The protections of the Free Exercise Clause in the First Amendment apply to the states as well as the federal government.
1. The fundamental concept of liberty embodied in the Fourteenth Amendment embraces the liberties guaranteed by the First Amendment. P. 310 U. S. 303.
2. The enactment by a State of any law respecting an establishment of religion or prohibiting the free exercise thereof is forbidden by the Fourteenth Amendment. P. 310 U. S. 303.
3. Under the constitutional guaranty, freedom of conscience and of religious belief is absolute; although freedom to act in the exercise of religion is subject to regulation for the protection of society. Such regulation, however, in attaining a permissible end, must not unduly infringe the protected freedom. Pp. 310 U. S. 303-304.
4. A state statute which forbids any person to solicit money or valuables for any alleged religious cause, unless a certificate therefor shall first have been procured from a designated official, who is required to determine whether such cause is a religious one and who may withhold his approval if he determines that it is not, is a previous restraint upon the free exercise of religion, and a deprivation of liberty without due process of law in violation of the Fourteenth Amendment. P. 310 U. S. 304.
So held as it was applied to persons engaged in distributing literature purporting to be religious, and soliciting contributions to be used for the publication of such literature.
A State constitutionally may, by general and nondiscriminatory legislation, regulate the time, place and manner of soliciting upon its streets, and of holding meetings thereon, and may in other respects safeguard the peace, good order and comfort of the community.
The statute here, however, is not such a regulation. If a certificate is issued, solicitation is permitted without other restriction; but if a certificate is denied, solicitation is altogether prohibited.
5. The fact that arbitrary or capricious action by the licensing officer is subject to judicial review cannot validate the statute. A previous restraint by judicial decision after trial is as obnoxious under the Constitution as restraint by administrative action. P. 310 U. S. 306.
6. The common law offense of breach of the peace may be committed not only by acts of violence, but also by acts and words likely to produce violence in others. P. 310 U. S. 308.
7. Defendant, while on a public street endeavoring to interest passerby in the purchase of publications, or in making contributions, in the interest of what he believed to be true religion, induced individuals to listen to the playing of a phonograph record describing the publications. The record contained a verbal attack upon the religious denomination of which the listeners were members, provoking their indignation and a desire on their part to strike the defendant, who thereupon picked up his books and phonograph and went on his way. There was no showing that defendant's deportment was noisy, truculent, overbearing, or offensive; nor was it claimed that he intended to insult or affront the listeners by playing the record; nor was it shown that the sound of the phonograph disturbed persons living nearby, drew a crowd, or impeded traffic.
Held, that defendant's conviction of the common law offense of breach of the peace was violative of constitutional guarantees of religious liberty and freedom of speech. Pp. 310 U. S. 307 et seq.
126 Conn. 1; 8 A.2d 533, reversed.
APPEAL from, and certiorari (309 U.S. 626) to review, a judgment which sustained the conviction of all the defendants on one count of an information and the conviction of one of the defendants on another count. The convictions were challenged as denying the constitutional rights of the defendants.
they made the point that they could not be found guilty on the fifth count without violation of the Amendment.
We have jurisdiction on appeal from the judgments on the third count, as there was drawn in question the validity of a state statute under the Federal Constitution and the decision was in favor of validity. Since the conviction on the fifth count was not based upon a statute, but presents a substantial question under the Federal Constitution, we granted the writ of certiorari in respect of it.
The facts adduced to sustain the convictions on the third count follow. On the day of their arrest, the appellants were engaged in going singly from house to house on Cassius Street in New Haven. They were individually equipped with a bag containing books and pamphlets on religious subjects, a portable phonograph, and a set of records, each of which, when played, introduced, and was a description of, one of the books. Each appellant asked the person who responded to his call for permission to play one of the records. If permission was granted, he asked the person to buy the book described, and, upon refusal, he solicited such contribution towards the publication of the pamphlets as the listener was willing to make. If a contribution was received, a pamphlet was delivered upon condition that it would be read.
Cassius Street is in a thickly populated neighborhood where about ninety percent of the residents are Roman Catholics. A phonograph record, describing a book entitled "Enemies," included an attack on the Catholic religion. None of the persons interviewed were members of Jehovah's Witnesses.
or philanthropic cause, from other than a member of the organization for whose benefit such person is soliciting or within the county in which such person or organization is located unless such cause shall have been approved by the secretary of the public welfare council. Upon application of any person in behalf of such cause, the secretary shall determine whether such cause is a religious one or is a bona fide object of charity or philanthropy and conforms to reasonable standards of efficiency and integrity, and, if he shall so find, shall approve the same and issue to the authority in charge a certificate to that effect. Such certificate may be revoked at any time. Any person violating any provision of this section shall be fined not more than one hundred dollars or imprisoned not more than thirty days or both."
"in addition to the sale of the books and the distribution of the pamphlets, the defendants were also soliciting contributions or donations of money for an alleged religious cause, and thereby came within the purview of the statute."
It overruled the contention that the Act, as applied to the appellants, offends the due process clause of the Fourteenth Amendment because it abridges or denies religious freedom and liberty of speech and press. The court stated that it was the solicitation that brought the appellants within the sweep of the Act, and not their other activities in the dissemination of literature. It declared the legislation constitutional as an effort by the State to protect the public against fraud and imposition in the solicitation of funds for what purported to be religious, charitable, or philanthropic causes.
two men in the street, asked, and received, permission to play a phonograph record, and played the record "Enemies," which attacked the religion and church of the two men, who were Catholics. Both were incensed by the contents of the record, and were tempted to strike Cantwell unless he went away. On being told to be on his way, he left their presence. There was no evidence that he was personally offensive or entered into any argument with those he interviewed.
The court held that the charge was not assault or breach of the peace or threats on Cantwell's part, but invoking or inciting others to breach of the peace, and that the facts supported the conviction of that offense.
second cannot be. Conduct remains subject to regulation for the protection of society. [Footnote 4] The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case, the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. No one would contest the proposition that a State may not, by statute, wholly deny the right to preach or to disseminate religious views. Plainly, such a previous and absolute restraint would violate the terms of the guarantee. [Footnote 5] It is equally clear that a State may, by general and nondiscriminatory legislation, regulate the times, the places, and the manner of soliciting upon its streets, and of holding meetings thereon, and may in other respects safeguard the peace, good order, and comfort of the community without unconstitutionally invading the liberties protected by the Fourteenth Amendment. The appellants are right in their insistence that the Act in question is not such a regulation. If a certificate is procured, solicitation is permitted without restraint, but, in the absence of a certificate, solicitation is altogether prohibited.
that end transgresses the liberty safeguarded by the Constitution.
The general regulation, in the public interest, of solicitation, which does not involve any religious test and does not unreasonably obstruct or delay the collection of funds is not open to any constitutional objection, even though the collection be for a religious purpose. Such regulation would not constitute a prohibited previous restraint on the free exercise of religion or interpose an inadmissible obstacle to its exercise.
It is suggested that the statute is to be read as requiring the officer to issue a certificate unless the cause in question is clearly not a religious one, and that, if he violates his duty, his action will be corrected by a court.
and manner of solicitation generally, in the interest of public safety, peace, comfort or convenience. But to condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution.
Second. We hold that, in the circumstances disclosed, the conviction of Jesse Cantwell on the fifth count must be set aside. Decision as to the lawfulness of the conviction demands the weighing of two conflicting interests. The fundamental law declares the interest of the United States that the free exercise of religion be not prohibited and that freedom to communicate information and opinion be not abridged. The State of Connecticut has an obvious interest in the preservation and protection of peace and good order within her borders. We must determine whether the alleged protection of the State's interest, means to which end would, in the absence of limitation by the Federal Constitution, lie wholly within the State's discretion, has been pressed, in this instance, to a point where it has come into fatal collision with the overriding interest protected by the federal compact.
would weigh heavily in any challenge of the law as infringing constitutional limitations. Here, however, the judgment is based on a common law concept of the most general and undefined nature. The court below has held that the petitioner's conduct constituted the commission of an offense under the state law, and we accept its decision as binding upon us to that extent.
The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts, but acts and words likely to produce violence in others. No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot, or that religious liberty connotes the privilege to exhort others to physical attack upon those belonging to another sect. When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order appears, the power of the State to prevent or punish is obvious. Equally obvious is it that a State may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions. Here we have a situation analogous to a conviction under a statute sweeping in a great variety of conduct under a general and indefinite characterization, and leaving to the executive and judicial branches too wide a discretion in its application.
intended to insult or affront the hearers by playing the record. It is plain that he wished only to interest them in his propaganda. The sound of the phonograph is not shown to have disturbed residents of the street, to have drawn a crowd, or to have impeded traffic. Thus far, he had invaded no right or interest of the public, or of the men accosted.
The record played by Cantwell embodies a general attack on all organized religious systems as instruments of Satan and injurious to man; it then singles out the Roman Catholic Church for strictures couched in terms which naturally would offend not only persons of that persuasion, but all others who respect the honestly held religious faith of their fellows. The hearers were, in fact, highly offended. One of them said he felt like hitting Cantwell, and the other that he was tempted to throw Cantwell off the street. The one who testified he felt like hitting Cantwell said, in answer to the question "Did you do anything else or have any other reaction?" "No, sir, because he said he would take the victrola, and he went." The other witness testified that he told Cantwell he had better get off the street before something happened to him, and that was the end of the matter, as Cantwell picked up his books and walked up the street.
personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.
The essential characteristic of these liberties is that, under their shield, many types of life, character, opinion and belief can develop unmolested and unobstructed. Nowhere is this shield more necessary than in our own country, for a people composed of many races and of many creeds. There are limits to the exercise of these liberties. The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all. These and other transgressions of those limits the States appropriately may punish.
The judgment affirming the convictions on the third and fifth counts is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.
General Statutes § 6294, as amended by § 860d of the 1937 supplement.
126 Conn. 1, 8 A.2d 533.
Reynolds v. United States, 98 U. S. 145; Davis v. Beason, 133 U. S. 333.
Compare Near v. Minnesota, 283 U. S. 697, 283 U. S. 713.
Near v. Minnesota, 283 U. S. 697.
Compare Lewis Publishing Co. v. Morgan, 229 U. S. 288, 229 U. S. 306-310; New York ex rel. Bryant v. Zimmerman, 278 U. S. 63, 278 U. S. 72.
Compare Gitlow v. New York, 268 U. S. 652, 268 U. S. 670-671; Thornhill v. Alabama, ante, pp. 310 U. S. 98-105.
Compare Schenck v. United States, 249 U. S. 47, 249 U. S. 52; Herndon v. Lowry, 301 U. S. 242, 301 U. S. 256; Thornhill v. Alabama, ante, p. 310 U. S. 88.


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1State v. Meeks, 789 So. 2d 982 (Fla. 2001).
2See, Flores v. State, 46 So. 3d 102 (Fla. 3d DCA 2010) (conviction on new case need not precede sentencing on probation violation so long as court determines the violation has sufficient evidence defendant committed new offense); Morency v. State, 955 So. 2d 67, 68 n.1 (Fla. 3d DCA 2007) (new criminal offense can constitute a probation violation even if nolle prossed by the state); State v. Jenkins, 762 So. 2d 535 (Fla. 4th DCA 2000); Swilley v. State, 781 So. 2d 458, 460 (Fla. 2d DCA 2001) (filing of a nolle prosequi does not mean the trial court cannot find that defendant substantively violated his community control by committing new offenses); Christian v. State, 84 So. 3d 437 (Fla. 5th DCA 2012), review denied, 134 So. 3d 446 (Fla. 2014).
5Hill v. State, 927 So. 2d 1047 (Fla. 2d DCA 2006); State v. Brown, 855 So. 2d 270 (Fla. 5th DCA 2003).
7Yegge v. State, 186 So. 3d 553 (Fla. 2d DCA 2015).
8Eustache v. State, 199 So. 3d 484 (Fla. 4th DCA 2016). A former exception to this was that for offenses committed prior to July 1, 2006 where the defendant had successfully completed a Department of Corrections boot camp program and had subsequently violated the probation that followed, the trial court could impose a period of incarceration not to exceed 364 days in a specified facility for the violation. See Adderly v. State, 958 So. 2d 997 (Fla. 5th DCA 2007) and cases cited therein; Lamore v. State, 86 So. 3d 546 (Fla. 2d DCA 2012).
9Blacker v. State, 49 So. 3d 785 (Fla. 4th DCA 2010).
10See, Cosme v. State, 111 So. 3d 280 (Fla. 4th DCA 2013).

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Party Name: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GERONIMO HERNANDEZ-HERRERA, Defendant-Appellant.
Judge Panel: Before SMITH, DeMOSS, and OWEN, Circuit Judges.
Appeal from the United States District Court for the Southern District of Texas USDC Nos. 1:03-CR-00431, 1:09-CR-678-1.
Before SMITH, DeMOSS, and OWEN, Circuit Judges.
Geronimo Hernandez-Herrera appeals from the sentence imposed as a consequence of his conviction under 8 U.S.C. § 1326(a) and (b)(1) for illegally reentering this country after he had been previously deported as an alien following a conviction for a felony offense. He also appeals the sentence imposed following the revocation of his supervised release related to a prior illegal reentry conviction. He argues that the sentences are procedurally unreasonable because the district court failed to explain its sentencing decision adequately and that the sentences are substantively unreasonable because they are greater than necessary in light of the 18 U.S.C. § 3553(a) sentencing factors. We affirm.
In 2003, Hernandez-Herrera pleaded guilty to the crime of illegal reentry by a previously deported alien following a conviction for an aggravated felony offense, in violation of 8 U.S.C. § 1326(a) and (b)(2). He was sentenced to a term of imprisonment of sixty-three months, to be followed by a three-year term of supervised release. He began his term of supervised release in 2007, at which time he was also deported to Mexico.
Eighteen months later, in 2009, Hernandez-Herrera was arrested in Brownsville, Texas. He subsequently was charged with the crime of illegal reentry of a previously deported alien following a conviction for a felony offense, in violation of 8 U.S.C. § 1326(a) and (b)(1). Additionally, the United States Probation Office, claiming that Hernandez-Herrera's 2009 illegal reentry violated the terms of his supervised release, filed a petition to revoke his supervised release.
Hernandez-Herrera pleaded guilty to the 2009 illegal reentry charge, and the district court ordered the United States Probation Office to prepare a presentence investigation report (PSR). The PSR assigned Hernandez-Herrera a base offense level of eight for the illegal reentry offense. He then received a sixteen-level enhancement, under § 2L1.2(b)(1)(A) of the U.S. Sentencing Guidelines Manual (Guidelines), for a prior felony drug trafficking offense and a three-level downward adjustment for acceptance of responsibility, leaving him with a total offense level of 21. After combining his offense level with his category V criminal history, Hernandez-Herrera's applicable Guidelines range for the 2009 illegal reentry offense was seventy to eighty-seven months of imprisonment. The PSR also included the Probation Office's determination that it had "not identified any authorized factors concerning the offense or the offender that would warrant departure from the advisory guideline range."
Hernandez-Herrera did not object to the PSR, but he did file a motion for a variance or downward departure in which he raised three arguments. First, he noted that his teenage son was suffering from mental and behavioral problems and was not attending school, and that a state juvenile court had determined that his son was in need of rehabilitation after it found that the son had engaged in delinquent conduct. He claimed that he had reentered the United States in order to help his son. Second, he requested a departure under § 5K2.11 of the Guidelines, which provides that a reduced sentence may be appropriate when a defendant commits a crime in order to avoid a perceived greater harm. Finally, he argued that his Guidelines sentence was greater than necessary to satisfy the 18 U.S.C. § 3553(a) factors.
The district court subsequently held a revocation and sentencing hearing during which it considered both the Probation Office's petition to revoke Hernandez-Herrera's supervised release with respect to his 2003 illegal reentry conviction and his sentence for his 2009 illegal reentry conviction. The district court began the hearing by obtaining Hernandez-Herrera's plea with respect to the Probation Office's allegation that his conduct had violated the terms of his supervised release; he pleaded true to those allegations. The district court then proceeded to hear the parties' arguments as to Hernandez-Herrera's sentence for his new reentry conviction.
THE COURT: Well, Mr. Wilde, tell me, what would be your client's proposal should I grant a variance and-I mean, there still has to be the issue of attention that this young man needs. Is he going to try to come back again? I mean, is that the only alternative that he and his spouse feel is going to make a difference for this boy, or is it going to be more of the same or what?
MR. WILDE: I wish I had the answer to that, Your Honor. I think it's an impossible situation for the Court, for Mr. Hernandez, for his wife, and especially for his son and daughters. It's a tragic, to me a tragic and impossible situation. Maybe Mr. Hernandez could address that better than I could, Your Honor. I wouldn't want to be in Mr. Hernandez' shoes, I mean, his position, having to face this. I think it's a tragedy, Your Honor. I think Mr. Hernandez could probably address that better than I could, what he could expect to do for his son at this point.
For its part, the Government opposed any departure or variance from the Guidelines range. The Government argued that Hernandez-Herrera's situation did not differ significantly from the situations confronting many defendants who commit illegal reentries. The Government also suggested that his son's troubles might be attributable to Hernandez-Herrera's own conduct, insofar as he served as a poor role model for the boy. The Government ultimately requested a seventy-eight month sentence for Hernandez-Herrera's 2009 illegal reentry conviction and a consecutive eighteen-month sentence for his supervised release violation.


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Our data protection policy is intended to inform visitors on how we collect, record, process and use personal data in connection with our website.
We take data protection very seriously and make every effort to keep the collection, use and processing of personal data to a minimum.
browser and operating system of the visitor’s device and the name of the access provider used by the visitor.
to facilitate and enhance administration of our website.
We make no attempt to obtain any information on the identify of visitors to our website.
if necessary for the performance of contractual obligations towards the data subject pursuant to Art. 6(1)(1)(b) GDPR.
Personal data will not be transferred to third parties otherwise.
Cookies are accepted by the default settings of most browsers. Browsers can be configured so that cookies are not accepted by the respective device or so that a special alert is provided before a new cookie can be placed. However, optimal use of all features may not be possible if cookies are disabled.
Cookies make the use of our website more convenient. For example, session cookies tell whether us which pages are visited. These cookies are deleted automatically when the visitor leaves the website.
Temporary cookies are used to improve user-friendliness. They are stored on the visitor’s device only for a limited time. If the website is revisited, preferred entries and settings from the previous visit are automatically detected and restored so that the visitor does not have to reenter them.
Cookies are also used to analyze traffic on our website for statistical purposes and provide a better experience for our visitors. These cookies automatically tell us whether a visitor has already visited our site in the past. In this case, the cookies are automatically deleted after a certain period of time.
information on any appropriate safeguards provided pursuant to Art. 46(2) GDPR to protect personal data in the case of any transfer of personal data to third countries that have not been found by the EU Commission to ensure an adequate level of protection pursuant to Art. 45(3) GDPR.
If you should find that the personal data concerning you in our possession are inaccurate, you have the right to require rectification without undue delay. In the case of incomplete data, you also have the right to have such data completed.
we are required by law to erase the personal data.
No right to erasure exists in the case of non-automated data processing if it would be impossible or would involve a disproportionate effort due to the specific mode of storage and your interest in erasure can be regarded as minimal. In this case, processing will be restricted instead of erased.
you have objected to processing pursuant to Art. 21(1) GDPR. you may require that processing be restricted for as long as is necessary to determine whether our legitimate reasons override your interests.
Restriction of processing means that the personal data will be processed only with your consent or to establish, exercise or defend legal claims or protect the rights of another natural or legal person or for important for reasons of an public interest. We are under obligation to inform you accordingly before we cease restriction of processing.
You have the right to data portability if processing is based on your consent (Art. 6(1)(1)(a) or Art. 9(2)(a) GDPR) or an agreement to which you are party and the processing is carried out by automated means. The right to data portability covers the following as long as the rights and freedoms of others are not adversely affected: You have the right to receive the personal data that you have made available to us in a structured, commonly used and machine-readable format. You have the right to have such data transmitted to another controller without hindrance from us. Insofar as technically feasible, you may require that we transmit personal data concerning you directly to another controller.
You have the right to object to the processing of personal data concerning you for reasons related to your particular situation at any time insofar as processing is based on Art. 6(1)(1)(e) GDPR (performance of a task carried out in the public interest or in the exercise of official authority ) or Art. 6(1)(1)(f) GDPR (legitimate interest of the controller or a third party). The also applies to processing on the basis of Art. 6(1)(1)(e) or (f) GDPR. If you exercise your right of objection, we will cease to process your personal data unless we can demonstrate compelling legitimate reasons for such processing that outweigh your interests, rights and freedoms or such processing serves to establish, exercise or defend legal claims.
You have the right to object to the processing of personal data concerning you for the purposes of direct marketing. This will also apply accordingly to any profiling related to such direct marketing activities. If you exercise your right to object, we will cease processing the personal data concerning you for the purposes of direct marketing.
You may notify us of your objection without observing any special formalities by telephone, by e-mail, by facsimile or by postal mail at the postal address provided at the beginning of this data protection policy.
You have the right to withdraw your consent for the future at any time. You may notify us of withdrawal of your consent without observing any special formalities by telephone, e-mail, facsimile or postal mail. Withdrawal of consent will not affect the legality of data processing based on your consent carried out prior to withdrawal of your consent. Processing based on your consent will cease upon receipt of notification of withdrawal of consent.
If you are of the opinion that personal data relating to you are being processed unlawfully, you may lodge a complaint with a supervisory authority for data protection responsible for your place of habitual residence or work or for the place of the alleged infringement.
This Data Protection Policy dates from 25 May 2018. We reserve the right to update our Data Protection Policy from time to time as necessary to improve and/or align data protection with changes in governmental practice or the law.

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In Banning Ranch Conservancy v. City of Newport Beach 2015 Cal. App. LEXIS 436, the Fourth District Court of Appeal upheld an approval by the City of Newport Beach (City) of a development project on 400 acres of undeveloped coastal property with active oilfield operations (Project). The Project consisted of developing one-fourth of the area for residential and commercial purposes, while preserving the remaining land for open space and parks, as well as removing and remediating the oil production facilities.
Petitioners fought the City’s approval, arguing the City violated its own general plan by not coordinating with the Coastal Commission before approving the Project, and the California Environmental Quality Act (CEQA) by failing to designate “environmentally sensitive habitat areas” (ESHAs).
The trial court agreed in part, finding the City failed to comply with its General Plan, but disagreed in part, holding the City had complied with CEQA. Both parties appealed.
The case in the Court of Appeal turned on two main issues: (1) what actions was the City required to engage in with the Coastal Commission prior to Project approval, and (2) must the City designate ESHAs in its EIR?
Addressing the second issue, the court held the City’s EIR was adequate under CEQA. Petitioners believed the City avoided identifying ESHAs because that would have required a reworking of the Project. However, the City explained that it did not identify ESHAs because that is legal determination that must be left to the Coastal Commission. The EIR noted that the Project was not included in the City’s coastal land use plan, but was rather in a “Deferred Certification Area” over which the Coastal Commission still retained permit jurisdiction. The EIR also explained that the Project cannot move forward without a coastal development permit from the Coastal Commission. The court thus upheld the City’s EIR, finding the EIR contained the necessary information, and stating that CEQA does not require the City to speculate as to the likelihood of the presence of ESHAs or coastal development permit approvals; those are decisions better left to the Coastal Commission.
The court will defer to an agency’s determination of consistency with its own general plan, especially if a policy is vague enough to allow for more than one reasonable interpretation. Additionally, when a project is excluded from the coastal land use plan, as is the case with Banning Ranch, an agency can properly defer identification of ESHAs to the Coastal Commission.
This post is part of a series highlighting the CEQA cases currently pending before the California Supreme Court.
Fully briefed by the parties as of September 18, 2012.
Amicus briefing complete as of December 5, 2012.
Supplemental briefing completed by the parties as of January 29, 2015.
Does a state agency that may have an obligation to make “fair-share” payments for the mitigation of off-site impacts of a proposed project satisfy its duty to mitigate under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) by stating that it has sought funding from the Legislature to pay for such mitigation and that, if the requested funds are not appropriated, it may proceed with the project on the ground that mitigation is infeasible?
At the Supreme Court, CSU argues that City of Marina v. Board of Trustees (2006) 399 Cal.4th 341 (Marina) is clear; CSU has the power to mitigate off-site environmental effects, subject to the Legislature’s appropriations. CSU argues that requiring otherwise under CEQA would invite not only local agencies, but the public to scrutinize its budget and litigate over how its funds are allocated (in this case, balancing expenditures on education versus traffic impacts). CSU argues that the Court should reverse the ruling and hold that CSU complied with its CEQA obligations.
In contrast, City of San Diego, et al. (City) argues that CSU has not shown any grounds for reversal of the Court of Appeal’s decision. City argues that CSU relied on an erroneous interpretation of Marina by failing to consider additional mitigation measures for off-site traffic impacts. Specifically, City argues that CSU should have considered alternative mitigation measures or alternative funding measures where, as here, the agency’s preferred mitigation is uncertain and potentially infeasible.
In 2005, CSU certified an EIR and approved the Project. While litigation challenging the 2005 EIR was pending, the Supreme Court decided against CSU in Marina. Accordingly, the trial court issued an order setting aside the 2005 EIR and Project approval. Following the Court’s decision against CSU in Marina, CSU revised its original Master Plan and released an EIR for the Project, which was certified in November 2007.
The City challenged CSU’s EIR certification and Project approval. The trial court denied the petitions and discharged the writ, holding that CSU complied with CEQA and complied with the off-site mitigation requirements of Marina.
According to the Court of Appeal, CSU failed to consider other funding sources besides legislative appropriations that may be available for mitigation. Moreover, CSU should have evaluated one or more possible project modifications to the Project that would reduce or avoid unmitigated off-site traffic impacts. The Court of Appeal reversed in part, ruling that such deficiencies rendered the EIR inadequate under CEQA.
Amici argue that the State’s economy is dependent on highly educated workers, particularly those in the technology, communications and biotechnology industries. Changes in technology, coupled with the changing demographics widen the gap between the demands of the State’s economy and supply of college-educated workers. The proposed expansion universities in the CSU and University of California system will help close the projected skills gaps of the State’s workers.
Amici argue that the question for the Court is not whether dollars “would be better spent” on education or transportation, as CSU argues, but one of “shared sacrifice.” Thus, Amici allege that CSU abused its discretion by relying on a misinterpretation of Marina to justify its failure to include a reasonable range of mitigation measures in its EIR to address significant off-site traffic impacts. Amici argue that ruling in favor of CSU would allow public institutions to circumvent their duty under CEQA to develop feasible mitigation, thereby granting agencies a “false choice” between CEQA compliance and exercising agency discretion or implementing agency mandates. As a result local agencies would be unduly burdened, being forced to shoulder the burdens of funding mitigation or suffering environmental effects caused by CSU’s projects.
Amici argue that CSU’s position violates Public Resources Code, Section 21002, which provides that public agencies “should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures available.” Moreover, ruling in favor of CSU would create a huge exemption from the mitigation requirement of Public Resources Code, Section 21001.1, which requires that public projects “be subject to the same level of review and consideration . . . as private projects.” Amici argue that although CSU is subject to the funding requirements of legislature, it is not relieved of its duty to mitigate significant effects under CEQA. Ruling in favor of CSU would effectively create an exemption for Public Institutions from properly mitigating project effects, forcing local agencies bear the costs of mitigation for off-campus impacts created by the CSU.
City of San Diego v. Trustees of the California State University is the latest in a line of cases involving the CSU system as it strives to accommodate increasing student populations at its campuses statewide. The Court’s ruling would serve to clarify its earlier ruling in Marina, which previously evaluated CSU’s duty to mitigate off-site environmental effects through payment to a third party. The Court’s ruling would not only affect the CSU system, but all state agencies grappling with projects that potentially create off-site impacts that could burden local agencies.
City of Marina v. Board of Trustees (2006) 399 Cal.4th 341; CSU certified an EIR for the Monterey Bay Campus’ master plan. The EIR noted that campus improvements would create significant off-campus traffic, water, sewage and fire safety impacts; however, such offsite impacts would remain significant and unavoidable because the Trustees did not have the authority to implement offsite mitigation. The Supreme Court held that the Trustees violated CEQA, because the Trustees had a duty to mitigate offsite impacts (e.g., CSU could have feasibly paid a third party to mitigate those impacts).
Fully briefed by the parties as of January 31, 2014.
Amicus briefing complete as of March 27, 2014.
Oral Argument April 8, 2015.
Respondent City of San Jose (City) conversely argues that the more deferential “police power” standard of review applies to the Ordinance. City also argues that the Ordinance cannot be facially unconstitutional because of a provision that gives the City discretion to adjust, reduce, or waive the requirements of the Ordinance on a case by case basis.
Interveners and Appellants challenged Petitioner’s reading of San Remo Hotel as requiring heightened scrutiny, and argued for application of the “police power” standard.
The Ordinance at issue was adopted January 26, 2010, and effective February 26, 2010. Plaintiff and Petitioner California Building Industry Association filed its timely Complaint and Petition for Writ of Mandate as a facial challenge to the constitutionality of the Ordinance on March 24, 2010.
The trial court ruled in favor of Petitioner, and granted injunctive relief on May 25, 2012. The City appealed.
The Court of Appeal, Sixth District, reversed on June 6, 2013, holding that the San Remo Hotel case was not applicable to the Ordinance. Instead, the Court of Appeal held the Ordinance was only reviewable as an exercise of the City’s police power.
California Association of Realtors, in support of Plaintiff and Respondent; Amicus argued a facial challenge to the Ordinance was the only means of meaningful review because an as-applied challenge would have no chance of success due to the wording of the Ordinance. Amicus also argued due process grounds for increased scrutiny of the Ordinance, and argued the Ordinance represents an unlawful exaction.
League of California Cities, California State Association of Counties, in support of Defendant and Appellant; Amici argued separation of powers required deference to the City Council. Amici also argued the San Remo standard does not apply because the Ordinance is a “quintessential” land use or zoning ordinance. Even if San Remo applies, amici argued, the Ordinance satisfies such intermediate scrutiny because the City Council made findings that are entitled to deference. Finally, amici argued the facial challenge to the Ordinance was not ripe because the Ordinance contained an administrative waiver provision.
California Attorney General Kamala D. Harris; in support of Defendant and Appellant; Amicus argues the Ordinance is a land use and planning regulation that falls within the City’s police power, and thus should be given deference. Amicus also argued that the Ordinance should not be subject to a takings analysis because it does not require conveyance of a property interest, but rather is a permissible exercise of the police power in the form of a non-confiscatory price control.
National Housing Law Project, Public Advocates, Western Center on Law and Poverty, Public Counsel, in support of Defendant and Appellant; Amici observed that inclusionary housing policies are used to combat segregation and comply with Federal fair housing obligations. Amici also opined that combating segregation leads to upward mobility, educational achievement, and better health outcomes.
Silicon Valley Leadership Group, Working Partnerships USA, in support of Defendant and Appellant; Interveners and Appellants; Amici opined that the Ordinance meets goals of increasing affordable housing and income integration, to address an “acute scarcity” in the San Jose area. Amici also opined that affordable housing reduces the harms of long-distance commuting, lack of affordable housing hinders employee retention, compliance with the Ordinance is financially feasible for developers, and there are few alternatives to the Ordinance for producing affordable homes.
National Association of Home Builders, in support of neither party; Amicus opined that the Respondent and Interveners have improperly conflated affordable housing with inclusionary housing, observing that inclusionary housing programs actually increase the market price of new homes, thereby increasing the number of people who are priced out of the market. Amicus also opined that mandatory private housing subsidies are detrimental to small business home builders, and that application of the San Remo standard in this case will encourage, rather than constrict, creative affordable housing strategies.
Leo T. McCarthy Center For Public Service and the Common Good, et al., in support of Defendant and Appellant; Amici provide a lengthy brief containing context for the parties’ legal arguments, covering topics such as racial and economic segregation, legal and policy responses to such segregation, land use challenges, and the benefits of inclusionary housing.
A ruling for BIA would affirm that the San Remo Hotel standard of review applies to inclusionary housing ordinances, which would require local agencies to show a reasonable relationship between an ordinance and the impacts of the project that are required to comply with the terms of such an ordinance.
A ruling for the City would likely have to overrule the City of Patterson case, and would allow inclusionary housing ordinances to be reviewed under the more deferential police power standard.
San Remo Hotel L.P. v. City and County of San Francisco (2002) 27 Cal.4th 643; The Court held there must be a reasonable relationship between exactions and the deleterious impact of the projects on which they are imposed.
Building Industry Association of Central California v. City of Patterson (2009) 171 Cal.App.4th 886; The court held that San Remo Hotel applies to inclusionary housing ordinances.
Sterling Park, L.P. v. City of Palo Alto (2013) 57 Cal.4th 1193; The Court held that affordable housing set-asides are exactions under the Mitigation Fee Act.
On April 29, 2015, Governor Jerry Brown signed Executive Order B-30-15, which establishes “[a] new interim greenhouse gas emission reduction target to reduce greenhouse gas emissions to 40 percent below 1990 levels by 2030…” (Executive Order B-30-15, ¶ 1, at http://gov.ca.gov/news.php?id=18938.) The Executive Order requires the California Air Resources Board to express the 2030 target in terms of million metric tons of carbon dioxide equivalent. (Id. at ¶ 3.) The Executive Order also requires state agencies consider “full life-cycle cost accounting” when making future planning and investment decisions. (Id. at ¶ 6.) To help state agencies incorporate climate change impacts into planning and investment decisions, the Executive order requires the Governor’s Office of Planning and Research to establish a technical, advisory group on the issue.
On June 1, 2005, Governor Arnold Schwarzenegger signed Executive Order S-3-05, which among other goals established a target to achieve statewide GHG emissions that are 80 percent below the 1990 levels by 2050. Governor Brown’s Executive Order B-30-15 does not replace Governor Schwarzenegger earlier 2050 target. Rather, as explained in Executive Order B-30-15, this new interim target will “ensure California meets its target of reducing greenhouse gas emissions to 80 percent below 1990 levels by 2050.” (Ibid.) Therefore, Executive Order B-30-15 provides support for the conclusion that a project found consistent with Executive Order B-30-15 is consistent with Executive Order S-3-05.
Several bills are pending this legislative session that relate to future GHG targets for the state. For example, AB 21 would require a statewide greenhouse gas emissions limit for 2030 to be established by 2018. SB 32 would require a statewide GHG emission limit equivalent to Executive Order S-3-05’s goal of 80% below the 1990 level by 2050 and authorizes interim greenhouse gas emissions level targets to be established for 2030 and 2040. AB 33 would establish a Climate Change Advisory Council with the duty to develop and analyze strategies to achieve the statewide GHG emissions limit as defined by AB 32 in 2006. Thomas Law Group will continue to monitor if and how pending legislation is amended to respond to Executive Order B-30-15.


IN RE: Robert S. FASTOV, Respondent. A Suspended Member of the Bar of the District of Columbia Court of Appeals (Bar Registration 56333).
Before THOMPSON and McLEESE, Associate Judges, and KING, Senior Judge. Robert S. Fastov, pro se. Julia L. Porter, Assistant Bar Counsel, with whom Wallace E. Shipp, Jr., Bar Counsel, and Jennifer P. Lyman, Senior Assistant Bar Counsel, were on the brief, for the Office of Bar Counsel.
In a Report issued on July 31, 2013, the Board of Professional Responsibility (the “Board”) concluded that Respondent Robert Fastov violated Rules 3.1, 3.4(c), 4.4(a), and 8.4(d) of the D.C. Rules of Professional Conduct in filing and prosecuting a lawsuit against Christie's International PLC et al. (the “Christie's matter”), and also violated Rules 3.1, 4.4(a), and 8.4(d) in filing and prosecuting an unrelated lawsuit against the Palisades Swimming Pool Association and certain members of its governing board (“the Palisades matter”). The Board's conclusions were based on the factual findings set out in a January 5, 2012, report of an Ad Hoc Hearing Committee (the “Hearing Committee” or the “Committee”) and were largely in accord with the Committee's legal conclusions. The Board adopted the Hearing Committee's recommendation that Respondent be suspended from the practice of law for eighteen months and that he be required to demonstrate his fitness to practice as a condition of reinstatement. Respondent broadly attacks the Board's Report; Bar Counsel has filed only limited exceptions to it. We find it unnecessary to address all of the various issues raised by the parties, but conclude that the record and the law amply support a conclusion that, through his conduct in one or both of the matters, Respondent violated all of the foregoing Rules. We also adopt the recommended sanction.
The Hearing Committee found, and the Board accepted as “supported by substantial record evidence,” the following. Respondent was admitted to the District of Columbia Bar in December 1969. In 1985, he retired from his position as Deputy Chief Counsel for an agency within the Department of Commerce. Thereafter, he opened an art gallery and worked as an art dealer. At some point, Respondent acquired a landscape painting that he believed was the work of 19th century Austrian artist Emil Jakob Schindler (“the painting” or “the Schindler painting”).2 In February 1993, he contacted Christie's London office in response to an advertisement he had received from the firm about an auction of German and Austrian art it planned for May of that year. In his letter to Christie's, Respondent proposed to consign the painting to Christie's for the auction. He testified before the Hearing Committee that, through telephone conversations, he and Wendy Goldsmith of Christie's reached an oral consignment agreement under which Christie's was required to offer the painting for sale as an “unqualifiedly authentic Schindler painting” and was specifically prohibited from seeking an expert opinion as to the painting's authenticity.3 In March 1993, Respondent sent the Schindler painting and two other paintings to Christie's and received in response a document that acknowledged receipt of the paintings and set forth Christie's conditions of sale, which reserved to Christie's “absolute discretion as to ․ whether the Lot is suitable for sale by Christie's, and ․ whether the views of any expert shall be obtained[,]” and provided that “Christie's reserves the right to withdraw any property at any time before the actual sale if, in Christie's sole judgment ․ there is doubt as to its attribution or to its authenticity [.]” Before returning the document to Christie's, Respondent crossed out certain provisions, but, the Hearing Committee found, “did nothing to indicate” that the terms quoted above did not apply to the Schindler painting.
After Christie's received the painting in March 1993, a Christie's employee consulted Dr. Gerbert Frdl, director of a prominent Austrian art museum, about the painting. According to statements by Christie's staff, Dr. Frdl advised that he could not render a definitive judgment as to the authenticity of the painting without seeing the original. Goldsmith attested that she called Respondent and told him that Christie's would not auction the painting because Dr. Frdl could not commit to an opinion without seeing the original painting. In contrast, Respondent testified that his understanding of what Goldsmith told him on or about April 1, 1993, was that Dr. Frdl had said that the painting was a “fake.” In March 1994 correspondence to Respondent, Dr. Frdl told Respondent that he had never challenged the authenticity of the painting or called it a “fake.” At that point, Respondent concluded that Christie's employees had been lying to him. That conclusion was the backdrop for a 79–page letter that Respondent sent to a Christie's executive in July 1994.
On March 21, 1997, Respondent filed a 225–page Verified Complaint against Christie's in the United States District Court for the District of Columbia, alleging “Continuing Fraudulent Misrepresentation and Concealment of Material Facts”; “Continuing Negligent Misrepresentation and Concealment of Material Facts”; “Unfair Trade Practices”; “Breach of the Oral Consignment Agreement and Implied Duty of Good Faith and Fair Dealing”; “Negligence and Reckless Conduct”; and “Intentional Infliction of Emotional Distress” (“IIED”), and seeking compensatory and punitive damages totaling more than $7 million.
On May 1, 2000, Christie's moved for summary judgment, arguing that Respondent's claims were barred by the statute of limitations and that he had failed to establish any damages. In response, Respondent filed a 59–page opposition, to which he attached a 90–page declaration, a 461–page statement of disputed and undisputed facts, and three volumes, totaling more than 1500 pages, of exhibits. District Court Judge Paul Friedman rebuked Respondent for submitting a filing that did “the opposite” of “assisting the Court in rendering its decision” and that constituted “an abuse of the litigation process.” The court cited Respondent's “well-documented proclivity in this case to engage in obstructionist litigation tactics at the expense of the Court [and] opposing counsel[.]” Judge Friedman ordered Respondent to re-file his opposition, subject to page limitations, and ordered that in the future, Respondent would be personally fined and sanctioned each time he abused the litigation process.
[T]he record amply demonstrates that [Respondent] first initiated, then prosecuted this lawsuit in bad faith for the purpose of harassing Defendants. His egregious behavior, which unreasonably and vexatiously multiplied these proceedings, clearly warrants the imposition of sanctions under [28 U.S.C.] section 1927 as well as under the Court's inherent authority.
You will refrain from any abusive language (threatening or profane), physical intimidation or the creation of any hostile airs toward any members of the Palisades membership, including any of our kids, regardless of age․ You are not to touch in any manner, for any reason, any one other than one of your own family.
You will cease and desist in any behavior that is perceived to be leering, sexually intimidating, or creating a sexually hostile environment which serves to intimidate and frighten our female members and staff. You are not to touch in any manner, for any reason, anyone other than a member of your own family.
The Hearing Committee found that the letter was “discussed only among the Board members, and was sent to Respondent only[,]” and noted that Respondent admitted during his hearing testimony that he had “no evidence that the letter was circulated to anyone other than Palisades Board members” and, eventually, their counsel in the litigation that ensued.
In September 2004, Bryan sent Respondent a letter informing him that the Board had decided not to pursue the matter any further. However, Respondent's threats of litigation continued unabated. In one letter, Respondent threatened that, in the course of the litigation he intended to initiate if his demands were not met, he planned to take “50 to 60 depositions” including those of “you and each and every Board Member and Employee of Palisades in 2004[,] [including] ․ the pool manager and all of the many 2004 lifeguards, swim team instructors and dive team instructors, and the kids who worked in the front office.” He threatened to “break” the pool financially.
Respondent filed a complaint in the United States District Court for the District of Maryland on June 29, 2005, asserting that the court had federal diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(1) (2006). Although Respondent, himself a D.C. resident, named most of the Palisades Board Members as individual defendants, he (with one inadvertent exception) omitted the names of Board Members who resided in the District, acknowledging subsequently that he did so intentionally7 and claiming that he did so under the belief that they were “permissible defendants” and not “indispensible parties.” Respondent listed eleven causes of action in his complaint, including “Breach of Contract And Implied Obligation To Deal In Good Faith And Fairly With Plaintiff”; “Breach Of Trustee's[ ] Obligation As A Fiduciary And Of A Confidential Relationship”; “Negligence, Gross Negligence, Recklessness, Malicious And/Or Willful Misconduct”; “Fraud, Deceit And Intentional Stonewall, Concealment And Cover–Up Of Material Facts”; “Negligent Misrepresentation And Negligent Stonewall, Cover–Up And Concealment of Material Facts”; “Violations Of The Maryland Consumer Protection Act”; “Defamation By Libel And/Or Slander By Defendants Bryan, Neudorfer, Other Palisades Officials And The John And Jane Doe Defendants”; “Intentional Infliction Of Emotional Distress”; “Civil Conspiracy (Joint Tortfeasor Liability)”; “Disgorgement And Repayment By Palisades Officials Of Palisades Compensation Paid The Children Of Palisades Officials”; and “Liability For Damages Of Defendants[,]” and sought compensatory damages in the amount of $500,000 and punitive damages in the amount of $1 million.
On October 8, 2010, the Office of Bar Counsel issued a Specification of Charges alleging that Respondent had violated five provisions of the D.C. Rules of Professional Conduct in the course of litigating against Christie's and Palisades. Bar Counsel charged that, with respect to the Christie's litigation and Palisades litigation, Respondent violated Rule 3.1 by pursuing frivolous claims and asserting issues for which there was no basis; violated Rule 3.2 in Christie's by seeking to delay the proceedings when he knew or when it was obvious that such delays would serve solely to harass or maliciously injure another; violated Rule 3.4(c) in Christie's by knowingly disobeying an obligation under the rules of a tribunal; violated Rule 4.4 in both Christie's and Palisades by using litigation tactics that had no substantial purpose other than to embarrass, delay, or burden a third person; and violated Rule 8.4(d) in both Christie's and Palisades by engaging in conduct that seriously interfered with the administration of justice.
Following a three-day hearing on March 15–17, 2011, the Hearing Committee issued a 90–page Report and Recommendation on January 5, 2012, in which it painstakingly reviewed the evidence and found that Bar Counsel had proven all of its charges by clear and convincing evidence9 (although it did not agree that Respondent had violated each of these rules in precisely the manner that Bar Counsel had charged). The Hearing Committee recommended that Respondent be suspended from the practice of law for eighteen months and be required to demonstrate his fitness to practice law before being reinstated.
In a Report and Recommendation issued on July 31, 2013, the Board adopted the Hearing Committee's findings of fact and most of its conclusions of law. The Board found that the Committee had erred in declining to give preclusive effect to the District Court's findings that supported the court's imposition of sanctions in the Christie's matter. The Board also concluded, however, that regardless of the applicability of issue preclusion, Bar Counsel had established the almost all of the charged Rule violations by clear and convincing evidence.
With respect to the Palisades matter, the Board found that Bar Counsel proved by clear and convincing evidence that (1) Respondent violated Rule 3.1 by filing his tort and contract claims, all of which had no basis in fact or law; (2) that Respondent violated Rule 4.4 in that he filed a (240–page) complaint that was without any factual basis and was designed to “manufacture jurisdiction” and thereafter filed voluminous pleadings for the sole purpose of harassing or embarrassing the Palisades defendants; and (3) that he violated Rule 8.4(d) by using the judicial system to harass the Palisades Board.
The Board adopted the Hearing Committee's sanction recommendation. It found that Respondent's inexcusable conduct in “us[ing] the legal system to vent his personal pique at Christie's and Palisades rather than trying to vindicate a right protected by law” warranted a severe sanction, especially in light of the Hearing Committee's finding that Respondent had shown no remorse for his conduct.
In his brief to this Court, Respondent broadly challenges the Board's Report, contending that the Board, like the Hearing Committee, Bar Counsel, and the federal courts, “almost totally ignored” his factual explanations and legal arguments. Respondent also takes issue, at great length, with the Board's application of collateral estoppel to find violations of Rules 3.1, 3.4(c), 4.4(a), and 8.4(d) in the Christie's matter. In addition, Respondent asserts that the recommended sanction is unsupported by law.
Bar Counsel defends the Board's application of collateral estoppel, but asserts that Respondent's challenge to the Board's application of that doctrine is ultimately “of no consequence” since the Board independently found “all the same ethical violations based on clear and convincing record evidence.” Bar Counsel argues that the Board's findings and conclusions were correct, with one exception: The Board erred, Bar Counsel contends, in failing to adopt the Hearing Committee's finding that Respondent's litigation tactics in Christie's violated Rule 3.2(a). Bar Counsel supports the Board's recommended sanction (but urges that an enhanced sanction would be justified on the basis that Respondent gave false testimony before the Hearing Committee about the details of his oral agreement with Goldsmith and about his initial telephone call with Bryan10 ).
Our standard of review is well-established. This court, “like the Board itself, must accept the factual findings of the Hearing Committee, unless they are not supported by substantial evidence in the record[,]”11 In re Robinson, 74 A.3d 688, 694 (D.C.2013), but we review questions of law de novo. In re Martin, 67 A.3d 1032, 1039 (D.C.2013). We “shall adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted.” D.C. Bar Rule XI, § 9(h)(1).
We begin by briefly addressing Respondent's argument that the Board erred by giving preclusive effect to the District's Court's findings in Christie's, and using those findings as a factual predicate to establish Respondent's violations of Rules 3.1, 3.4(c), 4.4(a), and 8.4(d) in the Christie's matter (and Bar Counsel's argument that the Hearing Committee's failure to do so was erroneous). For collateral estoppel to apply, it must be the case that “(1) the issue [was] actually litigated and (2) determined by a valid, final judgment on the merits; (3) after a full and fair opportunity for litigation by the parties or their privies; (4) under circumstances where the determination was essential to the judgment, and not merely dictum.” In re Wilde, 68 A.3d 749, 759 (D.C.2013) (internal quotation marks omitted). Further, to guard against the risk of unfairness, there must be a consideration of “the fairness of applying collateral estoppel to the facts of the case[,]” id. (internal quotation marks omitted), including a consideration of whether “compelling circumstances make it appropriate that the party be permitted to relitigate the issue.” Id. at 761 (internal quotation marks omitted).
We agree with Bar Counsel that “[n]othing in the underlying court records ․ suggests that the court[ ] adjudicated Respondent's claims on any basis other than the evidence presented[.]”15 However, we decline to resolve Respondent's unfairness claims point-by-point because (1) we agree with Bar Counsel that the issue of collateral estoppel is ultimately of no consequence in this case since the Board found independently that the record evidence showed clearly and convincingly that Respondent violated each of the Rules cited in the Specification of Charges; (2) Judge Stafford's findings did not correspond to all of the charged Rule violations and thus, as the Board found, did not estop Respondent from contesting certain of the charges; and (3) the (mostly documentary) evidence that we must examine and that the Board had to examine to determine whether collateral estoppel applied is co-extensive with the evidence that is relevant to an original determination of whether Respondent violated the Rules through his conduct in the Christie's matter. We therefore confine our review to the Board's and Hearing Committee's findings and analysis with respect to the record evidence and do not decide the matter of issue preclusion.16 Cf. In re Reback, 487 A.2d 235, 239 (D.C.1985) (“We need not decide whether this argument is correct, because the Board majority's alternative ground for finding a violation ․ is adequate to support the Board's ruling.”), vacated on other grounds, 492 A.2d 267 (D.C.1985); In re Lee, 755 A.2d 1034, 1036 n. 4 (D.C.2000) (“[W]e need not decide [the issue] conclusively since it is not determinative of the result.”).
Following that course, and for the following reasons, we agree with the Board that the record evidence established by clear and convincing evidence that Respondent violated Rules 3.1, 3.4(c), 4.4(a), and 8.4(d). We decline to address, whether Respondent violated Rule 3.2 because resolution of that issue does not affect our ultimate decision as to whether the recommended sanction is warranted.
The record supports the Board's and the Hearing Committee's finding that Respondent had no colorable claim because “no one from Palisades did anything even remotely actionable” that justified the filing of Respondent's complaint. As the Hearing Committee found, the Palisades Board was not required to permit Respondent to engage in abusive, bullying, or inappropriate conduct, and Respondent presented no evidence that its actions, which the Hearing Committee found were a “legitimate exercise of [the Board's] duties and obligations to ensure the safety and well[-]being of its members[,]” caused him compensable harm. There is no record evidence that Palisades ever defamed Respondent by accusing him of having committed, in Respondent's words, “child molestation, pederasty, pedophilia, or any other inappropriate sexual conduct ․ [or] battery or assault[,]” or published to anyone any defamatory accusation, and the Board was justified in rejecting Respondent's claim, which he repeats in his brief filed in this court, that he reasonably interpreted Bryan's letter as leveling such accusations. Further, as the Board and the Committee found, there was no evidence of a confidential relationship between Respondent and Palisades that could support Respondent's breach of fiduciary duty claim;17 no discernible basis for Respondent's negligence claim; no evidence of fraud or misrepresentation;18 nothing to indicate that, with respect to Palisades, Respondent was a consumer of services from a merchant such that he could have a claim arising under the Maryland Consumer Protection Act; no extreme conduct to support an IIED claim; no underlying tort to support Respondent's civil conspiracy claim; and no evidence of a Palisades rule or by-law that prohibited the hiring of family members as pool staff that could have supported Respondent's disgorgement claim.
The record supports the Hearing Committee's finding that Respondent sued because he wanted to make miserable the lives of Palisades Board members who had had the “temerity to tell him that his behavior was unacceptable,” not because he had claims that he legitimately believed entitled him to relief under the law. In addition, there was no basis in fact or law for Respondent's claim that the court had diversity jurisdiction.
Rule 3.4(c) provides that a lawyer shall not “[k]nowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists[.]” Bar Counsel charged, and the Hearing Committee and Board also found, that Respondent violated Rule 3.4(c) in the Christie's matter by attaching argumentative exhibits to his memoranda in order to evade the page limits set by the federal rules and (in his January 19, 2001, surreply) by dramatically reducing the margins, presenting almost the entirety of his argument in single-spaced footnotes, and attaching a declaration that exceeded the length limit set by the court. Bar Counsel also charged that Respondent further violated Rule 3.2(c) by filing his 225–page (443–paragraph) complaint. Although the Hearing Committee concluded that Bar Counsel had not proven that Respondent knew that such a lengthy pleading was improper, the Board sustained the charge, concluding that knowledge of the “short and plain statement” standard embodied in Fed.R.Civ.P. 8 could be imputed to Respondent, who asserts that he was a high-ranking litigator in the Department of Commerce and boasted of his litigation experience.
Rule 4.4(a) provides in pertinent part that, “[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, ․ or burden a third person․” We are satisfied that Bar Counsel proved a violation of this Rule by clear and convincing evidence. In Palisades, the evidence established that even after the Palisades Board notified Respondent that it did not intend to pursue the complaints that it had made against him and that it considered the matter closed, Respondent proceeded with litigation through which, he openly threatened, he would destroy Bryan's personal finances, business, and reputation, would “break” the Palisades pool, and would harass Board members, their families and children, and other pool employees. He acknowledged that he included the disgorgement count in his complaint (relating to his allegations that it was somehow improper for Board members' children to also work as pool staff) to “cause Bryan's buzzer to go off” and to make him “collapse.” As to the Christie's matter, the record as a whole provides substantial support for the Board's and the Hearing Committee's conclusion that Respondent engaged in discovery and motions practice that was “entirely out of proportion to any reasonable dispute between the parties and any colorable damage claim” and that was undertaken “solely to make Christie's give up, in order to avoid Respondent's continued onslaught of paper and the attendant expense”; and that Respondent litigated against Christie's in a manner that was “designed to cause Christie's to incur maximum costs” and that was “for no purpose other than to harass Christie's.”21 Although in each case Respondent was representing himself rather than another client, we agree with the observation of a sister jurisdiction that “[t]he intent and purpose of Rule 4.4 is served” by the “common sense” “construction that a lawyer is representing a client when he represents himself[.]” Attorney Grievance Comm'n of Maryland v. Alison, 565 A.2d 660, 668 (Md.1989) (citing In re Segall, 509 N.E.2d 988, 990 (Ill.1987) (an attorney who is himself a party to the litigation represents himself within the meaning of the disciplinary rules)); see also In re Pelkey, 962 A.2d 268, 280 (D.C.2008) (finding a violation of Rule 4.4(a) based on conduct that Pelkey took while proceeding pro se ).
Rule 8.4(d) provides that it is professional misconduct for a lawyer to “[e]ngage in conduct that seriously interferes with the administration of justice[.]” The record makes plain that Respondent's meritless and voluminous filings wasted the time and resources of the courts (requiring them, as the Board found, to “wade through his verbose and repetitive pleadings”) and, particularly because of their excessive single-spacing and excessive argument, unnecessarily burdened the courts. Respondent argues that his tactics did not “taint the judicial process in more than a de minimis way” because his filings were quickly and summarily disposed of by the court. But to find a violation of Rule 8.4 does not require a demonstration that the violator actually “cause[d] the court to malfunction or make an incorrect decision.” In re Hopkins, 677 A.2d 55, 59 (D.C.1996); In re Uchendu, 812 A.2d 933, 941 (D.C.2002). Rather, it is sufficient that the respondent's conduct burdened the judicial system. In re Spikes, 881 A.2d 1118, 1127 (D.C.2005). Respondent's voluminous, meritless, and difficult-to-read filings did precisely that.
The imposition of bar discipline sanctions “is not an exact science but may depend on the facts and circumstances of each particular proceeding.” In re Goffe, 641 A.2d 458, 463 (D.C.1994). Relevant considerations may include the nature and seriousness of the misconduct; the prejudice, if any, to the client that has resulted from the misconduct; whether the misconduct involved dishonesty or misrepresentations; the presence or absence of violations of other ethical rules; whether the lawyer has a history of prior discipline, and whether the lawyer has acknowledged his wrongful conduct. Pelkey, 962 A.2d at 281. “Generally speaking, if the Board's recommended sanction falls within the wide range of acceptable outcomes, it will be adopted and imposed.” In re Austin, 858 A.2d 969, 975 (D.C.2004).
Respondent disputes that any sanction should be imposed, noting that he has “no intention, capacity or need to practice law for compensation in the future” and citing his “health problems.” Bar Counsel initially sought a three-year suspension in addition to a fitness requirement, but does not oppose the Board's recommended sanction of an eighteen-month suspension and a fitness requirement. We conclude that the Board's recommended sanction is justified. As described above, through his conduct in the Christie's and Palisades litigation, Respondent violated several provisions of the Rules of Professional Conduct. Far from exhibiting remorse for his egregious and repeated misconduct, Respondent has refused to acknowledge that he has engaged in any wrongdoing. While Respondent has no prior disciplinary history, this factor does not weigh heavily in his favor in light of his representations that he has not been engaged in the practice of law for nearly three decades, with the exceptions of his involvement in Christie's and Palisades.
As we have observed many times, the sanction in a bar discipline case should fall within the range of sanctions imposed in other cases involving similar misconduct. In this respect, the sanction recommended by the Board is an appropriate, mid-range sanction. See, e.g., In re Spikes, 881 A.2d 1118 (imposing thirty-day suspension for the filing of a meritless defamation claim in retaliation for the defendant's report of prior misconduct to Bar Counsel, conduct found to violate Rules 3.1 and 8.4(d)); In re Thyden, 877 A.2d 129 (D.C.2005) (imposing thirty-day suspension where the lawyer filed, and appealed the denial of, a motion to dismiss a bankruptcy petition and an adversary proceeding, even though he acknowledged a lack of standing, and then filed a subsequent adversary proceeding making essentially the same claims, thereby burdening and delaying the underlying bankruptcy petition); In re Shieh, 738 A.2d 814 (D.C.1999) (reciprocal discipline case in which this court declined to adopt the Board's recommendation of a two-year suspension, and instead disbarred the lawyer, where the record showed that he was found repeatedly to have filed and pursued “baseless, vexatious litigation” and to have filed lawsuits solely to harass his opponents, and also revealed a history of “frivolous motions (including for removal of cases to federal court and recusal of judges), meritless appeals, and disobedience of court orders”); In re Orci, 974 A.2d 891 (D.C.2009) (disbarring lawyer who had “filed multiple frivolous claims to harass and intimidate others[,]” “knowingly flouted court orders[,]” “engaged in abusive litigation tactics[,]” and “seriously interfered with the administration of justice[,]” but also had “engaged in fraudulent and dishonest conduct”); In re Ditton, 980 A.2d 1170 (D.C.2009) (imposing five-year suspension with fitness requirement where the lawyer had exhibited “a long history of filing civil actions against numerous and various defendants on grounds that are, at best, of questionable merit”). The recommended fitness requirement is appropriate because the record raises serious questions about Respondent's judgment and his understanding of and regard for court rules and the Rules of Professional Conduct, and “casts a serious doubt upon” his continuing fitness to be trusted with litigation matters. See In re Cater, 887 A.2d 1, 24 (D.C.2005) (approving the “serious doubt” test) (internal quotation marks omitted); see also In re Chisholm, 679 A.2d 495, 505 (D.C.1996) (citing attorney's “refusal to accept responsibility for his actions” and his “lack of contrition” as reasons for requiring him to demonstrate his fitness to practice as a precondition to reinstatement).
Respondent argues that the imposition of sanctions on him will accomplish nothing since he has “not practice[d] law for compensation since December 1985” and does not intend to resume practice, and since a suspension would not prevent him from filing pro se claims against his adversaries. These points may be correct, but an important purpose of discipline is “to maintain the integrity of the profession and to ․ deter other attorneys from engaging in similar misconduct.” In re Reback, 513 A.2d 226, 231 (D.C.1986). We therefore adopt the recommended sanction.
For the foregoing reasons, Respondent is hereby suspended from the practice of law in the District of Columbia for a period of eighteen months, commencing on the date when he filed an affidavit in compliance with D.C. Bar R. XI, § 14(g). His reinstatement is conditioned upon a showing of fitness to resume the practice of law, in accordance with D.C. Bar R. XI, § 16.
2. Respondent asserts that he acquired the painting as part of his private collection, and not in his capacity as an art dealer.
4. Judge Stafford also observed that the record was “replete with evidence that Goldsmith did not and could not enter into an agreement utterly at odds with Christie's written Conditions of Business,” which Respondent “acknowledged and accepted ․ when he signed and returned the written Receipt” to Christie's.
6. Throughout subsequent proceedings relating to the order awarding attorneys' fees, Respondent continued his practice of submitting numerous and lengthy pleadings. For example, in response to the 13–page declaration that Christie's submitted in support its claim for fees and costs, Respondent filed a 45–page memorandum and a 48–page declaration that included eight attachments, one of which was a 56–page document that discussed in detail the cases cited in the 45–page memorandum. In January 2008, Magistrate Judge Alan Kay issued a report and recommendation finding that Christie's request for $630,043.32 in fees and expenses was reasonable and warranted under 28 U.S.C. § 1927, but recommending that, in light of Respondent's finances, the court impose a sanction of only $110,000. Christie's indicated its willingness to accept the reduced amount “only if [Respondent] likewise accepts Judge Kay's Report and Recommendation and does not seek to have it reduced.” Respondent did not accept Judge Kay's recommendation and instead followed it with another spate of lengthy filings (e.g., a 45–page reply to Christie's four-page response to Magistrate Judge Kay's recommendation, accompanied by a 14–page declaration that consisted mostly of additional argument). Judge Stafford awarded Christie's the full amount of $630,043.32 as a sanction for what he described as Respondent's “bad faith, vexatious, and oppressive conduct in this case[,]” which he found Respondent had continued to engage in even in submitting his objections to Magistrate Judge Kay's report.
11. In original discipline cases such as this one, “the hearing committee conducts the hearings and makes factual findings and recommendations which it submits to the Board for review[.]” In re Temple, 629 A.2d 1203, 1208 (D.C.1993). “[T]he Board has the power to make its own factual findings and forward them to the court with a recommendation[,]” but “must accept the hearing committee's factual findings if they are supported by substantial evidence on the record as a whole.” Id. However, the Board “owes no deference to the hearing committee's determination of ‘ultimate facts,’ which are really conclusions of law.” In re Micheel, 610 A.2d 231, 234 (D.C.1992). Bar Counsel must establish a Rule violation by clear and convincing evidence. See, e.g., In re Anderson, 778 A.2d 330, 335 (D.C.2001).
12. Respondent asserts, for example, that summary judgment was unwarranted because there was a factual dispute as to whether he and Christie's had reached an oral consignment agreement whose terms were as Respondent claimed.
13. Thus, Respondent suggests, the District Court did not consider with impartiality his claim that he was “lulled” into not suing Christie's earlier, and ignored case law (Williams v. Central Money Co., 974 F.Supp. 22, 27 (D.D.C.1997)) recognizing the extraterritorial reach of the DCCPPA.
14. Cf. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 330–31 (1979) (“[A]nother situation where it might be unfair to apply offensive estoppel is where the second action affords the defendant procedural opportunities unavailable in the first action that could readily cause a different result.”). We note that, after hearing Respondent's testimony, the Hearing Committee found that Respondent “believes that he had an oral consignment agreement with Christie's” (but also found that Respondent and Christie's “did not enter into such an agreement” and in particular did not agree that Christie's would not seek an opinion on the authenticity of the painting). The Board similarly stated that Respondent “believed ․ that Christie's would take the consignment of the Schindler without seeking an outside opinion as to its authenticity.” The Hearing Committee also found (contrary to Judge Stafford's finding that Respondent's “claims to damages def[ied] all credulity”) that Respondent may have incurred, as he claimed, about $3600 in costs to “rehabilitate” his painting (but that the value of the painting did not suffer because “whatever purportedly negative, but disavowed, statements had been made were made only to Respondent”).
15. We also have no doubt that, to the extent that the court may have overlooked whatever merit there was in Respondent's explanations and arguments, it was, somewhat ironically, the unreasonable voluminousness of Respondent's filings and their difficult-to-read format that were to blame for that circumstance. In any event, the court, like the Hearing Committee and the Board, was not required to adopt Respondent's version of events, and the court's findings could be conclusive for collateral estoppel purposes even if they were somehow erroneous. See K.H. v. R.H., 935 A.2d 328, 335 (D.C.2007) (“The mere fact that a judgment is erroneous does not deprive it of ․ conclusiveness[.]”).
17. Cf. Latty v. St. Joseph's Soc'y of the Sacred Heart, 17 A.3d 155, 162–63 (Md.Ct.Spec.App.2011).
18. Respondent claims that Bryan and the Palisades Board knowingly lied when they asked him to direct to Bryan any requests for further information about the complaints against him, as evidenced by Bryan's refusal to provide him with contact information for everyone who had complained about his misconduct. But the referral of questions to Bryan hardly created an obligation for Bryan to obey any and all demands for information that Respondent might make, however intrusive.
19. Respondent's argument that his lengthy footnotes were “not barred or limited by any court [r]ule” (emphasis omitted) misses the point that his lengthy footnotes were obviously designed to evade Judge Friedman's order imposing a page limit and requiring that the text be double-spaced.
20. Respondent's explanation that he prepared the “lengthy” complaint he filed as a “Quasi–Affidavit for Summary Judgment purposes” is entirely unavailing.


§ 120.01 Designation, citation, headings.
§ 120.02 Amendments and supplements; numbering.
§ 120.03 Definitions and interpretation.
§ 120.04 Separability of provisions.
§ 120.06 Exemptions from repeal.
§ 120.07 General code penalty.
§ 120.08 Collection of deliquent accounts fees and costs.
All ordinances of a general and permanent nature of the Township, as revised, codified, numbered and consolidated into component codes, chapters and sections, shall be known and cited as the Codified Ordinances of Crescent Township, Allegheny County, Pennsylvania, 1984. Code, chapter and section headings do not constitute any part of the law as contained in the Codified Ordinances.
The Codified Ordinances of Crescent Township, Allegheny County, Pennsylvania, 1984, may be amended or supplemented at any time and, when any amendment or supplement is adopted in such form as to indicate the intention of the Board to make the same a part thereof, such amendment or supplement shall be incorporated in, and deemed a part of, the Codified Ordinances, so that a reference to the Codified Ordinances shall be understood and construed as including the Codified Ordinances of Crescent Township, Allegheny County, Pennsylvania, 1984, and any and all such amendments and supplements. All amendments and supplements enacted as a part of the Codified Ordinances shall be integrated therewith by following the form of arrangement and plan set forth in the original Codified Ordinances.
The Board of Township Commissioners of Crescent Township, Allegheny County, Pennsylvania.
The terms "month" and "year" shall mean the calendar month or year. The time expressed in days within which an act is to be done or a period is to expire shall be computed by excluding the first and including the last day, unless the last day is a Sunday or holiday, in which case it shall be excluded. If time is expressed in hours, the whole of Sunday or a holiday shall be excluded.
An individual, association, club, corporation, firm, partnership or body politic.
In all cases where provision is made for an act to be done or notice to be given within a reasonable time, it shall be deemed to mean such time only as may be necessary for the prompt performance of such act or the giving of such notice.
The Township Secretary-Manager of Crescent Township, Allegheny County, Pennsylvania.
Crescent Township, Allegheny County, Pennsylvania.
Each section and each part of each section of the Codified Ordinances is hereby declared to be an independent section or part of a section, and if any such section or part of a section, or any provision thereof, or the application thereof to any person or circumstance, is held to be invalid, the remaining sections or parts of sections, or provisions thereof, and the application thereof to any other person or circumstance, shall not be affected thereby.
All ordinances and parts of ordinances not set forth or incorporated by reference in the Codified Ordinances of Crescent Township, Allegheny County, Pennsylvania, 1984, are hereby repealed.
Any ordinance or resolution promising or guaranteeing the payment of money by or to the Township, or authorizing the issuance of any bonds of the Township, or any evidence of the Township's indebtedness, or any contract or obligation assumed by the Township.
Any prosecution, suit or other proceeding pending, or any judgment rendered, on or prior to the adoption of these Codified Ordinances.
Whoever violates or fails to comply with any of the provisions of these Codified Ordinances, for which no penalty is otherwise provided, shall be fined not more than $300 plus costs of prosecution, and, in default of payment of the fine thus imposed, shall be imprisoned not more than 30 days in the Allegheny County Jail. A separate offense shall be deemed committed each day during or on which a violation or noncompliance occurs or continues. The penalty provided for herein shall be in addition to any equitable remedy provided in these Codified Ordinances or which otherwise may be available to the Township as a matter of law.
Fees to be added to the unpaid claim. The Township of Crescent hereby approves the following fee schedule for the collection of unpaid claims, which fees shall be added to the unpaid claim.
Notice expense. A fee, not to exceed $50, together with all costs and expenses incurred, shall be added to the unpaid claim for mailing a notice of delinquency pursuant to Section 7106 of the Municipal Claims and Tax Liens Act.
Costs to be added to the unpaid claims. In addition, the reasonable and necessary out-of-pocket charges, costs, expenses, commissions and fees incurred in collection, such as but not limited to, postage, title searches, prothonotary fees and sheriff fees, shall be added to the unpaid claims.
Interest. Interest will be assessed upon all delinquent unpaid municipal claims at a rate of 10% per annum and added to the unpaid claim.
At least 30 days prior to assessing or imposing attorney fees in connection with the collection of an account, the Township of Crescent or its designee shall mail or cause to be mailed, by certified mail, return receipt requested, a notice of such intention to the taxpayer or other entity liable for the account (the property owner).
If the certified mail notice is undelivered, then, at least 10 days prior to the assessing or imposing such attorney fees, the Township of Crescent or its designee shall mail or cause to be mailed, by first class mail, a second notice to the property owner.
All notices required by this section shall be mailed to the property owner's last known post office address as recorded in the records or other information of the Township of Crescent, or such other address as it may be able to obtain from the County Office of Assessment and Revision of Taxes.
The place of payment for accounts and the name and telephone number of the Township of Crescent's representative designated as responsible for collection matters.
Related action. The proper officials of Township of Crescent are hereby authorized and empowered to take such additional action as they may deem necessary or appropriate to implement this section.
Appointment of Solicitor. Township of Crescent appoints Michelle R. Portnoff, Esquire, as Solicitor for the limited purpose of collecting delinquent municipal claims and hereby authorizes her, and attorneys under her supervision, to sign any and all documents, including tax and municipal claims, on behalf of the Township.


text:
Laminar-turbulent transition regime in a slot between flat disks rotating around the axis at the same velocity is investigated. The slot is a working element of disk pumps, compressors, turbines, and fans recommended for space power units. Instabilities of varions types which appear in the flow as well as the velocity distribution in the slot were determined by optical methods. Experimental relations lips hips which define the beginning of laminar-turbulent transition and its end were obtained.
1. Greenspan H. P. The Theory of Rotating Fluids, 304 p. (Gidrometeoizdat, Leningrad, 1975) [in Russian].
2. Luneva N. V. The influence of rotation on turbulence damping. Nonlinear problems of the theory of stability: Materialy 7-j shk. seminara, In-t mehaniki, 38 p. (Moscow, 1992) [in Russian].
3. Misyura V. I. On the application of hydraulic friction disc in the national economy. Mathematical modeling in engineering analysis of complex systems: Sb. nauch. tr., 208—215 (DGU, Dnepropetrovsk, 1997) [in Russian].
4. Misyura V. I. Experimental study of the flow of an incompressible fluid between two rotating disks. Izvestiya Vysshikh Uchebnykh Zavedenii, Energetika, No. 5, 103— 107 (1977) [in Russian].
5. Misyura V. I., Ovsyannikov B. V., Prisnyakov V. F. Disk Pumps, 112 p. (Mashinostroenie, Moscow, 1986) [in Russian].
6. Rais V. Theoretical and experimental study of multi-drive pumps and compressors. Energetika, No. 3, 35—46 (1963) [in Russian].
7. San'kov P. I., Smirnov E. M. Effect of radial flow rate on the transition to a turbulent flow regime in the gap between a rotating and a stationary disk. Izv. AN SSSR. Mehanika zhidkosti i gaza, No. 5, 175—179 (1986) [in Russian].
8. Shenberg S. P. Fluid viscous fluid friction and hydraulic machines, 170 p. (Kiev, 1915) [in Russian].
9. Shlikhting G. The theory of the boundary layer, 712 p. (Nauka, Moscow, 1974) [in Russian].
10. Bojd K. E., Rice W. Laminar inward flow of an incompressible fluid between rotating disks with full peripheral admission. Trans. ASME, 90, 229—237 (1968).
11. Gaede W. Die aussere Rebreng der Gaese und liniens Prinzip fur Luftpumpen. Die Molekularluftpumpe. Physikalische Zeit-schrift, No. 18 (380), 41—49 (1912).
12. Kohler M. Die Stromung durch das Spaltelement einer Rei-bungspumpe. Stromungmech. und Stromungmasch., No. 9, 24—45 (1971).
13. Pater L. L., Growther E., Rice W. Flow regime definition for flow between co-rotating disks. ASME Pap., N 1, WA/FE-9, P. 29—34 (1973).
14. Tesla N. Turbine: Pat. 1061206 USA. (Publ. 1913).

matches: V. V. V. V. V. V.


October’s Tip of the Month discussed the obligation employers have under the federal regulations interpreting the Fair Labor Standards Act (FLSA) and under Massachusetts law to keep and retain certain time and wage records. This month we address: where should employers keep those records, and for how long must the records be retained?
Where? Employers should keep time and wage records at the employee’s place of employment or in the employer’s central records office. Wherever they are kept, though, the records must be available for inspection by the U.S. Department of Labor’s Wage and Hour Division.
How Long? Under federal law, employers are required to maintain payroll records and records of any collective bargaining agreements for three years. Employers are required to maintain records which are related to wage computations, including time cards, wage rate tables, work schedules, time records, and records of additions or deductions from wages for two years. Keep in mind, though, that the FLSA has a three year statute of limitations for willful violations and that, as a result, wage computation records should be kept for federal purposes for at least three years.
Moreover, Massachusetts law, specifically M.G.L. c.151A, §45 and 430 CMR §5.01(1), requires employers to keep work records including payroll records, worksheets and any record which the employer uses to prepare submissions to the Massachusetts Department of Unemployment Assistance, for four years.
M.G.L. c. 151, §15 and M.G.L. c. 149, §52 impose a separate obligation to retain payroll records for at least two years. However, employers who comply with the federal requirements and M.G.L. c.151A, §45 and 430 CMR §5.01(1)’s longer four year retention requirement will have complied with the two year requirement.