CENTRAL COMMUNITY SCHOOL BOARD v. EAST BATON ROUGE PARISH SCHOOL BOARD & East Baton Rouge Parish Facilities Improvement District.
Before WHIPPLE, GUIDRY, and HUGHES, JJ. Sheri M. Morris, Baton Rouge, LA, for Plaintiff/Appellant, Central Community School Board. James P. Dore, Christopher Dicharry, Jennifer Jones Thomas, Baton Rouge, LA, for Defendants/Appellees, East Baton Rouge Parish School Board & East Baton Rouge Parish Facilities Improvement District.
This matter is before us on appeal by the Central Community School Board (“Central Board”), from a judgment of the trial court denying Central's request for mandamus relief in disputes arising from the separation of the public schools in Central, Louisiana from the East Baton Rouge Parish Public School System (“EBRP”). For the following reasons, we affirm in part and reverse in part.
In an effort for Central to create its own public school system, Act 861 of the 2006 Regular Session was proposed to allow the electorate to amend Article VIII, § 13 of the Louisiana Constitution to provide that for certain effects and purposes, the Central Community School System in EBRP be regarded and treated as a parish and have the authority granted parishes, including the purposes of certain funding and the raising of certain local revenues and annual ad valorem taxes for the support of elementary and secondary schools; for submission of the proposed amendment to the electors; and for related matters. By the terms of the act, the proposed amendment was to be submitted to the electorate for approval or rejection at the statewide election to be held November 7, 2006.
At the time of the separation, EBRP was collecting a 1% sales and use tax throughout its geographic boundaries, including the area that encompassed Central, which was levied by the EBRP Educational Facilities Improvement District (“EFID”).4 In May of 2003, the EFID had received voter approval to renew the five-year dedicated sales and use tax, which consisted of three stated Propositions. The tax was to be levied from 2004 through 2009. Proposition No. 1 consisted of a .51% sales and use tax for the purpose of funding repairs and renovations, enhancing technology, and construction of new classrooms and new schools in the public school system in EBRP. Proposition No. 2 consisted of a .08% sales and use tax for discipline; and Proposition No. 3 consisted of a .41% sales and use tax for the purpose of increasing compensation of teachers and other school system employees. The stated use and purpose of the three propositions were set forth in “A Plan to Improve Facilities/Technology, Discipline and Compensation in the East Baton Rouge Parish School System” (“the Tax Plan”), which was approved and adopted by the EBRP School Board on August 13, 1998. The Tax Plan provided for the new construction of seven schools, including Central Middle School.
In response, EBRP filed Exceptions of No Cause of Action, Unauthorized Use of a Summary Proceeding, Improper Cumulation of Actions, and Vagueness and Ambiguity.
The matters were heard by the trial court on October 22 and October 23, 2007, after which the trial court rendered oral reasons for judgment denying both EBRP's exceptions and the Central Board's petition for mandamus relief. A written judgment was signed in conformity with the trial court's oral reasons on November 7, 2007.
1. The trial court erred in determining that La. R.S. 39:704 does not mandate [that] the special tax approved by the voters for construction of Central Middle School ․ be used for the specific purpose approved by the voters.
2. The trial court erred in concluding that La. R.S. 17:66 does not mandate the transfer of all movable “property ․ for public education purposes but located within the geographic boundaries of the Central Community School System” during the 2006-2007 school year to the Central School Board on July 1, 2007.
3. The trial court erred in concluding that La. R.S. 17:66 does not mandate [the EBRP] Board to transfer all buses used to provide student transportation to facilities in Central School System during the 2006-2007 school year.
4. The trial court erred in determining that La. R.S. 17:66 does not mandate [the EBRP] Board the transfer of sales and use taxes collected in Central School System received after July 1, 2007 to the Central School Board.
PUBNUM=0004361,5. 6The trial court erred in determining that funds accumulated by the [EBRP] Board for public education purposes prior to July 1, 2007 are not public property required to [be] equitably divided among the two school boards providing public education in the jurisdiction from which the funds were collected.
EBRP answered the appeal, contending that the trial court erred in denying their Exceptions of No Cause of Action, Unauthorized Use of a Summary Proceeding, Improper Cumulation of Actions, and Vagueness and Ambiguity.
A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law. LSA-C.C.P. art. 3863. Mandamus may be issued in all cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice. LSA-C.C.P. art. 3862.
In reviewing the Central Board's claims, we start with the premise that mandamus is an extraordinary remedy, which must be used by courts sparingly only to compel action that is clearly provided by law, but only where it is the only available remedy or where delay occasioned by the use of any other remedy would cause injustice. Allen v. St. Tammany Parish Police Jury, 96-0938 (La.App. 1st Cir.2/14/97), 690 So.2d 150, 153, writ denied, 97-0599 (La.4/18/97), 692 So.2d 455. Moreover, mandamus will not lie in matters in which discretion and evaluation of evidence must be exercised. The remedy of mandamus is not available to command performance of an act that contains any element of discretion, however slight. Sund v. St. Helena Parish School Board, 2005-2473 (La.App. 1st Cir.5/5/06), 935 So.2d 219, 221, writ denied, 2006-1392 (La.9/22/06), 937 So.2d 392. Further, mandamus is to be used only when there is a clear and specific legal right to be enforced or a duty which ought to be performed. It never issues in doubtful cases. City of Hammond v. Parish of Tangipahoa, 2007-0574 (La.App. 1st Cir.3/26/08), 985 So.2d 171, 181.
In its petition for writ of mandamus, the Central Board sought to have the EBRP School Board and the EFID transfer to the Central Board $18,398,333.00 in proceeds from the Proposition No. 1 Tax Plan that the EFID began collection of on April 1, 2004, in the geographic area that now comprises the Central school system, as proposed in the 2005-2006 budget of the EFID, for the construction of a new Central Middle School. In this assignment, the Central Board contends that the trial court's finding, i.e., that LSA-R.S. 39:704 does not mandate that the special tax approved by the voters for construction of Central Middle School be used for the specific purpose approved by the voters, is error.
The proceeds of any special tax shall constitute a trust fund to be used exclusively for the objects and purposes for which the tax was levied. The records of the taxing authority shall clearly reflect the objects and purposes for which the proceeds of the tax are used.
The Central Board contends that it is undisputed that the electorate within the EFID approved the construction projects listed in the Tax Plan and that construction of a new Central Middle School and renovations at Bellingrath Hills and Tanglewood Elementary Schools were provided for in the Tax Plan. Further, the Central Board argues that because Acts 861 and 202 did not change the boundaries of the EFID, the taxes levied by the EFID “constitute a trust fund to be used exclusively for the objects and purposes for which the tax was levied.” See LSA-R.S. 39:704. Thus, the Central Board contends, the EFID is obligated to use the proceeds of the tax for the benefit of the entire EFID in accordance with the budgets adopted prior to the enactment of Acts 861 and 202.
Citing the testimony of Robert Cooper, the EBRP Director of Facilities, that a contract for the construction of a new Central Middle School would have been awarded for the encumbered amount of $18,398,333.00 in September of 2006 had the EBRP School Board not halted the project in July of 2006, the Central Board concludes that it is entitled to a writ of mandamus directing EBRP and/or EFID to transfer to the Central Board the funds that would have been encumbered for the construction of Central Middle School prior to July 1, 2007, plus interest.
However, according to the Tax Plan, “Any such modification must be minor in relation to the intent of the Plan.” While EBRP argues that the separation of Central was an “unforeseen event” that allowed for modification of the Plan, the Central Board contends that the total elimination of construction of a school is not a “minor” modification of the Plan.5 In response, EBRP contends that it has discretion to “put the project on hold” or “cancel the project.” As such, EBRP argues its decisions to reduce the budget for Central Middle School and ultimately discontinue the project, which were both reviewed by the Oversight Committee with no objection, were within EBRP's rightful authority.
In the instant matter, we are faced with a unique situation in which, near the midpoint of collection of a five-year tax, by virtue of Central's July 1, 2007 separation from EBRP, the stated purpose of the proposition previously submitted to and approved by the electorate (to assist the EBRP School Board with the renovation and repair of schools in the EBRP EFID) now conflicts with the use of some of the funds as dedicated and provided for in the Tax Plan (the construction of a new Central Middle School). Mindful of the precept that tax revenues obtained from a special tax must be used for no other purpose than that stated in the proposition, see Baker v. Morehouse Parish School Board, 956 So.2d at 127, we recognize that determination of this now seemingly internally inconsistent proposition and accompanying plan requires discretion and evaluation of evidence, which clearly are not appropriate in mandamus proceedings. See Sund v. St. Helena Parish School Board, 935 So.2d at 221.
Thus, this assignment of error lacks merit.
In these assignments of error, the Central Board contends that the trial court erred in concluding that LSA-R.S. 17:66(F)(1) does not mandate the transfer to the Central Board of (1) all movable property for education purposes located within the geographic boundaries of the Central school system during the 2006-2007 school year; (2) all buses used to provide student transportation to the Central school system during the 2006-2007 school year; and (3) sales and use taxes collected in Central before July 1, 2007, but received by EBRP after July 1, 2007. Accordingly, we review Central's request for relief under LSA-R.S. 17:66, applying precepts that govern mandamus proceedings.
The Central Community School Board shall begin actual operation of providing for the education of students within its jurisdiction on July 1, 2007. Beginning on the date the school board begins actual operation of providing for the education of students and thereafter, ․ all lands, buildings, and improvements, facilities, and other property having title vested in the public and subject to management, administration, and control by the East Baton Rouge Parish School Board for public education purposes but located within the geographic boundaries of the Central community school system or used to provide student transportation services to such facilities, or both, shall be managed, administered, and controlled by the Central Community School Board.
The trigger date that this court believes applies is July 1, 2007. Plaintiff states for the public education purposes during the 2006-2007 school year. But it was clear in this court's mind the legislature meant July 1, 2007 when the board was created, when the school district was created. There was no testimony that any property, movable property, was taken from the district from July 1, 2007 on. Therefore, any movable property that was taken prior to that was still in the control, custody, of the East Baton Rouge Parish School System to do as they choose fit for the different programs and schools throughout East Baton Rouge Parish School System.
Contrariwise, EBRP interprets LSA-R.S. 17:66(F)(1) as only requiring the transfer of property located in the geographic boundaries of Central on the date the Central School Board began actual operations, i.e., July 1, 2007. EBRP further contends that prior to July 1, 2007, all schools were in the jurisdiction of the EBRP School Board, and, as such, the EBRP School Board had the discretion to decide where equipment should be located.
As to the merits of the parties' dispute over various items of movable property and funds under LSA-R.S. 17:66(F)(1), we again note that in mandamus proceedings, courts may only compel action that is clearly provided for by law and mandamus will not lie in matters where discretion and evaluation of evidence must be exercised. The applicable law clearly provides that “[b]eginning on the date the school board begins actual operation [July 1, 2007] ․ all lands, buildings, and improvements, facilities, and other property ․ located within the geographic boundaries of [Central] ․ shall be managed, administered, and controlled by the Central Community School Board.” See LSA-R.S. 17:66(F)(1). The Central Board argues that the trial court erred, given the intent and spirit of the statute, which equities, the Central Board argues, should weigh in its favor. However, we again note that we are prohibited from doing so in a mandamus proceeding. Thus, for these reasons, to the extent that the judgment of the trial court denied the Central Board mandamus relief under LSA-R.S. 17:66, the ruling must be affirmed. However, in doing so, we note that Central may seek relief by ordinary process or other means including a petition for declaratory judgment as to the parties' competing rights and claims to property.
Moreover, with reference to the Central Board's argument that the sales and use taxes collected in Central after July 1, 2007, should be transferred to Central from EBRP, as LSA-R.S. 17:66(F)(1) “mandates” that all property, including funds, be transferred, for the reasons stated above, even given the language of LSA-R.S. 17:66(F)(1), we find that this is not relief that can be granted or the claim determined in a mandamus proceeding. Although the Central Board points out that some of these funds were within the geographic boundaries of Central on July 1, 2007, a determination of whether Central is entitled to such funds as “property” contemplated by the statute requires more than the mere compelling of a ministerial duty to act on the enforcement of a clear and specific legal right or duty. As such, resolution of this issue is also not appropriate in mandamus proceedings.
Thus, we also find no merit to these two assignments of error.
The next issue is similar that the Central Community School Board asked for an additional thirty-one buses. There [was] no testimony put forth that an additional thirty-one buses [were] being used on the trigger date, which is July 1, 2007. East Baton Rouge Parish delivered thirty-one buses to the Central School District prior to the July 1 trigger date. But there was no testimony or evidence put forth to this court that after July 1, 2007, East Baton Rouge Parish School System was still utilizing-or providing services to the Central Community School System to warrant that they do not take any additional buses within that geographical district. There was testimony that sixty-two buses or possibly sixty-three buses [were] used during the ′06-′07 school year, but there was no testimony that there [were] sixty-two buses located within the geographic boundaries of the Central Community School System from July 1 on. So[,] therefore, the court is denying the writ of mandamus for the additional thirty-one buses.
On review of this issue, we find the trial court erred. Louisiana Revised Statute 17:66(F)(1) uses the disjunctive “or” in setting forth the required transfer of property located within the geographic boundaries of Central as well as that property used to transport students, as follows: “property having title vested in the public and subject to management, administration, and control by the East Baton Rouge Parish School Board for public education purposes but located within the geographic boundaries of the Central community school system or used to provide student transportation services to such facilities, or both․” (Emphasis added.) Accordingly, we find the statute clearly provides that “[b]eginning on [July 1, 2007]” all property having title vested in EBRP and located in Central “or used to provide student transportation services” to Central, “shall be managed, administered, and controlled by the Central Community School Board.” LSA-R.S. 17:66(F)(1). The undisputed testimony shows that at least 62 buses were “used” during the 2006-2007 school year to provide student transportation services to Central. As such, the statute mandates that EBRP transfer those buses that were “used” to Central.
Thus, the trial court erred in interpretating LSA-R.S. 17:66(F)(1), to mean that Central was only entitled to those buses that were located within the geographic boundaries of the Central Community school system on July 1, 2007. Accordingly, we hereby grant the request for mandamus relief and order that EBRP transfer an additional 31 buses to Central pursuant to the mandatory language of LSA-R.S. 17:66(F)(1). The portion of the trial court's judgment denying the Central Board's request for mandamus relief and transfer of the buses used to provide transportation services to students in Central is reversed.
We find merit to this assignment of error.
However, the Central Board cites no authority or “clear and specific legal right” by which we may compel EBRP to transfer these funds. See City of Hammond v. Parish of Tangipahoa, 985 So.2d at 181. Further, pretermitting the equitable considerations urged by the Central Board, we find that the Central Board has failed to show that this transfer of funds involves only “a ministerial duty required by law.” See LSA-C.C.P. art. 3863. Accordingly, we find that the trial court correctly denied this relief, as it is not such that may be granted in a mandamus proceeding.
Thus, we find no merit to this assignment of error.
In its answer to appeal, EBRP challenges the trial court's denial of its Exceptions of No Cause of Action, Unauthorized Use of a Summary Proceeding, Improper Cumulation of Actions, and Vagueness and Ambiguity. Given our resolution of the above assignments of error, wherein we find that mandamus is not an appropriate remedy herein for the relief requested by the Central Board under LSA-R.S. 39:704 and LSA-R.S. 17:66, we pretermit discussion of the issues raised in EBRP's answer to appeal. To the extent that we grant mandamus relief under the specific mandate pursuant to LSA-R.S. 17:66(F)(1) requiring the transfer of school buses as discussed above, we will address EBRP's answer to appeal.
The function of the exception of no cause of action challenges the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Davis v. St. Francisville Country Manor, LLC, 2005-0072 (La.App. 1st Cir.2/10/06), 928 So.2d 549, 554, writs denied, 2006-0604 (La.5/26/06), 930 So.2d 25 and 2007-0481 (La.4/27/07), 955 So.2d 699. No evidence may be introduced to support or controvert the objection. LSA-C.C.P. art. 931. A court must review the petition and accept all well-pleaded facts as true, and the only issue on the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Cage v. Adoption Options of Louisiana, Inc., 94-2173 (La.App. 1st Cir.6/23/95), 657 So.2d 670, 671.
Central's Petition for Writs of Mandamus seeks to compel the EBRP School Board to transfer buses used to provide student transportation pursuant to LSA-R.S. 17:66(F)(1). As discussed above, the provisions of LSA-R.S. 17:66(F)(1) afford a remedy on the facts alleged in the pleadings and on the face of the petition, the plaintiff has set forth a cause of action for the relief sought. Accordingly, on review, we find the trial court correctly overruled EBRP's exception of no cause of action.
With reference to the trial court's denial of EBRP's dilatory exception raising the exception of unauthorized use of a summary proceeding, we note that LSA-C.C.P. art. 2592 provides, in pertinent part, “Summary proceedings may be used for trial or disposition of the following matters only: ․ (6) A habeas corpus, mandamus, or quo warranto proceeding.” A mandamus proceeding is clearly allowed as a summary proceeding. Moreover, the propriety of the merits of the mandamus proceeding are not to be addressed by a procedural exception. See Smith v. St. Tammany Fire Protection District No. 1, 97-2003 (La.App. 1st Cir.9/25/98), 723 So.2d 994, 995, writ denied, 98-3075 (La.2/12/99), 738 So.2d 572. To the extent that EBRP argues that their transfer of buses to Central pursuant to LSA-R.S. 17:66(F)(1) is not appropriate in a mandamus or summary proceeding, for the reasons set forth in our discussion of this issue above, we find that the statute does, in fact, mandate that EBRP transfer the buses to Central. Thus, the trial court correctly denied EBRP's exception of unauthorized use of summary proceedings.
EBRP argues that Central has improperly cumulated the summary proceeding of mandamus with relief that can only be acquired through the use of an ordinary proceeding, i.e., a suit for declaratory judgment. However, we note that the only relief sought herein by Central is mandamus. Central has not sought declaratory judgment relief in this proceeding. Thus, we find no merit to this argument.
On or about July 15, 2007, EBRP School Board transferred thirty-one (31) buses of similar quality and condition to those used ‘to provide student transportation services to facilities located in the Central Community School System.[’] Upon information and belief in excess of sixty-two (62) buses were used to transport students to schools located within the geographic boundaries of the Central Community School System during the 2006-2007 school year.
The law provides no relief by ordinary means and the delay involved in obtaining ordinary relief will cause injustice. Therefore, the Central Community School Board is entitled to a writ of mandamus directing EBRP School Board to transfer thirty-one (31) additional buses of similar quality and condition to those used to transport students to facilities located within the geographic boundaries of Central Community School System during the 2006-2007 school year. Additionally, the transfer of the funds will not have the effect of creating a deficit in the funds of the EBRP School Board.
On review, we find nothing ambiguous or vague in Central's request for mandamus relief concerning the transfer of buses pursuant to LSA-R.S. 17:66(F)(1). Accordingly, we find the trial court correctly denied EBRP's exception of vagueness and ambiguity.
Based on the above and foregoing reasons, the November 7, 2007 judgment of the trial court is affirmed in part and reversed in part. Judgment is hereby rendered in favor of the Central Community School Board ordering the East Baton Rouge Parish School Board to return or transfer the 31 buses at issue, as required by law. The answer to appeal is denied.
Costs of this appeal in the amount of $1,646.00 are assessed one-half each to the Central Community School Board and the East Baton Rouge Parish School Board.
AFFIRMED IN PART, REVERSED IN PART, AND RENDERED; ANSWER TO APPEAL DENIED.
I respectfully dissent from that portion of the majority opinion that affirms the denial of mandamus relief with respect to the audio/speech therapy equipment and materials removed from Tanglewood Elementary School. The trial court concluded, based on the language of La. R.S. 17:66(F)(1), that the crucial date for determining what property the Central Board was entitled to receive was July 1, 2007, and that there was no evidence this movable property was located within the geographic boundaries of the Central community school system on that date. However, I find the language of La. R.S. 17:66(F)(1) is ambiguous, in that it could also be interpreted as providing the July 1, 2007 date is merely the date on which EBRP had to transfer to the Central Board all the property to which the latter was entitled, and not the date for determining the extent of that property. Thus, since I conclude the language of La. R.S. 17:66(F)(1) does not clearly provide the date on which this determination is to be made, I believe the date on which the statute became effective, December 10, 2006, should be used to make this determination. The record indicates the audio/speech therapy equipment and materials in question were located and used at Tanglewood Elementary School during the 2006-2007 school year and were not removed from there until the end of the school year. Accordingly, since this movable property was located within the geographic boundaries of the Central community school system on the date La. R.S. 17:66(F)(1) became effective, I believe the Central Board is entitled to mandamus relief ordering the return of this movable property.
For the above reasons, I respectfully dissent from that portion of the majority's opinion affirming the denial of mandamus relief as to this movable property. I concur in the result reached by the majority in all other respects.
1. These sections, originally enacted as R.S. 17:65 and R.S. 17:65.1 by Acts 2006, No. 202, § 1, were redesignated as R.S. 17:66 and R.S. 17:66.1 pursuant to the statutory revision authority of the Louisiana State Law Institute.
2. The four schools located in Central are: Central High School, Central Middle School, Tanglewood Elementary School, and Bellingrath Hills Elementary School.
3. LSA-Const. art. 13, § 1(C) provides in part: “If a majority of the electors voting on the proposed amendment approve it, the governor shall proclaim its adoption, and it shall become part of this constitution, effective twenty days after the proclamation․” The governor proclaimed the adoption of the amendment by Act 861 on November 20, 2006.
4. Louisiana Revised Statute 33:2740.37 authorized the creation of Educational Improvement Districts in certain parishes, including East Baton Rouge, to “levy and collect a sales and use tax not to exceed one percent within the district” on all sales excluding food and prescription drugs “at retail, the use, lease or rental, consumption and the storage for use or consumption of tangible personal property, and on sales of services․” LSA-R.S. 33:2740.37(E).The Finance Department for the City/Parish of East Baton Rouge is the collection agent for sales and use taxes on all taxable goods and services sold in the parish of East Baton Rouge and the State of Louisiana, Department of Public Safety, Office of Motor Vehicles is the collection agent for sales and use taxes on motor vehicles and related services sold in the parish of East Baton Rouge. The sales and use taxes collected by retailers are remitted to the appropriate sales tax collector and the collector remits to the taxing authority in the month following the taxable transaction.
5. With reference to EBRP's argument that Central's separation from EBRP was an “unforeseen event,” we note that prior to the passage of Acts 861 and 202 in 2006, Central had previously attempted on two occasions, in 2001 and again in 2004, albeit unsuccessfully, to pass legislation to create a separate Central Community School System.
6. See Orleans Parish School Board v. City of New Orleans, 238 La. 738, 747-748, 116 So.2d 505, 509 (La.1959); Orleans Parish School Board v. City of New Orleans, 198 La. 483, 487-489, 3 So.2d 745, 746-747 (1941); Ziemer v. City of New Orleans, 195 La. 1054, 1067, 197 So. 754, 759 (1940) (“Where [tax] funds are dedicated to a certain purpose they cannot be intermingled with other funds and used indiscriminately[,] but must be applied as dedicated.”); Denham Springs Economic Development District v. All Taxpayers, Property Owners, 2004-1674 (La.2/4/05), 894 So.2d 325, 334-335 (where, in interpreting a tax increment financing statute, the Louisiana Supreme Court recognized that the statute prohibited dedicated taxes from being used for purposes other than their dedicated purpose).
7. To the extent that the trial court's judgment denied the Central Board's request for mandamus relief “for the reasons orally assigned,” which oral reasons expressed that on the merits, Central was not entitled to $18,398,333.00 in dedicated funds because Central was no longer a part of East Baton Rouge Parish School System as of July 1, 2007, the trial court erred, given our ruling that a mandamus action is not appropriate herein.
GUIDRY, J., concurs in part, dissents in part and assigns reasons for dissent. HUGHES, J., concurs.


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A. A. Kodentsov, S. F. Dunaev, E. M. Slyusarenko and E. M. Sokolovskaya: Moscow Univ. Chem. Bull. 41 (1986) 58–61.
K. P. Gupta: Indian Inst. Metals 1 (1990) 49–70.
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A. A. Kodentsov, S. F. Dunaev and E. M. Slyusarenko: Moscow Univ. Chem. Bull. 43 (1988) 90–93.
V. Raghavan: Indian Inst. Metals 6B (1992) 1025–1027.
K. P. Gupta: Indian Inst. Metals 2 (1991) 163–173.
L. I. Pryakhina, K. P. Myasnikova, V. V. Burnasheva, E. E. Cherkashin and V. Y. Markiv: Sov. Powder Metall. Met. Ceram. 5 (1966) 643–650.
K. P. Gupta: Indian Inst. Metals 2 (1991) 177–184.
K. P. Gupta: Indian Inst. Metals 2 (1991) 185–198.
G. A. Tikhankin, L. L. Meshkov and E. M. Sokolovskaya: Moscow Univ. Chem. Bull. 31 (1976) 88–90.
P. Nash and D. R. F. West: Met. Sci. 13 (1979) 670–676.
L. Kaufman: Calphad 15 (1991) 261–282.
A. Zakharov: Ternary Alloys VCH 7 (1993) 483–497.
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P. Willemin, O. Dugué, M. Durand Charre and J. H. Davidson: Mater. Sci. Technol. 2 (1986) 344–348.
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text:
BLUECROSS BLUESHIELD: Sued for Cheating Policyholders in D. Ariz.
NETAPP INC: Motion to Dismiss Shareholders Suit Pending in Del.
NETAPP INC: Data Domain's Shareholders Suit Pending in Calif.
ASBESTOS UPDATE: $800T Assessed for Cleanup at Ohio School Bldg.
company's Sept. 4, 2009, Form 10-Q filing with the U.S.
Section 11 of the Securities Act.
underwriter defendants was a condition of the settlement.
full bench of the Second Circuit.
certification of a more modest class."
"test cases" (none of which involve Agilent).
Agilent, and Agilent would bear no financial liability.
Litigation, Lead Case No. 1-09-CV-149132, in California.
A similar action, entitled Stuart Kreisberg v. Garry W.
same court on Aug. 7, 2009.
consolidated amended complaint was filed on Aug. 14, 2009.
Aug. 7, 2009 proxy filing are inadequate.
Varian directors' purported breaches of fiduciary duties.
Varian, its directors, and Agilent.
other relief (including attorneys' fees and costs).
offers no valid service for it, a class action lawsuit claims.
A copy of the Complaint in Devito v. AmTrust Bank, Case No.
was started by Mr. Samuels' grandfather and his wife, Ruth.
fiduciary duty to the second-year Brooklyn Law School student.
Mr. Samuels, declined to provide a specific amount, but told Mr.
Mitev that the settlement was for less than the $475,000 sought.
was sentenced to 150 years in prison.
A copy of the Complaint in Vitarelle v. Best Buy Inc., Docket No.
class action claims in Phoenix Federal Court.
In November 2008, a class-action lawsuit was filed in U.S.
BMR and the company deny all allegations, according to its Sept.
Commission for the quarter ended July 31, 2009.
Tennessee, Georgia, Florida, Michigan, and Wisconsin.
Inc., is scheduled for Oct. 16, 2009.
company and certain of its current and former senior executives.
establish the misleading nature of these earlier disclosures.
costs and disbursements of the lawsuit.
misleading nature of these earlier disclosures.
a consolidated amended class action complaint on Feb. 28, 2008.
The company's motion to dismiss was denied on July 18, 2008.
quarter ended Aug. 1, 2009.
children's apparel and accessories, ages newborn to 14 years old.
coordinated outfits specifically designed for children.
California, County of Los Angeles.
complaint, adding Disney as a defendant.
class certification on the misclassification claim.
according to its Sept. 4, 2009, Form 10-Q filing with the U.S.
action regarding the company's refund anticipation loan programs.
J. Dist., Phila. Cty.), instituted on April 23, 1993.
to reverse the trial court's decertification decision.
to review the appellate court ruling.
the quarter ended July 31, 2009.
and certain of its officers.
pertaining to the Company's financial statements.
in accordance with generally accepted accounting principles.
Jerome F. Birn, Jr., Esq.
Block, Inc.'s Sept. 4, 2009, Form 10-Q Filing with the U.S.
occurred prior to such termination and sale.
represent a class of others alleged to be similarly situated.
liability is difficult to predict.
damages, restitution and equitable relief.
the company's Sept. 4, 2009, Form 10-Q Filing with the U.S.
One of the cases is the purported class action, Lorie J.
filed on Jan. 18, 2002 and granted class-action status on Aug.
-- an unfair trade practice, by omission and by "cramming"
-- a breach of fiduciary duty.
by "H&R Block" or a defendant H&R Block class member.
Inc., and that sold or sells the POM product.
certify class certification issues for interlocutory appeal.
Action Reporter, Oct. 14, 2008).
Southern District of Illinois. In December 2008, the U.S.
District Court remanded the case back to state court.
the company in Texas that involves the POM guarantee.
allegations. No class has been certified in this case.
percent is not permissible in a mega-fund case like this."
Liebhard, Milberg LLP and other plaintiffs firms.
of the gross settlement fund as they can," Mr. Siegel told Mr.
The hearing is set for 4:30 p.m. Thursday.
Exchange Commission for the quarter ended July 31, 2009.
and aiding and abetting such breach by NetApp.
The complaint initially sought injunctive relief and damages.
its sales personnel and subsidiaries.
NetApp, Inc.'s Sept. 4, 2009, Form 10-Q filing with the U.S.
plaintiff's lawsuit upon Data Domain's shareholders.
class action claims in Lufkin, Texas, Federal Court.
Commission for the quarter ended Aug. 1, 2009.
two internet retailers that was commenced in December 2005.
price agreements with retailers in violation of antitrust laws.
the District Court's class certification order.
about 1,500 stores in the US and abroad and through Web sites.
apparel, furniture, and feeding supplies at some 260 Babies "R"
together took the toy seller private in a $6.6 billion deal.
Toys "R" Us acquired troubled toy icon FAO Schwarz in 2009.
-- Spedlogswiss a/k/a The Association of Swiss Forwarders.
time during the period from Jan. 1, 2001, to the present.
A copy of the Complaint in Brown v. Verizon Wireless, Case No.
MURDOCK GOLDENBERG SCHNEIDER & GROH, L.P.A.
Minnillo & Jenkins, Co., L.P.A.
purported consumer fraud class action lawsuit in the U.S.
the company failed to honor promised rebates.
plaintiffs claim its facsimile service is defective.
Service to the detriment of customers.
MDL No. 1862, Master Docket No. 07-CV-3906 (D. N.J.).
requested time to file an amended consolidated complaint.
Complaint was filed on Dec. 19, 2008.
Arbitration. Oral argument on the motion was scheduled for Sept.
quarter ended June 30, 2009.
class action in E. St. Louis Federal Court.
A copy of the Complaints in Boatwright v. Walgreen Co., Case No.
until 1990. He died on Jan. 21, 2008, from lung cancer.
Chemical Company (f/k/a Gulf Oil Corporation), Chevron U.S.A.
defects in the asbestos-containing products.
An asbestos lawsuit by Gilbert L. Harper and his wife, Bonita L.
Pneumo Abex Corporation, Sepco Corp. and Zurn Industries, Llc.
where he says he was exposed to asbestos-containing products.
different asbestos-related injury than in their prior complaint.
about the dangers of asbestos.
after they were aware of the asbestos danger.
other relief the Court deems appropriate.
Umphrey Law Firm in Beaumont, Tex., represent the Harpers.
Court, Ill., The Madison St. Clair Record reports.
of Saville and Flint in Alton, Ill., represent Ms. Balthasar.
outside salesman for Omaha Compound, claims mesothelioma.
and Associates in Edwardsville, Ill., represent Mr. Deems.
Laboratories. Richard L. Saville Jr., Esq., and Ethan A.
Rowen and Blair Electric Company and Hybels Electric Service.
exposed to asbestos fibers through her family members.
Saville and Flint in Alton, Ill., represent the Monasmiths.
Washington, Alaska and Hawaii, claims mesothelioma. G.
Addist Rockingham died after developing mesothelioma. Mr.
of Alton, Ill., represent Ms. Rockingham.
-- (Case No. 09-L-830) Tawny and Keith Stetzel claim Mrs.
lab technician. Richard L. Saville Jr., Esq., and Ethan A.
Rowland in Edwardsville, Ill., represent the Wilsons.
Circuit Court, Ill., The Madison St. Clair Record reports.
Rowland in Edwardsville, Ill., represent Mr. DeSante.
Edwardsville, Ill., represent Mrs. Eades.
in St. Louis represent Mr. Gragg.
Ill., will be representing Ms. Lawlor.
-- (Case No. 09-L-823) Hollis and Paula Lee of Indiana claim Mr.
Alton, Ill., represent the Lees.
laborer and store clerk while in the United States Navy.
Alton, Ill., represent Richard Lemire.
Ethan A. Flint, Esq., of Alton, Ill., represent Ms. Love.
Associates in St. Louis will represent Mr. Trommell.
The Company is an Osaka, Japan-based railway operator.
lawsuit, The Daily Times reports.
years old following her diagnosis with mesothelioma.
"A confidential financial settlement was obtained."
that the lawsuit is concluded and both parties can move forward."
Doug and Donna Satterfield, continued the lawsuit.
starting in 1973. He hauled asbestos for the Company.
blocks, fiber cement cladding material, and asbestos.
contractor to dig a pit and bury it at the farm.
legitimately dispose of the relatively small amount of asbestos.
Employees for Environmental Responsibility (PEER), the U.S.
managers, according to a PEER press release dated Aug. 26, 2009.
peeled off the pipes without protective equipment.
an open dump at Mud Lake, Idaho, where it remains today.
Response, Compensation, and Liability Act (Superfund).
merits treating these offenses as crimes.
environmental laws apply to them as well."
conditions at Grand Teton that have yet to be remedied.
the Clean Air Act, The Associated Press reports.
while containing asbestos that should have been removed first.
documents and lied to federal authorities.
heard on Sept. 1, 2009.
Lawrence John showed that Mrs. Peters had pleural mesothelioma.
substance during his time at a railway company as a younger man.
overalls and they would be dirty, covered in dust."
asbestos exposure down to her father's contact with asbestos.
Anita' death was caused by industrial disease mesothelioma."
asbestos, the Derby Telegraph reports.
died there on June 16, 2009.
Combustion in Sinfin Lane, Derby, from 1988 to 1994.
In a statement compiled as part of his compensation claim, Mr.
Assistant deputy coroner Michael Bird said it was likely that Mr.
statement, about what he says he was exposed to.
was the cause of his death."
Combustion, which was bought by Rolls-Royce in the late 1990s.
Hospital, said that no asbestos fibers had been found in Mr.
former executives and directors of James Hardie Industries N.V.
of asbestos compensation funding, Bloomberg reports.
received an AUD75,000 fine and a seven-year ban.
about the adequacy of asbestos compensation funding.
does not intend to comment further.
Madison St. Clair Record reports.
However, a Sangamon County jury also awarded the 69-year-old Mr.
to roofing, siding and the use of drywall joint compounds.
1960s to the early 1980s.
Pathologist Mark Wick, M.D. and pulmonologist Gerald Kerby, M.D.
working for his father on boiler tear outs.
of US$1.4 million due to prior settlements.
Pacific not to be negligent.
Kaufmann, Esq., of its Springfield office.
US$1 million to demolish the aging school building.
School and is now used to house the elementary school.
according to Robert Wilson, Lakeview district superintendent.
building would cost between US$500,000 and US$1 million. MR.
estimate generated by the Ohio School Facilities Commission.
The asbestos present in the building is encapsulated.
asbestos removal, the Post-Crescent reports.
Protection Agency rules for disposal.
decades later due to the severe latency period of symptoms.
their husbands' asbestos-contaminated clothes after work.
Roberts, the Manchester Evening News reports.
Vernon & Roberts has been forced to pay up to settle the case.
for GBP60,000 four years ago.
However, since the firm's insurance company had dissolved, Mrs.
Vernon & Roberts' assets when it shut down.
Insurance Company, which has now ceased trading.
to pay the settlement out of their own pockets.
company finally folded, the directors should have paid out Mrs.
billion during the six months ended June 30, 2008.
six months ended June 30, 2008.
the six months ended June 30, 2008.
otherwise resolved, and 5,485 claims at end of period.
otherwise resolved, and 6,307 claims at end of period.
Commission on Aug. 7, 2009.
Pennsylvania and one in Illinois.
asbestos-containing products by the Company.
and settlement costs relating to the asbestos suits.
the Generation and Marketing segment.
million at Dec. 31, 2008.
2009 and US$58.4 million at Dec. 31, 2008.
dissolved and since that time, the business has been in runoff.
from one percent to six percent during these years.
insurance holding company with assets in excess of US$25 billion.
Company is engaged in property and casualty insurance.
and US$800,000 for the six months ended June 30, 2009.
its affiliates in connection with the Cryovac transaction.
indemnification claims by Fresenius Medical Care Holdings, Inc.
in connection with the Cryovac transaction.
the Committees had approved the agreement in principle as of Dec.
the case of Thundersky v. The Attorney General of Canada, et al.
products in Canada prior to the Cryovac Transaction.
Province of Manitoba v. The Attorney General of Canada, et al.
prior to the Cryovac transaction.
Arrangement Act. That order has been renewed repeatedly.
entered an order extending the stay until Oct. 1, 2009.
prior to Oct. 31, 2009.
that order on Oct. 23, 2008.
Police Employees Retirement System (MPERS).
On Sept. 15, 2003, the case of Senn v. Hickey, et al. (Case No.
and accordingly the Company's counsel is also defending them.
of allegations against the defendants.
compensatory damages and other relief.
filed a motion to dismiss the amended complaint in the Senn v.
alleged scienter as to Mr. Dunphy and the Company.
Chairman of the Board and Chief Executive Officer of the Company.
an answer to the amended complaint.
period from March 27, 2000 through July 30, 2002.
Consequently, the case is now properly referred to as MPERS v.
inclusive, and were damaged thereby.
Corp. v. Twombly require dismissal of MPERS's claims.
14, 2008, the Third Circuit denied the petition.
et al. case, subject to documentation and Court approval.
covered by the Company's insurance carriers.
the year ended Dec. 31, 2008.
were US$16,836,000 during the three months ended March 31, 2009.
in the Company's marine loss reserves.
at June 30, 2009, compared with US$8.9 million at Dec. 31, 2008.
specialization is ocean marine insurance.
previously filed claims, may take a significant period of time.
the Company acquired any interest in RFPC.
the global rail industry. Its products are found on U.S.
as in more than 100 countries throughout the world.
future date without being barred by the statute of limitations.
asbestos litigation, whether individually or in the aggregate.
generation, security, and metalworking industries.
Pembroke, Bermuda-based Argo Group International Holdings, Inc.
69 lawsuits as of March 31, 2009.
Illinois Light Company, and Illinois Power Company.
June 30, 2009, the average number of parties were 73.
subsidiary prior to the Company's acquisition of IP.
products of its corporate affiliates and predecessors.
Commission on Aug. 10, 2009.
goods, industrial rubber and home pool and spa chemicals markets.
formulations in more than 100 countries.
Exchange Commission on Aug. 10, 2009.
markets: Cranes and Related Products and Foodservice Equipment.
Company previously acquired, but which are no longer owned.
believes that it has no liability for those claims.
companies from which the Company acquired the businesses.
per occurrence and up to US$10 million in the aggregate.
presence of asbestos containing materials.
testing relating to these matters.
a total of 34.8 million square feet.
abatement at its City National Plaza and Brookhollow properties.
materials from various areas of the building structures.
properties on a nationwide basis.
compared with 55 cases that were pending as of Jan. 31, 2009.
allege more serious claims of mesothelioma.
cost per settled claim, excluding legal fees, of about US$32,000.
cases and settled two cases.
leading to, or are scheduled for trial.
as of Dec. 31, 2008.
June 30, 2009, compared with US$20 million as of Dec. 31, 2008.
Handling. The Company is based in Pittsburgh.
claims during the three months ended March 31, 2009.
subsidiary of the Company (Products).
during the three and six months ended June 30, 2008.
US$901 million during the three months ended March 31, 2008.
US$843.2 million during the three months ended March 31, 2008.
the Company on direct excess insurance claims, including Mt.
assumed business and US$159.1 million was for direct business.
exposed to this wire and cable.
claims have been handled by the applicable insurance companies.
and related services to the U.S. electrical distribution market.
distributors in the U.S. The Company is based in Houston.
1990 purchase by the Cabot subsidiary.
liability for existing and future respirator liability claims.
the Securities and Exchange Commission on Aug. 10, 2009.
related claim is not resolved in its favor.
Securities and Exchange Commission on Aug. 10, 2009.
with a remaining reserve balance of US$143,000.
party company located near the Gradall facility.
have to be remediated over time.
related aftermarket parts and services.
allege exposure to asbestos from multiple sources.
corresponding asbestos regulatory asset was US$2.4 million.
the corresponding asbestos regulatory asset was US$2.5 million.
Pollutants that regulates the use of asbestos.
US$300,000 annually in its rates related to those costs.
natural gas pipeline operations and development opportunities.
distribution business operations primarily in California.
Justice Center. No other purported party was served.
the material terms of the missing policy or policies is needed.
D/C filed an answer and an amended cross-claim.
payment by plaintiffs in the amount of US$1,618,000.
proofs of claim on behalf of about 700 claimants.
include various environmental and asbestos-related claims.
certain asbestos-related claims asserted thereafter.
1998 and not indemnified by the Original Indemnitor.
Division's assets and liabilities in its financial statements.
two of its subsidiaries entered into a transfer agreement.
including environmental claims that Pneumo Abex did not transfer.
it manufactured or distributed asbestos-containing products.
are managed and paid by others.
settlements, 434 dismissals, and 1,269 pending claims.
certain policies within the Umbrella Coverage exhaust.
future liability at the present time.
Hampton facility manufactured asbestos-based products until 1975.
no responsibility for any additional shared damages.
The Company paid the settlement amount in November 2008.
Shelton, Conn.-based Panolam Industries International, Inc.
Panolam, Pluswood, Nevamar and Pionite brand names.
with the Securities and Exchange Commission on Aug. 14, 2009.
US$7.8 million as of Dec. 31, 2008.
--- Payments of US$1 million were made for asbestos abatement.
containing an aggregate of 3.5 million net rentable square feet.
On Feb. 7, 2001, G-I Holdings filed an action in the U.S.
alter ego of G-I Holdings (BMCA Action).
reference of the BMCA Action from the Bankruptcy Court.
position that it has no successor liability for Asbestos Claims.
Court's July 7, 2004 order.
future holders of asbestos-related claims.
settlement of Asbestos Claims and all related litigation.
Court on Oct. 30, 2008.
of G-I Holdings on July 28, 2009.
proceedings, which include asbestos exposure allegations.
Commission on Aug. 24, 2009.
operating through Sears Canada Inc., a 73 percent-owned unit.
Securities and Exchange Commission on Aug. 27, 2009.
28, 2009 and US$6.3 million on June 29, 2008.
original equipment manufacturers (OEMs) worldwide.
Commission on Aug. 28, 2009.
Hill, Ill., against 41 defendant corporations was filed on Aug.
Mr. Sisson was diagnosed with cancer on March 9, 2009.
electrician helper in 1979 at DuPont Chemical Company.
Associates represent the Sissons in Case No. 09-L-463.
District Court, Tex., The Southeast Texas Record reports.
with malignant mesothelioma on July 30, 2009.
Nemeroff in Houston, represent the Harrells.
An asbestos-related lawsuit, styled Patrick Doyle et ux vs.
District Court, The Southeast Texas Record reports.
who worked for the defendants.
represented by Bryan Blevins, Esq.
Judge Milton Shuffield presides over Case No. D184-782.
Act, according to an EPA press release dated Sept. 8, 2009.
at the right time to observe the projects.
lacks funds to safely remove the asbestos.
and ensure contractors are following the asbestos regulations."
wastes, and properly disposing of them at permitted landfills.
(AHERA), according to an EPA press release dated Sept. 8, 2009.
no asbestos management plans for the schools were created.
inspections and have asbestos management plans."
complying with the regulations from the penalty amount.
building materials were found at North Pointe Preparatory.
teachers, and employees regarding the availability of the plan.
Copyright 2009. All rights reserved. ISSN 1525-2272.

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


text:
Dieser Dienstleister sitzt in einem Land außerhalb der Europäischen Union, für das die Europäische Kommission durch Beschluss ein angemessenes Datenschutzniveau festgestellt hat.
Wenn Sie sich für Klarnas Zahlungsdienstleistungen entscheiden, bitten wir Sie um Ihre Einwilligung nach Art. 6 Abs. 1 S. 1 lit. a DSGVO, dass wir die für die Abwicklung der Zahlung und eine Identitäts- und Bonitätsprüfung notwendigen Daten an Klarna übermitteln dürfen. In Deutschland können für die Identitäts- und Bonitätsprüfung die in Klarnas Datenschutzerklärunggenannten Wirtschaftsauskunfteien eingesetzt werden.
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These access data are evaluated exclusively for the purpose of ensuring a trouble-free operation of the site as well as the improvement of our offer. In accordance with Art. 6 para. 1 sentence 1 lit. F DSGVO the preservation of our legitimate interests, which predominate in the context of a weighing up of interests, in a correct presentation of our offer. All access data will be deleted no later than seven days after the end of your page visit.
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Today, litigation has become an inevitable part of doing business. When it comes to the varied legal issues companies face, we have seen it all—from unfair competition claims, to business contract lawsuits, to shareholder rights disputes and more. For decades, we have represented companies of all sizes across a broad range of industries, including banking, law, accounting, and manufacturing, to name a few.
With a flexible approach, a comprehensive understanding of the current corporate climate, and substantial experience in every aspect of commercial litigation, we efficiently bring our clients’ disputes to an agreeable close, and we save them valuable time and money in the process. We have seen success in everything from small disputes to multimillion dollar claims, including one judgment for a computer hardware manufacturer that ranked as one of the single largest arbitration awards in Minnesota history. More than just courtroom outcomes, we take pride in helping clients proactively protect their business and confidently navigate their legal disputes.
Represented a global computer-equipment company, obtaining a decision affirming and reinstating an arbitration award resulting in a total award exceeding $800 million in a misappropriation of a trade secret dispute. Seagate Tech., LLC v. Western Digital Corp., 854 N.W.2d 750 (Minn. 2014).
Currently representing a global agricultural corporation in a multimillion dollar grain, fertilizer, oil and oil field supplies transloading site in Canada involving breach of contract, tortious interference, and equitable claims. Scoular Co. v. Ceres Glob. Ag Corp., No. 14-1881 (D. Minn.).
Currently representing the chief executive officer, chairman of the board, and minority shareholder in a dispute involving a successful family business. Barry v. Twin City Fan Cos., No. 27-CV-16-15719 (Hennepin Cty. Minn.).
Represented dealers at trial against a multinational agricultural company, obtaining a six-figure jury verdict and finding of no liability on a seven-figure counterclaim arising from a breach of seed distribution agreement. Meade v. Syngenta, No. 27-CV-14-18515 (Hennepin Cty. Minn. 2016).
Represented a global medical-device company in district court and on appeal, winning summary judgment on liability for breach-of-contract and tortious interference claims, together with a jury verdict and seven-figure judgment, including an attorneys’ fees award. St. Jude Med., S.C., Inc. v. Biosense Webster, Inc., 818 F.3d 785 (8th Cir. 2016).
Represented a global manufacturer in a dealer termination action enforcing the Minnesota choice-of-law and forum-selection provision and rejecting the claimed applicability of the New Jersey Franchise Practices Act. B-Jays USA, Inc. v. Red Wing Shoe Co., Inc., 2015 WL 5896151 (D.N.J. Oct. 6, 2015).
Represented an individual at trial, obtaining a $4.75 million jury verdict against a large manufacturer in a fraudulent transfer case. Johnson v. USL Products, Inc., No. 27-CV-10-9077 (Hennepin Cty. Minn. 2014).
Represented an individual, obtaining a $2.3 million arbitration award in a case involving breach of a buyout agreement related to a casino-development project in California. Argovitz v. Lakes Entm’t, No. 65-20-1400-0072 (A.A.A. 2014).
Represented a realty company and its parent company, obtaining a favorable outcome in a theft of a copyright and antitrust matter. Regional Multiple Listing Serv. of Minn., Inc. v. Am. Home Realty Network, Inc. v. Edina Realty, Inc., No 12-CV-0965 (D. Minn. Sept. 16, 2014).
Defended an energy company at trial, obtaining a defense jury verdict in a case involving tortious interference with a frac-sand mining contract and claimed damages exceeding $60 million. Stein v. Wesch, No. 25-CV-11-733 (Goodhue Cty. Minn. 2013).
Represented a business and its owner at trial, obtaining a favorable jury verdict in a contract dispute with a railroad. Heffron v. Burlington N. and Santa Fe Ry. Co., No. 34-CV-08-660 (Kandiyohi Cty. Minn. 2011).

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[90 U.S.App.D.C. 295] Joseph F. Goetten, Asst. U.S. Atty., Washington, D.C., with whom George Morris Fay, U.S. Atty. at the time the brief was filed, and Joseph M. Howard, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellant. Charles M. Irelan, U.S. Atty. at the time of argument, Washington, D.C., also entered an appearance for appellant.
Joseph Forer, Washington, D.C., with whom David Rein, Washington, D.C., was on the brief, for appellee.
Before EDGERTON, PROCTOR and WASHINGTON, Circuit Judges.
In this case the United States District Court for the District of Columbia issued a judgment, pursuant to 8 U.S.C.A. § 903, declaring that the plaintiff-appellee, Irving Albert, is a citizen of the United States. The decree also enjoined the defendant Dean G. Acheson, Secretary of State, from denying Albert a passport 'on the ground or for the reason that he is not a citizen of the United States of America.'1 The Secretary of State appeals.
Irving Albert was born in Poland of Polish parents on December 19, 1921. His father became a citizen of the United States by naturalization on May 11, 1928. The son emigrated to the United States in May 1938, and has since that time maintained permanent residence in this country. In 1950 he applied to the Department of State for a passport. His request was denied on the ground that he was not a citizen. The present action followed.
The Government reads the last proviso of this section as meaning that it is only a minor child who can acquire derivative citizenship, and argues that Albert, who was twenty-two years of age when he fulfilled the five years residence requirement, could not and did not become a citizen under the Act. Appellee's view, on the other hand, is that the words 'such minor child' have reference simply to the fact that the child who is to acquire citizenship must, by the first proviso, be under twenty-one at the time of the parent's naturalization. He argues that the second proviso is intended only to require a specific term of residence before citizenship begins, and commencement of residence during the minority of the child.
The words of the proviso itself shed little light on which of these meanings is intended. That being so, we must look to the principal clause of the section for guidance as to the main and governing purpose of Congress. That purpose is that 'a child' of alien parents who is born outside the United States 'shall be deemed a citizen' by derivation from a parent who has acquired citizenship. No requirement appears in the governing clause that the child be a minor. Restrictions with regard to age appear only in the two provisos. Those restrictions must be construed in a manner consistent with and ancillary to the paramount purpose of Congress. United States v. Dickson, 1841, 15 Et. 141, 40 U.S. 141, 10 L.Ed. 689.
If Congress had intended the result for which the Government contends, it could have expressed that intention very easily and clearly by adopting a formula similar to that contained in section 1 of the same Act (of March 24, 1934), which dealt with children born abroad of parents one or both of whom already was a citizen. Section 1 spelled out explicitly the requirement that the child must complete the waiting period of United States residence prior to a stated age.5 But Congress did not do that in section 2. It simply took the second proviso contained in section 5 of the 1907 Act,6 to the effect that 'the citizenship of such minor child shall begin at the time such minor child begins to reside permanently in the United States,' and amended it by inserting the words 'five years after' in place of the word 'at.' What could it have intended by so doing other than to create a waiting period of five years?7 Certainly we cannot believe that [90 U.S.App.D.C. 297] Congress by this rather cryptic change intended radically to lower the age for taking up residence, so as to make it impossible for minors arriving in this country after their sixteenth birthday to acquire derivative citizenship.
We assume that under the second proviso in the 1907 Act Congress intended to require that the child be a minor at the time he entered the United States to take up residence: the phrase 'the citizenship of such minor child shall begin' when 'such minor child begins to reside permanently in the United States' can be read to require that residence must begin during minority. See United States ex rel. Betty v. Day, 2 Cir., 23 F.2d 489, 490. The amendment made in 1934 did not change the quoted words, or the requirement they impose, and we assign them no different meaning than they conveyed when enacted. The words which were inserted called for a waiting period, and we give them that effect.
The Government seeks support for its position from the circumstance that throughout the earlier and subsequent history of the naturalization laws, derivative citizenship was available only to minors. But as no statute before or since the 1934 Act (including the Act of 1940, now in force) required a waiting period of residence,8 we fail to see any force in this argument. We conclude, therefore, that the District Court correctly ruled that Albert was a citizen.
1 See Perkins v. Elg, 307 U.S. 325, 349-50, 59 S.Ct. 884, 83 L.Ed. 1320.
2 48 Stat. 797. Appellee also contends that such a right accrued under section 5 of the Act of March 2, 1907, 34 Stat. 1229, but our view of the effect of the 1934 Act makes it unnecessary to consider this contention.
3 54 Stat. § 1145, 8 U.S.C.A. 714.
4 The State Department's original denial of the citizenship claim rested on the theory that the passage of the 1940 Act deprived plaintiff of the possibility of acquiring derivative citizenship on the facts presented.
5 The pertinent provision read: 'In cases where one of the parents is an alien, the right of citizenship shall not descend unless the child comes to the United States and resides therein for at least five years continuously immediately previous to his eighteenth birthday, and unless, within six months after the child's twenty-first birthday, he or she shall take an oath of allegiance to the United States of America as prescribed by the Bureau of Naturalization.' 48 Stat. 797. See 78 Cong.Rec. 7355.
7 This amendment was proposed from the floor by Representative Dies. His declared intention in offering the amendment was to make section 2 'the same' as section 1. See 78 Cong.Rec. 7355, 7356; compare ibid. 7340, 7342. What he meant by 'same,' however, is most uncertain. For not only is the language very obviously not the same in the two sections, but they deal with different subject matters and impose different age requirements. The element of 'sameness' rests in the requirement of a five year waiting period, imposed in both sections. Certainly that is all which could be gathered from the amending language, and no other intent can be imputed to Congress on the strength of a statement from the floor of a single House, with regard to a provision never taken up or commented on by a committee of either House. 'To accept legislative debates to modify statutory provisions is to make the law inaccessible to a large part of the country.' Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 396-397, 71 S.Ct. 745, 751, 95 L.Ed. 1035, per Justice Jackson, concurring.
8 Act of March 26, 1790, 1 Stat. 103, 104; Act of March 2, 1907, 34 Stat. 1229; Nationality Act of 1940, 54 Stat. 1145, 8 U.S.C.A. § 714.
9 Compare Regal Knitwear Co. v. NLRB, 324 U.S. 9, 65 S.Ct. 478, 89 L.Ed. 661; Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 234-235, 38 S.Ct. 65, 62 L.Ed. 260; and see Rule 65(d), Fed. R. Civ. P. The judgment entered in the present case would no doubt be res judicata on the law and facts as against the Secretary's successors in office. New Orleans v. Citizens' Bank, 167 U.S. 371, 388-389, 17 S.Ct. 905, 52 L.Ed. 202; Safeway Stores v. Porter, Em. App., 154 F.2d 656; Finch v. Dobbs, 112 Miss. 73, 72 So. 858. If the language used is intended to reflect simply that fact, it can do no harm. Whether a citation for contempt could be issued against a successor in office is a question we need not here consider; certainly the inclusion of the words complained of could not be decisive of that issue when and if it should arise.
10 The Government also urges that the injunction is too broad in that it prohibits refusal of a passport by reason of noncitizenship, whereas it is possible that Albert might some day forfeit or lose citizenship under present or future legislation. This objection contemplates eventualities too speculative to warrant present consideration.


§ 77-3 Qualifications for nature preserves.
§ 77-4 Evaluation and dedication of parcels to nature preserve.
§ 77-5 Management of nature preserves.
§ 77-7 Nature preserves designated on lands not owned by Town.
§ 77-8 Use of nature preserves.
§ 77-9 Hours of operation.
§ 77-10 Responsibility for loss, damage or theft.
§ 77-12 Removal of all or portions of site from nature preserve.
§ 77-14 Penalties for offenses.
Vegetation on beach areas — See Ch. 75.
Critical environmental areas — See Ch. 80.
Wetlands — See Ch. 81.
Many areas of the Town of Brookhaven contain natural resources which are vital to, and enhance the quality of, the life of its residents. These natural resources include significant populations of wildlife; important natural communities; rare, endangered, unique or locally significant species of plants and wildlife; ponds, lakes, streams, estuaries and other surface waters; important geological formations; prehistoric, aboriginal and historic cultural resources; and pristine potable groundwater.
Accordingly, it is recognized that many parts of the Town which contain important natural resources and which are either in public or private ownership, should be maintained in or as near as possible to their existing natural state in order to ensure the continued ecological benefits of these areas for Town residents.
Therefore, it is the purpose of this chapter to designate areas as nature preserves and to manage and protect these areas in their existing natural or as near to natural state as possible for the benefit of present and future Town residents.
A program authorizing the entering into of an agreement between the Town of Brookhaven and qualifying individuals, organizations, groups, and business entities for the purpose of allowing these qualified individuals, organizations, groups and business entities to conduct routine stewardship and maintenance activities for the preservation of the nature preserve.
A legal, binding, written agreement between the Town of Brookhaven and the owners of private properties or public properties (other than those owned by the Town of Brookhaven) to allow the Town of Brookhaven to manage such lands in the same manner and for the same goals as Town-owned nature preserves.
The Town of Brookhaven Division of Economic Development.
The Town of Brookhaven Highway Department.
The Town of Brookhaven Department of Housing, Community Development and Intergovernmental Affairs.
The Town of Brookhaven Division of Land Management.
Any land(s), public or private, which are either owned by or under the jurisdiction of the Town of Brookhaven, or the Trustees of the Freeholders and Commonalty of the Town of Brookhaven, which have been designated by resolution of the Town Board of the Town of Brookhaven to be maintained in its existing natural state or a near-natural state or restored to a natural state.
The Town of Brookhaven Department of Parks, Recreation and Sports and Cultural Resources.
The Town of Brookhaven Division of Planning.
Real property owned by individual persons, firms, partnerships, corporations, associations, companies or private utilities and which are not owned by the Town or other governmental bodies.
Real property owned by governmental bodies, villages, the County of Suffolk, the State of New York or the United States government and which are not owned by the Town of Brookhaven.
Real property owned by the Town of Brookhaven.
The Town of Brookhaven Department of Recycling and Sustainable Materials Management.
The land. area, surrounding a public water supply well or wellfield, which contributes water in a manner and direction that will result in the water being entrained by the well or wellfield.
Editor's Note: The definition of “Division of Environmental Protection,” which immediately followed this definition, was repealed 9-6-2005 by L.L. No. 23-2005, effective 9-12-2005.
It provides habitat for endangered, threatened or special concern wildlife species, as listed in the New York State Environmental Conservation Law § 11-0535 or the Federal Endangered Species Act.
It provides habitat for wildlife which are of special concern to the Town of Brookhaven or those that are of special or unique local importance.
It contains habitats that contain or support occurrences of rare plant or wildlife species or ecological communities identified by the New York State Natural Heritage Program, which are ranked S1, S2, G1 or G2.
It contains habitat that provides breeding, feeding, nesting or resting areas for significant concentrations or populations of wildlife or is a locally important haven for wildlife.
It contains freshwater or tidal wetlands.
It contains tree specimens listed on the state or national tree size records list: large, old growth forest stands or vegetational communities which are unusual in the Town or significant populations of protected plants as defined in the New York State Environmental Conservation Law § 9-1503.
It contains examples of forests or other vegetational communities that were, but are no longer, common on Long Island, or contains outstanding examples of such which are unique to Long Island.
It contains unique geological features such as kettleholes, drumlins, kames, or swales or those geological formations which are vulnerable to human disturbance, such as bluffs and dunes.
It contains significant prehistoric, aboriginal or historic cultural resources or is adjacent to sites containing significant cultural resources.
It lies over and protects sensitive deep-recharge or shallow-recharge aquifers, lies within core watershed areas, lies within special groundwater protection areas, lies within the zone of influence of public water supply well, or lies in areas important for maintaining surface water quality.
It provides scenic views, natural beauty or important local visual buffers or noise buffers.
It provides an interconnection between two or more existing Town, county, state or federal nature preserves which are currently separate.
Parcels of real property to be considered for nature preserve dedication shall first be evaluated by the Division of Land Management, which shall consult with only the Department of Parks, Recreation and Sports, and Cultural Resources for parcels previously dedicated as open space or parkland. The Division of Land Management shall consult with other Town departments and divisions, including, but not limited to, the Division of Planning, the Division of Economic Development, the Highway Department, the Department of Recycling and Sustainable Materials Management, the Department of Housing, Community Development, and Intergovernmental Affairs and the Department of Parks, Recreation and Sports, and Cultural Resources for parcels which are currently classified for general municipal use. Any parcel considered for nature preserve designation must meet at least one or more of the criteria listed in § 77-3.
Introduction and reason for dedication to nature preserve, including the criteria the property meets as set forth in § 77-3.
Legal setting and background. This section shall include the legal background of a proposed parcel, including the circumstances surrounding the taking or receipt of the parcel by the Town and the presence of any restrictions, covenants, and conditions.
General site information. This section shall include the location and size of the parcel, existing land use and information on site access.
Environmental setting and resources. This section shall include information on the geology, soils, topography, vegetation (based on on-site observations), wildlife (based both on on-site observations and review of literature for potential wildlife species), ecological communities, water recharge potential, groundwater, surface water, visual resources and cultural resources of the parcel proposed for designation as a nature preserve.
Potential for use as public parkland or other municipal use. This section shall evaluate the merit of using the site for public park purposes and shall evaluate the merits of public use versus preservation. This section shall also evaluate the use of the parcel for some municipal purpose other than a nature preserve or public park. The recommendation of the Commissioner of the Department of Parks, Recreation and Sports and Cultural Resources; Superintendent of Highways or other Commissioners shall accompany this section of the report.
Recommendation. Based on its evaluation report for a particular parcel, the Division of Land Management shall submit to the Town Board a formal recommendation regarding the parcel accompanied by a copy of the report described in § 77-4A. If in conflict with the recommendation of the Commissioner of Parks, Recreation and Sports and Cultural Resources; the Superintendent of Highways or other Commissioners, the recommendation shall note said conflict.
Dedication procedure. After considering the recommendation and report submitted by the Division of Land Management, the Town Board may dedicate parcels as Town nature preserves by resolution providing the owner and any mortgagees consent thereto. The resolution may designate all or a portion of a site as nature preserve. Upon dedication as a nature preserve, the Tax Assessor shall make an appropriate notation in the assessment records and the Commissioner of Planning, Environment and Land Management shall cause the Town Real Property Inventory to be so noted.
The majority of a nature preserve site shall be maintained in its existing natural or near-natural state or restored to a natural state and shall not be used for active purposes, such as ballfields, basketball courts, tennis courts, picnic areas, or other uses which would physically impair or irreparably alter the ecological or cultural value of said site. A minor portion of the nature preserve, up to 2% of the total acreage of the nature preserve parcel with a maximum of 40,000 square feet, may be used for parking, structures for interpretation and public comfort and the installation of trails, including wooden walkways. The restoration of portions of or all of a nature preserve to a previous natural condition, activities which maintain and perpetuate certain types of ecological communities such as the periodic mowing of grasslands, invasive species control, the implementation of prescribed burns, planting of native plant species and other activities which enhance certain ecological qualities such as the improvement of a site for certain species of wildlife or vegetation shall not be precluded, however.
Upon dedication as a nature preserve, said nature preserve, shall be posted with appropriate signs identifying the site as a Town nature preserve.
Limitations on use. Use limitations on nature preserves may be imposed as needed in order to protect its ecological resources. Limitations may include designation of hours, days and seasons of use; access; prohibitions of certain types of activities; allowance of access by prearranged permit only and other reasonable limitations deemed necessary. Limitations on use shall be included in the management plan.
Management plan. Within one year of a site's designation as a nature preserve, a management plan shall be prepared for the site which recommends the best use and management of the ecological qualities of the site. Each management plan shall be based on a literature review and in-depth on-site observations and inventories of a nature preserve's natural resources, including wildlife, vegetation, geology, cultural resources and other ecological characteristics and may include a review of relevant published reports, studies or articles. The management plan shall recommend the type of passive uses which may be acceptable; shall identify significant, sensitive areas which should be protected from human disturbance; shall recommend locations for trails, parking, fencing, signs and access points; shall identify desirable restoration activities; shall determine hours, days and seasons of use; shall recommend any limits on access if necessary; shall recommend the preparation of any interpretive publications and displays, and shall provide a timetable for implementation. Draft management plans shall be presented to the Town Board for its review. Upon approval of a management plan by the Town Board, said management plan shall be implemented by the Division of Land Management. Management plans may be revised as needed and, if revised, shall be subject to all the requirements of this chapter.
Upon prior approval as part of a management plan for a specific nature preserve, the Town may allow the use of unpaid volunteers who are not full-time or part-time employees of the Town of Brookhaven for assistance in the management of its nature preserves. Volunteers shall be overseen and supervised by the Division of Land Management.
The Town may consider the designation of private lands or public lands, other than those owned by the Town of Brookhaven, as nature preserves. Such designation shall be at the request of the private entity or public agency controlling the subject land and said nature preserve designation shall only ensue upon the execution of a cooperative management agreement between the Town and the private or public owner. Said agreement shall include designation of responsibility for liability and a determination of reasonable financial remuneration required to maintain and manage the non-Town nature preserve. Upon designation as a Town nature preserve, said parcel shall be subject to all the requirements of the chapter.
Town nature preserves shall be used by residents (persons who reside in the Town of Brookhaven) and/or owners of taxable real property located in the Town of Brookhaven and nonresidents as authorized by the Town of Brookhaven. Nonresidents and guests of residents or taxpayers may be admitted to nature preserves pursuant to regulations issued by the Town Board.
Except as noted in a management plan for a particular nature preserve or unless it is expressly posted on a particular nature preserve, a nature preserve shall be open for use between dawn and dusk, every day of the year.
The Town shall not be responsible for loss, damage, theft, or injury to private or personal property used on a Town nature preserve, nor shall it be responsible for injuries sustained by reason of the public use of said facilities. Town nature preserves shall be used at the sole risk of the public.
Use of a nature preserve outside of the hours of operation as noted in § 77-9.
Use of any motorized vehicle or self-propelled wheeled vehicle within a nature preserve, except for official vehicles of the Town of Brookhaven or other public agency.
Camping, fishing, bathing and swimming unless authorized by the Town of Brookhaven.
Kindling, building, maintaining or use of a fire.
Littering, dumping or burial of any refuse, rubbish, debris, yard waste, fill, soil or vehicles as defined in Chapter 45 of the Town Code.
The allowance of any dog, cat, livestock, horses or other non-native wildlife to enter within, into or onto a Town nature preserve.
The use of motorized or unmotorized watercraft on or within any body of surface water within a Town nature preserve unless specifically authorized by the Town of Brookhaven.
The injury, destruction, defacement, displacement, removal, filling in, raising, or tampering with of any Town-owned drive, path, walkway, boardwalk, structures, equipment, vehicle or signs or any wildlife, vegetation, natural features, surface water, cultural resources or any other ecological feature within a Town nature preserve.
The carrying or use of explosives, firearms, shotguns, rifles, handguns, BB or pellet guns and slingshots, any other weapon in which the propelling force is a spring, elastic material or compressed air or gas or archery equipment, except by a police officer or peace officer.
The feeding of wild animals or the feeding and sheltering of domestic animals.
Editor's Note: This local law also redesignated former Subsections K and L as L and M, respectively.
Any other use designated by resolution of the Town Board for a particular site.
Where appropriate, the Town Board may, by resolution, permit one or more of the uses enumerated above.
Any such proposal shall be designated a Type I action under the State Environmental Quality Review Act.
A public hearing on such a proposal shall be held.
No decision of the Town Board shall be made on removal of all or part of a nature preserve designation for a period of 30 days after closing the hearing. During said thirty-day period written comments shall be accepted by the Town Board.
Any decision of the Town Board shall include compliance with all applicable county, state, or federal laws and/or rules and regulations governing the disposition and/or alienation of public parkland.
The Division of Land Management is hereby authorized to develop an “Adopt-A-Preserve” program and to enter into “Adopt-A-Preserve” agreements, subject to the review and approval of the Town Attorney, with interested individuals, organizations, businesses for the purpose of maintaining properties dedicated to the Town's nature preserve system.
Criminal penalties. The violation of any provision of this chapter shall be deemed an offense which shall be punishable by a fine of not less than $100 nor more than $1,000 or by imprisonment for a period not to exceed 15 days, or by both such fine and imprisonment.
Civil penalties. In addition to any criminal penalties which may be improved pursuant to Subsection A, any person who violates any provision of this chapter may be ordered to restore that portion of a nature preserve damaged by their unlawful destruction to such conditions as the Town Board may require. In the event that such person refuses or fails to restore the portion of the nature preserve damaged by them to a condition ordered by the Town Board, the Town Board may proceed in a court of competent jurisdiction for an order directing such person to restore the affected portion of the nature preserve in conformity with the requirements of the Town Board.