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Samuel S. Brooks, for the use of James A. McDougall, v. James McKinney et al.
1. Continuance. — discretionary. It cannot be assigned for error that the court granted a continuance in a cause.
This cause was heard in the court below, before the Hon. William Thomas, at the November term, 1839.' The facts of the case are fully stated in the opinion of the court. The cause was brought to this court by writ of error; and at the last term an opinion was delivered reversing the decision of the court below. A motion was made for a re-hearing, which was granted, and the cause re-argued by J. A. McDougall, for the plaintiff in error. He contended that a person substantially a party to the suit, though not nominally a party to the record, cannot be compelled to testify. Greenl. Ev. 398.
Title v. Grevett, 2 Ld. Raym. 1008. Held that a grantor was a competent witness to prove failure of title, but that he could not be compelled to testify.
Hawkins v. Perkins, 1 Strange 406. The court refused to compel bail to testify against his principal.
10 East 395, 402. This cause was decided after the passage of the Stat. 46, George III, and Lord Ellenborough, one of the twelve judges, whose opinions before the house of lords have been referred to in argument, determined the cause, hold- [* 310] ing that an inhabitant of a parish, not a party to the record, but substantially a party to the suit, could not be compelled to testify against his interest.
The authority of this case was recognized fully in Mauran v. Lamb, 7 Cowen 174. Mrs. R.emsen was called as a witness by defendants. She objected on the ground that the suit was prose-quted for her benefit. The court, Woodworth, Justice, held that although not nominally, she was, in fact, party plaintiff in the suit, and could not be compelled to defeat her own cause of action. The same rule was subsequently recognized by the same court in the People v. Irving, 1 Wend. 21.
The right secured to parties in interest in the cases last referred to does not come in collision with the general rule laid down in the books, and which, since the 46th George III, may be considered as the settled law, that a witness cannot be excused from testifying for the reason that his evidence may subject him to a subsequent civil suit. According to the current of modern decisions, a witness, in cases of this kind, may be compelled to swear against his interest; but the rule ,'s different where the witness is directly interested in the issue, as plaintiff or defendant, in which event’ the court will protect the rights of the real party to the cause, although his name may not appear upon the record. This principle was recognized by this court in the case of Smith v. Moore, 3 Scam. 462.
It is well settled that the law does not look exclusively to the interest of witnesses, in determining their competency; adopting a wise policy based upon a consideration of the frailties of human nature, the courts will not hold out the temptation to perjury, that would always exist, if parties in interest were bound to testify upon questions immediately involving that interest. This policy applies as well to parties litigant, whose names are not upon the record, as to those that are nominal parties, and so the courts have held; and it is upon an application of this sound rule of policy, as well as law, that the appellants claim a reversal of the judgment in this cause.
The only question involved in this case is, as to a rule of evidence, viz : Can a witness be compelled to testify against his interest.
The defendants in error insist, that the witness is bound to testify, and rely upon the following authorities in support of their position: 1 Amer. Law Jour. 223 — the opinions of the twelve Judges; 1 Phillips’ Ev., first Amer. from second London edition, Ch. 5, 34, 55; 2 Phillips’ Ev., Cowen & Hills’ Notes, 81, note 81; Young v. Vredenberg, 1 Johns. 159 ; Gay v. Carey, 9 Cowen 44; Hend v. West, 7 Cowen 752; Field v. [*311] Field, 9 Wend. 398; Leroy, Bayard, & Co. v. Johnson, 2 Peters, 193; Greenl. Ev. 455; Kennedy & Co. v. Barnett, 1 Bibb 154; Gorham v. Carroll, 3 Littell 222; Black & Crozier v. Crumb, 3 Littell '226; Robinson v. Neale, 5 Monroe 212; Price v. Wood, 7 Monroe 223 ; Sims v. Givan, 2 Blackf. 462; Lowerjr v. Perham, 20 Maine 240 ; Copps v. Upham, 3 N. Hamp. 162 ; Corse v. Wilson, 2 Iredell 234.
Cases Citing Text. See Talcot v. Dudley, post. 427, 439. Held in 1851 that defendant’s partner, who is not joinpd as defendant, may be called as plaintiffs witness. Crcok v. Taylor 12 Ill. 353, 355, Since 1867 interested witness has been competent for most purposes. S. and C’s. Stats. Evidence, ch. 51.¶ 1, et seq. Cothran’s Stats, (1885) p. 662.
delivered the opinion of the court: This was an action commenced by petition and summons, at the March term of the Morgan circuit court, 1839, by the plaintiff, Brooks, for the use of McDougall, against the defendants, McKinney, Cloud, Brockenbrough, Lamborn, Douglass, and McConnell, as joint makers of a promissory note, for the sum of $150, bearing date the 26th of August, 1837, and payable six months after date. Brockenbrough alone was served with process at the first term, and the summons returned not executed as to the other defendants, by order of the plaintiff’s attorney. On the calling of the cause at that term, the plaintiff moved the court for judgment by default against Brockenbrough, who had failed to plead to the action; and Brockenbrough at the same time entered a cross-motion to dismiss the suit, which was overruled. He then moved the court to continue the cause, for the reason that the process had not been served on his co-defendants, by order of the plaintiff’s attorney. This motion was sustained, and the plaintiff’s motion for judgment by default overruled, The plaintiff excepted to this opinion of the court, but the exception does not appear to have been preserved by the bill of exceptions filed in the cause. The plaintiff afterwards sued out an alias petition and summons against the other defendants, which was returned executed upon all. At the trial of the cause, McConnell filed a separate special plea, personal to himself, and the plaintiff having failed to reply to the same, he obtained judgment for his costs.
First. The court erred in continuing the cause at the first term, on the motion of Brockenbrough, one of defendants, for the reason that the process was not served on his co-defendants; and, Second. In requiring McConnell to testify. In regard to the first error assigned, it is only necessary to say, that this court has already decided in several cases, that the granting (and until the passage of a recent statute, the refusing also) of continuances is in the general, a matter of sound legal discretion, and that the decision of the court in such cases cannot be assigned for error. Vickers v. Hill et al. 1 Scam. 307; Crain v. Bailey et al. 1 Scam. 821.
As to the second cause assigned for error, two questions present themselves for the consideration of the court: first, Was McConnell disqualified from testifying as a' witness for the defendants, by reason of his being a co-defendant, and as such a party to the record ? and, secondly, Was he entitled to exemption, on account of his beneficial interest in the note sued upon, 'from testifying against his interest ?
Upon the first point, I do not think he was at all disqualified, from the circumstance of his having been a party defendant on the record. He had severed from his co-defendants in his defence, by pleading special matter personal to himself, and had judgment in his favor for his costs. The cause as to him had passed to final adjudication; and for all the purposes of testifying as a witness for his co-defendants, if not otherwise disqualified or privileged, he had become severed from the record. United States v. Leffler et al. 11 Peters 86; Smith v. Moore, 3 Scam. 464; Greenl. Ev. 400.
The remaining question is one of more difficulty, on account of the various conflicting decisions upon the subject, both in England and the United States.
The plaintiff in error relied mainly upon the following authorities as sustaining the position that the party in interest, although not a party to the record, cannot be compelled to testify against his interest The King v. The Inhabitants of Woburn, 10 East 395; Mauranr. Lamb, 7 Cowen 174; Hawkins v. Perkins, 1 Strange 406; Title v. Grevett, 2 Ld. Raym, 1008; Greenl. Ev. 398.
The case in 10 East, although cited by Woodworth, J., as authority in the case of Mauran v. Lamb, in 7 Cowen 176, does not appear to me to be at all analogous either to that case, or to the case under consideration.
The case referred to was an appeal by the church wardens and overseers of the poor of the parish of St. Alban, in the county [*313] of Hertford, against an order of the justices for the removal of Mary Brown, widow, and her children, from the parish of Woburn, in the county of Bedford, to St.Alban. John Hil-liard, an inhabitant of the appellants’ parish of St. Alban, and rated and paying the poor rates of the said parish, was called as a witness, on the part of the respondents, and refused to give evidence. The sessions decided that he was not compellable to give evidence ; from which opinion an appeal was prosecuted to the King’s Bench. Lord Ellenborough, C. J., delivered the judgment of the court. The question was, whether a rated inhabitant of .the appealing parish could be called upon and examined as a witness, when called upon by the respondents, against his interest. His lordship said : “ The parties appealing before' the court of quarter sessions, as appeared by the proceedings returned to this court, were the church wardens and overseers of the parish of St. Alban, which at first seemed to afford an answer to the objection, that the inhabitant proposed to be called was not a party to the proceeding; but in reality the appeal is by them on behalf of the inhabitants of the parish, who are all of them paying to the rates, the parties grieved and are all directly and immediately interested in the event of the proceeding, by which the maintainance of the pauper is to be fixed on them, or removed from them, as well as the costs. It is a long established rule of evidence, that a party to the suit cannot be called upon, against his will, by the opposite party, to give evidence.” Here it will be perceived, by the declarations of liis lordship, that Hilliard was a party to the suit, and not merely a party in interest, which is a very different relation. The title of the suit is “ The King v. The Inhabitants of Woburn;” the person called as a witness was one of those inhabitants, and as such, Lord Ellenborough said, was a party to the suit; the appeal being on behalf of the inhabitants of the parish. If, as his lordship, at first supposed, Hilliard, although interested, was not in reality a party to the suit, it is clearly inferable, from the language employed, that his decision would have been very different. Mr. Greenleaf, in commenting upon this subject in his excellent treatise on Evidence, remarks : “ Whether corporators are parties within the meaning of this rule is a point not perfectly clear. Corporations, it is to be observed, are classed into public, or municipal, and private corporations. The former are composed of all the inhabitants of any of the local or territorial portions into which the country is divided, in its political organization, such as counties, towns, boroughs, local parishes, and the like. These corporations sue and are sued by the name of ‘the inhabitants of’ such a place ; each inhabitant is directly liable in his person to arrest, and in his goods to seizure and sale,, on the execution which may issue against the collective body by that name; and, of course each one is a party to the. suit. Being parties, it would [*314] seem naturally to follow, that these inhabitants were neither admissible as witnesses for themselves, nor compellable to testify against themselves.” Greenleaf’s Ev. 380-81.
The case of Mauran v. Lamb, in 7 Cowen, 174, is admitted to be a case in point, if it may be regarded as authority for the plaintiff. That was a case in assumpsit, where the plaintiff, as bearer of a check on the bank of North America, brought suit against the defendants, as drawers, for $1,912.02, payable to No. 25 or bearer. It was admitted, on the trial, that the plaintiff had no interest in the check, but sued for the benefit of Mrs. Remsen, to whom the check belonged, with her consent. Among other witnesses, the defendant offered Mrs. Remsen, the person for whose benefit the action was brought, but on her claiming the privilege not to testify against her interest, the court excused her from giving evidence. On a motion for a new trial, the court decided, per Wood-worth, J., on the authority of the case of the King v. The Inhabitants of Woburn, 10 East 395; Title v. Grevett, 2 Lord Raymond 1008; and Appleton v. Boyd, 7 Mass. 131, that she was not bound to testify against her interest, and denied the motion. The decision I hold to be against the current of authorities on that subject. I have already shown that it is not analogous to the case reported in 10 East, for the reason that Mrs. Remsen could not be considered as a pa,rty to the suit, as was the case of Hilliard, in the King v. The Inhabitants of Woburn. In the case of Title v. Grevett, 2 Lord Raymond 1008, Holt, C. J., said: “ A man that conveys lands may be a witness to prove that he had no title, because that is swearing against himself, but he is not compellaable to give such evidence.” This whole case, as reported, does not embrace more then eight or ten lines ; contains no reasoning or reference to authorities ; was made during the reign of Queen Anne, in 1703 ; and does not comport with the weight of the more modern English authorities on that subject, even if it may be considered in any respect similar to the case before the court.
In Greenleaf’s Ev. 398, the rule is laid down as stated by the plaintiffs’ counsel, and the case of Mauran v. Lamb, 7 Cowen 174, cited in support of it. This case is also referred to as authority in 1 Phil. & Am. on Evidence 158, note 3.
The case of Mauran v. Lamb was decided by Wood- [* 315] worth, J., in the year 1827. The judge says, in delivering his opinion, that “ it is well settled that the plaintiff on the record cannot be compelled to give testimonyand there.fore infers that Mrs. Remsen, who was only a parry in interest, and not plaintiff on the record, was not compellable to give testimony. He then cites as authority Bain v. Hargrave, K. B. 35th Geo. III., M. S. cited in Peake’s Ev. 184; in which Lord Kenyon held, that he would not oblige a witness to answer any question that .might tend to charge him with a debt; that a man might come and charge himself voluntarily with a debt; but could not be compelled to charge himself civilly, any more than to make himself liable to a criminal prosecution; and Raynes v. Towgood, 37th Geo. III., M. S. Ibid., in which his Lordship said, he would not compel a witness to give evidence which would subject him to a pecuniary penalty. He then cites the case in 10 East, and 2 Lord Raymond, and concludes with the case of Appleton v. Boyd, 7 Mass. 131.
1 will now proceed to show that this case of Maman v. Lamb, which appears to be a leading case in some of the modern elementary treatises on the subject of evidence, is against the weight of authorities, both English and American, and tends to establish a rule, which, in its operation, in many cases would go far to defeat the ends of justice.
In the case of Appleton v. Boyd, above referred to, it was held by Parsons, O. J., that Parker who had sworn that he was a partner in trade with Appleton, the plaintiff, and that he was jointly and equally interested with him, in the event of the suit, could not be compelled to testify against his interests.
This question afterwards, in the year 1830, underwent a very elaborate examination in the supreme judicial court of Massachusetts, where the cases of The United States v. Grundy, 3 Cranch 344; Webster v. Lee, & Mass. 334; and the ease of Appleton v. Boyd, were severally reviewed, and determined to be against the current of authorities upon that subject.
who delivered the opinion of the court in the case of Bull et. al. v. Loveland, 10 Pick. 9, said, that this question had been the subject of much discussion, and difference of opinion among eminent judges, and those of the greatest experience in nisi prim trials, both in England and the United States. That the case decided by Chief Justice Marshall, in 3 Crancli, “ that a man was not bound to testify against his.interest in a civil case, was before the discussion in England, and the opinions of the judges in the House of Lords, growing out of questions raised in Lord Melville’s trial. That the case of Webster v. Lee did not call for the expression of an opinion upon the question, whether the witness could be compulsorily required to testify against his will. And that when the same point again came before Chief Justice Parsons, in Appleton v. Boyd, at nisi frius ; upon which he ruled that a witness could not be [* 316] required, without his consent, to testify against his own pecuniary interest, the question was .not noticed or argued by the counsel, on either side, and that the judge cited no authority in support of his opinion. That this subject underwent much discussion pending the impeachment against Lord Melville, in 1806, upon which occasion the question was put to the judges by the House of Lords. That the question was presented in two or three different forms, slightly varying in terms, but it was substantially the same in each. That eight of the judges and the Lord Chancellor were of opinion that the witness was bound to answer a question, although his answer might render him liable to a civil action; the other four judges expressing a contraiy opinion. That in order to remove the doubts, which such a difference of opinion, among eminent judges implied, the act of 46th Geo. III., chap. 37, was passed, declaring that a witness cannot by law refuse to answer a question relevant tp the matter in issue, the answering of which has no tendency to accuse himself, or to expose him to a penalty, or forfeiture of any nature whatsoever, by reason only, or on the sole ground, that the answering of such question may establish, or tend to establish, that he owes a debt, or is otherwise subject to a civil suit. That Lord Erskine, then Lord Chancellor, stated, that notwithstanding some difference of opinion among high authorities, he considered the law so far precise, clear, and perspicuous, that ho new law was necessary, otherwise than in the form of a declaratory law; and that in this suggestion he was countenanced by Lord Eldon, who was not then in judicial office. He then refers for authority, to 1 Phillips’ Ev., Am. ed., 208; Peake’s Ev., 3d edition, 193; 1 Hall’s Law Journal 223; 1 Starkie’s Ev. 135; 4 Harris & Johns. 348; 2 Harris & Gill 147; 4 Sergeant & Rawle 397; 5 Pick. 448; and then comes to the following conclusion: “ On the whole we think the weight of authority is in favor of the rule, that a witness may be called and examined in a matter pertinent to the issue, where his answer will not expose him to a criminal prosecution, or tend to subject him to a penalty or forfeiture, although they may otherwise adversely affect hi^s pecuniary interest.” So that the rule of evidence on this subject, in Massachusetts, may now be considered as established adversely to that laid down by Chief Justice Parsons, in the two cases referred to, which, notwithstanding the high character of that eminent judge, cannot at this day be regarded as authority.
In the case of Banerman et al. v. Radenius, 7 Term R. 664, which was determined in the court of King’s bench, in the 38th year of George III., it was contended, on the trial, for the purpose of avoiding proof of the admissions of Banerman & Co., the nominal plaintiffs, that Yan Dyck & Co. were the real parties in interest, and ought not to be concluded by such evidence, as Banerman & Co.- had only acted as their agents. Lord Kenyon, chief justice, remarked, that it was said by a very learned judge, Lord Macclesfield, towards the beginning of the 17th century, that the most effectual way of removing land marks, would be by innovating upon the rules of evidence. That he had been in the profession more than forty years, and had prac-tised both in courts of law and equity ; and that if it had fallen to his lot to form a system of jurisprudence, whether or not he would have established two different courts with different jurisdictions, and governed by different rules, it was not neeessaryf'or him to say. That it was wiser to act in conformity with settled principles, than to leave it to the judges of the law, to relax from those certain and established rules by which they are sworn to decide. If, said his lordship, the question that has been made, in the case which was then before him, had arisen before Sir Matthew Hale, or lords Holt or Hard tvicke, he believed it never would have occurred to those sitting in a court of law, that they could have gone out of the record, and considered third persons as parties in the cause. Here, he continued, it has been contended that Banerman & Co. are to be laid out of the cause entirely, and we are desired to substitute Yan Dyck & Co. as plaintiffs in their room. That he could not conceive on what ground it could be said, that Banerman & Co. may be considered not as parties in the cause for the purpose of rejecting their' admissions, and yet as the parties in the cause for the purpose of preventing their being examined as witnesses,” etc. The result was a non-suit on the part of the plaintiffs, as in the case now before this court. Ashhurst, Grose, and Lawrence, Justices, delivered separate opinions, agreeing in all respects with that of the chief justice.
The question presented by the bill of exceptions in the case of Taney v. Kemp, 4 Harris & Johns. 348, was : Shall [*318] a witness be compelled in a court of law to answer a question touching the issue in the cause, where such answer may expose him to a civil action ? Dorsey, justice, who delivered the opinion of the court, said that the witness ought to fie compelled to testify, provided his answer would not subject him to a criminal prosecution, or to a penalty or forfeiture. That to permit a witness to shelter himself, under such a plea, would have a tendency greatly to obstruct the cause of justice. .And in the case of Stodderts’ Lessee v Manning, 2 Harris & Gill 157, the court below refused to the plaintiff the benefit of Thomas Burgess’ testimony, on the score of incompetency, on account of his supposed interest in the event of the suit. Earle, justice, who delivered the opinion of the appellate court, said, we think their honors did wrong in rejecting his testimony. That Burgess was called to swear against his own interest, and that it was not for him, as a witness, to excuse himself from giving evidence on that ground. That since the case of Taney v. Kemp, above cited, it may be laid down as a rule of evidence, that no person shall be exempted from giving testimony on the ground that his answer may affect his interest. That although the effect of his testimony, in establishing a particular boundary, might deprive him of a part of his own land, or subject him to the plaintiffs’ action for a trespass, he was equally within the operation of the rule ; and in neither case entitled to exemption from giving evidence in the cause.
In the case of Sarah Devoll v. David M. Brounell, 5 Pick. 447, Brounell, the defendant, who was trustee of Benjamin Devoll, was called upon by the plaintiff, as a witness to prove that the bill of sale executed to him was fraudulent as against creditors, and that he had secreted' the property. He refused to answer. Per euriam : We think he is bound to answer the questions, although he may thereby charge himself. The constitutional provision, that no subject shall be compelled to furnish evidence against himself, does not relate to questions of property.
In 2 Phillips’ Ev., Cowen & Hill’s Notes, 81, note 81, it is said, “A person interested in the event of the cause is competent, when his interest is adverse to the party calling him and numérous American authorities are cited in support of this doctrine.
In 3 Littell 222, 226, Carroll, as assignee of Kemple, [*319] who was assignee of Raybourn, who was assignee of Kise, brou^ht^suit against Gorham. On the trial the court ruled that Kise, although the payee of the note, if called by Gor-ham, the maker, to prove the consideration usurious, was obliged to testify, although against his own interest.' In 1 Bibb, 154, it ■was decided that a witness interested in a suit, by baying agreed to pay part of the costs, may be examined, when called by that party to whom the interest of the witness was opposed.
In the case of Robinson et al. v, Neal et al. 5 Monroe 214-15, Judge Wills, who delivered the opinion of the court, said : “ The last question we shall notice arises from the rejection of a witness by the court below, when offered by the defendants, to depose on trial. There was a demise in the declaration to the fictitious lessee by Elisha Colé. The witness offered stated that he was interested in favor of the plaintiff’s recovery, and expected to get the benefit of the recovery if he did, and that it would be compelling him to depose against his interest if .compelled to depose at all; that he was the person intended to be described in the declaration, as a lessor, by the name of Elisha Cole; but that his name was not Elisha, but Elijah, Cole ; and that he knew of • no person by the name of Elisha Cole.” The court below refused to permit him to be sworn in chief, to which the defendants excepted. That this witness could not be excused on the score of interest in the controversy is well settled. It takes an interest, which, if he should depose, would subject him to penal proceedings, to excuse a witness, as held by this court in Gorham v. Carroll, 3 Littell 221. Subjecting the witness to a loss by civil suit is not sufficient to excuse him from telling the truth.
The last case I will refer to, although many others might be cited in support of this doctrine, is the case of Lowney v. Perham, 20 Maine 240. Perham drew a bill of exchange, dated October 5, 1836, upon Tainter, for $3000, payable to his own order, at the Suffolk Bank of Boston, nine months after date, which bill was endorsed by Perham and one Treat. The bill was protested for nonpayment, Lowney ’became the holder, and brought suit upon it against Perham. On the trial the defendant called one Alfred Johnson to prove “ whether the plaintiff did not inform him how much he gave for said draft, and what it was.” The witness declined answering, on the ground that he was interested in the bill, haying been a joint purchaser of it with the plaintiff. The court below decided that Johnson was not bound to answer the enquiry, and he did not. Shepley, Justice, who delivered the opinion of the appellate court, said that the inferior court might properly exclude the testimony of Johnson as irrelative on another ground, but not on account of his interest in the suit. That although Johnson was beneficially interested in the recovery of the money, he could not be regarded as a party [*320] to the suit.
It seems to me that these authorities, when taken together, clearly establish the doctrine that a person cannot be excused from testifying against his interest, unless he is a party to the record. His being a party interested in the recovery only, as in the case of McConnel, will not be sufficient to entitle him to exemption against the general rule. If this kind of evidence were privileged the real party in interest might frequently obtain an advantage over a defendant who might have made the contract with his agent, by bringing the action in the name of the agent, as nominal plaintiff, and thereby deprive the defendant of his evidence, and then upon the trial refuse to give evidence himself on account of his interest in the suit.
By commencing suits in this-way, in the name, or for -the use of persons in no way interested in the cause of action, set-offs may be prevented, the direct payment of costs avoided, and if the secret interest should be successfully concealed during the progress of the suit, the result might be very different, in many cases, from what it would be, if the names of the real parties in interest were upon the record. A bankrupt, for instance, might, in this way, through the agency of a confidential friend, conceal a portion of his choses in action, and commence, and prosecute suits for his own benefit and to the prejudice of his creditors, after an assignment of his effects. It is against the policy of the law, therefore, as it is against private right, to encourage or sanction secret trusts between parties, in all cases where the courts can properly interfere to prevent them. Nor should it be permitted for a person in this way to do by another that which he could not do by himself. Now, suppose this suit had been commenced in the name of Brooks for the use of McConnel, or McConnel had taken an assignment and commenced it in his own name, could it have been sustained ? Could he, as defendant, have filed the plea that he did and then have taken judgment against himself, as plaintiff, for his costs ? It is only necessary to state the proposition to show its absurdity.
But it may be said that after McConnel had discovered his interest upon voire dire the defendants might have availed themselves of his testimony by bill of discovery, and would therefore have had no reason to complain if he had been exempted from testifying orally in court. But is this so, even if it should be admitted that a bill of discovery might be used against a party in interest who is not a party to the record ? A jury had been empaneled, and the cause was in progress of trial, when McConnel was called upon to testify. Would the court, at this stage of the proceedings, have arrested the trial, discharged the jury, and continued the cause, for such purpose ? I presume not. But [* 321] suppose a continuance, under such circumstances, could have been obtained by the defendants, and an opportunity thereby afforded to file a bill of discovery, of what possible advantage would it have been to McConnel thus to have disclosed the facts by answering such a bill, rather than by testifying, as a witness, in open court ? On the contrary, it appears to me that the interest of a party thus situated would be best promoted, in the general, by testifying orally in court; for then all his evidence, as well that which made for him, as against him, would go to the jury; while his answer to a bill of discovery, if unfavorable to the party seeking it, might not, at his election, go to the jury at all.
With this view of the case I am instructed, by a majority of the court, to give it as our opinion, that if the party in interest is not also a party to the record, he may, at the instance of the opposite party, be compelled to testify as a witness against his interest, provided his answers do not subject him to a criminal prosecution, or to a penalty or forfeiture. We therefore think that the circuit court decided correctly, under the circumstances, in requiring McOonnel to be sworn and examined in chief as a witness.
delivered the following dissenting opinion: The only question which I propose to consider is whether the real party to a suit, although his name does not appear on the record, can be compelled to testify against his interest. It was decided by this court, at the last term, (3 Scam. 464,) that a party to the record cannot be compelled to testify, even if he have no objection himself, without the consent of the real party. This rule is established and sustained from considerations of public policy, and it is inflexible. Dangers of, and temptations to perjury, first established it, and necessity of uniformity has made it universal. If it is considered dangerous and unwise to compel a mere nominal party, who has no interest in, or right to control the suit, how much greater the danger in forcing upon the stand him whose rights alone are directly in controversy. Is he more likely to tell the truth, or has he less temptations to perjury, than if his name happened to be written in the title of the cause? He is in fact, to all intents and purposes, a real party to the cause ; and we have a statute authorizing a judgment for costs to be rendered-directly against the person for whose use a suit is commenced, Every imaginable reason applies to excuse him, when his name does not appear on the record, that can be presented when it does. But this is not a case of first impiression. I think it is as well settled, by the decisions of the most respectable courts, both in England and America, as the other ease where the nominal party is excused.
In the case of Rex v. The Inhabitants of Woburn, upon the trial of an appeal by the church wardens and overseers of the poor, in the case of the removal of a pauper, one Hillard, [* 322] an inhabitant of the appellant’s parish, rated and paying to the poor rates of the parish, was offered as a witness by the other side, and it was held that he was not bound to give evidence, when he objected himself. Lord Ellenborough held that although thte appeal was taken by the church wardens and overseers of the poor, still, in reality, the appeal was taken on behalf Of the inhabitants who pay the rates, and are the parties grieved. He says, “ It is a long established rule of evidence, that a party to a suit cannot be called upon, against his will, to give evidence; ” and it was held that he was such a party. But it is said that this witness was a party to the record, yet I think this is not so. His name nowhere appears on the record, but the suit is in the corporate name of “ the inhabitants.” He might have been a party in the interest one day and not the next, and yet no change made in the title of the cause. The decision was not on the ground that the witness was not a party to the record; but the chief justice expressly says, that that was not the case, which he at first thought a good answer to the objection, but on more mature consideration, he was excused alone on the ground that he was a party in interest.
The same rule was also held in The People v. Irving, 1 Wend. 21, where Southerland says: “ When the persons called upon to testify, alleged under oath, that they were the parties in interest, and entitled to the subject matter in controversy, in the suit in which their testimony was sought as witnesses, the judge did right to discharge them.” And the same rule is also repeated by chief justice Richardson, in giving the opinion of the court, in Copp v. Upham, 3 N. H. R. 162. He says, “ It is a well settled rule that a real party to a suit cannot be compelled to testify, although! his name does not appear upon the record,” So Mr. Greenleaf, in his work on Evidence,. (Greenl. Ev. 398,) lays down the same doctrine in unqualified terms. He says, “ Nor can one who is substantially a party to the record be compelled to testify, although he be not nominally a party.” And after a review of most, if not all of the cases, the learned editors to the last American edition to Phillips’ Evidence, lay down the same principle, without hesitation. Cowen and Hill’s notes to Phil. Ev., part 1, 141.
In Robinson v. Neal, 5 Munroe 214 (See also 4 Johns. 140), the court says that the lessor of the plaintiff, in ejectment, [* 323] cannot be compelled to testify', for the reason that he is the party beneficially interested, although he is not nominally a party.
In Title v. Grevett, 2 Ld. Raymond 1008, chief justice Holt lays down the rule as undeniable law, that “ a man that conveys land, may be a witness to prove that he had no title, because that is swearing against himself, but he is not compellable to give such evidenceand although he uses but few words to convey his ideas, yet he is correspondingly clear and perspicuous, and his decisions have always been considered, by all courts, as entitled to very great consideration. It is supposed that this case, and all other preceding ones, holding the same doctrine, are overruled in the case of Banerman et al. v. Radenius, 7 Term R. 661, in which Lord Kenyon says: “ If the question that has been made in this case had arisen before Sir M. Hale, or Lords Holt, or Hardwicke, I believe it never would have occurred to them, sitting in a court of law, that they could have gone out of the record, and considered third persons as parties in the cause.” And yet let it be remembered, that the same Holt is here referred to, whose brief but distinct decision I have just given. This language of Lord Kenyon shows that he had no thoughts himself that he was overruling that decision of Lord Holt, and probably never expected .that it would be made use of for that purpose. Nor was that the question before him. The enquiry there was whether the declarations of the nominal party to the suit could be given in evidence, when the party in interest objected.
The ease relied on, in 5 Pick. 447, goes too far, and holds, that a party to the record may be compelled to testify as a witness.
But I do not design to wander away from the question before me, and deny what I admit it could hardly require authorities to be cited, to prove, that a witness may be compelled to testify, although his testimony may expose him to a civil prosecution, or that he is a competent witness, if called by the party against whom his interest is. I may admit, with propriety, that if the interest of the witness is only collateral, that if his rights are not directly in litigation, he cannot claim exemption, although this principle has occasioned a great struggle in obtaining a footing in courts of law, and in England, required an act of parliament to settle it. But such is not the question which we are now examining. The present enquiry is whether one who is a real and substantial party in interest, who may be obliged to use the name of another to assert his rights, is compellable, when he objects, to testify in his own .cause ; and hence I do not think that cases in which this question did not arise, and probably was not thought of, however numerous they may be, can justly be considered as authorities in this, and especially of sufficient weight to overturn a number of cases, in the most respectable courts in England and America, both ancient and modern, where the question came directly in judgment, and was the only point on which [*324] the decision turned; and more particularly too, when these decisions have been referred to and adopted by the most learned and able commentators on the law of evidence. I have searched in vain to find a case where the question has been thus clearly and distinctly presented, where such a party has has been compelled to testify, when he has objected. It would perhaps be improper for me, in assigning briefly the reasons which have led me to the opinion which I entertain, to review at length, all the cases which are relied upon by my brother Young, in support of the decision of the majority of the court, for the purpose of pointing out wherein, with all deference, in my judgment, they are not applicable to this particular question. I think I must be already understood as holding a wide difference, between the cases where the witness’ interest may be only collaterally, remotely, or incidentally affected, and where he is 'in reality the owner of the subject matter in dispute, and his rights and interests are directly in controversy. I confess, it seems to me, that most of the authorities referred to apply to the first class of cases.
I however admit that the case of Lowney v. Parham, 20 Maine 240, seems to be in point, so far as one of the expressions of the court goes, but it may be remarked that the case did not at all depend.on this question, for the court held that the testimony was properly excluded, on another ground, so that it was quite unnecessary for the court to say what mighty have been insufficient to exclude it.
But it was urged at the bar, that unless McConnel was compelled to testify, the party is without remedy, because, as was supposed, he could not be made a defendant to a bill of discovery. But this is an entire mistake. It is not against parties to the record alone, that a bill of discovery, in aid of a suit at law, may be filed. The general rule is, (and I knowof but one exception) that whoever cannot be used as a witness, may be made a defendant to such a bill, and the converse of the proposition is generally true. But admitting the right of the party to make the beneficial plaintiff a defendant to a bill of discovery, it is said that it is better for the witness, and more convenient and expeditious for all parties, that lie should testify. This may be so, or it may not; of this, if it is his legal right, he should be allowed to judge. But the same reasoning would apply, and with equal force, to show that the nominal party had better be obliged to swear as a witness ; and that hence the rule that exempts him is not law. We are not seeking so much to know what the rule should be, as to learn what it is. If it is wrong, it should be altered elsewhere. The legislature has already clothed the courts of law with the power to compel the production of all necessary books and papers, and have thus superseded the necessity of this aid from the courts of chancery, to a great extent, and if necessary, they will extend it still farther. If the party was surprised, upon [*325] the trial, by discovering the position of the proposed witness, and in consequence, a verdict went against him, the court would grant him a new trial, and enable him to procure the evidence properly. The circumstances of this case, I know, are extraordinary, and such as may never again occur; but the principle which we are deciding may be of frequent application, and we must remember, while we are deciding this case, we are also deciding many others.
I think the plaintiff in interest should not have been compelled to testify.
Although I did not participate in the decision of this case on the former argument, I think the court then decided correctly, and that the same decision should be again made.
Treat, Justice, said : I dissent from the opinion of the court, and concur generally in the views expressed by Mr. Justice Oaton.

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The Panel is not aware of any legal proceedings pending or decided which relate to the disputed domain names.
Complainant is the owner of the international trademark n° 1198046 MITTAL® registered on December 5, 2013.
Complainant also owns a domain names portfolio, including MITTAL®, such as the domain name <mittalsteel.com> registered since January 3, 2003.
The Complainant is a company specialized in steel producing in the world (please see their website at: www.arcelormittal.com).
The Complainant is the largest steel producing company in the world and is the market leader in steel for use in automotive, construction, household appliances and packaging with operations in more than 60 countries. It holds sizeable captive supplies of raw materials and operates extensive distribution networks.
The disputed domain names were registered on January 5, 2018 and currently resolve to a registrar parking page.
The disputed domain names are confusingly similar to the Complainant’s trademark MITTAL®. Indeed, the trademark MITTAL® is included in its entirety.
The Complainant contends that the addition of the term “METAL”, “METALS” and “LTD” is not sufficient to escape the finding that the disputed domain names are confusingly similar to the trademark MITTAL®. It does not change the overall impression of the designations as being connected to the Complainant’s trademark MITTAL®. It does not prevent the likelihood of confusion between the disputed domain names and the Complainant, its trademark and the domain name associated.
It is well-established that “a domain name that wholly incorporates a Complainant’s registered trademark may be sufficient to establish confusing similarity for purposes of the UDRP”. Please see WIPO Case No. D2003-0888, Dr. Ing. h.c. F. Porsche AG v. Vasiliy Terkin.
On the contrary, the addition of the term “METAL”, in singular or plural form, worsens the likelihood of confusion between the disputed domain names and the Complainant’s trademark MITTAL®. Indeed, this term is related to the Complainant’s activities and the trademark MITTAL is registered in class 6 for several products, including “Common metals”.
Prior panels have held that the addition of words can worsen the confusing similarity between a trademark and a domain name.
Moreover, the Complainant contends that the addition of the generic Top-Level Domain suffix “.COM” does not change the overall impression of the designations as being connected to the trademark MITTAL®. It does not prevent the likelihood of confusion between the disputed domain names and the Complainant, its trademark and its domain name associated.
Please see WIPO Case No. D2006-0451, F. Hoffmann-La Roche AG v. Macalve e-dominios S.A. (“It is also well established that the specific top level of a domain name such as “.com”, “.org” or “.net” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar.”).
- WIPO Case No. D2014-1677, Arcelormittal S.A. v. Navin Mandla, <lakshmimittal.london>.
Consequently, the disputed domain names are confusingly similar to Complainant’s trademark MITTAL®.
The Respondent does not have any rights or legitimate interest in the disputed domain names.
According to WIPO Case No. D2003-0455 Croatia Airlines d. d. v. Modern Empire Internet Ltd., the Complainant is required to make out a prima facie case that the Respondent lacks rights or legitimate interests. Once such prima facie case is made, the Respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, the complainant is deemed to have satisfied paragraph 4(a) (ii) of the Policy.
The Complainant asserts that the Respondent is not known as the disputed domain names but as “ANKIT ENTERPRISES”.
- FORUM Case No. FA 1781783, Skechers U.S.A., Inc. and Skechers U.S.A., Inc. II v. Chad Moston / Elite Media Group <bobsfromsketchers.com> (“Here, the WHOIS information of record identifies Respondent as “Chad Moston / Elite Media Group.” The Panel therefore finds under Policy 4(c)(ii) that Respondent is not commonly known by the disputed domain name under Policy 4(c)(ii).”).
- FORUM Case No. FA 699652, The Braun Corporation v. Wayne Loney.
The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain names and he is not related in any way with the Complainant. The Complainant does not carry out any activity for, nor has any business with the Respondent.
Neither license nor authorization has been granted to the Respondent to make any use of the Complainant’s trademark MITTAL®, or apply for registration of the disputed domain names by the Complainant.
Moreover, the disputed domain names resolve to a parking page. The Complainant contends that Respondent did not make any use of disputed domain names since their registration, and it confirms that Respondent has no demonstrable plan to use the disputed domain names. It demonstrates a lack of legitimate interests in respect of the disputed domain names.
Please see FORUM Case No. 1785596, King Ranch IP, LLC v. E Miller (“Additionally, Respondent makes no material demonstrable preparations to use the <kingranchbbq.com> domain name. The domain name simply links to a parking page. Holding a confusingly similar domain name inactively, as does Respondent, is not indicative of any bona fide offering of goods or services under Policy 4(c)(i), nor of a non-commercial or fair use under Policy 4(c)(iii).”).
Thus, in accordance with the foregoing, the Complainant contends that the Respondent has no right or legitimate interest in respect of the disputed domain names.
The Complainant contends that the disputed domain names are confusingly similar to its distinctive trademark MITTAL®.
Given the distinctiveness of the Complainant's trademarks and reputation, it is reasonable to infer that the Respondent has registered the domain names with full knowledge of the Complainant's trademark.
Moreover, this disputed domain names resolve to a registrar parking page. The Complainant contends that the Respondent fails to make an active use of the disputed domain names. Failure to make an active use of a domain name is evidence of bad faith.
Please see FORUM Case No. FA 1786533, Guess? IP Holder L.P. and Guess?, Inc. v. xi long chen (“As noted previously, Complainant offers screenshots of the resolving webpage for the disputed domain name. The Panel finds that Respondent’s inactive use of the disputed domain name indicates bad faith registration and use per Policy 4(a)(iii).“).
Thus, Complainant contends that Respondent has registered the disputed domain names and is using them in bad faith.
The disputed domain names registered in 2019 are confusingly similar to the Complainant’s MITTAL trade mark (registered as an international trade mark for metals as of 2013) adding only the generic words metal or metals, a hyphen and/or the generic term ‘ltd’ and the gTLD .com. It is well-established that “a domain name that wholly incorporates a Complainant’s registered trademark may be sufficient to establish confusing similarity for purposes of the UDRP”. Please see WIPO Case No. D2003-0888, Dr. Ing. h.c. F. Porsche AG v. Vasiliy Terkin.
The Respondent is not commonly known by the disputed domain names but by the name Ankit Enterprises.
The Respondent has not been authorised to use the disputed domain names by the Complainant.
The disputed domain names have been pointed to parking pages which are not a bona fide offering of goods or services or a non-commercial legitimate or fair use where a domain name has been registered containing a well-known mark.
Accordingly the Panel is persuaded that the Respondent has no rights or legitimate interests in the disputed domain names.
The Respondent has not answered this Complaint or indicated why he should be allowed to register domain names containing the Complainant’s well-known mark with the word ‘metal’ or ‘metals’ which indicates a connection with the Complainant and shows the Respondent is aware of the Complainant and its rights. Accordingly the Panel is persuaded the disputed domain names are cybersquatting registration which are being passively held and that the names have been registered and used in bad faith under the Policy.

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The Secretary of Transportation may delegate to a chief administrative officer, staff assistant, or employee the duty of attending meetings of the Board of Directors of the Information Network of Kansas (INK). The authority of the chief administrative officer, staff assistant, or employee to vote on matters before the Board is dependent on the extent of authority delegated by the Secretary of Transportation. The Secretary of Revenue is authorized to delegate to division heads any duties and powers conferred upon the Secretary of Revenue. The authority of the division heads to exercise such duties and powers is subject only to any limitations imposed by the Secretary of Revenue. Therefore, the Secretary of Revenue may delegate to division heads the duty of attending meetings of the Board of INK, and the authority of the division heads to vote is dependent on the extent of authority delegated by the Secretary of Revenue. Neither the President of Kansas, Inc. nor the Director of Information Systems and Communications has the authority to appoint a person to serve on the Board of INK in the President's or Director's absence. Cited herein: K.S.A. 2001 Supp. 74-5095; 74-50,151, as amended by L. 2002, Ch. 151, § 5; 74-8002; 74-8005; 74-8009a; K.S.A. 74-9303; 74-9304; 75-412; 75-4701; 75-4713; K.S.A. 2001 Supp. 75-5001; K.S.A. 75-5005; 75-5006; 75-5007; 75-5008; 75-5009; 75-5010; 75-5015; K.S.A. 2001 Supp. 75-5101; K.S.A. 75-5102; 75-5105; 75-5110; 75-5117; 75-5121; 75-5127; 75-5134.
As Chairman of the Board of Directors for the Information Network of Kansas, Inc., you request our opinion regarding whether any member of the Board may designate a representative who will attend Board meetings in the member's stead. You also ask whether such a designated representative may cast votes on matters that are presented to the Board and, if so, whether the authority to vote must be issue specific. In Attorney General Opinion No. 2002-46, we addressed the authority of the Secretary of State and the Board members who represented the associations. This opinion addresses the authority of the cabinet secretaries, President of Kansas, Inc., and the Director of Information Systems and Communications.
INK serves in an advisory capacity to the Secretary of Administration, Division of Information Services and Communications, and other State agencies regarding the manner in which data is provided to the public, gathers advice from the users of the established system, and determines charges for the services that are provided to subscribers of the system. The Board has been left on its own to determine how these functions should be performed and possesses discretion in determining any charges subscribers may be required to pay. The functions of the Board are largely discretionary and, therefore, may not be delegated absent express or necessarily implied statutory authority. We note that the agencies discussed in this opinion, unlike the Secretary of State discussed in Attorney General Opinion No. 2002-46, are creatures of statute with no constitutional or inherent powers.
In reviewing the authority of the state treasurer and the auditor general to designate appointees who may serve on the Corporation Tax Appeal Board, the Court reviewed the language in statutes conferring upon the state treasurer and the auditor general the authority to appoint deputies.
In a dissenting opinion, two justices stated that the fact the Corporation Tax Appeal Board "performs quasi-judicial functions is not determinative of the question as to whether or not a deputy may properly sit thereon."(20) The justices noted that the Board had long regarded serving on the Board as "one of the 'duties of the office' within the meaning of the statutory provisions" that established the authority of the state treasurer and the auditor general to appoint deputies.(21) The administrative interpretation of the statutes, therefore, recognized the authority of the officers to designate appointees to serve on the Board.(22) They further noted that the State treasurer was ex officio member on 14 other boards and commissions while the auditor general was ex officio member on 7 other boards and commissions.(23) "Such a multiplicity of assignments suggests that the legislature could not reasonably expect them to be performed by 1 [sic] person."(24) The dissenting justices believed that the Corporation Tax Appeal Board was properly constituted.(25) Because the arguments of the dissenting justices do have some merit, we apply those arguments in determining the authority of the members of INK to designate appointees to serve in their absence.
Exercising the authority granted under subsection (b)(3) of K.S.A. 74-9303, the Governor has appointed the Secretary of Transportation and the Secretary of Revenue as members of the Board of Directors of INK.
These statutory provisions clearly authorize the chief administrative officers, staff assistants, and employees to act for and exercise certain powers of the Secretary of Transportation. The ability of the officer, assistant, or employee to act for and exercise the powers of the Secretary of Transportation is subject to the extent outlined by the Secretary's delegation. Therefore, the Secretary of Transportation may delegate to a chief administrative officer, staff assistant, or employee the duty to attend meetings of the Board of Directors of INK. The authority of the chief administrative officer, staff assistant, or employee to vote is dependent on the extent of authority delegated by the Secretary of Transportation.
The language in these provisions mirrors the language in K.S.A. 75-5015. The Legislature clearly authorizes the Secretary of Revenue to delegate to division heads any duties and powers conferred upon the Secretary of Revenue. The authority of the division heads to exercise such duties and powers is subject only to any limitations imposed by the Secretary of Revenue. Therefore, the authority of the division heads to vote at INK Board meetings is dependent on the extent of authority delegated by the Secretary of Revenue.
The fact that the Legislature grants a governmental entity "authority to employ agents, statisticians, experts, attorneys, and other assistants and employees as may be necessary to perform its duties does not give the [governmental entity] authority directly or by implication [authority] to deputize [sic] those matters which are quasi judicial in character. . . . If . . . the [governmental entity] is given authority by the Legislature to deputize [sic] quasi judicial matters to others, it may do so."(47) The authority of the President of Kansas, Inc. to employ and terminate employees as designated by the members of Kansas, Inc. does not by itself confer authority upon the President to delegate the duties of the President. We have been unable to locate any other statute that authorizes the President of Kansas, Inc. to delegate the President's duties.
Applying the arguments asserted by the dissenting justices in Detroit Edison Co.(48) also fails to indicate any authority of the President of Kansas, Inc. to delegate the duty of attending meetings of the Board for INK. While deference is given to the interpretation of a statute by an administrative agency charged with the responsibility of enforcing the statute, particularly when the agency is one of special competence and experience, the agency's interpretation is persuasive rather than binding on the court.(49) The statutes applicable to the Secretary of State, Secretary of Transportation, and Secretary of Revenue expressly provide for the appointment of officers and employees who may perform the duties of the Secretaries. There is no similar language in K.S.A. 2001 Supp. 74-8005. The interpretation of K.S.A. 2001 Supp. 74-8005 by the Board exceeds any authority conferred upon the President of Kansas, Inc.
Further, the officers in Detroit Edison Co. were required by state statutes to serve on several boards and commissions. The President of Kansas, Inc. is an ex officio member of only three boards or commissions: the Community Strategic Planning Grant Committee,(50) the review panel for the Kansas Economic Opportunity Initiatives Fund,(51) and the Board of INK. The review panel for the Kansas Economic Opportunity Initiatives Fund meets annually.(52) It is not our intention to establish a particular number of boards or commissions upon which an officer may be required to serve before an officer may be deemed to have authority to delegate such duties. We do believe, however, that assignment to three boards, one of which meets annually, does not meet the "multiplicity of assignments"(53) that the dissenting justices in Detroit Edison Co. believed suggested an inference by the Legislature that the duties could be delegated. The President of Kansas, Inc. does not have the authority to appoint a person to serve on the Board of INK in the President's absence.
The statutory provision that authorizes the Director of Information Systems and Communications to prescribe the duties of deputy directors is similar to provisions applicable to the Secretary of Transportation and the Secretary of Revenue. The authority of the Director, however, ends with prescribing the duties of the deputy directors. Unlike K.S.A. 75-5015 and 75-5127, K.S.A. 75-4701 does not include a provision that expressly authorizes the Director to delegate the Director's duties to the deputy directors. The statute also lacks a provision similar to one set forth in K.S.A. 75-412 that expressly authorizes the assistant and deputy assistant secretaries of state to perform the duties devolved by law upon the Secretary of State. The Director of Information Systems and Communications does not have express statutory authority to appoint a person to serve on the Board of INK in the Director's absence.
Applying the arguments of the dissenting justices in Detroit Edison Co. does not provide an inference of authority to appoint a person to serve on the Board of INK in the Director's absence. As occurs in the Board's interpretation of the authority of the President of Kansas, Inc., the Board through its interpretation of K.S.A. 75-4701 extends to the Director authority that does not exist in the statute. Also, as far as we have been able to determine, the Director is statutorily designated as an ex officio member of only two boards: the Board of INK and the Telecommunications Negotiating Committee.(59) The Director is given authority under K.S.A. 75-4713 to appoint another person to the Telecommunications Negotiating Committee.(60) The Director is not, by statute at least, faced with the "multiplicity of assignments" addressed by the dissenting justices in Detroit Edison Co. The Director of Information Systems and Communications is not authorized to appoint a person to serve on the Board of INK in the Director's absence.
In review, the Secretary of Transportation may delegate to a chief administrative officer, staff assistant, or employee the duty of attending meetings of the Board of Directors for the INK. The authority of the chief administrative officer, staff assistant, or employee to vote on matters before the Board is dependent on the extent of authority delegated by the Secretary of Transportation. The Secretary of Revenue is authorized to delegate to division heads any duties and powers conferred upon the Secretary of Revenue. The authority of the division heads to exercise such duties and powers is subject only to any limitations imposed by the Secretary of Revenue. Therefore, the Secretary of Revenue may delegate to division heads the duty of attending meetings of the Board of INK and the authority of the division heads to vote is dependent on the extent of authority delegated by the Secretary of Revenue. Neither the President of Kansas, Inc. nor the Director of Information Systems and Communications has the authority to appoint a person to serve on the Board of INK in the President's or Director's absence.
4. Attorney General Opinion No. 2002-46.
6. Coffman v. Fisher, 203 Kan. 618, 624 (1969), quoting Moore v. Wilson, 84 Kan. 745, 747 (1911).
7. 63C Am.Jur.2d Public Officers and Employees § 234 (1997).
8. 105 N.W.2d 110 (Mich. 1960).
9. The Corporation Tax Appeal Board performed a judicial or quasi-judicial function rather than a pure executive function. The case, however, provides guidance in determining whether members of the Board of INK may delegate their duty to attend Board meetings.
10. Detroit Edison Co. v. Michigan Corp. and Securities Comm'n, 105 N.W.2d 110, 111 (Mich. 1960).
13. Id. at 112, quoting P.A. 1917, No. 153.
14. Id., quoting C.L.S. 1956, § 14.35 (Stat. Ann. 1952 Rev. § 3.188).
16. Id. at 112, quoting Rev. Stat. 1846, § 9.
17. Id., quoting Rev. Stat. 1846, § 26.
26. K.S.A. 2001 Supp. 75-5001(a).
33. K.S.A. 75-5015(a) (emphasis added).
34. K.S.A. 75-5005 (emphasis added).
35. K.S.A. 2001 Supp. 75-5101.
42. K.S.A. 75-5127 (emphasis added). See also K.S.A. 75-5134 ("[t]he manager of revenue analysis shall exercise the powers and perform the duties and functions assigned or delegated by the secretary of revenue or prescribed by law").
43. K.S.A. 2001 Supp. 74-8009a(a).
44. K.S.A. 2001 Supp. 74-8005(a).
45. K.S.A. 2001 Supp. 74-8005(b).
46. K.S.A. 2001 Supp. 74-8005(b)(1).
47. State Tax Comm' of Utah v. Katsis, 62 P.2d 120, 122 (Ut. 1936). As was previously noted, INK does not perform judicial or quasi-judicial functions. Cases regarding such functions, however, provide guidance in determining the authority of the members of INK to delegate their executive function.
48. 105 N.W.2d 110 (Mich. 1960).
49. CPI Qualified Plan Consultants, Inc., Delaware, v. Kansas Dept. of Human Resources, No. 86,799 (Kan. January 25, 2002); Matjasich v. Kansas Dept. of Human Resources, 271 Kan. 246, 250-51 (2001).
50. K.S.A. 2001 Supp. 74-5095.
51. K.S.A. 2001 Supp. 74-50,151, as amended by L. 151, § 5.
52. K.S.A. 2001 Supp. 74-5095.
53. Detroit Edison Co., 105 N.W.2d at 114.


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Conflicts between smoking and non-smoking condominium residents aren’t new, but the legal landscape surrounding those battles is changing. As complaints about second-hand smoke have grown louder, and the evidence of its dangers more conclusive, the courts have become more inclined to weigh the rights of homeowners to breathe clean air in their homes more heavily than the rights of other owners to blow smoke in theirs.
This balancing act is difficult, however. Courts do not easily or happily restrict private property rights, so decisions doing so, while almost always fact-specific, get considerable attention and are parsed closely for language and legal reasoning other courts might follow.
Only a few court decisions to date have dealt with smoking in a common interest ownership setting. The most recent of those decisions came, as many harbingers of legal change do, from California, where a state appeals court concluded that smoking constituted both a public nuisance under a local ordinance, and a private nuisance under the condominium documents. Melinda Birke, the plaintiff in Birke v. Oakwood Worldwide, was a child who suffered severe allergic creations when exposed to second-hand smoke. The suit her father filed on her behalf argued that the association had an obligation to ban smoking in common areas, including around the pool, where smoking was permitted. Failure to do so, Birke argued, made it impossible for Melinda to enjoy the amenities to which she was entitled as a resident.
In what is generally viewed as a seminal ruling in the condominium smoking arena, a Colorado District Court also concluded that the smell of second-hand smoke and its seepage into the unit of a non-smoker represented a nuisance, justifying the community association’s approval of a by-law amendment barring smoking in all units. The smokers in this 2006 case (Heritage Hill Condo Owners v. Sauve), who occupied one of the four units in the community, challenged the ban the other three owners had approved, arguing that it interfered with their right to conduct legal activities within their home. The court acknowledged that smoking is not illegal, but likened it to “excessively loud noise.” Like noise, the court said, smoke can’t be confined within a unit and can create a nuisance for others that the association had the authority to regulate.
Neither the Colorado nor California decisions established binding precedents, but both are significant for different reasons: The Colorado case, because it was one of the first to deal specifically with smoking within a common interest community and the first to affirm the right of a community association to curb smoking within an owner’s home; the California case, because it applied to a community association a landlord’s indisputable obligation to ensure both the safety of common areas and the ability of residents to fully enjoy a building’s common areas and amenities. The two cases provide legal building blocks that condominium owners are likely to use in future cases arguing that associations must restrict smoking or ban it entirely. This is not to say that courts in other jurisdictions will necessarily embrace these arguments, only that many courts will almost certainly be considering them.
The landlord-tenant arguments are particularly interesting, because most of the legal battles between smokers and non-smokers thus far have involved tenants in apartment buildings, several of them in Massachusetts.
In Donath v. Dadah (1991), a tenant successfully sued her landlord, claiming that second-hand smoke from a neighboring unit triggered asthma attacks. The case was settled for an undisclosed amount.
In Gainsborough St. Realty Trust v. Haile (1998), the Boston Housing Court found in favor of a tenant who had withheld rent, agreeing that the second-hand smoke deprived her of the “quiet enjoyment” of her unit. Asserting that the smoke entering the apartment from the bar below it made the unit “unfit for smokers and nonsmokers alike,” the court awarded the tenant $4,350 in damages.
The Housing Court weighed in on the issue even more dramatically four years ago, ruling in Harwood Capital Corp. v. Carey that apartment tenants could be evicted because their extremely heavy smoking constituted a nuisance for other residents. Although the lease permitted smoking, the court noted, it also prohibited “any nuisance, any offensive noise, odor or fumes; or any hazard to health,” providing legitimate grounds for the landlord to evict the chain-smoking tenants.
Courts outside of Massachusetts have been equally supportive of non-smokers in tenant v. tenant and landlord v. tenant disputes. In a 1992 decision (Fox Point Apartments vs. Kipples), an Oregon court ruled in favor of a tenant who complained that second-hand smoke exacerbated her respiratory problems, reducing the tenant’s rent by half and ordering the landlord to pay her medical bills. In Dworkin v. Paley (1994), an Ohio appeals court ruled that the presence of second-hand smoke in an apartment represented a breach of the covenant of “quiet enjoyment.” And in a settlement agreement resolving a smoking dispute in a public housing development, the Department of Housing and Urban Development required the owner to insert a no-smoking provision in leases offered to new tenants.
While community associations have not, as yet, been front-and-center in smoking-related litigation, one recent New York case involved tenants renting units in condominiums. In Poyck v. Bryant, tenants (the Bryants) moved out of the unit they were renting, claiming that excessive smoking by a tenant in a neighboring unit created health problems making their unit uninhabitable. When the unit owner/landlord (Poyck) sued to recover unpaid rent under the lease, the Bryants countersued, claiming that the conditions in the apartment amounted to a constructive eviction. A New York Civil Court agreed, finding that the landlord had an obligation to address the tenant’s complaints about second-hand smoke, even if he had no direct control over the behavior of the tenant in the offending unit. According to the court, the landlord should have interceded for his tenants, asking the community association to ban smoking in the hallways and taking other steps to prevent seepage of smoke into the unit occupied by his tenants.
A Florida case (Merrill v. Bosser) also involved a tenant but pitted two condominium owners against each other. Robin Merrill and her family owned a unit near that of Jim Bosser, a pack-a-day smoker. Problems arose when Bosser rented space in his unit to another pack-a-day smoker. The combined output proved too much for the Merrills, who acknowledged that their various respiratory allergies made them “hypersensitive” to the smoke – so much so that they were forced to sleep elsewhere on several occasions. The problem was resolved when the community association ordered Bosser to evict his tenant, not because of the smoke, but because Bosser had failed to obtain board approval for the rental.
The authority of landlords/owners to regulate activities within the apartments they own is unquestioned. The authority of community associations to establish rules governing activities in common areas is equally clear, but their authority to restrict activities within an owner’s unit is less certain. “Nuisance” forms the legal bridge that potentially links apartments and common interest ownership communities in smoking litigation.
Most condominium documents prohibit activities that cause a “nuisance” for other residents and allow boards, acting on their own authority, to adopt rules restricting those behaviors. Owners complaining about second-hand smoke will almost certainly argue that second-hand smoke constitutes a nuisance that the association’s board has both the authority and the obligation to control —by barring smoking within units as well as in common areas, if necessary. And they will be able to point to an increasing number of court decisions, several noted in this article, to support their position.
Times have changed since then; the legal winds clearly have been favoring non-smokers and Massachusetts courts might follow those trends. But a board that acts to restrict smoking in an owner’s unit will almost certainly have to bear the cost and burden of determining where the Massachusetts courts currently stand on the nuisance question.
At the same time, associations must be concerned about their potential liability for failing to prevent nuisances that cause harm to residents of their communities. Owners sickened by exposure to second-hand smoke will almost certainly sue the association as well as their smoking neighbors for damages.
With that concern in mind, boards should take complaints about second-hand smoke seriously and do all they can to work with the owners involved to resolve the problem, by sealing leaks, installing fans and high-powered filters, and pursuing other smoke-mitigation efforts. The association might want to cover some if not all of these costs, in the interests of keeping everyone out of court. Significantly, the benchmark Colorado decision (Suave) upholding a condominium smoking ban, noted approvingly the extensive, though unsuccessful, efforts by the homeowners’ association to deal with the problem through other means.
“There can be no finding that the passage [of the by-law amendment barring smoking] was arbitrary or capricious or done in bad faith,” the court said, noting that “testimony was replete with various occupants’ attempts to minimize or prevent” the seepage of second-hand smoke.
The Suave decision doesn’t tell community associations exactly what they must do, but it suggests clearly that this court, at least, expects them to do something, and possibly quite a bit, to deal with second –hand smoke before denying owners the right to smoke within their homes.
If smoke mitigation efforts fail and boards decide that broad smoking restrictions are needed, they should ask owners to approve a by-law amendment for that purpose rather than adopting a board-approved no-smoking rule. Because they typically require the approval of 75 percent or more of the owners, by-laws are clearly more difficult to enact, but they are also more likely to withstand a legal challenge, as they represent a clear statement by owners of how they want to govern the community in which they live.
Owners may reject smoking bans, as they have recently at two communities I represent, leaving the association without the authority to restrict smoking in an owner’s unit and still vulnerable to the claims of owners harmed by second-hand smoke. But in order to be liable, the board would have to be found negligent. And boards that have tried to find ways to mitigate smoke seepage and have asked owners to approve a smoking ban can argue persuasively that they have done all they were legally empowered to do to resolve the problem..
Whether that argument will prevail against the claims of an owner suffering from exposure to a neighbor’s second-hand smoke remains to be tested. Also still to come are demands for “accommodations” or “modifications” under the Fair Housing Act for disabilities related to or exacerbated by second-hand smoke, which many believe will be the next frontier in second-hand smoke litigation. Again, the key questions will be the standards courts will set for defining smoke-related disabilities and the accommodations they will require associations to make for owners who assert those claims.
Clear guidance from the courts remains multiple legal challenges and probably several years away. In the meantime, boards charged with maintaining something approximating harmony in their communities must try to strike the delicate, difficult and not yet definitive balance between owners who assert that their right to quiet enjoyment entitles them to smoke in their homes, and owners who say their right to quiet enjoyment requires community associations to prohibit owners who want to smoke from doing so.

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Before: CHAGARES, HARDIMAN, and SCIRICA, Circuit Judges.
In 2014, Houghton Mifflin published Lichtblau's book, The Nazis Next Door: How America Became a Safe Haven for Hitler's Men. In that work, Lichtblau argues that the United States government brought Nazis here after World War II for strategic purposes. Among these alleged Nazis was Soobzokov's father, Tscherim. According to Lichtblau, Tscherim agreed to provide intelligence on the Soviet Union in exchange for clemency and residency in the United States.
The Nazis Next Door also describes the challenges faced by the children of accused Nazis. In researching this aspect of his book, Lichtblau spent “nearly seven full days” with Soobzokov and later communicated with him by email and telephone. App. 151. Soobzokov makes a handful of appearances in the book—all of which emphasize his unwavering belief in his father's innocence.
After the book's publication, Soobzokov sued Lichtblau and Houghton Mifflin for defamation, invasion of privacy, and intentional infliction of emotional distress. The District Court dismissed Soobzokov's suit under Federal Rule of Procedure Rule 12(b)(6) for failure to state a claim. Soobzokov now appeals.
We review the District Court's order de novo. Fowler v. UPMC Shadyside, 578 F.3d 203, 206 (3d Cir. 2009). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted).
Soobzokov argues that the references to him in Nazis Next Door are defamatory. A defamatory statement is “false and injurious to the reputation of another or exposes another person to hatred, contempt or ridicule or subjects another person to a loss of the good will and confidence in which he or she is held by others.” Romaine v. Kallinger, 537 A.2d 284, 287 (N.J. 1988) (internal citations omitted). In making this determination, “the court must evaluate the criticized language according to the fair and natural meaning which it would be given by persons of ordinary intelligence.” Decker v. Princeton Packet, Inc., 561 A.2d 1122, 1125 (N.J. 1989) (internal citations omitted).
At the outset, we must distinguish Soobzokov's legal claims from his general grievances about the book. Soobzokov does not—and could not—assert a defamation claim on behalf of his deceased father.2 Rather, Soobzokov makes two claims in his own right: (1) that the descriptions of him are defamatory; and (2) that the descriptions of him, in combination with the negative comments about his father, are defamatory.
The first references to Soobzokov appear in a chapter entitled “The Sins of the Father,” which chronicles the experiences of the “sons and daughters of accused Nazis.” Supp. App. 153. In that chapter, Lichtblau notes that Soobzokov believed “fervently in his own father's innocence” and that Soobzokov's “years-long defense of his father became an obsession.” Supp. App. 155. For example, the book explains that when rumors of Tscherim's Nazi affiliations swirled at Soobzokov's high school, Soobzokov “felt as if everyone's eyes were on him ․ , [the] ‘son of the Nazi.’ ” Supp. App. 155–56. Lichtblau also describes how Soobzokov would “angrily” confront protestors in front of his family home. Supp. App. 156. Finally, Lichtblau recounts Soobzokov's “solitary trek to avenge his father's honor”: an episode where Soobzokov drove four hours to a book signing and confronted an author who had accused Tscherim of war crimes. Id.
While Soobzokov admits that these incidents took place, he argues that the passages make him appear “bizarre, obsessive, and mentally unstable.” Soobzokov Br. 17. But as the District Court explained, nothing therein “is injurious to [Soobzokov's] reputation or would subject him to ridicule, contempt or hatred.” App. 7; see also O'Brien v. Lerman, 498 N.Y.S.2d 395, 396 (N.Y. App. 1986) (“The words ‘went crazy’ ․ indicating plaintiff's extremely angry reaction, cannot reasonably be understood by the mind of the ordinary intelligent reader as imputing to plaintiff insanity or mental instability.”). Rather, these excerpts show “an understandable pattern of behavior seen in first-generation children of accused Nazis who believe in their fathers and their innocence.” App. 7 (opinion of District Court, citations and alterations omitted).
Second, Lichtblau describes Soobzokov's determination to revive the investigation into his father's brutal murder—which had gone unsolved for nearly 25 years. Specifically, Lichtblau wrote that Soobzokov “pressed authorities to reopen the investigation” and alleged that “prosecutors failed to bring charges against [the suspected Jewish militants] because of his father's notoriety as a Nazi.” Supp. App. 253–54.
The District Court explained that “rather than defaming [Soobzokov], this section evidences a son's devotion to his father and desire to obtain answers about his murder.” App. 8. We agree. Soobzokov argues that the passage implies that he called Tscherim a Nazi while relaying the story to Lichtblau. While such an interpretation is theoretically possible, it is not the natural interpretation of the passage—particularly considering the book's repeated references to Soobzokov's firm belief in his father's innocence. See Decker, 561 A.2d at 1125 (explaining that the “allegedly defamatory statement must be taken in context and the publication considered as a whole”).
Third, Soobzokov is listed in the “Acknowledgments” section of the book. Supp. App. 258. Lichtblau writes that he is “grateful” to Soobzokov and two other children of accused Nazis “for their cooperation.” Id.
Soobzokov argues that any implication that he assisted Lichtblau's book “lends Soobzokov to be considered as a traitor to his father before the entire world.” Soobzokov Br. 51. But we agree with the District Court that Lichtblau's brief and benign acknowledgement cannot fairly be read to carry such an extreme reading. And because Soobzokov was interviewed by Lichtblau for an entire week and provided volumes of documents, App. 151, the District Court did not err when it concluded that “[Soobzokov] did cooperate with Lichtblau.” App. 8. Given the truth of that conclusion, the acknowledgment cannot be defamatory. Ditzel v. Univ. of Med. & Dentistry of N.J., 962 F. Supp. 595, 605 (D.N.J. 1997) (“[T]ruth is an absolute defense to defamation.”).
We next consider Soobzokov's claim that the aforementioned references, in combination with Lichtblau's description of Tscherim as a Nazi war criminal, are defamatory.4 Though Houghton Mifflin and Lichtblau portray this argument as an “effort to circumvent th[e] well-established rule barring surviving relatives from bringing libel claims relating to statements about the dead,” Resp. Br. 19, we understand Soobzokov's distinction. It's one thing to call a deceased person a Nazi; it's a very different thing to call a living person the child of a Nazi. Assuming arguendo the falsity of Lichtblau's book, we now consider whether falsely labeling someone the son of a Nazi states a claim under New Jersey law.
Because the New Jersey Supreme Court has not decided whether an individual can be defamed by being linked to an infamous relative, we must predict how it would decide that question. See McGowan v. Univ. of Scranton, 759 F.2d 287, 291 (3d Cir. 1985). Other states are split on the issue. Compare Van Wiginton v. Pulitzer Pub. Co., 218 F. 795, 797 (8th Cir. 1914) (“The social standing of a young woman may be affected to an appreciable degree by the evil repute of her parents. At any rate, it cannot be said as matter of law that she suffers no injury.”), and Merrill v. Post Pub. Co., 83 N.E. 419, 422 (Mass. 1908) (“To write of a man that he is the brother of a sister arrested for larceny might well be thought by a jury to impair his standing in the community.” (internal quotations omitted)), with Sarwer v. Conde Nast Publ'ns, Inc., 237 A.D.2d 191, 191 (N.Y. App. 1997) (denying a defamation claim based on an article describing plaintiff's abuse at the hand of her father because “New York does not recognize the tort of libel by relation”), and Ritzmann v. Weekly World News, Inc., 614 F. Supp. 1336, 1339 (N.D. Tex. 1985) (explaining that although plaintiff was described as the wife of a criminal, “a marital relation to the alleged perpetrator does not extend a cause of action for libel to her”).
The most relevant precedent is the New Jersey Supreme Court's decision in Romaine v. Kallinger, 537 A.2d 284 (N.J. 1988), where the court rejected an analogous theory of defamation by association. At issue was a book passage that loosely linked the two plaintiffs with “a junkie they both knew who was doing time in prison.” Id. at 288–89. The court explained that “only the most contorted reading of the offending language could lead to the conclusion that it accuses plaintiff of illegal drug use or criminal associations” and that “absent exceptional circumstances, the mere allegation that plaintiff knows a criminal is not defamatory as a matter of law.” Id. at 292. Moreover, the context of the statement showed that plaintiffs' “interest in the ‘junkie’ stemmed from sympathy and compassion, not from any predilection toward or involvement in criminal drug activity.” Id. at 292–93. In reaching its decision, the New Jersey Supreme Court cited approvingly to a federal case applying New York law and holding that the “mere imputation of [a] family relationship with [a] Mafia leader” was not defamatory, but the “characterization of plaintiff as a political contributor with alleged mob ties” could be defamatory. Id. at 292 (citing Bufalino v. Associated Press, 692 F.2d 266 (2d Cir. 1982), cert. denied, 462 U.S. 1111 (1983)).
Given the reasoning in Romaine, we predict that the New Jersey Supreme Court would reject Soobzokov's claim. New Jersey requires that the offending statement do more than merely associate the plaintiff with a disreputable individual; it must indicate that the plaintiff participated in disreputable behavior. See Romaine, 537 A.2d at 292 (rejecting the defamation claim because the offending passage did “not suggest either direct or indirect involvement” by the plaintiffs in the illegal behavior). Here, Lichtblau does not insinuate that Soobzokov was involved in Nazi activities. And like the plaintiffs in Romaine, Soobzokov's devotion to his father “stemmed from sympathy and compassion” and not from “predilections toward or involvement in” Nazi causes. See id. at 292–93. Finally, the Romaine court's citation to Bufalino—that “mere imputation of family relationship” without more cannot be defamatory—supports our decision. See id. at 292.
Even if The Nazis Next Door were defamatory under New Jersey law, Soobzokov's claim would still fail because the book dealt with a matter of public concern and the complaint does not allege actual malice. See, e.g., Durando v. Nutley Sun, 37 A.3d 449, 457 (N.J. 2012). Tacitly admitting that he failed to plead actual malice, Soobzokov argues that his claims do not implicate a matter of public concern. We disagree.
“Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” Snyder v. Phelps, 562 U.S. 443, 453 (2011) (citations omitted). “Discourse on political subjects and critiques of the government will always fall within the category of protected speech that implicates the actual-malice standard.” Senna v. Florimont, 958 A.2d 427, 444 (N.J. 2008).
The Nazis Next Door implicates matters of public concern. The book—which uncovers controversial matters of international relations and geopolitics following a world war—clearly relates to a “political subject.” See Florimont, 958 A.2d at 444. Moreover, Lichtblau offers a structural and moral “critique[ ] of the government.” See id.; see also, e.g., Supp. App. 27 (explaining that Nazis received “help from the American government coming in the form of an inept immigration system that made it easy for them to bury their pasts”); id. at 26 (“The fact that a number of [Nazi immigrants] had built rockets on the backs of slave laborers at concentration camps, or performed hideous medical experiments on concentration camp prisoners, was of little concern [to the United States government].”).
Moreover, Soobzokov cannot separate his individual story from this broader narrative. Almost any historical account will include details of individuals. If each person could object to the inclusion of his own story, then important speech could be stifled. Such a rule would “threat[en] the free and robust debate of public issues” and “interfere[ ] with a meaningful dialogue of ideas.” Snyder, 562 U.S. at 452 (quotations omitted). For that reason, the Supreme Court has recognized that even if the speech “contain[s] messages related to [a named private citizen] specifically, that would not change the fact that the overall thrust and dominant theme of [the speech] spoke to broader public issues.” Snyder, 562 U.S. at 454.
Our decision regarding Soobzokov's defamation claim dooms his causes of action for false light and intentional infliction of emotional distress. See G.D. v. Kenny, 15 A.3d 300, 318-19 (N.J. 2011) (explaining that a plaintiff cannot claim false light or intentional infliction of emotional distress based on speech that is not defamatory). This is doubly true when the offending speech addresses a matter of public concern, as New Jersey extends the same constitutional protection to false light and emotional distress claims as it does to defamation claims. Durando, 37 A.3d at 458 (“[A] false-light claim parallels the requirements of the actual-malice standard in First Amendment jurisprudence and our own common law.”); Decker, 561 A.2d at 1129 (“[T]he [F]irst [A]mendment requires that plaintiff establish at least the same level of intent to recover for the infliction of emotional harm as is necessary to find defamation.”).
Because we have already found that the cited passages do not constitute defamation and deserve constitutional protection, Soobzokov's false light and emotional distress claims also fail.
For the reasons stated, we will affirm the District Court's judgment.
FOOTNOTE. This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
1. The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction under 28 U.S.C. § 1291.
2. Given Soobzokov's continuing belief in his father's innocence, we understand how his arguments could be read as being brought on behalf of Tscherim. See, e.g., App. 151 (alleging that “Lichtblau had written a horrendous defamatory book that was devoid of truth and was clearly written to destroy Tscherim's reputation”); Soobzokov Br. 5 (“Lichtblau falsely and brutally accused Tscherim of being a Nazi War Criminal during World War II.”). But Soobzokov properly disclaims that theory, Soobzokov Resp. 2, and, regardless, any such claim is not actionable. See Fasching v. Kallinger, 510 A.2d 694, 701 (N.J. Super. Ct. App. Div. 1986) (“Because the allegedly defamatory statements in this case were published subsequent to [the subject's] death, the action did not accrue during her lifetime and cannot be maintained by an administrator of her estate.”).
3. On appeal, Soobzokov now challenges certain excerpts that were not cited in his complaint. Because we “will not consider issues raised for the first time on appeal,” those arguments are forfeited. See Delaware Nation v. Pennsylvania, 446 F.3d 410, 416 (3d Cir. 2006).
4. See, e.g., Soobzokov Br. 3 (“The defendants wrote a book where they called the plaintiff ․ the son of a Nazi war criminal.”); id. at 42–43 (“[P]eople will believe that Soobzokov is the son of a Nazi war criminal. One could assume that Soobzokov had Nazi sympathies.”).