this court concerning admissibility of evidence are premised on allowing evidence which is trustworthy, reliable, and not unreasonably prejudicial. SEE ER 403. The purpose of the rules of evidence is to afford any litigant a fair proceeding. SEE ER 102.
It makes no sense to afford these protections to one charged with a lesser crime but then suspend them in a capital case. We will not do so, for this would place a defendant facing the death penalty in the perilous position of having to rebut potentially unreliable or unreasonably prejudicial evidence before a jury that has already convicted him of aggravated murder. To suspend these protections which are afforded all other criminally charged defendants at such a critical phase of a capital case is contrary to the reliability of evidence standard embodied in the due process clause of our state constitution. Const. art. 1, 3.
We also find offensive to state due process the portion of RCW 10.95.060(3) which authorizes the admission of "evidence of the defendant's previous criminal activity regardless of whether the defendant has been charged or convicted as a result of such activity."
" Different considerations apply, however, where the prosecution seeks to put prior criminal activity other than convictions before the jury. Here, the element of prejudice looms larger. At least one court has held that allowing the jury to consider a previous murder, of which the defendant was accused but never convicted, was so prejudicial as to be a violation of due process. STATE v. MCCORMICK [272 Ind. 272], 397 N.E.2d 276 [(1979)].
To allow the jury which has convicted defendant of aggravated first degree murder to consider evidence of other crimes of which defendant has not been convicted is, in our opinion, unreasonably prejudicial to defendant.
A jury which has convicted a defendant of a capital crime is unlikely fairly and impartially to weigh evidence of prior alleged offenses. In effect, to allow such evidence is to impose upon a defendant who stands in peril of his life the burden of defending, before the jury that has already convicted him, new charges of criminal activity.
Information relating to defendant's criminal past should therefore be limited to his record of convictions.
We conclude, as in our prior decision, that the portion of RCW 10.95.060(3) which allows the admission of such evidence in a capital case violates article 1, sections 3 and 14 of the Washington State Constitution.
As in our prior opinion, we limit the prosecution's presentation of statutory and nonstatutory aggravating evidence at the sentencing phase in the following ways. First, the portion of RCW 10.95.060(3) that authorizes the admission of evidence of a defendant's alleged prior criminal activity (other than convictions) is inconsistent with the rules of evidence promulgated by this court and the state and federal constitutional standards we have articulated. Therefore, we invalidate the provision authorizing the admission of "evidence of the defendant's previous criminal activity regardless of whether the defendant has been charged or convicted as a result of such activity."
" In our opinion, the prosecution should be entitled to produce information necessary to rebut mitigating evidence produced by defendant. Defendant's right to present mitigating evidence is limited only by the requirement of relevance. . . .
This holding will require the trial court to evaluate the rebuttal evidence offered by the prosecution. Rebuttal evidence should be admitted only if it is relevant to a matter raised in mitigation by defendant. Evidence might be relevant, for instance, if it casts doubt upon the reliability of defendant's mitigating evidence. We do not intend, however, that the prosecution be permitted to produce any evidence it cares to so long as it points to some element of rebuttal no matter how slight or incidental.
The court in determining whether to admit the prosecution's evidence should apply a balancing test similar to that contemplated by ER 403. The court must balance the extent to which the evidence tends to rebut defendant's mitigating information against the extent to which the evidence is otherwise prejudicial to defendant. Only if the rebuttal value of the evidence outweighs the prejudicial effect should the evidence be admitted.
Third, to clarify a possible misunderstanding in our prior decision, the prosecution may present at the sentencing phase any evidence relating to the statutory aggravating factors set forth in RCW 10.95.020. Such evidence is admissible at the sentencing phase if it would have been admissible at the guilt phase of the trial.
Finally, the provision in RCW 10.95.060(2) that the prosecution shall be allowed to make an opening statement and shall first present evidence must be limited in accordance with this opinion. This means that in most cases the prosecution may open only with the defendant's criminal record and evidence which would have been admissible at the guilt phase of the trial. As noted in our prior opinion, in the event that the sentencing jury is not the jury which convicted the defendant of aggravated first degree murder, the prosecution may in addition present evidence of the facts and circumstances of the murder, as provided by the second paragraph of RCW 10.95.060(3).
The sentencing proceeding in which defendant in this case was sentenced to die was tainted by these constitutional flaws we have identified. Evidence was admitted of alleged criminal activity of which the defendant had not been convicted. Nonstatutory aggravating information was not determined to be reliable as constitutionally required. Our decision rests on an interpretation of both the state and federal constitutions. However, the independent state constitutional grounds we have articulated are adequate, in and of themselves, to compel the result we have reached. SEE MICHIGAN v. LONG, _____ U.S. _____, 77 L. Ed. 2d 1201, 103 S. Ct. 3469 (1983). Therefore, any decision by the Supreme Court limiting federal constitutional guaranties in a manner inconsistent with our interpretation of Const. art. 1, 3 and 14 will have no bearing on our decision in this case.
1. Must polygraph results which indicated that a key prosecution witness lied in respect to an important piece of testimony be admitted at the sentencing phase?
2. Was the failure to define "mitigating circumstance" for the jury at the sentencing phase a violation of the state or federal constitution?
We address these additional issues in the following two sections.
In resolving the issue of whether or not polygraph results are admissible at the sentencing phase of a capital case, the following facts from defendant's trial are relevant.
Defendant's brother, Rodney Bartholomew, was the prosecution's principal witness. Rodney testified as follows. On the evening of August 1, 1981, he and his girl friend went to a laundromat to do their laundry. Defendant was sitting in his car in the parking lot when they arrived. While waiting for the laundry, Rodney sat with the defendant in his car. Defendant told Rodney that he intended to rob the place and "leave no witnesses". Rodney and his girl friend left the laundromat at 9:45 p.m., shortly before it was due to close. Rodney denied helping defendant in any way with the robbery.
On September 23, 1981, Rodney Bartholomew was given four polygraph deception tests. Two relevant questions were asked during the tests. First, "Did you in any way help Dwayne to rob the laundromat on August 1, 1981?" Second, "On August 1, 1981, at any time were you and Dwayne inside the laundromat at the same time?" Rodney responded in the negative to both questions. The polygraphist concluded, "The above subject was being deceptive when answering the relevant questions with a negative answer." A similar examination was given to Rodney's girl friend, the results of which were "inconclusive" according to the polygraphist. The prosecution did not disclose to defendant that these tests had been given, or the results, until after the guilt and sentencing phases of defendant's trial.
In our prior decision, we held that the nondisclosure of the polygraph examinations did not violate defendant's due process rights so as to require a new trial. However, the question whether polygraph results should be admissible at a sentencing proceeding was specifically reserved. 98 Wn.2d at 204 n.3.
The Washington capital punishment statute requires admission at the sentencing phase of "any relevant evidence which it deems to have probative value regardless of its admissibility under the rules of evidence . . ." RCW 10.95.060(3). We have restricted this provision to evidence in mitigation of punishment. Therefore, only evidence which is not probative or not relevant is excluded at the sentencing phase. With regard to mitigating circumstances, less restrictive standards for relevance and probative value are applied to exclude evidence at the sentencing phase than at the guilt phase.
"[W]e conclude that the Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, AS A MITIGATING FACTOR, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.
(Footnote omitted.) 438 U.S. at 604. SEE ALSO EDDINGS v. OKLAHOMA, 455 U.S. 104, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982).
We briefly dealt with the issue of the admission of polygraph examinations at the sentencing phase of a capital case in STATE v. GRISBY, 97 Wn.2d 493, 502-03, 647 P.2d 6 (1982). However, GRISBY has little precedential value, since the death penalty statute involved in that case has since been repealed. Also, the former death penalty statute, RCW 10.94, differed significantly from the present statute.
 We hold that polygraph examination results are admissible by the defense at the sentencing phase of capital cases, subject to certain restrictions. In STATE v. RENFRO, 96 Wn.2d 902, 906-07, 639 P.2d 737, CERT. DENIED, 459 U.S. 842 (1982), we set forth requirements for the admissibility of polygraph examination results where the parties had stipulated to their admission. We adopt two of those requirements as standards for the admissibility of polygraph examination results at the sentencing phase of capital cases. First, the trial judge may refuse to accept such evidence if he is not convinced that the examiner is qualified or that the test was conducted under proper conditions. Second, if the graphs and examiner's opinion are offered in evidence, the opposing party shall have the right to cross-examine the examiner respecting: (a) his qualifications and training; (b) the conditions under which the test was administered; (c) the limitations of and possibilities for error in the technique of polygraph interrogation; and (d) at the discretion of the trial judge, any other matter deemed pertinent to the inquiry.
It is our belief that when a jury is faced with the question whether or not the defendant should be put to death, the defendant should be allowed to submit any evidence of his "character or record and any of the circumstances of the offense . . .", LOCKETT v. OHIO, 438 U.S. at 604, to convince the jury that his life should be spared.
Defendant argues that the court's failure to define "mitigating circumstance" for the jury at the sentencing phase was a violation of the Eighth Amendment. Defendant cites SPIVEY v. ZANT, 661 F.2d 464 (5th Cir. 1981) in support of his argument. SPIVEY v. ZANT is easily distinguished from the present case. The trial court's instructions in SPIVEY v. ZANT dealt almost exclusively with the jury's consideration of aggravating factors, no reference being made to the consideration of mitigating circumstances. 661 F.2d at 467-68. The Fifth Circuit Court of Appeals found this reversible error.
"[Mitigating circumstances are those which] do not constitute a justification or excuse of the offense in question, but which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability.
" During these special sentencing proceedings, the State bears the burden of proving beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency.
"Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?
 The court also read the jury the list of relevant factors for consideration provided in RCW 10.95.070. The jury may have found helpful a definition of "mitigating circumstances." However, we conclude that these instructions adequately guided the jury as to the nature and function of mitigating circumstances. Therefore, there was no constitutional error on this issue.
We affirm our prior decision in its entirety. Defendant's conviction is affirmed, but his sentence of death is invalidated. In deference to the view of the majority in our prior decision on the consequence of a reversal of the sentencing phase, this case is remanded to the trial court for a new sentencing hearing to consider anew whether to impose the death sentence.
CONCURRING JUDGES: Williams, C.J., Stafford, Brachtenbach, and Dolliver, JJ., and Cunningham, J. Pro Tem., concur.
CONCURRING OPINION: While the majority's decision to limit the prosecution to evidence of statutory aggravating factors may be justified in the initial stages of a sentencing proceeding, the jury's need to evaluate the validity of defendant's mitigation evidence requires more liberal standards, once defendant has placed an aspect of his character in issue. Because the majority's rule unfairly restricts the State's right to introduce relevant, reliable rebuttal evidence, I dissent.
""Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?"
Both the truth-seeking process and basic principles of fairness dictate that the jury be exposed to all relevant reliable evidence in deciding whether to impose the death sentence.
The law should be impartial in its application. Neither the State nor the defendant should have any advantage in presenting evidence. If the evidence is relevant, reliable rebuttal evidence, it should be permitted. By denying the admissibility of reliable evidence, the majority sanctions a situation where the jury is effectively denied information vital to its decision to discharge its duty. This result is unfair to all involved; the State, the jury, the public and those defendants who commit similar acts but receive the death sentence because their crimes resulted in convictions.
(Italics mine.) GREGG v. GEORGIA, 428 U.S. 153, 203-04, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976). SEE ZANT v. STEPHENS, _____ U.S. _____, 77 L. Ed. 2d 235, 103 S. Ct. 2733, 2748 (1983) and CALIFORNIA v. RAMOS, _____ U.S. _____, 77 L. Ed. 2d 1171, 103 S. Ct. 3446, 3457 n.23 (1983).
Finally, the majority's reliance on independent state grounds is misplaced. Due process requires that the jury's decision be based on reliable information. By going beyond this standard and applying arbitrary rules which deny the jury the complete facts, the majority's opinion undermines the very foundations of due process analysis. I therefore dissent from that portion of the opinion that restricts the State's use of evidence in uncharged crimes in rebuttal.
CONCURRING OPINION: The United States Supreme Court vacated and remanded this court's judgment in STATE v. BARTHOLOMEW, 98 Wn.2d 173, 654 P.2d 1170 (1982) (BARTHOLOMEW I), DEFENDANT'S CERT. DENIED, 103 S. Ct. 3548 (1983), to be reconsidered in light of ZANT v. STEPHENS, _____ U.S. _____, 77 L. Ed. 2d 235, 103 S. Ct. 2733 (1983).
This court's prior decision in BARTHOLOMEW I invalidated provisions of the capital punishment statute, RCW 10.95, which allowed the admission of nonstatutory aggravating evidence at the sentencing phase of capital cases. BARTHOLOMEW I limited the nonstatutory aggravating factors to prior convictions and evidence to REBUT matters raised in mitigation by the defendant. BARTHOLOMEW I, at 198-99.
The majority, in Bartholomew II, continues to hold that the provisions of RCW 10.95 remain invalid after reconsideration in light of ZANT. The majority indicates that these restrictions on nonstatutory aggravating evidence are mandated by either federal constitutional standards or the due process and cruel punishment clauses of our state constitution.
The majority's analysis of federal constitutional standards is founded on the "prejudice" standard found in GREGG v. GEORGIA, 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909, REH'G DENIED, 429 U.S. 875, 50 L. Ed. 2d 158, 97 S. Ct. 197 (1976), and the "reliability of evidence" standard found in GARDNER v. FLORIDA, 430 U.S. 349, 51 L. Ed. 2d 393, 97 S. Ct. 1197 (1977).
The ZANT decision that initiated our reconsideration, and subsequent United States Supreme Court decisions, establish that the majority's interpretation of GREGG and GARDNER is clearly erroneous and that this court's invalidation of portions of the Washington capital punishment statute, RCW 10.95, cannot be sustained under the United States Supreme Court's interpretation of the Eighth Amendment.
ZANT holds that the constitution does not restrict the jury's consideration of nonstatutory aggravating factors in deciding whether or not to impose a sentence of death.
"[S]tatutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty. BUT THE CONSTITUTION DOES NOT REQUIRE THE JURY TO IGNORE OTHER POSSIBLE AGGRAVATING FACTORS IN THE PROCESS OF SELECTING, FROM AMONG THAT CLASS, THOSE DEFENDANTS WHO WILL ACTUALLY BE SENTENCED TO DEATH.
(Italics mine.) ZANT, 103 S. Ct. at 2743.
In construing GREGG, the Court in ZANT concluded that the substantive constraints on evidence in aggravation is that the State must make known to the defendant such evidence prior to the proceeding and such evidence cannot be prejudicial. Otherwise, it is preferable not to impose restrictions. ZANT, 103 S. Ct. at 2747-48. The opinion further holds that it is error to permit, as evidence of aggravating circumstances, conduct which is constitutionally protected. ZANT, 103 S. Ct. at 2746.
"Once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty . . . the jury then is free to consider a myriad of factors to determine whether death is the appropriate punishment.
"In GARDNER, the Court reversed a death sentence that had been imposed in part on the basis of a confidential portion of a presentence investigation report that had not been disclosed to either the defendant or his counsel.
Because of the potential that the sentencer might have rested its decision in part on erroneous or inaccurate information that the defendant had no opportunity to explain or deny, the need for reliability in capital sentencing dictated that the death penalty be reversed.
RAMOS, 103 S. Ct. at 3454.
" We have never suggested that the United States Constitution requires that the sentencing process should be transformed into a rigid and mechanical parsing of statutory aggravating factors.
The majority's holding in Bartholomew II, that nonstatutory aggravating evidence (other than convictions or in rebuttal) is unconstitutionally prejudicial, cannot be sustained on the basis of GREGG or GARDNER. The constitution does not prohibit consideration at the sentencing phase of information not directly related to either statutory aggravating or statutory mitigating factors, so long as that information is relevant to the character of the defendant or the circumstances of the crime.
The majority opinion next addresses state constitutional protections and holds that the due process and cruel punishment provisions are offended by the provisions of RCW 10.95.060(3) in any case involving capital punishment by (1) allowing the introduction of any evidence regardless of its admissibility under the rules of evidence, including hearsay evidence, and (2) allowing evidence of defendant's prior criminal activity regardless of whether defendant was charged or convicted as a result of such activity. While I am in general agreement with this holding, it does not follow that the authority to receive nonstatutory aggravating evidence must be confined to evidence in rebuttal of mitigation. The rules governing admissibility of evidence are premised on allowing evidence which is trustworthy, reliable, and not unreasonably prejudicial. The purpose of these rules is to afford a litigant a fair trial and insure compliance with the constitutional guaranties of due process. The portion of RCW 10.95.060(3) that authorizes the admission of evidence of a defendant's alleged prior criminal activity (other than convictions) is inconsistent with these rules of evidence and state constitutional standards. Admissibility of such evidence is of such an unreasonably prejudicial nature as to be violative of article 1, section 14 of the state constitution. Courts in some jurisdictions have considered similar questions under varying circumstances, and for varying reasons reached the same result. E.G., SCOTT v. STATE, 297 Md. 235, 465 A.2d 1126, 1135-36 (1983); PERRY v. STATE, 395 So. 2d 170, 174 (Fla. 1980); COOK v. STATE, 369 So. 2d 1251, 1257 (Ala. 1978); STATE v. MCCORMICK, 272 Ind. 272, 397 N.E.2d 276, 280 (1979). I find it appropriate to place a blanket of inadmissibility on such evidence.
However, I see no basis for holding that the rules of reliability and prejudice mandate that we limit nonstatutory aggravating evidence (other than convictions) to matters in rebuttal of mitigating evidence. Due process requires that the sentencing jury's decision be based on reliable and nonprejudicial evidence. Basic fairness in the balancing process between aggravation and mitigation requires the jury to consider all admissible evidence, whether proposed by the State or defendant. State constitutional guaranties do not mandate that the State's nonstatutory aggravating evidence be limited to rebuttal evidence of mitigation. The majority rule unfairly restricts the State's right to introduce relevant, reliable evidence.
I would provide that admissibility of nonstatutory aggravating evidence be governed by the rules of evidence, and its admissibility be determined by the trial court at the sentencing phase. I see no basis or justification to broaden the protections of the state constitution beyond those guaranties provided in the federal constitution in this context.
In all other respects, I concur in the majority opinion.
CONCURRING JUDGES: Dimmick, J., concurs with Dore, J.

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The Rocky Mountain Immigrant Advocacy Network (RMIAN) is a nonprofit legal services organization that believes justice for immigrants means justice for all. RMIAN provides life-changing legal services to vulnerable immigrant children in Colorado, and to adults in immigration detention. Without this assistance from RMIAN’s attorneys, RMIAN’s child clients and individuals in detention would be forced to face immigration court hearings entirely on their own, an injustice by any standard. A national study, headed by a federal judge, found that immigrants with lawyers are five times more likely to win their cases than those without. For many, a loss in immigration court means deportation and a forced return to the persecution, abuse, or other violence from which they fled. For many others, it signifies a permanent and heartbreaking separation from spouses, partners, children, siblings, and other loved ones. RMIAN’s programs are dedicated to ensuring legal representation, due process, and support.
RMIAN’s Children’s Program provides immigration legal services to children through Colorado. Recent clients include a young man who was granted a T visa based on being a victim of human trafficking; several children who won Special Immigrant Juvenile Status as a result of being abused, abandoned or neglected; several young crime victims and their family members who were granted U Visas; and numerous youth who were granted Deferred Action for Childhood Arrivals. In the past several years, RMIAN’s Children’s Program has seen an exponential increase in its representation of unaccompanied children who fled horrors in their home countries and who are now seeking asylum and other immigration relief before the Denver Immigration Court. In 2015, RMIAN’s Children’s program directly represented 288 children, conducted 658 intakes and consultations, and referred 205 cases to pro bono attorneys. By providing free legal services to immigrant children, as well as outreach efforts to community partners, RMIAN educates children and their families on the rights and protections to which they are entitled under federal immigration law and works to ensure that Colorado’s communities are safe.
Please consider making a donation to RMIAN today to help us fulfill our values statement, “We believe that justice for immigrants means justice for all.” Donations may be mailed directly to RMIAN at 3489 West 72nd Avenue, Suite 211, Westminster, CO 80030 or via RMIAN’s website at www.rmian.org RMIAN is participating in Colorado Gives Day on Tuesday, December 6, 2016.
The Colorado Court of Appeals issued its opinion in People in Interest of S.M.-L. on Thursday, November 17, 2016.
Dependency and Neglect—Final and Appealable Order.
The Department of Human Services (Department) filed a dependency and neglect petition regarding S.M-L., B.M-M, and R.S. (the children). The petition named D.S. as R.S.’s biological father and named G.S. as the mother of all of the children. The Department asserted that father had sexually abused his stepdaughter S.M-L. He was arrested and criminally charged with sexual abuse. Father denied the allegations and mother believed S.M-L was lying about them. Mother requested a bench trial and father requested a jury trial.
As to mother, the court found the allegations in the petition had been proven by a preponderance of the evidence and entered an order adjudicating the children dependent and neglected. However, the jury returned a verdict as to father finding that R.S. was not dependent or neglected. The Department moved for an adjudication of father notwithstanding the verdict. The trial court denied the motion and dismissed father from the petition. Both the Department and mother appealed.
The Colorado Court of Appeals issued an order to show cause why the appeal should not be dismissed for lack of a final, appealable order, noting that it was unaware of any authority for the proposition that dismissing a parent from a petition based on a jury verdict was a final appealable order. C.R.S. § 19-1-109(2)(c) provides that an order decreeing a child to be neglected or dependent shall be a final and appealable order upon the entry of the disposition. This section does not address the dismissal of a party from the petition based on a jury’s verdict finding a child was not dependent or neglected as to that party. The court also noted that after the jury determined that R.S. was not dependent or neglected as to father, the trial court did not have jurisdiction to enter any orders other than dismissal of the petition. Because a jury’s “no adjudication” verdict is not a proper basis for a motion for adjudication notwithstanding the verdict and thus is not a final appealable order under C.A.R. 3.4(a) or C.R.S. § 19-1-109(2)(c), the Department’s appeal was dismissed.
Mother challenged her adjudication on several grounds, but the court found no reversible error because the evidence supported the trial court’s factual findings.
The Department’s appeal was dismissed and the order adjudicating mother was affirmed.
On Tuesday, November 29, 2016, the Tenth Circuit Court of Appeals issued no published opinion and eleven unpublished opinions.
White v. Deere & Co.
The Colorado Court of Appeals issued its opinion in Maldonado v. Pratt on Thursday, November 17, 2016.
The Pratts and Dennis Pratt II (Pratt Jr.) own adjacent properties near Pueblo, Colorado. Pratt Jr. stored used car parts on his property. He began to suspect that someone was stealing the parts, and on October 16, 2012, he drove to his storage area, and, when he saw three flashlight beams approaching, shot and killed Jacob Maldonado. Pratt Jr. was convicted of negligent homicide and sentenced to six years’ imprisonment.
Maldonado’s estate filed a wrongful death action against Pratt Jr. on September 16, 2014, alleging a single act of negligence in his killing of Maldonado. On April 1, 2015, the Estate moved to amend its complaint to add Premises Liability Act claims against the Pratts, since it had discovered that Maldonado was actually on the Pratts’ property when he was shot. The Pratts filed a motion for judgment on the pleadings and/or summary judgment, arguing the two-year statute of limitations barred the complaint. The Estate countered that the amended complaint related back to the original complaint. The district court disagreed and found that the Pratts did not have actual notice of the lawsuit and would not have expected to be named as defendants in the wrongful death action. The district court granted judgment in the Pratts’ favor.
On appeal, the Estate conceded that the statute of limitations for a PLA claim had run when it filed its amended complaint. However, the Estate contended the new claims related back to the original complaint. The court of appeals disagreed. The court of appeals analyzed the relation-back doctrine, noting that a new claim relates back to the date of the original pleading so long as the new claim or defense arises out of the same conduct, transaction, or occurrence. However, when adding a new party, two additional duties arise: the new party must have received actual notice of the complaint within the time period provided by C.R.C.P. 4(m), and the new party must have known or reasonably should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him or her.
The court found that the Estate could not prove the Pratts had actual notice of the complaint against Pratt Jr. The Estate argued that notice could be imputed to the Pratts through the “identity of interest” doctrine. The court found the doctrine inapplicable. The court noted that, generally, the identity of interest doctrine is used for corporate entities. The Estate argued that the Pratts had an identity of interest to Pratt Jr., but the court of appeals disagreed. The identity of interest doctrine generally only applies to families if the children are minor and they share an attorney or insurance policy. Here, Pratt Jr. was an adult who lived separately from his parents. Although they spoke daily before the shooting, Pratt Jr. was taken into custody the day of the shooting and was in the DOC when served with the original complaint. The court of appeals declined to extend actual notice from an assumption that Pratt Jr. would have told his parents about the lawsuit.
The Colorado Court of Appeals issued its opinion in People v. Torres on Thursday, November 17, 2016.
Guilty Plea—Immigration Status—Post-Conviction Motion—Statutory Time Bar—Justifiable Excuse—Excusable Neglect.
Chavez-Torres is a citizen of Mexico who came to the United States with his family when he was a child. While in high school, Chavez-Torres pleaded guilty to first degree criminal trespass. The trial court sentenced him to probation, which he successfully completed.
Seventeen years after his criminal trespass conviction, the U.S. Department of Homeland Security initiated removal proceedings, alleging that Chavez-Torres was not legally present in the United States and had been convicted of a crime involving moral turpitude. Chavez-Torres moved for post-conviction relief from his criminal trespass conviction under Crim. P. 35(c) based on ineffective assistance of counsel. He alleged that he had informed his plea counsel that he was not a U.S. citizen but counsel advised him to accept the plea agreement without telling him that the guilty plea carried a risk of adverse immigration consequences. He claimed that had he been properly advised he would have insisted on going to trial. He asserted that as a result, his plea and conviction were constitutionally infirm. While acknowledging that his post-conviction motion was untimely, he alleged that these circumstances amount to justifiable excuse or excusable neglect. The trial court denied the motion as untimely, finding that the prejudice to the state would be too great, given the passage of time, and that he failed to assert facts amounting to justifiable excuse or excusable neglect.
On appeal, Chavez-Torres contended that the district court erred in summarily denying his post-conviction motion based on the statutory time bar because he asserted facts that, if true, would establish justifiable excuse or excusable neglect. Here, even though Chavez-Torres had informed plea counsel that he was not a citizen of the United States, counsel had advised him to accept the plea agreement without telling him that the guilty plea carried a risk of adverse immigration consequences. Chavez-Torres subsequently completed his probation and did not learn that his conviction had adverse immigration consequences until the removal proceedings were initiated. Under these circumstances, it cannot be concluded, as a matter of law, that justifiable excuse or excusable neglect did not exist.
Defendant also argued that the finding that the State would suffer “great” prejudice has no record support. The Colorado Court of Appeals determined that the existing record does not support the district court’s finding that the state will suffer great prejudice.
The order denying the post-conviction motion was reversed and the case was remanded to the district court to determine whether Chavez-Torres has established justifiable excuse or excusable neglect for his untimely post-conviction motion. If he can, the court must then consider the merits of his post-conviction motion.
On Wednesday, November 23, 2016, the Colorado Court of Appeals issued no published opinion and 26 unpublished opinions.
On Friday, November 25, 2016, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.
On Wednesday, November 23, 2016, the Tenth Circuit Court of Appeals issued no published opinion and eight unpublished opinions.
Lancaster v. Sprint/United Management Co.


Laughlin E. Waters, U. S. Atty., Max F. Deutz, Asst. U. S. Atty., Los Angeles, Cal., for appellee.
On April 4, 1956 one Herman H. Frehe, a private first class in the United States Army, was en route from Norton Air Force Base, California, to Ft. Hood, Texas, traveling in his own automobile, under competent orders transferring him to Ft. Hood on a permanent change of station. While so engaged Pfc. Frehe became involved in an accident, in California, with an automobile driven by appellant Sydlik in which appellant Chapin was a passenger. Frehe's orders directed him to proceed on or about April 4, 1956; authorized travel by private automobile, stating that such "travel directed is necessary in the military service;" provided for four days delay en route; and directed him to report for duty at Ft. Hood April 12, 1956. On these facts the District Court determined that at the time of the accident Frehe was not acting "within the scope of his * * * employment" and therefore there was no liability upon the part of the United States for his conduct. With the case in this posture there has been no trial on the issue of negligence, the court below having determined by summary judgment that it was without jurisdiction to grant relief against the United States.
We are of the opinion that the District Court was correct in granting the government's motion for summary judgment. The disputed "fact" is whether Frehe was acting within the scope of his employment at the time the accident occurred. There may be situations involving deviation from or abandonment of an employer's business from which varying inferences may be drawn; there it is properly left to the trier of fact to determine whether the employee was or was not acting within the scope of his employment.3 But here there are no inferences to be drawn. There is an agreed set of facts upon which the court below could rightly conclude as a matter of law the issue of scope of employment.
We are controlled by the California law and the issue squarely presented is whether her courts would hold that Frehe was acting within the scope of his employment at the time of the accident. Williams v. United States, 1955, 350 U.S. 857, 76 S. Ct. 100, 100 L. Ed. 761, vacating Williams v. United States, 9 Cir., 1954, 215 F.2d 800.
But no single relevant factor is necessarily controlling. " [T]he results reached in other decisions are helpful but not necessarily controlling. * * * In each case involving scope of employment all of the relevant circumstances must be considered and weighed in relation to one another." Loper v. Morrison, 1944, 23 Cal. 2d 600, 605, 145 P.2d 1, 3.
The exclusive jurisdiction conferred on the federal district courts by 28 U.S. C. § 1346 precludes the courts of any state from ever passing upon this exact phase of the problem of scope of employment, and thereby deciding what is essentially a matter of state policy.7 Other federal courts, in transfer cases, under the applicable state law, have faced this issue and have failed to draw a distinction based upon the unique relationship of a soldier to his employer.8 We are unable to find any significant differences in the California law of respondeat superior in this respect and therefore conclude that no such distinction is properly made in the instant case.
"the employer had no right to control or direct [the employee] as to the time, route, mode of transportation or any feature of his going from San Francisco to Spokane. He could have gone in an airplane of his employer free of charge. He could have gone by bus, train, motorcycle, automobile or have flown his own private airplane if he had one. He could start when he pleased, stop when he pleased and go by any route that he pleased so long as he arrived in Spokane in time to report for work on December 1. His employer not only had no right to direct him to go by any particular means of transportation but also no right to forbid him to do so. He could have driven a car with faulty or no brakes and his employer had no right to interfere. To put the test of the cited case, if instructions were given they would not have to be obeyed." Id., 138 Cal.App.2d at page 373, 292 P.2d at page 50.
The opinion then goes on to cite as "a case nearly in point" United States v. Sharpe, 4 Cir., 1951, 189 F.2d 239. Sharpe involved a soldier traveling under orders to report at a date certain, but without any allowance for expenses. The essence of the Sharpe case is that while traveling by self-selected means with competent orders concerned only with the ultimate reporting date, a soldier is not acting within the scope of his employment in the sense required for application of the doctrine of respondeat superior.
Appellants argue the McVicar case is inapposite because the army, so say appellants, could have prohibited Pfc. Frehe from traveling by private automobile and could have directed that he travel by some other specific mode of transportation. This argument is not sufficient to support a conclusion that Frehe was acting within the scope of his employment at the time of the accident. The ability to control must arise out of the employment relationship.13 The government's ability to control Pfc. Frehe's movement arose not out of its status as an employer, but by virtue of its military capacity. In our view the necessary element of control relates to the particular functions for which the employee was hired and cannot be supplied by the unique military status. The soldier's obligation to hold himself ready for instant obedience to the commands of his superiors is the concern only of the army and the soldier; this unique obligation is totally unrelated to any conduct affecting these appellants or others similarly situated. As an employer, the army could not direct the manner in which Frehe drove his car or its mechanical fitness for the trip.14 The Joint Travel Regulations15 cited by appellants neither compel nor prohibit travel in a particular manner or by a particular mode. They provide nothing more than a basis for reimbursement of expenses incurred, if the directives issued thereunder are followed. Thus the authorization to travel by private automobile was not an order and need not have been followed. The army's only concern was that Frehe report for duty at Ft. Hood on April 12, 1956.16 The mode and manner of travel was purely of his own choosing and for his own benefit. Under these circumstances we can see no basis in the California decisions which compel a conclusion that the act of travel by Pfc. Frehe was within the scope of his employment so as to create liability upon the part of the government to third parties injured by Frehe's conduct.
"There is a clear distinction between acts done within the scope of employment and acts done merely during the employment."
Pfc. Frehe's duties were to be performed at his post.19 At the time of the accident his duties had terminated at Norton Air Force Base and had not yet begun at Ft. Hood. Unless a soldier is to be considered peculiarly different from other employees of the government for the purposes of respondeat superior, the activity of traveling between permanent duty stations is "merely during employment" and not within the scope of employment. As already indicated, we have found no reasonable basis in California law for such a distinction.
"Subject to the provisions of chapter 171 of this title, the district courts * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages * * * for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred."
"Unless required by or under the authority of law to employ that particular agent, a principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as a part of the transaction of such business, and for [the] willful omission to fulfill the obligations of the principal."
But see 28 U.S.C. § 2671, defining "Employee of the government."
Once before this same problem was before the Court, but we were then not compelled to pass on it. In United States v. Kennedy, 9 Cir., 1956, 230 F.2d 674, the factual elements were indistinguishable from the case at bar. However, the issue of scope of employment was conceded by the government and it clearly appears from the reported decision that it was given no consideration by this Court. "Since the appellant admits * * scope of his employment * * *" etc. (at page 675.) Similarly, in Marquardt v. United States, D.C.S.D. Cal. 1953, 115 F. Supp. 160, scope of employment was assumed in a "transferred government employee" case. The only issue there decided was whether combining personal business with the "business" of his employer was sufficient to remove the employee's conduct from the scope of his employment.


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Since 1950 The University of Texas at Austin (UT) has been the focus of three landmark cases concerning race-based admissions; Sweatt v. Painter (1950), Hopwood v. Texas (1996), and most recently Fisher v. The University of Texas at Austin (Fisher v. UT), where the Supreme Court voted 7-1 to vacate and remand the case to the Fifth Circuit Court of Appeals (“Fisher v. University of Texas at Austin : SCOTUSblog,” 2013). In July 2014, the U.S. Fifth Circuit Court of Appeals upheld the UT admissions policy with a 2-to-1 decision (Abigail Fisher v. State of Texas, 2014). This article will review the UT race-based admissions policy, demographics from the 2008 entering class (when Fisher applied), Supreme Court case, and admissions implications after the final verdict.
After the Hopwood ruling, applications from ethnically diverse students declined sharply (Healy, 1997). In response, the Texas Legislature passed HB 588 in the 75th Legislative Session, establishing what is referred to as the top 10% law (“75(R) HB 588 Enrolled version,” 1997). This law required Texas public colleges and universities to admit first-time freshmen if they graduated in the top 10% of their graduating class. In 2009, an amendment to this bill allowed UT to cap the automatically admitted students (those graduating in the top 10%) to 75% of the incoming class omitting some students in the top 10% (“81(R) SB 175 - Enrolled version - Bill Text,” 2009). The amendment affected admissions in the 2011-2012 academic, after Fisher had applied for the class of 2008.
UT has a holistic admissions process for students who rank outside the 10% automatic admit, international students, and out-of-state students. There are three main areas of the holistic review: academic achievement, personal achievement, and special circumstances. Examples of special circumstances include consideration for at-risk variables such as socioeconomic, single parent family, primary language at home, and race and ethnicity (“Application review,” 2013).
Fisher was a 2008 graduate of Sugarland High School, where she finished in the top 12% of her class. Fisher “dreamed of going to UT ever since the second grade. My dad went there, my sister went there…it was a tradition I wanted to continue” (Abigail Fisher vs. University of Texas at Austin, 2012). Additionally, Fisher claimed classmates that were not white gained admission into UT with lower class rank and test scores. Fisher and a co-plaintiff (who has dropped the case) where chosen by the Project for Fair Representation and anti-affirmative action activist Edward Blum, who is paying all legal fees (Smith, 2010).
In the year Fisher was applied to UT, 3590 students were non-automatic admits (outside the top 10%). As shown in Table 1, the largest demographic of that group were whites (60%), and they were the only demographic that raised percentage points compared to the top automatic admits (top 10% enrollment) which was 48%. Blacks were 6% of the automatic admits while Hispanic was 42%. In the more holistic view of admissions, they were 4% and 11% respectively.
Note. Adapted from “Student Profile Admitted Freshman Class of 2008,” 2008, by The University of Texas at Austin.
Influential organizations such as the Ivy League, The College Board, and 57 fortune 100 businesses filed a total of 73 briefs in support of UT. One brief is from the family of Heman Sweatt, the Plaintiff of the 1950 Supreme Court case challenging UT’s Law School admissions policy. Fisher had 17 briefs filed on her behalf, and there were two briefs filed in support of either party (“VPLA | Fisher vs. Texas,” 2012).
In October 2012, the Supreme Court heard the case of Fisher v. UT concerning affirmative action and admissions to UT. June 24, 2013, by a 7-1 vote, the Supreme Court vacated and remanded the case to the Fifth Circuit Court of Appeals. The high court concluded the lower courts did not give the policy enough scrutiny and recommended the case should be retried. (“Fisher v. University of Texas at Austin : SCOTUSblog,” 2013). The transcript of the trial only mentioned Abigail Fisher’s name 4 times. The only comment of substance about Fisher was from the UT attorney who said “Ms. Fisher would not have been admitted to the fall 2008 class at University of Texas no matter what her race” (Fisher v. The University of Texas at Austin, 2012, p. 54). This trial was not about Fisher, but about the philosophical differences of using race as a factor in the admissions process.
On July 15, 2014, the U.S. Fifth Circuit Court of Appeals filed their decision, voting 2-to-1 to uphold the UT admissions policy (Abigail Fisher v. State of Texas, 2014). Fisher and Blum, the director of Project on Fair Representation, have both said they plan to appeal the decision (Schmidt, 2014). Fisher has the option to appeal the Fifth Circuit again; however, they do not have to rehear the case. Her case could also be appealed to the Supreme Court where they could decide to rehear the case a second time (“Race in Admissions at the U. of Texas,” 2014). There is currently no court date to rehear the case.
A court finding in Fisher’s favor will force UT to change the admissions policy, but the state law guaranteeing admissions for student graduating in the top 10% of their class would not be affected. The 2009 amendment to HB 588 that allows UT to cap automatic admits at 75% of the freshman class, also has a provisions to remove the waiver if a court or governing body does not allow race to be a factor in admissions (“75(R) HB 588 Enrolled version - Bill Text,” n.d.). Based on current law, UT could be required to only admit only top 10% students. According to The Texas Higher Education Coordinating Board’s Institutional Resume for UT, white students made up 48.5% of the campus population in fall 2013 (Texas Higher Education Coordinating Board, 2013), which is consistent with the class of Fall 2013 at 46%. According to the enrollment data, white students represented 60% of all students admitted with the holistic review and only 39% of the automatic admits. If UT is required to admit only the top 10% of public high school graduates, it is possible fewer white students will be admitted.
UT has always claimed a one-dimensional view of diversity does not provide the diverse campus experience they are seeking. Their admissions policy incorporates several factors to cast a wider view of diversity. According to court briefs, race-neutral admissions relying on just the top 10%, would lead to a 3% decrease in the of the African American students in the freshman class (Abigail Fisher V. the University of Texas at Austin, 2013). Additionally, institutional research showed ethnic minorities felt isolated on campus and perceived 1000s of classes with no Hispanic or African-American students (Abigail Noel Fisher and Rachel Multer Michalewicz v. University of Texas at Austin, 2010).
The impact of a UT victory is difficult to predict. Would other schools be more inclined to consider diversity as a factor in admissions, or would they be afraid to be the next school targeted for a lawsuit? November 17, 2014, two suites were filed against Harvard and the University of North Carolina at Chapel Hill. There are a few notable differences in these potential cases. Historically, private schools like Harvard have been absent from the landmark admissions cases. The Harvard case also claims Asian-Americans are discriminated against and more recent trials have been focused on the discrimination of white applicants. The plaintiff for both of the cases are not individual student, but the newly formed Students for Fair Admissions (SFFA). The SFFA encourages students to join by providing name, contact information, school that “rejected” the student, and some basic credentials of the student.
Unless courts stop hearing cases, this topic will continue to be debated in the halls of justice.
The University of Texas at Austin is once again in the middle of a civil rights and higher education debate in this third landmark case. When Abigail Fisher was denied admissions to UT she sued the university claiming her race was a factor. Appealing the case all the way to the Supreme Court, her lawyers largely focused on the concept of critical mass and not Fisher. The Supreme Court vacated the decision back to the Fifth Circuit Court of appeals to apply more scrutiny to the UT admissions policy. The original decision in favor of UT was upheld by a 2-to-1 vote, and now UT awaits the next steps while the newly formed Students for Fair Admissions is the plaintiff for two new cases against Harvard and University of North Carolina at Chapel Hill.
Fisher v. The University of Texas at Austin, No. 11-345 (The Supreme Court October 10, 2012).

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Richmond Sunlight » SB355: Land preservation tax credit; information about issued credits.
SB355: Land preservation tax credit; information about issued credits.
SENATE BILL NO. 355 AMENDMENT IN THE NATURE OF A SUBSTITUTE (Proposed by the Senate Committee on Finance on January 31, 2012) (Patron Prior to Substitute--Senator Deeds) A BILL to amend the Code of Virginia by adding in Article 20.1 of Chapter 3 of Title 58.1 a section numbered 58.1-514, relating to land preservation tax credits; information about approved credits.
§ 58.1-514. Department to publish list.
The Department shall publish a list, and update it annually, that identifies for each county and city the aggregate number of acres for which tax credits were issued pursuant to this chapter. The list shall also specify for each tract of land, or group of tracts included in a single application, that is approved for tax credits the assessed value of the property, the appraised value of the property, and the amount of tax credits issued for the property.
SENATE BILL NO. 355 Offered January 11, 2012 Prefiled January 11, 2012 A BILL to amend and reenact § 58.1-3 of the Code of Virginia and to amend the Code of Virginia by adding in Article 20.1 of Chapter 3 of Title 58.1 a section numbered 58.1-514, relating to land preservation tax credits; information about approved credits.
§ 58.1-3. Secrecy of information; penalties.
7. Information regarding land preservation tax credits required to be published pursuant to § 58.1-514.
B. Nothing contained in this section shall be construed to prohibit the publication of statistics so classified as to prevent the identification of particular reports or returns and the items thereof or the publication of delinquent lists showing the names of taxpayers who are currently delinquent, together with any relevant information which in the opinion of the Department may assist in the collection of such delinquent taxes. This section shall not be construed to prohibit a local tax official from disclosing whether a person, firm or corporation is licensed to do business in that locality and divulging, upon written request, the name and address of any person, firm or corporation transacting business under a fictitious name. Additionally, notwithstanding any other provision of law, the commissioner of revenue is authorized to provide, upon written request stating the reason for such request, the Tax Commissioner with information obtained from local tax returns and other information pertaining to the income, sales and property of any person, firm or corporation licensed to do business in that locality.
C. Notwithstanding the provisions of subsection A or B or any other provision of this title, the Tax Commissioner is authorized to: (i) divulge tax information to any commissioner of the revenue, director of finance or other similar collector of county, city or town taxes who, for the performance of his official duties, requests the same in writing setting forth the reasons for such request; (ii) provide to the Commissioner of the Department of Social Services, upon written request, information on the amount of income, filing status, number and type of dependents, and whether a federal earned income tax credit has been claimed as reported by persons on their state income tax returns who have applied for public assistance or social services benefits as defined in § 63.2-100; (iii) provide to the chief executive officer of the designated student loan guarantor for the Commonwealth of Virginia, upon written request, the names and home addresses of those persons identified by the designated guarantor as having delinquent loans guaranteed by the designated guarantor; (iv) provide current address information upon request to state agencies and institutions for their confidential use in facilitating the collection of accounts receivable, and to the clerk of a circuit or district court for their confidential use in facilitating the collection of fines, penalties and costs imposed in a proceeding in that court; (v) provide to the Commissioner of the Virginia Employment Commission, after entering into a written agreement, such tax information as may be necessary to facilitate the collection of unemployment taxes and overpaid benefits; (vi) provide to the Alcoholic Beverage Control Board, upon entering into a written agreement, such tax information as may be necessary to facilitate the collection of state and local taxes and the administration of the alcoholic beverage control laws; (vii) provide to the Director of the State Lottery Department such tax information as may be necessary to identify those lottery ticket retailers who owe delinquent taxes; (viii) provide to the Department of the Treasury for its confidential use such tax information as may be necessary to facilitate the location of owners and holders of unclaimed property, as defined in § 55-210.2; (ix) provide to the State Corporation Commission, upon entering into a written agreement, such tax information as may be necessary to facilitate the collection of taxes and fees administered by the Commission; (x) provide to the Executive Director of the Potomac and Rappahannock Transportation Commission for his confidential use such tax information as may be necessary to facilitate the collection of the motor vehicle fuel sales tax; (xi) provide to the Commissioner of the Department of Agriculture and Consumer Services such tax information as may be necessary to identify those applicants for registration as a supplier of charitable gaming supplies who have not filed required returns or who owe delinquent taxes; (xii) provide to the Department of Housing and Community Development for its confidential use such tax information as may be necessary to facilitate the administration of the remaining effective provisions of the Enterprise Zone Act (§ 59.1-270 et seq.), and the Enterprise Zone Grant Program (§ 59.1-538 et seq.); (xiii) provide current name and address information to private collectors entering into a written agreement with the Tax Commissioner, for their confidential use when acting on behalf of the Commonwealth or any of its political subdivisions; however, the Tax Commissioner is not authorized to provide such information to a private collector who has used or disseminated in an unauthorized or prohibited manner any such information previously provided to such collector; (xiv) provide current name and address information as to the identity of the wholesale or retail dealer that affixed a tax stamp to a package of cigarettes to any person who manufactures or sells at retail or wholesale cigarettes and who may bring an action for injunction or other equitable relief for violation of Chapter 10.1, Enforcement of Illegal Sale or Distribution of Cigarettes Act; (xv) provide to the Commissioner of Labor and Industry, upon entering into a written agreement, such tax information as may be necessary to facilitate the collection of unpaid wages under § 40.1-29; (xvi) provide to the Director of the Department of Human Resource Management, upon entering into a written agreement, such tax information as may be necessary to identify persons receiving workers' compensation indemnity benefits who have failed to report earnings as required by § 65.2-712; (xvii) provide to any commissioner of the revenue, director of finance, or any other officer of any county, city, or town performing any or all of the duties of a commissioner of the revenue and to any dealer registered for the collection of the Communications Sales and Use Tax, a list of the names, business addresses, and dates of registration of all dealers registered for such tax; and (xviii) provide to the Executive Director of the Northern Virginia Transportation Commission for his confidential use such tax information as may be necessary to facilitate the collection of the motor vehicle fuel sales tax. The Tax Commissioner is further authorized to enter into written agreements with duly constituted tax officials of other states and of the United States for the inspection of tax returns, the making of audits, and the exchange of information relating to any tax administered by the Department of Taxation. Any person to whom tax information is divulged pursuant to this section shall be subject to the prohibitions and penalties prescribed herein as though he were a tax official.
D. Notwithstanding the provisions of subsection A or B or any other provision of this title, the commissioner of revenue or other assessing official is authorized to (i) provide, upon written request stating the reason for such request, the chief executive officer of any county or city with information furnished to the commissioner of revenue by the Tax Commissioner relating to the name and address of any dealer located within the county or city who paid sales and use tax, for the purpose of verifying the local sales and use tax revenues payable to the county or city; (ii) provide to the Department of Professional and Occupational Regulation for its confidential use the name, address, and amount of gross receipts of any person, firm or entity subject to a criminal investigation of an unlawful practice of a profession or occupation administered by the Department of Professional and Occupational Regulation, only after the Department of Professional and Occupational Regulation exhausts all other means of obtaining such information; and (iii) provide to any representative of a condominium unit owners' association, property owners' association or real estate cooperative association, or to the owner of property governed by any such association, the names and addresses of parties having a security interest in real property governed by any such association; however, such information shall be released only upon written request stating the reason for such request, which reason shall be limited to proposing or opposing changes to the governing documents of the association, and any information received by any person under this subsection shall be used only for the reason stated in the written request. The treasurer or other local assessing official may require any person requesting information pursuant to clause (iii) of this subsection to pay the reasonable cost of providing such information. Any person to whom tax information is divulged pursuant to this subsection shall be subject to the prohibitions and penalties prescribed herein as though he were a tax official.
Notwithstanding the provisions of subsection A or B or any other provisions of this title, the treasurer or other collector of taxes for a county, city or town is authorized to provide information relating to any motor vehicle, trailer or semitrailer obtained by such treasurer or collector in the course of performing his duties to the commissioner of the revenue or other assessing official for such jurisdiction for use by such commissioner or other official in performing assessments.
This section shall not be construed to prohibit a local tax official from imprinting or displaying on a motor vehicle local license decal the year, make, and model and any other legal identification information about the particular motor vehicle for which that local license decal is assigned.
E. Notwithstanding any other provisions of law, state agencies and any other administrative or regulatory unit of state government shall divulge to the Tax Commissioner or his authorized agent, upon written request, the name, address, and social security number of a taxpayer, necessary for the performance of the Commissioner's official duties regarding the administration and enforcement of laws within the jurisdiction of the Department of Taxation. The receipt of information by the Tax Commissioner or his agent which may be deemed taxpayer information shall not relieve the Commissioner of the obligations under this section.
F. Additionally, it shall be unlawful for any person to disseminate, publish, or cause to be published any confidential tax document which he knows or has reason to know is a confidential tax document. A confidential tax document is any correspondence, document, or tax return that is prohibited from being divulged by subsection A, B, C, or D of this section and includes any document containing information on the transactions, property, income, or business of any person, firm, or corporation that is required to be filed with any state official by § 58.1-512. This prohibition shall not apply if such confidential tax document has been divulged or disseminated pursuant to a provision of law authorizing disclosure. Any person violating the provisions of this subsection shall be guilty of a Class 2 misdemeanor.
The Department shall publish a list, and update it annually, that identifies for each tract of land or interest in land for which a tax credit was issued pursuant to this chapter the tax map parcel number of the property, the assessed value of the property, the appraised value of the property, and the amount of tax credits issued for the property.
For a plain English description of this bill, comments, voting, tagging, etc., return to the main page for SB355.


text:
Recent developments in the U.S., European Union and China underscore the dynamic nature of evolving supply chain due diligence requirements and expectations for companies sourcing tin, tantalum, tungsten and gold. The following news alert highlights activities that may influence companies’ approaches to conflict minerals in the near term.
The U.S. Court of Appeals for the D.C. Circuit granted the petitions of the Securities and Exchange Commission (“SEC”) and intervenor Amnesty International for panel rehearing in the conflict minerals case, National Association of Manufacturers, Inc. v. Securities and Exchange Commission (“NAM v. SEC”).
In NAM v. SEC, the court upheld most of the SEC conflict minerals rule earlier this year but also ruled that the requirement in the rule to describe products as “not found to be DRC conflict free” was compelled speech in violation of the First Amendment (see our April 16, 2014 news alert for details). The Court applied heightened scrutiny in reaching this holding, rejecting the SEC’s argument that rational basis review – as set out in an earlier consumer deception case, Zauderer v. Office of Disciplinary Counsel – should apply.
The SEC and Amnesty International petitions seek reconsideration in light of another D.C. Circuit case, American Meat Institute v. U.S. Department of Agriculture, which addressed the applicable standard of review in the context of a First Amendment challenge to country-of-origin disclosures for meat products outside the consumer deception context (see our September 3, 2014 news alert for details).
What effect, if any, does this court’s ruling in American Meat Institute have on the First Amendment issue in this case regarding the conflict mineral disclosure requirement?
What is the meaning of “purely factual and uncontroversial information” as used in Zauderer v. Office of Disciplinary Counsel and American Meat Institute?
Is determination of what is “uncontroversial information” a question of fact?
The panel rehearing will proceed before the same three-judge panel of the D.C. Circuit (composed of Judges Srinivasan, Sentelle and Randolph) that issued the decision in NAM v. SEC. The SEC’s and Amnesty International’s briefs are due within 20 days, with NAM’s brief due 20 days thereafter. Given this timeline, it is unlikely the panel will conclude its rehearing before the end of the calendar year. The SEC and Amnesty International had also petitioned the court for rehearing en banc, but a separate order issued on November 18 states that consideration of these petitions is deferred pending the dispositions of the petitions for panel rehearing. In other words, the D.C. Circuit will not consider rehearing by the full court until after the conclusion of the panel rehearing.
In the European Union (“EU”), the Commission’s conflict minerals proposal is continuing to proceed through the ordinary “co-decision” legislative procedure, notwithstanding new Commission leadership following the 2014 elections. Member States are reported to share broad consensus on the basic approach set out in the Commission’s draft Regulation, i.e., that the Regulation will set forth a voluntary self-certification scheme for importers of tin, tantalum, tungsten and gold. Unlike the SEC rule, the EU approach to identifying conflict and high risk areas will be global in scope. On November 6, the Committee on International Trade of the European Parliament held its first debate on the conflict minerals proposal, and a hearing before the International Trade and Development Committees is planned for early December. The Parliament debate is expected to continue well into 2015, and the Regulation is not likely to be finalized before late 2015. The EU is expected to adopt additional measures creating public procurement incentives for certain products containing 3Ts and gold that are sourced in conformance with the new certification and supply chain due diligence standards.
Meanwhile, the Chinese Chamber of Commerce for Minerals, Metals and Chemicals Importers and Exporters (“CCCMC”), an industrial association affiliated with the Chinese government, has issued a new Guideline for Social Responsibility in Outbound Mining Investments. The Guideline is designed to encourage Chinese companies to develop specific corporate social responsibility strategies and management systems for mining investment and operations. The Guideline includes provisions directing companies to conduct risk assessments to determine whether traded minerals originate in or are routed through conflict-affected areas (which are not limited to the DRC and adjoining countries), adapt supply chain due diligence to the specific needs of conflict-affected areas, and obtain a third-party audit of and publicly report on such due diligence measures. The Guideline references the Organisation for Economic Co-operation and Development (“OECD”)’s Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas as a resource for further guidance on conducting due diligence. The Guideline also contains a number of additional provisions relating to social responsibility in the mining sector, including prohibitions on the use of child and forced labor and provisions relating to worker safety and environmental protection.
The Guideline is part of a series of joint activities and coordinated efforts planned between the CCCMC and the OECD pursuant to a Memorandum of Understanding signed by the two groups in October.

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text:
Defendant Lerma ("Lerma"). Also under consideration is defendant Arnaldo P.
and properly copyrighted documents belonging to the Church of Scientology.
party. Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979).
of RTC and against Lerma.
influencing the lives of their hosts.
The texts at issue, the "Advanced Technology" or the "Operating Thetan"
the guidance of an assisting church official in order to be efficacious.
they remain otherwise secret and secure.
works from several different series or collections of the OT Documents.
"copies" allegedly in Lerma's possession and/or posted by him to the Internet.
United States, and a full (i.e. unmasked) "translation" of that photocopy.
copyright interest in these Works.
Lerma launches a collateral attack on the appropriateness of the copyright.
Inc. v. Nation Enterprises, 723 F.2d 195, 202 (2nd Cir. 1983).
explained, illustrated, or embodied in such work.
idea itself and grant the owner a monopoly on all uses of the very concept.
for) spiritual harm have dominated discussion about religion for centuries.
inherently tied to the OT Documents.
are no less-deserving of protection than the admittedly copyrightable "recipe"
in a cookbook or copyrightable "repair steps" in a maintenance manual.
that is most certainly contrary to the goals of copyright law.
The Court, therefore, finds the merger clause inapplicable to the Works.
this copying was lawful because it was "fair use."
Music, Inc., 510 U.S. 569, 578 (1994).
complicated questions of copyright interpretation and application.
Inc., 953 F.2d 731, 736 (2nd Cir. 1991).
the same spirit of the modern news expose.
a fair use if the entire work is reproduced").
VCR tape that was upheld by the Supreme Court in Sony Corp. of America v.
something that would be clearly prohibited.
It may be true that Lerma's intent in posting the Works was not "commercial"
he did not place a surcharge on, or receive any other "private commercial gain"
this factor alone is not dispositive of the fair use issue.
and non-scholarly motives in publishing the Works.
more difficult to establish when the former works are copied." Campbell v.
Acuff-Rose Music, Inc., 510 U.S. 569, 586 (1994).
of the Works, and 2) their publication status.
Publications Int'l v. Carol Publishing Group, 904 F.2d 152, 158 (2nd Cir.
a broader fair use approach is therefore appropriate in this regard.
Religious Technology Center v. Lerma, 908 F.Supp. 1362, 1367 (E.D.Va. 1995).
not released these materials to the public and does not plan to release them.
less protection because he has not usurped RTC's right to first publication.
constitute a "first publication" under fair use principles.
protect his opportunity to sell his letters"). This approach is not illogical.
Cir. 1987). On balance, the second fair use factor tips in favor of RTC.
fair use." Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1263 (2nd Cir.
was "essentially the heart of" the copyrighted work. New Era Publications v.
Carol Publishing Group, 904 F.2d 152, 158 (2nd Cir. 1990)(citations omitted).
of the fair use doctrine. Marcus v. Rowley, 695 F.2d 1171, 1176 (9th Cir.
fair use defense to apply).
Lerma asserts that all five documents constitute the "whole copyrighted work"
critical to the fair use assessment, and indeed may be the determining factor.
pages from "the Power," and 10 of 350 pages of the NOT's. Opp'n Br. at 47.
be used in determining whether a set of works can be considered a "collection,"
4) are the elements by the same author.
"single work" for the purposes of fair use analysis.
Courts have followed this approach and found that components of a "collection"
need not bear a separate copyright notice"); American Geophysical Union v.
journal constituted a single work for fair use purposes).
Power, he did post the entirety of certain discrete subparts of these series.
actions. Following this analysis, Lerma's infringement is clear.
preclude a fair use defense.
695 F.2d 1171, 1177 (9th Cir. 1983).
work'." Harper & Row, 471 U.S. at 568 (citing Sony Corp. of America v.
courage to apply them. Franchises flourish ..." Ex. 8 to Fifth Lerma Decl.
that the fourth fair-use factor tips slightly in Lerma's favor.
posting of the Works does not constitute fair use.
prevailing on an action for infringement of the misused copyright."
Lasercomb America, Inc. v. Reynolds, 911 F.2d 970, 972 (4th Cir. 1990).
litigation process generally "as a means to harass, burden, and punish Mr.
Lerma for his criticism of Scientology."
Electronic Data Systems v. Computer Associates, 802 F.Supp. 1463 (N.D.Tex.
Television v. Broadcast Music, Inc., 772 F.Supp. 614, 652 (D.D.C. 1991).
"statutory damages." 17 U.S.C. s504(a).
Infringement Against Defendant Lerma at 46, n. 40.
and 3) to what extent was the infringement willful.
longer requires additional argument regarding statutory damages.
be submitted within 11 days of this Memorandum Opinion.
section markers, quotation marks, capitalization, hyphenation and underlining.
e.g., RTC Ex. G-18. Many exhibits include Lerma's blatant reproduction of L.
are not produced in Lerma's copies. See, e.g., RTC Exs. G-13. G-21 & G-22.
any change or commentary whatsoever, this still does not constitute fair use.
compilation or derivative work constitute one work." 17 U.S.C. s504 (1996).
through G-15 arise from the copyright registration entitled "OT III SERIES"
through G-25 arise from the copyright registration entitled "OT II SERIES"
Stokes Seeds Ltc. v. Geo. W. Park Seed Co., Inc., 783 F.Supp 104 (W.D.N.Y.
seedling reference book did not constitute a distinct infringing transaction.
therefore "justifying a single award of statutory damages." Id. at p. 107.
this summary judgment motion similarly constitute five works, not thirty-three.
of works infringed and not the number of infringements, Walt Disney Co. v.
instances of infringement for the purposes of calculating damages.
496 (4th Cir. 1988). See also Microsoft Corp. v. Grey Computer, 910 F.Supp.
the RTC convinces the Court to do otherwise.
Infringement Against Defendant Lerma, p. 46, n. 40.
in favor of plaintiff, RTC, against defendant Lerma.
of record and to defendant, pro se.
injunction issues. Defendant will have fifteen (15) days to respond to RTC.

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