The United States, pursuant to Section 2(b) of the Antitrust Procedures and Penalties Act ("APPA"), 15 U.S.C. § 16(b), files this Competitive Impact Statement relating to the Proposed Amended Final Judgment submitted for entry in this civil antitrust proceeding.
On March 31, 2005, the United States filed a civil antitrust Complaint pursuant to Section 4 of the Sherman Act, as amended, 15 U.S.C. § 4, against Defendant, the Kentucky Real Estate Commission (the "Commission"). The Complaint alleges that the Commission and others entered into and engaged in a combination and conspiracy to restrict competition among real estate brokers through the Commission's promulgation and enforcement of regulations banning rebates and inducements (the "Rebate Ban"). The Complaint further alleges that this combination and conspiracy is an unreasonable restraint of interstate trade that is illegal under Section 1 of the Sherman Act, 15 U.S.C. § 1. The Complaint seeks an order to terminate the Defendant's Rebate Ban, to enjoin future conduct in furtherance of any such Rebate Ban, and to obtain such other equitable relief necessary to restore competition for the benefit of consumers in Kentucky.
The United States filed on July 13, 2005 a Stipulation and Proposed Order, and on July 15, 2005, a Proposed Amended Final Judgment, which constitute the parties' settlement.
This Proposed Amended Final Judgment, as explained more fully below, (i) enjoins the Commission from enforcing any regulations that prohibit licensed real estate brokers in Kentucky from offering non-misleading rebates or inducements; (ii) requires the Commission to notify brokers that they can offer rebates and inducements to attract clients; (iii) permits any broker, whose license is currently suspended or revoked on account of offering a rebate or inducement, to request to have his or her license reinstated; (iv) requires the Commission to cease any current investigations or disciplinary actions relating to the offering of rebates and inducements; and (v) provides that any disciplinary action against rebates and inducements are null and void.
The Stipulation and Proposed Order require the Commission to take actions required under the Proposed Amended Final Judgment. The United States and the Commission have also stipulated that the Proposed Amended Final Judgment may be entered after compliance with the APPA, unless the United States withdraws its consent. Entry of the Proposed Amended Final Judgment would terminate this action, except that this Court would retain jurisdiction to construe, modify, and enforce the Proposed Amended Final Judgment and to punish violations thereof.
In creating the Commission, the Commonwealth of Kentucky empowered it to regulate the licensing and education of brokers and to safeguard and protect the public interest. The Commission consists of five Commissioners, four of which, by statute, must be active real estate brokers before and during their term on the Commission. When there is a broker-Commissioner vacancy, the Kentucky Association of Realtors, a private industry trade group for brokers, creates a list of not less than three nominees from which the Governor of Kentucky must appoint the new Commissioner. The Governor may reappoint a particular broker-Commissioner only if the trade association chooses to resubmit the broker-Commissioner's name on its new list of nominees.
The Commission is the sole licensing authority for real estate brokers in Kentucky. It is unlawful for any person to provide, or to offer to provide, real estate brokerage services in Kentucky unless he or she holds a current license issued by the Commission. The Commission also promulgates and enforces regulations, including the regulations that prohibit rebates and inducements to customers.
The predominant form of payment for real estate brokerage services remains the "commission," a percentage of the price paid for the property. Brokers may compete by offering their services at different commission levels. To compete against one another, brokers in other states also frequently offer customers rebates and inducements. Examples of rebates and inducements include cash (whereby the buyer's broker offers some percentage or amount of his or her commission to the buyer), free products and services (such as televisions or home inspections), discounts or vouchers for other products and services (such as home moving services or home improvement stores), and donations to charities on the customer's behalf.
Rebates also benefit sellers. Rebates, for example, could be selectively offered to more price-sensitive home sellers. Thus, a broker could keep his or her commission fixed (for example at six percent), but discount to certain sellers through a rebate or inducement.
Buyers and sellers may also benefit from inducements, such as free or reduced-priced non-real estate brokerage services, for which a broker may be able to contract at lower prices than would normally be available to buyers and sellers.
More generally, a more competitive and more efficiently-operating marketplace will tend to generate greater benefits for both home sellers and home buyers. All buyers and sellers benefit if the process of selling homes is less expensive. Consequently, allowing non-misleading rebates and inducements is procompetitive and represents an important component of price competition. Such price competition is permitted in most states. National discount brokers, for example, advertise rebates and inducements in the many states where they are permitted. Customers in these states then ask for rebates and inducements.
The Kentucky Legislature enacted statutes that authorize the Commission to regulate the licensing and education of brokers. Kentucky, however, expressly forbids the Commission from promulgating any regulation that fixes prices, establishes fees, or sets the rate at which brokers are compensated. See Ky. Rev. Stat. § 324.282. This statute confirms that Kentucky intended that consumers of real estate brokerage services enjoy the benefits of price competition among brokers. Despite this staute, in 1991, the Commission promulgated administrative regulations that banned rebates and inducements. See 201 Ky. Admin. Reg. 11:011, Section 1(5); 201 Ky. Admin. Reg. 11:121, Section 1(2). Specifically, the Commission's regulations forbid a broker "[t]o offer, either through advertising, direct contact or by others, to the general public, any prize, money, free gift, rebate, or any other thing of value as an inducement." 201 Ky. Admin. Reg. 11:121, Section 1(2).
The Commission warned brokers that they could not compete by offering rebates or inducements. Nor could brokers, prior to closing, even compete by taking clients out to dinner, donating money to a charity of the customer's choice, or offering a free photo. The Commission announced that, even after the closing of a real estate transaction, brokers could not give their clients anything more than a gift worth up to $100 in value.
sanctioning brokers for offering rebates or other inducements.
As alleged in the Complaint, the Commission's promulgation and enforcement of the Rebate Ban is the product of an agreement, combination, or conspiracy among Broker-Commissioners and others that has restricted the ability of brokers to compete on the basis of price. "In construing and applying the Sherman Act's ban against contracts, conspiracies, and combinations in restraint of trade, the [Supreme Court] has held that certain agreements or practices are so 'plainly anticompetitive' and so often 'lack . . . any redeeming virtue,' that they are conclusively presumed illegal without further examination under the rule of reason." Catalano v. Target Sales, Inc., 446 U.S. 643, 646 (1980) (conspiracy to eliminate short-term credit to retailers per se illegal) (citations omitted); see also United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 221 (1940) (any combination which tampers with price structures is unlawful); TFWS, Inc. v. Schaefer, 242 F.3d 198, 210 (4th Cir. 2001) (volume discount ban per se illegal). The agreement among the Broker-Commissioners and others to ban rebates and inducements through the promulgation and enforcement of the Rebate Ban is a per se violation of Section One of the Sherman Act. Given its pernicious effect on competition and lack of any redeeming virtue, the agreement is conclusively presumed to be unreasonable without the need for an elaborate inquiry into the precise harm that it caused or the potential business justification for its use. Northern Pacific Ry. Co. v. United States, 356 U.S. 1, 5 (1958).
The effect of the Proposed Amended Final Judgment would be to restore competition that the agreement among the Broker-Commissioners and others had eliminated, and to prevent the broker-controlled Commission from engaging in similar conduct in the future. The Proposed Amended Final Judgment would enjoin the Commission from enforcing its Rebate Ban. The Commission must also take certain measures for those brokers, who were, or are being, disciplined for offering rebates and inducements. First, it must discontinue any investigations or disciplinary actions to the extent they relate to the offering of any rebates or inducements. Second, it must permit any broker, who currently is on probation or whose license is currently suspended or revoked for having offered a rebate or inducement, to have his or her license reinstated to the extent that the broker otherwise meets the contemporary licensing requirements under the Kentucky Revised Statutes. Third, the Commission must treat any past disciplinary actions for offering rebates or inducements as null and void.
Section 4 of the Clayton Act, 15 U.S.C. § 15, provides that any person who has been injured as a result of conduct prohibited by the antitrust laws may bring suit in federal district court to recover three times the damages the person has suffered, as well as the costs of bringing a lawsuit and reasonable attorneys' fees. Entry of the Proposed Amended Final Judgment will neither impair nor assist the bringing of any private antitrust damage action. Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. § 16(a), the Proposed Amended Final Judgment has no effect as prima facie evidence in any subsequent private lawsuit that may be brought against the Defendant.
The parties have stipulated that the Proposed Amended Final Judgment may be entered by this Court after compliance with the provisions of the APPA, provided that the United States has not withdrawn its consent. The APPA conditions entry of the decree upon this Court's determination that the Proposed Amended Final Judgment is in the public interest.
The Proposed Amended Final Judgment provides that this Court retains jurisdiction over this action, and the parties may apply to this Court for any order necessary or appropriate for the modification, interpretation, or enforcement of the Amended Final Judgment.
The United States considered, as an alternative to the Proposed Amended Final Judgment, a full trial on the merits against the Defendant. Given the inherent delays of a full trial and the appeals process, the United States is satisfied that the relief contained in the Proposed Amended Final Judgment, will quickly establish, preserve, and ensure competition for real estate brokerage services in Kentucky.
15 U.S.C. § 16(e)(1)(A) & (B). As the United States Court of Appeals for the District of Columbia Circuit has held, the APPA permits a court to consider, among other things, the relationship between the remedy secured and the specific allegations set forth in the government's complaint, whether the decree is sufficiently clear, whether enforcement mechanisms are sufficient, and whether the decree may positively harm third parties. See United States v. Microsoft Corp., 56 F.3d 1448, 1458-62 (D.C. Cir. 1995).
Moreover, the court's role under the APPA is limited to reviewing the remedy in relationship to the violations that the United States has alleged in its complaint; the APPA does not authorize the court to "construct [its] own hypothetical case and then evaluate the decree against that case." Microsoft, 56 F.3d at 1459. Since the "court's authority to review the decree depends entirely on the government's exercising its prosecutorial discretion by bringing a case in the first place," it follows that the court "is only authorized to review the decree itself," and not to "effectively redraft the complaint" to inquire into other matters that the United States might have but did not pursue. Id. at 1459-60.
There are no determinative materials or documents within the meaning of the APPA that were considered by the United States in formulating the Proposed Amended Final Judgment.
1. Although home sellers in Kentucky are permitted to offer inducements directly to the buyer, this does not mitigate the anticompetitive effects of the Commission's Rebate Ban. Such a discount is attached to a particular house (and not the broker's services). Thus, it is not a factor when a buyer chooses the broker who should represent the buyer in finding and purchasing a home. Brokers in Kentucky have been prohibited from competing to become the buyer's agent by lowering their prices through rebates and inducements.
2. 119 Cong. Rec. 24,598 (1973) (statement of Senator Tunney). See United States v. Gillette Co., 406 F. Supp. 713, 716 (D. Mass. 1975) (recognizing it was not the court's duty to settle; rather, the court must only answer "whether the settlement achieved [was] within the reaches of the public interest"). A "public interest" determination can be made properly on the basis of the Competitive Impact Statement and Response to Comments filed by the Department of Justice pursuant to the APPA. Although the APPA authorizes the use of additional procedures, 15 U.S.C. § 16(f), those procedures are discretionary. A court need not invoke any of them unless it believes that the comments have raised significant issues and that further proceedings would aid the court in resolving those issues. See H.R. Rep. No. 93-1463, 93rd Cong., 2d Sess. 8-9 (1974), reprinted in 1974 U.S.C.C.A.N. 6535, 6538-39.
3. United States v. Mid-America Dairymen, Inc., Civ. Action No. 73 cv 681-W-1, 1977-1 Trade Cas. (CCH) ¶ 61,508, at 71,980 (W.D. Mo. May 17, 1977).
4. United States v. BNS, Inc., 858 F.2d 456, 462 (9th Cir. 1988) (quoting United States v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir. 1981)); see also Microsoft, 56 F.3d at 1458.
5. Bechtel, 648 F.2d at 666 (emphasis added) (citations omitted); Cf. BNS, 858 F.2d at 464 (holding that the court's "ultimate authority under the [APPA] is limited to approving or disapproving the consent decree"); Gillette, 406 F. Supp. at 716 (noting that, in this way, the court is constrained to "look at the overall picture not hypercritically, nor with a microscope, but with an artist's reducing glass"). See generally Microsoft, 56 F.3d at 1461 (discussing whether "the remedies [obtained in the decree are] so inconsonant with the allegations charged as to fall outside of the 'reaches of the public interest'").
6. United States v. Microsoft Corp., 231 F. Supp. 2d 144, 153 (D.D.C. 2002) (quoting United States v. American Tel. & Tel. Co., 552 F. Supp. 131, 151 (D.D.C. 1982) (citations omitted), aff'd sub nom. Maryland v. United States, 460 U.S. 1001 (1983)); see also United States v. Alcan Aluminum Ltd., 605 F. Supp. 619, 622 (W.D. Ky. 1985) (standard is not whether decree is one that will best serve society, but whether it is within the reaches of the public interest).


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Clark Alpert (Partner, Madison) asks: What is the law, and what to do about it?
Ever since Pacifico v. Pacifico, 190 N.J. 258 (2007), the doctrine of contra proferentum isn't what it used to be---but many courts haven't gotten the message. That doctrine, as you may know, traditionally required ambiguities in a document to be construed against the party who selected the language. E.g., In re Estate of Miller, 90 N.J. 210, 221 (1982). In Pacifico, our Supreme Court explained that contra proferentum is, at most, "a doctrine of last resort", and even then is not available when the parties have equal bargaining power.1Since such power will never be exactly equal on both sides, and there was clearly no intent for a trial within a trial to measure that exactitude, the Court's obvious intent was that the bargaining power be roughly equal. See also, Chubb Custom Ins. Co. v. Prudential Ins. Co., 195 N.J. 231, 246 (2008).
Thus, when dealing with two "worldly-wise" and sophisticated parties, the doctrine does not apply. Pacifico 190 N.J. at 368. The Pacifico Court also indicated the doctrine's inapplicability if the agreement was not the product of a singular 'drafter' within the meaning of the doctrine (id.)---but not necessarily (in this author's view) that both factors need be shown.
The Court thus emphasized that the adage of construing a contract against the drafter has little if any significance in a commercial (or, there, matrimonial) context. Rather, other more direct means of determining intent should be employed; such as (in addition to the terms of the contract) common usage and custom, and the "circumstances surrounding the [the contract's] ... execution". Id. at 267.
See also, e.g., ATIM Family Partnership v. LMW Properties Corp., 2009 WL 857456, *4 (N.J.App.Div. 2009).
The federal courts have also strayed. In New Jersey Regional Counsel of Carpenters v. Jayeff Construction Corp., 2011 WL 4810039 (D.N.J. 2011), the Court acknowledged Pacifico, but resorted to the concept of construing against the drafter, ostensibly because the parties were not exactly of equal sophistication (at *4)---which seems antithetical to the thrust of Pacifico.
Some may think that Kieffer v. Best Buy, 205 N.J. 213, 224 (2011), represents a retrenchment by the Court from Pacifico; but not in this author's view. Whether sensibly or not, cases such as Kieffer involving indemnification provisions still invoke a strict construction principle (unique to that type of provision) that goes beyond contra proferentum. It may have been unwise for Kieffer to superfluously combine Pacifico with indemnification law, thus potentially confusing the courts as to its intent in Pacifico; but I think that clear intent survives.
My litigation tip, therefore, is to be particularly strong in explaining to your tribunal what Pacifico means--- and to the extent later cases have gotten the issue wrong, to be forthright about that (because your adversary will undoubtedly cite these cases); explain why Kieffer is sui generis; and point to Chubb as well.
My drafting tip would be to remember to include, in your agreement, language verifying that the parties both believe contra proferentum to be inapplicable, because the parties are of equal bargaining power and the agreement has been negotiated (and/or certainly the opportunity for such negotiation has existed). The traditional expression of this concept has normally been something like, "The parties acknowledge that this Agreement has been fully negotiated between the parties, and agree that it shall be construed without regard to any presumptions against the party causing the same to be prepared"3; although obviously that language can be refined to make the Pacifico holding even more predictable.
The short message is not to assume the correct outcome when the doctrine may be lurking, but rather to protect yourself both in drafting and litigation.
1 The fact that the Court used the matrimonial setting to establish this Rule is particularly telling, since rough equality of bargaining power in a traditional commercial context is even clearer.
2The sophistication of AC Construction seems indubitable, if only from a glance at its website.
3 Note that the following similar language was enforced in Montoya v. Montoya, 280 Conn. 605, 909 A.2d 947 (2006): "The parties acknowledge that this Ante-Nuptial Agreement is a document which has been negotiated by both parties and the parties agree that for purposes of construction neither party is deemed to be the draftsman thereof."

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Lord Yehudi Menuhin has named Kaunas State Choir the collective of the highest level. The choir that is well known in Lithuania and abroad for the performance of large-scale world classic’s pieces is as well famous for the nurturance and spread of Lithuanian music. Pieces by Mikalojus Konstantinas Čiurlionis, Česlovas Sasnauskas, Juozas Naujalis, Stasys Šimkus, Vladas Švedas, Bronius Kutavičius and Lithuanian authors belonging to the younger generation have a special place in the repertoire and discography of the collective.
Led by its’ art director and conductor Petras Bingelis the choir during the concert will introduce the programme “Lietuva brangi” (“Lithuania My Dear”). The song written by J. Naujalis upon the lyrics of Maironis that has become almost the second national anthem permanently sounds in the choir’s artistic activity as the beautiful and meaningful keynote. Performed by the singers from Kaunas in 2012 it witnessed the Lithuanian music tradition during the 26th Macao Music Festival that took place in China. CD recorded by the choir in 2000 and containing the patriotic and religious pieces by the most famous Lithuanian composers from the beginning of the 20th century is as well called “Lithuania My Dear“.
The most beautiful Lithuanian choral music will be performed during the event. In the programme there are represented several generations of Lithuanian music creators: the first composers of national music – Vincas Kudirka, Mikalojus Konstantinas Čiurlionis, Aleksandras Kačanauskas, as well Julius Juzeliūnas, Rimvydas Žigaitis, Zigmas Virkšas who have cultivated Lithuanian music later and nowadays authors belonging to several generations – Algimantas Bražinskas, Vytautas Barkauskas, Vytautas Miškinis, Vaclovas Augustinas.
The major part of the concert will be conducted by the Kaunas choir’s leader Petras Bingelis who has been honoured with numerous distinctions. In 1993 he was awarded with the Lithuanian National Culture and Art Premium, in 1994 awarded Grand Duke Gediminas Medal of the 4th degree, in 2003 – with the Comandor’s Great Cross of the medal “For the merits to Lithuania”. In 2008 was elected the Honour Citizen of Kaunas city, in 2013 was granted Ministry of Culture sign of honour “Nešk savo šviesą ir tikėk” (“Carry your light and believe”). The exclusive and touching estimation links P. Bingelis with the patriarch of Lithuanian choral music – Juozas Naujalis whose pieces will be performed in the programme of the concert. Maestro is keeping the original wand of Juozas Naujalis that has been handed to him by the composer’s daughter Zofija Naujalytė more than thirty years ago.
The young conductors Kęstutis Jakeliūnas and Mindaugas Radzevičius will as well appear at the conductor’s stand. K. Jakeliūnas will conduct composition by V. Miškinis “Oi šąla šąla” (“It is freezing”) and M. Radzevičius – a song by Z. Virkšas “Oi, ant kalno” (“Oh, on the Mountain”).
K. Jakeliūnas says that composition by V. Miškinis “Oi, šąla šąla” ir one of the most colourful composer’s pieces. “Since the very first phrase of the choir – the canon that is sung by sopranos, the music carries to the magical play of the first snowflakes and when other voices join gradually the harmony develops up to the graceful spree of the snow storm. The brightest colour and impression of light is felt in the middle part of the piece. When soprano is singing solo and the choir answers, at the end of every phrase a bell rings and it seems that it stops the flowing of the time, - shared his thoughts conductor.
K. Jakeliūnas describes the opportunity to work with the choir as an exceptional experience, plenty of everyday searches of the music’s depths, climbing to the heights of mastership, professional advices of P. Bingelis: “These are indeed inestimable values that give sense to the life and creative activity and encourage materialise your skills, to release the creative potential.
M. Radzevičius compares the choir to the small state where everyone though being different is working for one goal: ‘This is a team-work. Often it is necessary to search for the compromise, to listen to others attitude. I think this is the way to reach the best result”. The conductor says that every season of th choir’s creative activity brings new challenges, interesting programmes, often – smart musical experiments and create dynamic atmosphere that enables to reveal artists’ creative potential.
Kaunas State Choir is waiting for its listeners in Lithuanian National Philharmonic (Aušros Vartų str. 5, Vilnius) on March 11 d., 7 p. m. The choir will be accompanied by Renata Marcinkutė-Lesieur (organ) and Beata Andriuškevičienė (piano).
It is symbolic that Kaunas State Choir returns to the stage exactly in the staging of “Faust” intended to commemorate the 10th anniversary of Vilnius City Opera. The choir led by Petras Bingelis had worked together with Dalia Ibelhauptaitė in the staging of “Pagliacci” that was even earlier than “La Bohème”. Later male part of the choir joined the staging of “Il Trovatore”. This time the mixed choir will join the young generation of Vilnius City Opera ensemble and become the portrait of the 19th century Paris society covering different characters, types and even completely unexpected personalities.
Director Dalia Ibelhauptaitė, speaking about the collaboration with Kaunas State choir, tells: “In “Faust” Kaunas State Choir comprises the basis of all the biggest choral scenes. They were always famous for their high vocal professionality cultivated by maestro Petras Bingelis whose experience in the field of music is a real treasure and our collective is very happy having the possibility to create together with the best professionals in this field that are famous for their works far beyond Lithuania. So, we knew that they are capable to perform the most complicated pieces but even could not dream that the choir will transform itself into such suggestible actors that are moving on the stage and create interesting, distinctive and individual characters. Their work in “Faust” is a triumph achieved by long-lasting and hard work, devotion to the idea of acting and once again proves that people who have artistic souls know no limits.
I am greatly surprised by the fantasy of every choir singer, the stories of characters created by them, mini-plots that so organically intertwine into many-stage actions in all their scenes and reach my ideal – acting on the stage like in the cinema where you can shoot every personage like a separate story. And furthermore it mingles with the perfect vocal! That’s why the strength of all the massive scenes of “Faust” just tears down the roof of the Congress Palace! It seems to me that for them every appearing on the stage means a great feast and that light and positive energy the choir transmits to every viewer. This is not the first common project of Vilnius City Opera and Kaunas State Choir and I greatly hope that journeys from Kaunas to Vilnius and back will become more and more often. It is so wonderful to create the common world with the people who feel happy because of that…” In fact, being not able to prescind from the mass of different personages and costumes, we got interested in several individual stories of choir singers and their experience working together with Vilnius City Opera that are hiding behind them. As Zenonas Butkevičius who has been working together with Dalia Ibelhauptaitė already in “Pagliacci” and later in the “Il Trovatore” told us, at first it may be difficult in opera: “After all, we – choir singers are people of quite static profession, meanwhile the world of opera is completely different. Here it is plenty of action and furthermore you are creating a personage and one day you may be an aristocrat and the other – a poor fellow. This time Zenonas got the role of the vendor that he accepted with all challenges and particularity: “Yes, it happened to me to appear behind the bar and I think that in the future my attitude towards barmen will be different. While preparing for the performances I understood that in fact the barmen has to “tame” trays, glasses and cups, to manage them and not to allow them to manage him. This is an interesting experience just like the previous common projects with Dalia Ibelhauptaitė team and for me it is very interesting to take part in them.
“Faust” appeared to be the performance of the decade not only for Vilnius City Opera but as well for the choir singer Inga Gudavičienė for whom this opera crowns her ten years anniversary of working in Kaunas State Choir: “I am very happy because of the opportunity to take part in the opera of such a high rank, to be together with such people and contribute in creating such a wonderful spectacle.” Inga concedes that the work with the “bohemians” astonished her. Having worked in Kaunas Musical Theatre she shared bright and different impressions: “Peculiarity of the work is different, indeed. In the staging of operettas in Kaunas Musical Theatre that I had opportunity to participate, the choir and the orchestra were to separate wings. Directors work more with soloists there and in Vilnius City Opera every choir artist is revealed as the hero who has its’ own story and realizes it in opera. And the atmosphere here is very domestic, communication is warm and you really feel that here we are one family and you can ascertain that the star of the highest scale is communicating with everybody very naturally. Such things ensure more comfort on the stage it becomes pleasant to act because you receive the response from every person who is present on the stage. Opera becomes a light in the repertoire of Kaunas State Choir that enables us not only to move on but as well to reveal our theatrical skills.
On the 16th of February – the Day of Restoration of Lithuania‘s Independence in the streets of cities, towns and villages three-coloured flags flutter and the National Anthem sounds. Lyrics of the anthem – “Lithuania, our Motherland“ are often repeated but do we know the history of one of the three symbols of the state?
The “National Anthem“ is the only choral piece composed by V. Kudirka. Composer Juozas Žilevičius says: “This piece is one of the most important and interesting from all Vincas Kudirka’s compositions and at the same time it is the most significant. If even he wouldn’t have written anything else, just only this piece, nevertheless his name would be alive in the nation’s lips as it is today. This composition crowns all his activity in the field of music”.
However V. Kudirka‘s contribution into the development of the Lithuanian music is much more extensive. From his young age having had a close contact with the songful Lithuanian folklore he started collecting it, cared to harmonize folk music. During his studies in Warsaw under the impact of Polish salon culture that fostered fine musical traditions V. Kudirka wrote several compositions for piano.
V. Kudirka himself has told predictively about his “National Anthem“: “I‘ve written the anthem for the Lithuanians“. However the history of our state‘s anthem is not so brief and simple as It might look at first glance.
At first verses of the poem “Sir Thaddeus“ written in Polish by Adam Mickiewicz: “O Lithuania, my Country, thou art like good health“ served as Lithuania‘s National Anthem. Author of the historical novel “Algimantas“ suggested to declare the King David‘s psalm “The Lord Almighty is with us“ as the National Anthem, meanwhile the nation was very fond of the religious anthem „Mary, Mary“ (the music to Maironis’ lyrics composed by Česlovas Sasnauskas). As well other verses by Maironis raising the nation‘s spirit and pride of its glorious past – “Where Šešupė is flowing“ (music by Č. Sasnauskas and A. Kačanauskas), “We will burst into a new song, brothers“ and “Dear Lithuania“ as well pretended to become the National Anthem. “Dear Lithuania“ served as unofficial anthem of Lithuania during the Soviet period when V. Kudirka‘s “National Anthem“ was banished.
However predictive words of V. Kudirka came true: for the first time “The National Anthem“ has been sung when its’ author was still alive – on November 13, 1899 in Petersburg, during the concert that was organised to support Lithuanian students. A year later the future President of Lithuania, the congenial and comrade of V. Kudirka – Kazys Grinius named this anthem the national anthem in the press. In 1905 the anthem was performed in the concert organised on the eve of the Great Seimas of Vilnius. In 1906 a special edition called „The Anthem of Lithuania“ was published in Riga.
Perhaps, we rarely do think about the fact that the National Anthem is an inseparable part of our everyday life. The first sounds that every morning can be heard on Lithuanian National Radio and Television and wake us for the new day is the “National Anthem“ performed by Kaunas State Choir. The record of the “National Anthem“ that has been made by Kaunas State Choir at once after the restoration of Independence in 1990 has become an indispensable attribute without which any solemn session of the Seimas of the Republic of Lithuania, other significant state and national events are inconceivable.
Celebrating the Restoration of Statehood Day let us listen more carefully to the encouragements of the „National Anthem“ to love our Motherland not only by words but as well by deeds... And let us sing it with pride!

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Cause in fact is a prerequisite for torts liability. It must be more likely than not that but for a liable person's action/omission, the harm would not have occurred. If we cannot prove this “more likely than not” standard, then in most cases the harm is too uncertain for a court to shift liability from where it fell.
However, this standard begins to run into problems in two situations. First, when the standard falls short, yet our intuition and morality tell us that something is clearly wrong. And second, when too much evil occurs and we're unable to sort out which wrong act was the cause in fact.
This playlist attempts to lay out a basic doctrine of cause in fact, without yet worrying about problems of foreseeability. It first looks at Perkins v. Texas and New Orleans Ry. Co., a basic case with clear negligence and obvious harm, but where causation problems prevents recovery.
General Electric Co. v. Joiner and Anderson v. Minneapolis, St. P. & S. St. M. R.R. Co. present situations where there are multiple different causes. In the first, the district court found as a matter of law that expert testimony was not reliable enough to make one specific cause more likely than not. In the other, the court sent it to the jury with very detailed (perhaps incomprehensible?) instructions about how different causes could combine together.
In Litzman v. Humboldt County and Skipworth v. Lead Industries Association, we look at causation when there are multiple defendants and it is not possible to identify which one of them was responsible for the harm, yet harm clearly happened due to the negligence of at least one defendant. Litzman explains the generally accepted theory of alternative liability in which two defendants who both acted negligently but could not both have caused the same harm can each be held liable for 100% of the harm, then left to each other to sort the proper share of responsibility. Skipworth explains the much more controversial theory of market-share liability, which nearly does away with causation entirely in situations where many companies all negligently placed something harmful into the stream of commerce.
1 Show/Hide More Perkins v. Texas and New Orleans Ry. Co.
This case provides a basic introduction to the concept of cause in fact. Harm definitely happened, and it definitely came because a speeding train collided with a car. But, would the accident have happened even if the train did not speed? Did the speeding even make a difference?
This case presents an example of a situation where there are too many causes in fact. Here, it’s difficult to actually tell what was more likely than not to have caused the plaintiff’s cancer because there were chemicals, smoking, and conflicting scientific evidence that make it unclear what might have caused the lung cancer. This case is also an example of a court making a legal holding that a particular substance did not cause a certain harm, preventing the issue from ever reaching a jury.
3 Show/Hide More "Two Fires" Anderson v. Minneapolis, St. P. & S. St. M. R.R. Co.
This case deals with cause in fact liability when it’s clear from the evidence that the defendant railroad did start a fire. The issue is whether it was the railroad’s fire that caused the property damage, whether it was some other fire all by itself, or whether the two fires mixed together and caused the damage.
Explosion could not have been the fault of both people, but since we can’t prove which one actually was at fault, we’ll hold them joint and severally liable and let them sort it out later, since the defendants are in the best position to know and provide evidence of who was actually at fault.

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Psychologie du développement, Méthodologie, Mathématiques et enseignement des mathématiques, Astronomie et enseignement de l'astronomie.
Astronomie et éducation, Changements conceptuels. Psychologie du développement, études interculturelles. Acquisition et développement de concepts scientifiques contre intuitifs. Systèmes dynamiques.
Frède, V., & Dehant, V. (1999). Analytical versus Semi-analytical Determinations of the Oppolzer Terms for a Non-Rigid Earth. Journal of Geodesy, 73, 94-104.
Frède, V., & Mazzega, P. (1999a). Detectability of Deterministic Nonlinear Processes in Earth Rotation Time Series: I-Embedding. Geophysical Journal International 137(2), 551-564.
Frède, V., & Mazzega, P. (1999b). Detectability of Deterministic Nonlinear Processes in Earth Rotation Time Series: II-Dynamics. Geophysical Journal International, 137(2), 565-580.
Frède, V. (2000). Dynamical analysis of the atmospheric angular momentum short term fluctuations. Comparison with the Earth. Journal of Geodesy, 73, 660-670.
Frède, V., & Mazzega, P. (2000). A preliminary Nonlinear Analysis of the Earth’s Chandler Wobble. Discrete Chaotic Dynamics in Nature and Society Journal, 4(1), 39-53.
Frède, V. (2006). Pre-service elementary teacher’s conceptions about astronomy. Advances in Space Research, 38(10), 2237-2246.
Frède, V., & Venturini, P. (2007). Exploration des conceptions en astronomie de futurs professeurs d’école. Didaskalia, 29, 41-65.
Frappart, S., Frède, V., & Troadec, B. (2008). Duel de théories concernant le développement des connaissances : l’exemple de la forme de la Terre. Archives de Psychologie, 73(286-287), 147-165.
Frède, V. (2008a). Teaching astronomy for pre-service elementary teachers: A comparison of methods. Advances in Space Research, 42(11), 1819-1830.
Frède, V. (2008b). Development of Educational CD-ROMs In Astronomy: Information on a collaborative project. Advances in Space Research, 41(1), 217-222.
Frède, V., Troadec, B., & Frappart, S. (2009). Acquisition de connaissances au sujet du cycle journée/nuit chez l’enfant français : Etude développementale et comparaisons méthodologiques. Psychologie Française, 54(2), 153-171.
Troadec, B., Zarhbouch, B., & Frède, V. (2009). Cultural Artifact and Production of Knowledge about the Shape of the Earth: The Case of Moroccan Children. European Journal of Psychology of Education, XXIV (4), 485-498.
Frappart, S., & Frède, V. (2010). Where does a stone go when we drop it? Development of French schoolchildren’s knowledge of gravity. Advances in Space Research, 45, 1058-1066.
Frède, V., Nobes, G., Frappart, S., Panagiotaki, G., Troadec, B., & Martin, A. (2011). The acquisition of scientific knowledge: the influence of methods of questioning and analysis on the interpretation of children’s conceptions of the Earth. Infant and Child Development, 20(4), 432-448.
Frappart, S., Raijmakers, M., & Frède, V., (2014) What do children know about gravitation in the Universe? Understanding, structure, and developmental aspects. Journal of Experimental Child Psychology, 120, 17-38.
Frappart, S. & Frède, V. (2016). Conceptual Change About Outer Space: How Does Informal Training Combined With Formal Teaching Affect Seventh Graders’ Understanding of Gravitation? European Journal of Psychology of Education, 31(4), 515-535.
Frède, V., & Frappart, S. (2014, September). How does culture - animistic versus mechanistic - influence children’s understanding of Earth shape and night and day cycle? The British Psychological Society Developmental Section Annual conference, Amsterdam, Pays Bas.
Frappart, S., Raijmakers, M., & Frède, V. (2014, September). Analysis of children’s knowledge structure about gravitation with LCA method (Latent Class Analysis)The British Psychological Society Developmental Section Annual conference, Amsterdam, Pays Bas.
Frappart, S., & Frède, V. (2012, September). Développer des connaissances scientifiques sur un phénomène contre-intuitif, 54ème Congrès National de la Société Française de Psychologie. Montpellier, France.
Frède, V., Nobes, G., Frappart, S., Panagiotaki, G., Troadec, B., & Martin, A. (2012, September). Influence de la méthodologie dans l’interprétation des conceptions de la forme de la Terre chez l’enfant, 54ème Congrès National de la Société Française de Psychologie. Montpellier, France.
Frappart, S., & Frède, V. (2012, July). Knowledge development about gravity in the universe following a space museum’s visit associated to a traditional teaching, 39th COSPAR Scientific Assembly. Mysore.
Frède, V., & Frappart, S. (2012, July). Knowledge development about gravitation in space for children aged from 5 to 18 years old, 39th COSPAR Scientific Assembly. Mysore, India.
Frappart, S., & Frède, V. (2011, June). The impact of a space museum visit on the development of knowledge of gravitation. 41th Annual Meeting of The Jean Piaget Society. Berkeley, USA.
Frappart, S., Frède, V., & Guidetti, M. (2011, June). Knowledge development about gravitation on Earth and in space. 41th Annual Meeting of The Jean Piaget Society. Berkeley, USA.
Tartas, V., Frède, V. (2011, September). How can semiotic tools mediate the meaning making process of a scientific phenomenom? A developmental study in learning science through argumentation and inquiry based activities in Astronomy. ISCAR Congress, Rome, Italy p 94).
Frappart, S., Frède, V., & Guidetti, M. (2010, June). Conceptual development about gravitation for French children. 40th Annual Meeting of The Jean Piaget Society. Saint Louis, USA.
Frappart, S., & Frède, V. (2010, February). Development of misconceptions about gravitation in space for secondary school students. 14th Annual International Space University. Strasbourg, France.
Frappart, S., & Frède, V. (2009, August). Knowledge development on gravitation for nursery and primary school children. 14th European Conference on Developmental Psychology. Vilnius, Lithuania.
Frède, V., & Frappart, S. (2009, August). Cross-cultural study between French and West African elementary school children on basic astronomical concepts. 14th European Conference on Developmental Psychology. Vilnius, Lithuania.
Frède V. (2009, June) Acquisition et développement des connaissances scientifiques en astronomie. Comparaison interculturelle auprès d’élèves d’école élémentaire français et burkinabé. 51ème Congrès de la Société Française de Psychologie, Toulouse, France.
Frappart S. & Frède V. (2009, June). Développement conceptuel du phénomène de gravité : quel cadre théorique? (communication affichée) 51ème Congrès de la Société Française de Psychologie, Toulouse, France.
Frède, V., Nobes, G., Frappart, S., Panagiotaki, G., Troadec, B., & Martin, A. (2008, September). The acquisition of scientific knowledge: French children's views of the Earth.
British Psychological Society 2008 Developmental Section Conference, Oxford Brookes University, UK.
Haerle, F. C., Bendixen, L. D., Frède, V., & Rose, J. (2007, April). A cross-cultural study on elementary school students’ personal epistemology in the US, Germany, and Africa. American Educational Research Association (AERA) Annual Meeting, Chicago, USA.
Tartas V. & Frède V. (2007, September). Intuitive ideas and scientific explanations as part of elementary children’s’ developing understanding in astronomy: the case of the seasons. EARLI Conference Budapest.
Frappart, S., & Frède, V. (2008, July). Understanding the knowledge acquisition process about Earth and Space concepts. 37th Cospar Scientific Assembly, Montreal, Québec.
Frède, V. (2006, July). Teaching astronomy for pre service elementary teachers: a comparison of methods. 36th Cospar Scientific Assembly Beijing, Pekin, Chine.
Frède V. (2004, July). Preservice elementary teachers conceptions about astronomy . 35th Cospar Scientific Assembly Paris, France.
Frède, V. & Balanca, C. (July 2004). CD-ROM for teaching astronomy at school. 35th Cospar Scientific Assembly Paris, France.
Frède, V., Frappart, S., & Tartas, V. (2008, July). Learning about Earth and Space through computer-based argumentative activity. 37th Cospar Scientific Assembly, Montreal, Québec.
Frède V. & Bizouard C. (2003, April). Effect of the nonlinear behaviour of atmospheric forcing on the Earth rotation. Assemblée générale de l’European geophysical Society, Nice, France.
Frède V. & Dehant V. (1997, April). The Oppolzer terms for a Non Rigid Earth. XXII assemblée générale de l’European geophysical Society, Vienne, Autriche.
Frède V. & Mazzega P. (1998, May). Rapid Fluctuations in Earth Rotation are chaotic. Meeting de Printemps de l’American Geophysical Union, Boston, USA.
Frède V. & Mazzega P. (1998, May). Stability variations in Rapid Fluctuations of Earth Rotation caused by El Niño Events. Meeting de Printemps de l’American Geophysical Union, Boston, USA.
Frède V. & Mazzega P. (1998, October). Stability Variations in Rapid Chaotic Fluctuations of the Earth Rotation. The first international conference on Discrete Chaotic Dynamic in Nature and Society, Beer Sheva, Israël.
Mazzega P., Athias V. & Frède V. (1998, March). Embedding and dynamical parameters from data time series of nonlinear oceanic dissolved-particulate exchanges. Workshop on Inverse Methods in Global Biogeochemical Cycles, Heraklion, Crète.

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Present: MARSHALL, C.J, ABRAMS, LYNCH, GREANEY, SPINA, & COWIN, JJ.
CIVIL ACTIONS commenced in the Supreme Judicial Court for the county of Suffolk on February 2, 1999, and March 1, 1999, respectively.
The cases were consolidated and reported by Greaney, J.
Jonathan Shapiro for Richard J. Bums.
Linda M. Poulos, Assistant District Attorney, for the Commonwealth.
Juliana deHaan Rice, Assistant Attorney General, for Superintendent of the Department of State Police & others.
GREANEY, J. These cases were consolidated, and then reserved and reported without decision by a single justice of this court. One case involves a petition under G. L. c. 211, s. 3, by Richard J. Burns, a former sergeant in the State police, in which he seeks to vacate an admission to sufficient facts made in response to criminal charges pending against him in the Boston Municipal Court Department. The other case is a petition seeking review by certiorari in connection with disciplinary proceedings instituted by the State police against Bums as a consequence of his conduct that gave rise to the criminal charges and certain conduct by him while the charges were pending. The superintendent of the Department of State police (superintendent), after review of the findings and recommendations of a trial board of the department (trial board) [Note 2], concluded that Bums should forfeit promotion rights, be reduced to the rank of trooper, and be discharged from the State police. The members of the trial board had considered, among other evidence, Burns's admission in the Boston Municipal Court to sufficient facts in deciding two of the three charges placed before them for trial. We conclude that, on his petition under G. L. c. 211, s. 3, Burns is not entitled to relief because the case is moot, and we direct that the petition for relief be dismissed. We conclude on Bums's certiorari petition that the decisions of the superintendent and the trial board must be set aside and that Burns is entitled to a redetermination of the specifications underlying Charges I and II, except specification 14, if the State police decide to reconsider the matter.
an alleged violation of the protective order Smith had obtained against him after she saw him driving by her house in a red pick-up truck. At this hearing, Burns's bail was revoked and he was incarcerated in the Suffolk County jail.
On January 10, 1996, Burns, represented by counsel, appeared before a judge in the Boston Municipal Court and tendered an admission to sufficient facts as to all the criminal charges in exchange for an agreed on disposition of a continuance without a finding. The judge conducted a colloquy with Burns, heard a victim impact statement from Smith, and accepted Burns's admission to sufficient facts with respect to all the criminal charges. The cases were continued for three years (until January 6, 1999), without a finding on Burns's compliance with agreed on terms and conditions [Note 3]. Successful compliance would result in dismissal of all charges. In the alternative, the judge determined that, if Burns violated any of the terms and conditions of the continuance, guilty findings would enter on the charges, and he would be sentenced to two and one-half years in a house of correction.
Subsequently, Bums, represented by new counsel, filed a motion under Mass. R. Crim. P. 30 (b), 378 Mass. 900 (1979), seeking to withdraw his admission to sufficient facts. After a hearing, the judge who accepted the admission denied the motion, Bums took an appeal, and the Appeals Court affirmed the denial of the motion in an order pursuant to that court's rule 1:28, on the ground that "[t]he finding of sufficient facts is not an appealable order." See Commonwealth v. Bums, 46 Mass. App. Ct. 1105 (1998). We denied Burns's application for further appellate review. Commonwealth v. Burns, 429 Mass. 1102 (1999). In the meantime, Bums's three-year probationary period ended, and the charges against him were dismissed in accordance with the agreed on disposition. On March 1, 1999, Burn's filed his Petition pursuant to G. L. c. 211, 41, in which he sought to set aside, or alternatively, to have further proceedings with respect to, his admission to sufficient facts.
rejected. Burns's admission to sufficient facts in the Boston Municipal Court appears to have been made pursuant to G. L. c% 278, s. 18, which authorizes a judge to accept such an admission and then to continue the case to a specific date with the defendant placed on probation and ordered to comply with enumerated terms and conditions. If the defendant satisfactorily completes the probation period, the charges are dismissed. See Commonwealth v. Pyles, 423 Mass. 717 , 720-723 (1996).
the disciplinary charges, this is not an appropriate occasion for general discussion of the availability of G. L. c. 211, s. 3, relief to a case like Burns's on the basis that his situation may be repeated, but is one that may evade review. The petition for relief under G. L. c. 211, s. 3, will be dismissed [Note 5].
2. The following is the background necessary to understand the certiorari petition. Bums's alleged conduct that led to the criminal complaints and his admission to sufficient facts, and other conduct by him while the complaints were pending, became the basis for the convening of a trial board of the department pursuant to G. L. c. 22C, s. 13 [Note 6] to hear and decide three charges against him. Charge I asserted that Bums had failed to conform his conduct to the law in violation of art. 5.4 of the 1992 rules and regulations governing members of the State police (rules and regulations) [Note 7]. The charge was accompanied by fourteen specifications. Charge II asserted that Burns had violated art. 5.2 of the rules and regulations by engaging in conduct unbecoming a member of the State police. This charge was also supported by fourteen specifications that had the same factual underpinnings as the specifications in Charge I. Charge III accused Burns of violating art, 5.24.1 of the rules and regulations by attempting to interfere with the pending proceedings in the Boston Municipal Court. This charge was accompanied by two specifications.
mendations" and unanimously concluded that Burns was "guilty" on all three charges and their specifications. The board recommended that Bums's existing suspension be continued until January 6, 1999 [Note 8], and that he thereafter be reduced in rank and transferred from his current assignment. The board's decision then made its way, in keeping with department procedure, to the superintendent for review and approval of the board's recommendation as to Burns's discipline. The superintendent rejected the board's recommendation, imposing instead discipline consisting of Bums's forfeiture of promotion rights, his reduction in rank to trooper, and his termination by dishonorable discharge from the State police.
Burns filed a petition for review in the District Court, pursuant to G. L. c. 22C, s. 13, as to all the matters on which he had been convicted (except for the specifications to which he had admitted). A judge in the District Court reviewed the administrative record, concluded that "the finding and punishment issued by the [d]epartment of State [p]olice was justified," and affirmed the department's action. Bums then filed his petition for review by certiorari with the single justice [Note 9]. Burns argues that the decision of the trial board must be set aside. We agree.
General Laws c. 22C, s. 13, requires the reviewing court to ascertain whether "upon all the evidence [the findings of the trial board] and [the] punishment [imposed] was justified." Under this test, our duty on review is to examine for errors of law, see Commissioner of Pub. Safety v. Treadway, 368 Mass. 155 , 159 (1975), a task equivalent to the standard of review imposed by G. L. c. 30A, s. 14, with regard to decisions of administrative agencies.
charges were not proved [Note 10]. Nevertheless, its decision indicates that the board felt compelled to find Burns guilty on all the contested charges because of his admission to sufficient facts in the Boston Municipal Court to criminal complaints that constituted the gravamen of the charges before the board. It clearly appears that the board felt so compelled because of art. 5.4.2 of the rules and regulations, which provides, with reference to the requirement that a member of the State police conform his conduct to the law, that "[a] finding of responsible, continuance without a finding, or conviction due to alleged violation(s) of any law shall be prima facie evidence of a violation of this section." We are satisfied that, in applying the latter standard, the board misunderstood the effect of prima facie evidence and believed that the record of Bums's admission to sufficient facts and the resulting continuance without a finding required his adjudication of guilt on the contested charges, notwithstanding the existence of evidence that would have warranted findings to the contrary [Note 11].
evidence is true. Ford Motor Co. v. Barrett, 403 Mass. 240 , 243 (1988). When evidence is introduced that contradicts the prima facie evidence, however, the prima facie evidence loses its artificial force and a factual issue arises. See Cheek v. EconoCar Rental Sys. of Boston, Inc., 393 Mass. 660 , 663 (1985); Tuttle v. McGeeney, 344 Mass. 200 , 206 (1962); Salter v. Leventhal, 337 Mass. 679 , 696-697 (1958). In these circumstances, the prima facie evidence is no more significant than any other evidence, but must be weighed equally with all other evidence to determine whether a particular fact has been proved. Id. Furthermore, the burden of persuasion always remains on the party who must prove the point, even though the party is aided by prima facie evidence. See Commonwealth v. Pauley, 368 Mass. 286 , 290 (1975); Salter v. Leventhal, supra at 697.
The error by the trial board permeates all its findings with respect to the contested specifications in Charges I and H. The matters admitted to by Bums (the two specifications of Charge III and specification 14 in Charges I and II) may not be sufficient in and of themselves to sustain the board's decision [Note 12]. Accordingly, the entire decision of the trial board on Charges I and II must be set aside [Note 13].
Charge III, these allegations are to be considered proved. With respect to the remaining charges and specifications, in reevaluating the evidence, the trial board (among any other considerations deemed relevant) is to keep in mind (a) Bums's admission to sufficient facts in the Boston Municipal Court has relevance only to Charge I, alleging failure to conform conduct to the law [Note 15] ; and (b) because Bums presented evidence to contradict the evidence before the board of wrongdoing on the contested charges, his admission to sufficient facts has no prima facie effect, and the board is to give it whatever weight it deserves in light of the transcript of the admission and Bums's contentions regarding the admission's validity [Note 16].
3. Finally, Bums contends that the superintendent lacked the authority under the rules and regulations to impose a more severe sanction than that recommended by the trial board. It is necessary to decide the issue since the question of the superintendent's authority may become relevant when the trial board makes its new decision after remand.
rules and regulations expressly authorizes the superintendent to "impose discipline which departs from the Trial Board's recommendations if facts, circumstances, evidence, aggravating or mitigating factors, or any other matters so dictate." The superintendent argues that this new language simply reinforces or clarifies that he had the authority under the former rules and regulations to increase a board's recommended discipline because, "[w]hile the words may have changed in the 1997 Rules & Regulations, the meaning did not."
We have reviewed the two sets of rules and regulations and conclude that they differ in essential fundamentals. The revised rules materially alter some of the authority vested in the parties, as well as the substantive rights afforded the accused. The 1992 rules and regulations do not expressly or implicitly confer on the superintendent the authority to impose harsher discipline on a charged member than that recommended by the trial board. Accordingly, the superintendent lacked authority to increase the trial board's recommendation for discipline.
4. On Burns's petition under G. L. c. 211, s. 3, the case is remanded to the county court for entry of a judgment dismissing the petition for relief.
On Burns's petition for review by certiorari, the case is remanded to the county court for entry of a judgment vacating the decisions of the superintendent and the trial board and remanding the matter to the superintendent for further proceedings consistent with this opinion.
[Note 1] Richard J. Burns vs. Superintendent of the Department of State Police & others.
[Note 2] The three members of the trial board are the other defendants in the certiorari action.
[Note 3] Burns was ordered not to have any contact with Smith or her family, to stay away from Smith's home for a three-mile radius, to attend a certified batterers' program, and to pay restitution and a victim-witness assessment fee.
[Note 4] Burns points out that, although he acknowledged that the Commonwealth had sufficient evidence to support convictions, he disagreed on the record with the truth of the Commonwealth's evidence. The judge accepting the admission did so after recognizing that "considerable dispute exists between [the defendant] and the Commonwealth regarding the truth of this matter." The required colloquy in connection with the admission, see Commonwealth v. Duquette, 386 Mass. 834 , 845-846 (1982), was deficient. The judge failed to advise Bums that, in admitting to sufficient facts, he was waiving his privilege against self-incrimination. A similar oversight, in a case in which the defendant equivocated over his admission, was found fatal to the validity of the admission in Commonwealth v. Lewis, 399 Mass. 761 , 763-764 (1987). Burns argues that his admission contains the same equivocation and must be held invalid under the reasoning in the Lewis case. Cf. Commonwealth v. Lamrini, 27 Mass. App. Ct. 662 , 663-664 (1989); Commonwealth v. Dozier, 24 Mass. App. Ct. 961 , 961-962 (1987), where the self-incrimination right was not explained, but the pleas were upheld based on defendant's understanding of, and familiarity with, criminal proceedings.
[Note 5] There is also another reason why Burns's criminal case is moot. As we discuss later in this opinion, the Superintendent did not have the authority to increase the trial board's recommendation from a suspension (until January 6, 1999), to a discharge from the State police. Accordingly, Bums has already served his suspension and is no longer adversely affected by this part of the board's decision or the superintendent's action.
[Note 6] The board consisted of three members of the State police, one member designated as president and one designated as secretary. The board appears analogous to a military court martial board.
[Note 7] As will be discussed later in this opinion, these 1992 rules and regulations were subsequently revised in March, 1997. Unless otherwise indicated, all references herein to the rules and regulations, and any articles contained therein, will be to those in effect prior to 1997.
[Note 8] This date appears to have been intended to coincide with the date of dismissal of the charges in the Boston Municipal Court that were continued without a finding under Bums's admission.
[Note 9] The petition for review by certiorari was filed pursuant to G. L. c. 249, s. 4, in view of the provision in G. L. c. 22C, s. 13, that the decision of a District Court on a petition for review thereunder is "final and conclusive." Cf. Curley v. Lynn, 408 Mass. 39 , 41 (1990); Commissioner of Pub. Safety v. Treadway, 368 Mass. 155 , 158 & n.3 (1975).
[Note 10] For instance, the board stated that "[a]lthough Sergeant Richard J. Bums admitted to sufficient facts in Boston Municipal Court concerning complaints lodged by [the complainant] the Board finds there is serious doubt as to whether these crimes were committed by Sergeant Bums. The complainant in this matter never testified before the Board. There was sufficient testimony and evidence presented by Sergeant Bums and his counsel to leave serious doubt in the minds of the Board as to what actions took place between Sergeant Burns and [the complainant]." Moreover, the board found it "plausible" that Bums did not believe he was admitting to guilt when he admitted to sufficient facts, and that he did so to avoid returning to the jail where he claimed his safety was in jeopardy. The board also commented on the absence of any medical, physical or testimonial evidence corroborating the complainant's allegations that Bums had assaulted her. Finally, the board took note of the coincidental timing between the complainant's allegations and when Burns broke off their romantic relationship.
[Note 11] Our conclusion that the board misunderstood the evidentiary weight to be given prima facie evidence is confirmed by statements made by board members in the course of the trial. For example, the secretary admitted to being confused as to why Bums's case had to be tried before the board at all "where [the board member could] go by court documents that said that on such and such a date back in 1995, Sergeant Bums stood in the Boston Municipal Court represented by counsel and admitted to sufficient facts on these matters." The president of the board commented that "[the board] can't countermand a decision of the court if [Bums pled] admission to sufficient facts for an assault and battery dangerous weapon, [the board] can't disregard that under the charge that says he's violated a statute law."
[Note 12] The superintendent argues that, even without Burns's admission to sufficient facts, the board's action on all three charges can be independently upheld based solely on the specifications to which Bums admitted before the board. However, the board's decision gives no indication of how much weight it placed on each charge and specification when concluding he was guilty and formulating the recommended discipline. We shall not substitute our judgment and supply a reasoned basis for the board's action that the board itself has not supplied. See Costello v. Department of Pub. Utils., 391 Mass. 527 , 535-536 (1994). It is conceivable that the board's recommendation may have been more lenient in the absence of the potentially cumulative effect of the guilty findings on all thirty specifications.
[Note 13] The superintendent argues that the board's acknowledgment that Bums's presentation during the trial raised serious doubt as to whether he committed the charged offenses was simply an indication that the board considered Bums's evidence, but ultimately still found it insufficient to overcome the prima facie case created by his admission to sufficient facts. This argument is unpersuasive in view of the strong language of the board's decision.
[Note 14] If one or more of the members of the original trial board are unavailable, the superintendent may substitute a new member in accordance with the selection process provided in art. 6.6 of the 1992 rules and regulations.
[Note 15] The trial board erroneously applied art. 5.4.2 of the regulations regarding prima facie evidence to both Charges I and 11. However, it is clear from the express language of the rules and regulations that this article only applies to Charge I, alleging Bums's failure to conform his conduct to the law. In the event of reconsideration by the board, the fact that Bums admitted to sufficient facts and his case was continued without a finding is not to be considered prima facie evidence on Charge II, alleging that he engaged in unbecoming conduct.
[Note 16] In some contexts, an admission to sufficient facts in a criminal proceeding is insufficient evidence, standing alone, of proof of charges. See Santos v. Director of the Div. of Employment Sec., 398 Mass. 471 , 473 (1986); Wardell v. Director of the Div. of Employment Sec., 397 Mass. 433 , 436-437 (1986). Whether this is true in other contexts, however, is largely dependent on the specific language used in the statute or regulation that sets the standard for determining whether certain action is warranted. For instance, although the superintendent relies on Director of the Div. of Employment Sec. v. Mattapoisett, 392 Mass. 858 , 863 (1984), in claiming that "[t]he standard for dismissal is 'substantially less rigorous' than that for denying unemployment compensation," that case was comparing the language of two different statutes that are not relevant to the current action. How "rigorous" the standard may be for Bums's dismissal, and what evidence is sufficient to satisfy that standard, must be determined by the applicable rules and regulations governing his conduct.

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The felony which the statute created is a crime very unlike the old felony of conspiracy or the old misdemeanor [p373] of unlawful assembly. The mere act of assisting in forming a society for teaching syndicalism, of becoming a member of it, or of assembling with others for that purpose, is given the dynamic quality of crime. There is guilt although the society may not contemplate immediate promulgation of the doctrine. Thus, the accused is to be punished not for contempt, incitement, or conspiracy, but for a step in preparation, which, if it threatens the public order at all, does so only remotely. The novelty in the prohibition introduced is that the statute aims not at the practice of criminal syndicalism, nor even directly at the preaching of it, but at association with those who propose to preach it.
It is said to be the function of the legislature to determine whether, at a particular time and under the particular circumstances, the formation of, or assembly with, a society organized to advocate criminal syndicalism constitutes a clear and present danger of substantive evil, and that, by enacting the law here in question, the legislature of California determined that question in the affirmative. Compare Gitlow v. New York, 268 U.S. 652, 668-671. The legislature must obviously decide, in the first instance, whether a danger exists which calls for a particular protective measure. But where a statute is valid only in case certain conditions exist, the enactment of the statute cannot alone establish the facts which are essential to its validity. Prohibitory legislation has repeatedly been held invalid, because unnecessary, where the denial of liberty involved was that of engaging in a particular business.  The power of the courts to strike down an offending law is no less when the interests involved are not property rights, but the fundamental personal rights of free speech and assembly.
Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government.  They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence [p376] coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.
Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom.  Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.
Moreover, even imminent danger cannot justify resort to prohibition of these functions essential to effective democracy unless the evil apprehended is relatively serious. Prohibition of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to society. A police measure may be unconstitutional merely because the remedy, although effective as means of protection, is unduly harsh or oppressive. Thus, a State might, in the exercise of its police power, make any trespass upon the [p378] land of another a crime, regardless of the results or of the intent or purpose of the trespasser. It might, also, punish an attempt, a conspiracy, or an incitement to commit the trespass. But it is hardly conceivable that this Court would hold constitutional a statute which punished as a felony the mere voluntary assembly with a society formed to teach that pedestrians had the moral right to cross unenclosed, unposted, wastelands and to advocate their doing so, even if there was imminent danger that advocacy would lead to a trespass. The fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. There must be the probability of serious injury to the State. Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech and assembly.
Inasmuch as this act concerns and is necessary to the immediate preservation of the public peace and safety, for the reason that, at the present time, large numbers of persons are going from place to place in this state advocating, teaching and practicing criminal syndicalism, this act shall take effect upon approval by the Governor.
This legislative declaration satisfies the requirement of the constitution of the State concerning emergency legislation. In re McDermott, 180 Cal. 783. But it does not preclude enquiry into the question whether, at the time and under the circumstances, the conditions existed which are essential to validity under the Federal Constitution. As a statute, even if not void on its face, may be challenged because invalid as applied, Dahnke-Walker Milling Co. v. Bondrant, 257 U.S. 282, the result of such an enquiry may depend upon the specific facts of the particular case. Whenever the fundamental rights of free speech and assembly are alleged to have been invaded, [p379] it must remain open to a defendant to present the issue whether there actually did exist at the time a clear danger; whether the danger, if any, was imminent, and whether the evil apprehended was one so substantial as to justify the stringent restriction interposed by the legislature. The legislative declaration, like the fact that the statute was passed and was sustained by the highest court of the State, creates merely a rebuttable presumption that these conditions have been satisfied.
Our power of review in this case is limited not only to the question whether a right guaranteed by the Federal Constitution was denied, Murdock v. City of Memphis, 20 Wall. 590; Haire v. Rice, 204 U.S. 291, 301; but to the particular claims duly made below, and denied. Seaboard Air Line Ry. v. Duvall, 225 U.S. 477, 485-488. We lack here the power occasionally exercised on review of judgments of lower federal courts to correct in criminal cases vital errors, although the objection was not taken in the trial court. Wiborg v. United States, 163 U.S. 632, 658-660; Clyatt v. United States, 197 U.S. 207, 221-222. This is a writ of error to a state court. Because we may not enquire into the errors now alleged, I concur in affirming the judgment of the state court.
^ . Compare Frost v. R.R. Comm. of California, 271 U.S. 583; Weaver v. Palmer Bros. Co., 270 U.S. 402; Jay Burns Baking Co. v. Bryan, 264 U.S. 504; Pennsylvania Coal Co. v. Mahon, 260 U.S. 393; Adams v. Tanner, 244 U.S. 590.
We have nothing to fear from the demoralizing reasonings of some, if others are left free to demonstrate their errors and especially when the law stands ready to punish the first criminal act produced by the false reasonings; these are safer corrections than the conscience of the judge.
If there be any among us who would wish to dissolve this union or change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.
^ . Compare Judge Learned Hand in Masses Publishing Co. v. Patten, 244 Fed. 535, 540; Judge Amidon in United States v. Fontana, Bull. Dept. of Justice No. 148, pp. 4-5; Chafee, "Freedom of Speech," pp. 456, 174.
You really believe in freedom of speech if you are willing to allow it to men whose opinions seem to you wrong and even dangerous; . . .

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