In recent Terms the Supreme Court has shown considerable interest in individual immunity doctrine involving qualified immunity–about which I blogged on January 25, 2011 and may 31, 2011–and absolute immunity–about which I blogged on August 21, 2009. See generally on individual immunities, my treatise CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 chapters 7 & 8 (4th ed. 2010)(CIVLIBLIT on Westlaw).
The Court’s interest in immunity doctrine will continue into the 2011 Term because, on March 21, 2011, the Court granted certiorari in Rehberg v. Paulk, No. 10-788, to review 611 F. 3d 828 (11th Cir. 2010), which conferred absolute witness immunity on a district attorney’s chief investigator who had testified as a complaining witness before a grand jury.
(In connection with understanding Rehberg, note that the Supreme Court has consistently used a functional approach to individual immunities, meaning that immunity does not depend on job title but rather on the nature of the challenged conduct. Buckley v. Fitzsimmons, 509 U.S. 259 (1993)).
Rehberg involved a § 1983 Fourth and Fourteenth Amendment-based malicious prosecution damages action against, among others, a chief investigator in a district attorney’s office who, as a complaining witness, allegedly testified falsely before three different grand juries, each of which separately indicted the plaintiff on various charges subsequently dismissed. The Eleventh Circuit held that the chief investigator was absolutely immune from damages liability for his allegedly false testimony before the grand jury.
In this latter regard, though, the Eleventh Circuit was careful to note that there was no allegation here that either of these defendants fabricated or planted any evidence to create probable cause. If there had been, the defendants would not receive absolute immunity, according to the court, because such conduct—investigating and gathering evidence—fell outside the prosecutor’s role as advocate.
Whether a government official who acts as a “complaining witness” by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a Section 1983 claim for civil damages.
The Court probably granted certiorari because of a circuit split on this issue, with the Third, Fourth and Eleventh Circuits relying on Briscoe to confer absolute immunity, while the District of Columbia, Second, Fifth, Sixth, Seventh, Ninth and Tenth Circuits relied on Malley to deny absolute immunity protection.
1. The Court will have to decide how to apply its functional approach here. On the one hand, the chief investigator in Rehberg functioned as a complaining witness, as acknowledged by the Eleventh Circuit itself. On the other, the chief investigator also functioned as a witness in a grand jury proceeding, and such a proceeding is “intimately associated with the judicial phase of the criminal process,” to borrow the words of Van De Kamp v. Goldstein, 129 S. Ct. at 860.
2. There are important policy considerations in play. For example, will allowing § 1983 damages actions for such complaining witness testimony in a grand jury proceeding adversely affect the confidential nature of grand jury testimony because of the depositions that would be taken?
3. As always with individual immunities, there is also the matter of the common law background. This is where the Court has traditionally begun its immunity analysis. What, if anything, does the common law extant in 1871 have to say about this?
4. Finally, if the Court affirms the Eleventh Circuit, it will adversely affect the number of so-called § 1983 malicious prosecution claims by eliminating a category of potential defendants beyond prosecutors (who are already protected by absolute immunity for their decisions to call witnesses and to prosecute). This could be a factor that motivates the Court to affirm. See my post of September 11, 2009, on § 1983 malicious prosecution.


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The issues raised by Hoyt v. Florida (1961) and the subsequent case of Taylor v. Louisiana (1975) was rather volatile in the 60s and 70s. The question: Can women serve on juries in America? The answer: I think not. In addition to the state of Florida, this issue was one that was facing many other states in the period. For example, Mississippi allowed women to be jurors by legislative action (actually “accident”) in 1968. Senator Jean Muirhead, who truly understood how the legislature worked, added an amendment at the “tail end “ of discussion on a particular statute. This amendment struck the word “male” from the Mississippi juror qualification statute. The amendment was passed, generally because no one else in the Senate had picked up on what she was doing. Flummoxed when he realized what had happened, Senate President George Yarborough held the action over to be reviewed the following day. The measure passed again, but again, truly by accident. Other captivating issues were capturing the attention of the Mississippi Senate and House and savvy Senator Muirhead had perfect timing on both days.
Former Chief Justice Lenore L. Prather, the first woman Mississippi Supreme Court Justice and first woman Mississippi Supreme Court Chief Justice, who served as a City Judge in West Point, Mississippi, her hometown, and as Chancellor in the Fourteenth Chancery District of Mississippi before being appointed to the Court (on the same day that the United States Supreme Court granted Joe Hogan the right to enroll in the “W”) often reminded me that she was a judge before she could serve on a jury. Had Jean Muirhead not understood legislative workings (she had been a legislative staffer and staff attorney long before she ran for and became a Senator) Mississippi certainly would not have “beaten” Louisiana in the effort to offer women the opportunity to approach civic duty by serving on juries.
I would argue that the three most compelling civic duties are: voting, jury service and military service. American women obtained the vote in 1921; American women were universally “allowed” to serve on juries as a result of Hoyt v. Florida, even though the case condoned an absolute exemption from duty for women at the woman’s option. Finally, the Women’s Armed Services Integration Act of 1948 ensured women a place in the military services. Women may volunteer to serve in the armed services of the United States, but they cannot be placed equally in all positions. However, women are not required to register for conscription in the event of a need for a draft, per Rostker v. Goldberg (1981), the first significant gender-related case rendered by the United States Supreme Court after the Reagan Revolution, affording military duty at a woman’s option.
Society, custom and mores can deal a lethal blow to democracy, even in this most democratic of countries. Initially, many of the women in the first wave of feminism assumed that the ability to serve on juries came in tandem with voting rights secured by the Nineteenth Amendment (most jury pools came from voter rolls). They soon found that when and if the issue was raised, the outcome was often to preclude women from jury duty. The reasons cited seemed to be parochial and protective. Women should not be in the tangle of courthouses, exposed to a criminal element, lurid facts and disgusting situations. Moreover, women needed to be at home – caring for their children, preparing for the homecoming of their husbands after a hard day of labor. It was the sort of duality that often shaped arguments which precluded women from various opportunities.
The interesting facet of the Taylor case is the Court’s condoning of the Florida statute which does not “exclude” women but gives a privilege to women to decide whether to serve. Likewise, the laws in this country up to today do not “exclude” women from military service but give a privilege to women to decide whether to serve. And of course, voting is always a privilege and one has only to look to voter statistics to determine that many women (and men) having the privilege to register to vote, do not, and having the privilege to vote, do not. Yet voting, jury duty and military service are not privileges of citizenship but rights of citizenship. These civic responsibilities – voting, jury duty and military service – were historically treated as rights when associated with African American men. When extended to white women, they became privileges rather than rights.
What has been slowly extended to women in the 20th century as a privilege was afforded to African American men in the 19th century as a right. Strauder v. West Virginia, 100 US 303 (1879) declared that the ability to serve on juries was a civic right that was guaranteed to black men by the 15th Amendment and the equal protection clause of the 14th Amendment; to do otherwise would suggest that blacks men were inferior to white men. Neal v. Delaware, 103 US 370 (1880) tied electoral status to jury service, as state legislation generally does as well. This line of reasoning was developed by the Court prior to the passage of the 19th Amendment. However the reasoning in Strauder and Neal, which could have been applied to civic responsibility of women during the entire 20th century, was largely ignored. Why? The nation was forced to take on the protection of the rights of black males in a way very different from the nation’s interest in protecting the rights of women. Indeed, the majority of legislation passed immediately after the Civil War could be construed to protect the rights not just of black males but of all citizens of the nation. It was the culture of the 20th century which prohibited women’s vigorous participation in civic responsibility.
Interestingly, when the US Supreme Court finally spoke to women on juries, it was not an application of positive law. While the Court, in the late 19th century, recognized that African American men’s status as electors implied the political status that brought with it other civic rights and responsibilities, such as the right to serve on juries, the same logic was not applied to women’s search for civic opportunity in the 20th century. To the contrary, when women found unqualified inclusion in jury service, there was no focus on the woman’s civil and civic right to serve. Rather, women were included in jury venires as a matter of right because of a defendant’s 6th Amendment right to a jury which reflected a cross-section of the community. The US Supreme Court has never articulated a woman’s political and civic right to participate in political governance through jury service.
We cannot ignore that many women chose not to participate in political governance. Many women sought the “protection” that social custom gave, and were threatened by those women who felt differently. But the clarity of Justice Douglas’s language in the Ballard case (“the two sexes are not fungible”) points not only to equity and equality but points to the difference that the culture has long understood and acted upon.
Regardless of whether women were called to serve on juries or those who, if called, chose to serve, those who are acquainted with the legal system understand that a jury pool and a jury venire are quite different animals. Juries are created by challenges – for cause and peremptory. Peremptory challenges can be for any reason or no reason – and there is no reason required. It was in the last decade of the 20th century that the Supreme Court of the United States ruled that peremptory challenges could not be used on the basis of gender – meaning that the use of peremptory challenge could not be used simply to exclude women (or men) from a jury venire. This “backwards” recognition – that the rights of a defendant demanded the inclusion of American women on juries, rather than any recognition of the rights of women – has insured that women will be on juries in the future.
The case of Mackinzie v. Hare, 239 US 299 (1915) is another case of interest to women. This opinion’s author was Justice McKenna, who was nominated for a position on the Supreme Court in 1897 and confirmed by the U. S. Senate in 1989. Justice McKenna served until 1925. He retired in that year after being visited by Chief Justice Taft who confronted him with his lessened ability to perform the work required of a Justice of the Court. [It is interesting to note that Justice McKenna is not known for the quality or quantity of his work. Historians have credited him with authoring only two “important” opinions, one which affirmed the constitutionality of the Pure Food and Drug Act of 1906 and one which affirmed the constitutionality of the Mann Act (1914).
Mackenzie v. Hale is an extraordinary opinion which is certainly “important” to over 50% of the American public. So I would add it to the “important opinions” that the Justice authored. It must be remembered, however, that in authoring a Supreme Court opinion, a justice does not write alone. While the document is his, Justice McKenna has reached consensus with his colleagues and they agree with his reasoning and legal application to the facts of the case. In the Mackenzie case, there was a lone dissent, and it was on procedural grounds so the nine justices were as one in 1915 in when they upheld the Citizenship Act of 1907.
The Act which the Mackenzie case upheld was only 8 years old at the time of its challenge. The act’s purpose was codification of derivative citizenship for women. Derivative citizenship was a creature of common law in the sense that a married woman became one with her husband in sense of political identity. The act simply legislatively redefined all American women as a member of their husband’s race, ethnicity and nationality. Thus, if a woman married a foreign gentleman, she was deprived of her birthright, American citizenship.
Contemporary scholars suggest that the act was passed to guard the social desire of the majority of the population at the time to refrain from mixing races in American marriages. However, similar issues are retained in American polity as reflected by the relatively recent case of Nguyen v. Immigration and Naturalization Service, 533 US 53 (2001). I would submit that this suggests that the social desire apparent in 1907 still remains.
 Nguyen v. Immigration and Naturalization Service, 533 US 53, 57 (2001).
Sarah Osborne…the first woman military hero?
I think I have mentioned that I took a couple of classes in women’s studies last spring. One of the women I learned about in these courses was Sarah Osborn. The text included testimony that Osborn submitted to Congress in order to obtained a veteran’s pension as a surviving widow of a veteran. This testimony was offered before the Court of Common Pleas of Wayne County, New Jersey. Dann notes that the testimony is by way of deposition, meaning that it is not a formal court proceeding, but an evidentiary proceeding in which the deponent can testify independently and respond to questions asked of her by a magistrate or other court offcer.
In seeking a widows’ pension, Osborn was following established procedure by appearing at the Court of Common Pleas. Procedure required the veteran to appear in person before a court of record in his state of residence in order to give evidence that he had actually served in the Revolutionary War. A veteran’s widow was required to do the same. In coming before the court, the widow was to prove that her husband was a veteran of the Revolutionary War and that they were legally married. Osborn’s testimony may have been more compelling than most because from her clear recollections, she deposes that she was as much of a campaign veteran as her husband had been, beginning in West Point and working with her husband as a commissary guard, removing to Philadelphia, Baltimore, and sailing up the James to Yorktown, witnessing aurally, at least, the surrender of Cornwallis.
The testimony of Sarah Osborne corroborates the folklore surrounding many women who were considered camp followers such as Molly Pitcher and Deborah Sampson. Further, it defeats the concept of camp followers utilized by detractors to suggest that the women who followed along on campaign were merely prostitutes. Osborn, Pitcher and Sampson were true veterans. Osborn, wife of the commissary guard, performed many of the duties associated with the responsibilities of the commissary. Pitcher, the wife of an artillery man, was noted for serving water to the soldiers in her husband’s brigade until he died in the line of fire, when she put down her pitcher and began operating his artillery piece. Legend has it that Sampson actually dressed as a soldier and used an assumed male name, but was instrumental in conveying messages between officers of rank. It seems that both Osborn and Sampson had at least one encounter with General Washington.
Osborn’s deposition was meant for one purpose, and one only: to obtain a pension for herself as the widow of her husband, a Revolutionary War veteran. While we can only speculate on the truthfulness of the information contained herein, there are several factors that lend her testimony veracity. First, as a deponent, she would be required to swear under oath before the magistrate. Second, penalty of perjury was a more significant deterrent in the 19th century than it later became. Finally, the testimony of Osborn’s exploits in the war are consistent with duties that would be associated with a commissary attendant such as her husband. The commissary brigade would be responsible for the obtaining and delivery of food. As we know, there were great food shortages in Washington’s army, due to dishonesty, incompetence, deflation of colonial currency and the fact that the British could purchase using bullion. The Continental Congress required Washington “to victual at the continental expense all such volunteers as have joined or shall join the united army.” Included in the number of those who had need of victualing – although not necessarily legal entitlement — were prostitutes as well as wives and children of the soldiers. The wives such as Sarah Osborn provided the cooking, as well as whatever sanitation was available. While General Washington complained that women and children were “a clog upon [his] movement” and would not allow them in Army wagons, he also realized their worth to his troops, and that men who had their wives and children with them would not desert. In December of 1782, Washington issued a General Order which provided that, for every 15 men in a regiment, the regiment would be provided 16 rations, therefore allowing at least a ration for one woman or child with every 15 men.
Sarah Osborn is one of the many unsung heroes of the Revolutionary War who lived her life without recognition of her contributions, except within her own family and community. While her testimony reminds us that General Washington acknowledged her, it was to inquire as to her level of fear, no doubt because of her gender and because Washington was a man of his era. Osborn seems to have demonstrated to Washington that she was as unafraid as he, who was noted for his fearlessness and even recklessness in leading his troops, when she responded: “…the bullets would not cheat the gallows…” — no doubt making a lasting impression on the General with her clarity of understanding the efforts of all engaged in the struggle.
Last week I was blogging about the 5 cases within Michael Trachtman’s 34 greatest hits that had impact on women’s issues. The last one that I listed was Bush v. Gore (2000). The reason? That decision allowed Bush to assume the presidency in 2001.
Two observations that I make illustrate why I think that Bush v. Gore is so important for women’s issues. Preliminarily, the opinion cleared the way for Bush to become president and allowed him to make appointments (including Supreme Court appointments) that might not be in the best interests of women’s rights and liberties. Secondarily, the opinion capitalized on how very partisan our country has become — even in the “independent” branch of government in which the “rule of law” should prevail. As those who study democracy understand, the value of democracy is the protection of the rights of the minority. When even the Supreme Court is hysterically partisan (and Justice Stevens, in his dissent, verified this: “Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”), things bode well for none of us. When the Supreme Court is hysterically partisan with a Republican bent, it could not bode well for women, and the result — the two Bush administrations, did not bode well for women.
Before I finish up with the “top 5 of 34” list of cases, I want to stop for a minute and share some Memorial Day thoughts with you.
I am just beginning to understand Memorial Day. I’ve been celebrating Memorial Day all my life. This is my 57th Memorial Day. I’m the child of a World War II veteran, a World War II purple heart winner, a man who died at age 78 with shrapnel still in his skull and under his left knee cap. A man who rarely spoke of the war.
Not only am I a child of a World War II veteran, I’m a child of the Vietnam Era, a kid who witnessed the Tet Offensive on TV while studying for Poli Sci 101 tests, a kid who understands all about Kent State, a kid who still cries when she hears Crosby Stills & Nash’s Four Dead in Ohio.
And maybe that’s why I am just beginning to understand Memorial Day.
Growing up in a Texas town, I was raised into patriotism. To stand when the flag went by. To place my hand on my heart. To say the pledge of allegiance. To sing the Star Spangled Banner – even the high part. Even in the midst of the Vietnam War – the context of which I really didn’t understand – I still celebrated Memorial Day. And I thought I understood. But I didn’t.
My dad has been dead 10 years now. He was a bombardier on a B-17, a plane in the Memphis Belle’s squadron. He was critically injured at 20 when a shrapnel canister exploded in the top turret, where he was manning the gun after the top turret gunner on his crew was killed. I never thanked him for serving in World War II. I’ve never thanked anyone for serving in World War II or any other war.
But thanking is not what Memorial Day is about. Because those who served in World War II, most of them anyway, didn’t understand Memorial Day either. And they didn’t do it for thanks. Mostly, they did it because they were young and were “supposed to” – either compelled by their culture or the draft. They were young. They were invincible. And they served. And some came home and others didn’t.
Understanding is what Memorial Day is all about. And when you understand — when you really understand, you will live a life full of memorial days. A life full of remembering. A life full of thanking.
If you grew up within the Vietnam Era, you learned from the wrong signals. Vietnam vets were not fighting for our freedom, our future. They were fighting for … well, who knows? Each Vietnam vet had a reason for being there – be it cultural or the draft. But the overall rationale… I’m not sure any of us yet understands. The war was tragic. But the Viet Cong did not threaten my way of life…or sure didn’t seem to. That domino theory just seemed some wierd kind of rationalization to me, although it made perfect sense to my dad, who used to say that if “they” had left McArthur alone, “we” wouldn’t be in this “mess”.
Thirty years past high school American History, I am just beginning to understand World War II and thus just beginning to understand Memorial Day. I’m just beginning to understand Pearl Harbor and Normandy, Japanese Americans in the Pacific Northwest, the Manhattan Project, and what my Daddy did.
For all those individuals like my Dad – the “America, love it or leave it!” generation: Thanks! You preserved my right to question decisions like Vietnam and Iraq and you have my undying gratitude.
Ellerth was one of those long-suffering women who simply didn’t want to make waves. She had a good job. She needed her job. So she endured constant sexual harassment from her supervisor. She never reported it to her supervisor, or anyone, for that matter, even though she knew that Burlington had a policy that prohibited sexual harassment. Eventually, Ellerth couldn’t stand it anymore and quit. After she quit, she sued Burlington, arguing that due to the sexual harassment that she regularly endured, she ultimately had no choice but to leave the job she liked and needed.
At the trial, Burlington made a reasonable defense. (1) It had a clear policy prohibiting sexual harassment. (2) It didn’t know about the sexual harassment that Ellerth complained of, because she had never reported it. (3) It had no reasonable way of finding out about the harassment; Ellerth never complained to anybody. So Burlington argued that it should not be held liable for the acts of a renegade employer about which it knew nothing. Burlington won at the trial court.
Ellerth appealed, and eventually the United States Supreme Court agreed to hear the case. There, Ellerth urged the Court to apply a concept of vicarious liability, which is a basic tenet of agency law.
The Ellerth case brought two critical rulings to the fore for the future of employers on the issue of sexual harassment. First, the Court held that in a case where a supervisor sexually harasses an employee and in the process takes a negative employment action against the employee, the company will be liable no matter what — even if the company actively prohibited sexual harassment, had no idea that the harassment was occurring, and had done nothing wrong, per se [vicarious liability]. Second, the Court held that in a similar situation, where no negative employment action occurs, but the employee is faced with working in a sexually suggestive atmosphere which is unreasonably offensive [hostile work environment], the employer will be held liable unless it can prove (1) that it did all it reasonably could to prevent and correct the harassment and (2) the employee failed to take advantage of the preventive or corrective opportunities provided by the employer in its anti-harassment policy.
Is there anyone in America who doesn’t know what Roe v. Wade stands for?
Challenging a Texas state statute which prohibited abortions except when necessary to save the life of the mother, Roe’s case made its way to the United States Supreme Court. Mr. Justice Blackmun wrote for a majority of 6 justices, ruling that the U. S. Constitution permits a woman to decide for herself whether she wants to terminate her pregnancy.
Roe is probably the most controversial case in American society today, and it is over 30 years old. In 1992, the last time that the U. S. Supreme Court weighed in substantially on the issue, it reaffirmed the national commitment to Roe in Planned Parenthood v. Casey. [Casey challenged the constitutionality of a state law requiring a woman to obtain the consent of her husband prior to obtaining an abortion, a requirement which the Supreme Court found an “undue burden” on the right of a woman to obtain an abortion before the fetus attains viability.
Roe will continue to be the most controversial case in America for years to come — unless something truly unanticipated rears its head at the Court.
In contrast, President George W. Bush regularly voiced support for anti-abortion activists. In audio remarks broadcast to demonstrators last year, he said biology confirms that from the start, each unborn child is a separate individual with his or her own genetic code.
American public opinion about abortion has been fairly stable in recent decades, with polls nearly always finding a narrow majority saying the procedure should be legal in all or most cases.

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On July 28, 2016, the U.S. Environmental Protection Agency (EPA) proposed to update the Toxic Substances Control Act (TSCA) Significant New Use Rule (SNUR) procedures. 81 Fed. Reg. 49598. As discussed in our previous memorandum on this proposed rule, Proposed Revisions to Significant New Use Rules Reflect Current Occupational Safety and Health Standards, while some of the proposed changes are not consequential, other changes, such as those related to workplace protections, are more clearly consequential. An issue that was noted but not discussed in detail in our previous memorandum is EPA's proposal to modify the procedures for determining if a specific substance or chemical use is subject to a SNUR when the substance, production volume, or use is claimed as confidential business information (CBI). Specifically, EPA has proposed changes to 40 C.F.R. § 721.11 to address these procedures. Below, we review the current procedures and then address how the proposed language would change those procedures -- changes of which stakeholders should be aware.
To put the changes into context, we first consider the current regulations relating to establishing a bona fide intent to manufacture (bona fide intent) a substance that has confidential identity or confidential conditions in a SNUR. Under the current procedure, determining if a specific substance is listed on the confidential portion of the TSCA Inventory (Inventory) and if the substance is subject to a SNUR requires the submission of a bona fide intent notice (BFN), according to the procedures codified at 40 C.F.R. § 721.11(b). If EPA determines that the submitter has established a bona fide intent, EPA will inform the submitter that the substance is listed on the Inventory and provide "which section in subpart E of this part [40 C.F.R. § 721] applies." This provision would not necessarily reveal any CBI information regarding use or production volume restrictions that are conditions of the SNUR, only the specific 40 C.F.R. § 721 citation.
Whether the identity of a substance is confidential or not, the substance may have SNUR restrictions applied to it that are considered CBI. In particular, production volume and/or specific use(s) may be considered CBI and be part of a SNUR imposed on the substance. The procedures for determining the confidential SNUR restrictions are similar to the procedures to determine if a substance is listed on the confidential portion of the Inventory. It requires submitting a BFN to EPA. In the past, when EPA needed to refer to the procedures for submitting a BFN to determine the confidential SNUR conditions, it referred to the procedures codified at 40 C.F.R. § 721.1725(b)(1). This is in contrast to the BFN procedures for determining if a specific substance is subject to a SNUR listed in 40 C.F.R. § 721.11(b).
If EPA determines that the person has a bona fide intent to manufacture, import, or process the chemical substance, EPA will tell the person whether the use for which the person intends to manufacture, import, or process the substance is a significant new use [(SNU)] under paragraph (a)(2)(i) of this section. If EPA tells the person that the intended use is not a significant new use under paragraph (a)(2)(i) of this section, EPA will tell the person what activities would constitute a significant new use under paragraph (a)(2)(ii) of this section.
Tells the BFN submitter that the use specified in the BFN is not a SNU, in which case EPA tells the submitter what activities would constitute a SNU for the substance.
Note that in the first scenario, where a SNUN is required, EPA does not inform the submitter of the existing confidential SNUR conditions. EPA subsequently makes a determination based on the information in the SNUN when submitted, and informs the SNUN submitter of any restrictions imposed to manage risks associated with the use described in the SNUN. The new restrictions could either be unique to the conditions of the SNUN or could result in a modification of the previously established CBI SNUR restrictions. Also, EPA could amend the confidential portion of the SNUR to include any new permissible activities as a result of the SNUN (e.g., add another CBI use) without informing either manufacturer of the other's confidential SNUR conditions.
In the second scenario, where EPA determines that the BFN submitter's use is not a SNU, EPA informs the BFN submitter of any restrictions associated with that use that might further restrict the BFN submitter or its customers (e.g., the BFN submitter's use is permitted, but that the production volume is capped by the SNUR). As a matter of practice, EPA informs the original submitter that another submitter has demonstrated a bona fide intent, but this practice is not codified in the C.F.R. Furthermore, the original submitter is not informed of the BFN submitter's intent, only that the BFN submitter's use was not a SNU, whereas the BFN submitter knows the heretofore confidential specific use and production volume ceiling (if any). These two outcomes are not aligned. The first scenario is more protective of both entities' CBI. The second scenario provides the BFN submitter some visibility of the original submitter's CBI, but not the reverse.
For example: Manufacturer 1 submits a premanufacture notice for a non-confidential chemical substance to be used as an intermediate to manufacture a pesticide and claims the use as confidential (with a generic use of "intermediate"). EPA makes a determination that the use specified in the PMN does not present an unreasonable risk to health or the environment, but other uses may present issues, so EPA imposes a SNUR invoking 40 C.F.R. § 721.80(j) limiting its use to the use listed in the PMN (intermediate to manufacture a pesticide). Manufacturer 1 then commences commercially manufacturing the substance and files a Notice of Commencement (NOC), placing the substance on the public portion of the Inventory. Some time later, Manufacturer 2 seeks to use the same substance as an intermediate to manufacture an anti-oxidant lubrication additive. Manufacturer 2 submits a BFN and EPA informs Manufacturer 2 that its use is a SNU. Manufacturer 2 then submits a SNUN for its use, also claiming the specific use as confidential and listing "intermediate" as the generic use. EPA evaluates the SNUN and determines that this particular use is not likely to present unreasonable risk to health or the environment, but other uses may present issues, so EPA adds the new use to the confidential uses permitted for the substance, but leaves the other SNUR provisions in place and neither manufacturer knows the specific use of the other.
That the person [manufacturer] has notified the recipient [customer], in writing, of the specific section in subpart E of this part which identifies the substance and its designated significant new uses.
In the example above, each manufacturer notifies its own customers of the appropriate C.F.R. citation and SNUR restrictions (Manufacturer 1 informs its customer that the use is limited to use as an intermediate for a pesticide; Manufacturer 2 informs its customer that the use is limited to use as an intermediate for an antioxidant). The customers of each manufacturer remain in compliance with the SNUR and 40 C.F.R. § 721.5, assuming each customer restricts its use based on the information provided by the separate manufacturers. In this scenario, all four parties (both manufacturers and both customers) can be in compliance without EPA disclosing the confidential use of one manufacturer to the other.
A person who intends to manufacture or process a chemical substance which is subject to a significant new use rule in subpart E of this part may ask EPA whether the substance or a proposed use is subject to the requirements of this part if that substance is described by a generic chemical name or if the significant new use is confidential and therefore not described specifically in the rule. EPA will answer such an inquiry only if EPA determines that the person has a bona fide intent to manufacture or process the chemical substance for commercial purposes.
If the manufacturer or processor has shown a bona fide intent to manufacture or process the substance and has provided sufficient unambiguous chemical identity information to enable EPA to make a conclusive determination as to the identity of the substance, EPA will inform the manufacturer or processor [the BFN submitter] whether the chemical substance is subject to this part and, if so, which section in subpart E of this part applies, and identify any confidential significant new use designations.
Under the proposed rule, once a submitter has established a bona fide intent, EPA will disclose to the BFN submitter any confidential significant new use designations, including specific use and production volume restrictions, whether or not those restrictions are relevant to or would limit the BFN submitter's commercial activity as proposed in the BFN. As proposed by EPA, this disclosure would be made to the BFN submitter without regard for the existing CBI claims on the information, and without informing the original entity holding the CBI claim before or after making this disclosure.
Importantly, this change means that EPA is switching from a presumption of protecting CBI in the SNUR to actively informing later submitters of information proprietary to the original submitter. While 40 C.F.R. § 721.11(f) states that informing later submitters of SNUR restrictions "will not be considered public disclosure of [CBI] under Section 14," it is an unavoidable fact that EPA's proposed approach involves disclosure of CBI to an additional party, one that could be a competitor to the original submitter (both are, after all, manufacturing the same substance), a fact pattern that is very likely to be of considerable concern to the original submitter.
We do not read provisions in either old or new TSCA to authorize EPA to disclose CBI in the way that is proposed in this notice. The CBI SNUR requirements do not fall into any of the information types discussed under Section 14(b) of new TSCA that concerns information not protected from disclosure. The BFN submitter cannot be considered to have official duties or needs related to those discussed at Section 14(d) of new TSCA, the provision that allows CBI disclosure under certain circumstances. The BFN submitter only needs to know if the proposed use is a SNU or not. If EPA informs the BFN submitter that the proposed use is not a SNU, the BFN submitter is effectively bound to the use terms laid out in the BFN and would need to submit a new BFN if other uses or changes in the initially proposed use are contemplated.
Based on the foregoing, with the proposed language, the second submitter is unavoidably privy to the CBI claimed by the first submitter, but there is no provision in the C.F.R to inform the first submitter of the conditions sought by the second submitter. This is in contrast to the provisions in 40 C.F.R. § 720.25(b)(6) in which the original submitter is notified if and when a second entity has demonstrated a bona fide intent that is listed on the CBI portion of the Inventory. Both the original submitter and the BFN submitter are informed that another entity is manufacturing the substance for a TSCA purpose.
EPA must provide the statutory basis and rationale for informing a BFN submitter of confidential use or production volume conditions. If EPA can provide the statutory basis for such disclosure, EPA must also explain why it must disclose such information to the BFN submitter. If EPA can somehow justify disclosing the CBI SNUR conditions, it should codify its obligation to notify the original CBI submitter that such disclosure has occurred. The current proposed SNUR provides for neither equal disclosure nor equal confidentiality as a result of BFN submission.
TSCA stakeholders should carefully consider commenting on the changes to 40 C.F.R. § 721.11 to be sure that EPA is acting within its statutory authority, justifying why disclosure is necessary, and providing for notification of the original CBI holder. While the consequences of these proposed provisions may be inadvertent, the proposed rule either needs to be withdrawn and re-proposed to reflect the law, or rationalized in a way that our careful reading of TSCA does not allow.
The U.S. Environmental Protection Agency (EPA) proposed on July 28, 2016, revisions to the regulations governing significant new uses of chemical substances under the Toxic Substances Control Act (TSCA) with revisions to the Occupational Safety and Health Administration’s (OSHA) Hazard Communications Standard (HCS) occasioned by OSHA’s March 2012 final rule modifying the HCS to conform to the United Nations’ (U.N.) Globally Harmonized System of Classification and Labelling of Chemicals (GHS), changes to OSHA’s Respiratory Protection Standard, and the National Institute for Occupational Safety and Health (NIOSH) respirator certification requirements pertaining to respiratory protection of workers from exposure to chemicals. EPA states that it is also proposing changes to regulations based on issues that it identified, as well as issues raised by public commenters, for significant new use rules (SNUR) previously proposed and issued under these regulations. Additionally, EPA claims to propose a “minor” change to reporting requirements for premanufacture notices (PMN) and other TSCA Section 5 notices. EPA states that it expects the changes “to have minimal impacts on the costs and burdens of complying, while updating the significant new use reporting requirements to assist in addressing any potential effects to human health and the environment.” Comments are due September 26, 2016.
Fixing Typographical Errors and Other Non-Substantive Changes.
Although the notice downplays them, the proposal raises significant and complex issues. There may well be good reasons for several of the proposed changes. The minimal discussion provided in the notice and the lack of adequate public debate having occurred prior to its issuance raise troubling questions about the legal basis for, scope of, and complexity of the proposed changes, some of which may apply retroactively. The confusion the proposal can be expected to cause could have been avoided had adequate discussion preceded its publication, or at the least EPA could have raised these issues in the proposed rule’s preamble to focus stakeholders’ attention appropriately.
More information is available in our memorandum TSCA: Proposed Revisions to Significant New Use Rules Reflect Current Occupational Safety and Health Standards.
On July 26, 2016, the U.S. Environmental Protection Agency (EPA) issued a notice in the Federal Register soliciting a second round of comments on the burdens and value of information it periodically collects addressing significant new use rules (SNUR) for existing chemicals. Specifically, EPA submitted a request to renew the approval of an existing information collection request (ICR), Toxic Substances Control Act (TSCA) Section 5(a)(2) SNURs for Existing Chemicals, to the Office of Management and Budget (OMB). This notice provides chemical manufacturers and other interested parties a second opportunity to comment on certain questions, specifically: whether the agency accurately estimated the burden of responding to SNURs that it issues for chemicals in commerce; whether the agency could minimize the burden; and whether the information it collects is necessary.
The first ICR was issued on September 2, 2015, and comments were due November 2, 2015. Only two comments were filed in response to the initial ICR, by the American Chemistry Council (ACC) and the Society of Chemical Manufacturers & Affiliates (SOCMA), two trade associations. ACC and SOCMA stated in their comments that EPA underestimated the burdens its SNURs impose on chemical manufacturers and their customers.
This renewed ICR states that EPA estimated that six companies would be affected by its new use rules for existing chemicals, creating an estimated total burden of 1,025 hours per year and a cost of $100,595.
Comments are due August 25, 2016.
SNURs are deeply unpopular to some in the chemical community and welcomed outcomes of the premanufacture notice (PMN) or significant new use notification (SNUN) process to others. Most would agree that the cost of compliance with a SNUR can be difficult to estimate with any degree of precision. Some of us are also of the view that TSCA, as recently amended, may result in many more SNURs given the new “determination” requirements under TSCA Section 5(a). The comment period opened by today’s Federal Register notice provides an excellent opportunity to provide comment to EPA and thus help to ensure that EPA has an accurate and current basis upon which to estimate the cost.


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After waiting, and waiting, and waiting, the United States Supreme Court finally answered the question whether it would heed Pennsylvania Republicans’ calls to put on hold the Pennsylvania Supreme Court’s order redrawing the state’s congressional district lines to cure a partisan gerrymander. The answer was no, with no explanation. And in that silence the Court dodged a question it has refused to wade into since the disputed 2000 presidential election culminating in the Court’s controversial Bush v. Gore case.
The U.S. Supreme Court is hearing two redistricting cases this term, Gill v. Whitford from Wisconsin and Benisek v. Lamone from Maryland, raising the question whether courts have the capacity to determine if a partisan gerrymander violates one or more provisions of the United States Constitution. The conventional wisdom is that the Court is likely to be closely divided, and the case will likely turn on the views of Justice Anthony Kennedy, who has long agonized and punted over whether, and if so how, Court should police the drawing of legislative or congressional district lines to help one party stay in power.
The Pennsylvania case was different. The Pennsylvania supreme court decided that the congressional district lines, which unquestionably were drawn in contorted ways to help Republicans capture more seats than they would have under a fair plan, violated provisions of the state Constitution. The Pennsylvania high court then, with the assistance of noted redistricting expert and Stanford law professor Nate Persily, issued a much more competitive congressional map which could end up aiding Democrats in their national effort to take back majority control of the United States House of Representatives in the 2018 midterm elections.
Usually state court decisions decided under state constitutional provisions are not the United States Supreme Court’s business because they do not raise any federal constitutional or statutory issues appropriate for Supreme Court review. But Republican legislative leaders tried to make this into a federal issue by arguing that the state court’s order exceeded its power to set the rules for congressional elections. The Elections Clause in Article I of the Constitution gives state legislatures the power to draw district lines, subject to any rules Congress might set to override the states’ regulations.
The Elections Clause argument was indeed a longshot, as it has long been conceded that voter or governor approval of legislative district maps does not violate the clause. Indeed, in the most recent Supreme Court case touching on the area, 2015’s Arizona State Legislature v. Arizona Independent Redistricting Commission, the Court held that the Elections Clause was not violated when Arizona voters took away the power of the Arizona legislature to draw district lines, handing that power instead to an independent commission. The Court held that “[n]othing in that Clause instructs, nor has this Court ever held, that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State’s constitution.” That would seem to settle the argument over the Pennsylvania Supreme Court’s decision, which rested on the Pennsylvania constitution.
Arizona State Legislature was a 5-4 opinion, with Chief Justice Roberts writing an originalist and textualist dissent disputing the meaning of the term “Legislature” in this context. The argument echoed the kind of arguments Justice Antonin Scalia had pushed on the Supreme Court for many years, and ran parallel to the argument of Chief Justice Rehnquist, Justice Scalia, and Justice Thomas in a concurring opinion in the Bush v. Gore case ending the 2000 election.
The litigation over the disputed Florida election was tortured, but in Bush v. Gore the Court considered only a piece of it: whether the statewide recount of “overvoted” ballots in the Florida election ordered by Florida’s Supreme Court violated the federal Constitution. At the time of the argument, Republican George W. Bush and Democrat Al Gore were only hundreds of votes apart out of millions of votes cast in Florida, and whoever won Florida’s electoral vote would become President. Bush, slightly ahead, argued that the counting needed to stop. As in the Pennsylvania case, Bush was arguing that a state supreme court ruling decided under the state’s constitution and state statutes violated the federal Constitution.
The Supreme Court held (on a 7-2 vote) that the Florida procedures for the recount violated the Equal Protection Clause and (on a 5-4 vote) that the appropriate remedy was to order an end to the recount rather than order a new recount under proper procedures. But the Rehnquist-Scalia-Thomas concurring opinion offered a different, more controversial, path to Bush’s victory. It argued that the state supreme court order usurped the power of the state legislature found in Article II of the Constitution to choose the rules for picking state electors.
The Article II argument in the Bush v. Gore concurrence neatly parallels the Article I argument in the new Pennsylvania case and in the Arizona State Legislature case. Indeed, the Republicans cited Chief Justice Rehnquist’s Bush v. Gore concurrence in their brief.
But now, 18 years after Bush v. Gore, the case remains radioactive. The Court did not cite it in its Arizona State Legislature case, and indeed the only time the case has been cited at all in a Supreme Court opinion was in a solo Justice Thomas dissent in a 2013 case.
And this, perhaps, explains the long delay in the Court’s decision to decline to hear the Pennsylvania case without any noted dissent. Under cases like Arizona State Legislature, the challengers’ argument was a loser. To argue that the Court should hear the case would not only get the Supreme Court in the business of regularly policing all state redistricting cases where a state court would strike a congressional districting case as violating the state constitution. It would also open up these Bush v. Gore wounds. Maybe one or more Justices was pondering raising the issue, perhaps in a dissent to the denial of a stay, only to abandon it upon further reflection.
This reticence inured to the benefit of Democrats and opponents of partisan gerrymandering in the Pennsylvania case. But in the longer run the issue is far from over. Chief Justice Roberts was pretty adamant in the Arizona State Legislature dissent, and if there is a retirement of Justice Kennedy or one of the Court’s liberals in the near future, it would not be a surprise to see this issue come back. And the kinds of arguments long made by Justice Scalia about how to read the Constitution could gain a new, more conservative Court majority’s favor.
Richard L. Hasen is the Chancellor’s Professor of Law and Political Science at UC Irvine School of Law and the author of The Justice of Contradictions: Antonin Scalia and the Politics of Disruption (Yale University Press 2018).

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Wertheimer was charged under § 169A.24, Subd. 1, which requires the computation of a ten-year period and a determination of whether certain offenses fall within that period. Section 169A.24, Subd. 1 states that a person is guilty of first-degree DWI if he “commits the [DWI] violation within ten years of the first of three or more qualified prior impaired driving incidents . . . .” Wertheimer moved to dismiss the first-degree DWI charges on the ground that his May 12, 2007, violation was not within ten years of his May 12, 1997 conviction, and therefore the requirements of § 169A.24, Subd. 1 were not met.
The district court felt compelled by the Minnesota Supreme Court’s precedents to analyze the problem using the time computation statute, Minn. Stat. § 645.15. Section 645.15 states that where “the performance or doing of any act, duty, matter, payment or thing is ordered or directed” and the “duration for the . . . doing thereof” is fixed by law, the time shall be computed so as to “exclude the first and include the last day of the prescribed . . . period.” Using this analysis, the district court found that Wertheimer’s DWIs all fell within the same ten year period and the court of appeals affirmed.
Court of Appeals Anderson, G. Barry, J.
Robert M. A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant Anoka County Attorney, Anoka, Minnesota, for respondent.
Max A. Keller, Minneapolis, Minnesota, for appellant.
The district court erred when it denied appellant’s motion to dismiss the charges of felony first-degree driving while impaired because May 12, 2007, is not “within ten years of” May 12, 1997, as that phrase is used in Minn. Stat. § 169A.24, subd. 1(1) (2008).
Appellant, Scott Wertheimer, was arrested on May 12, 2007, for driving while impaired. Wertheimer had three previous driving-while-impaired (DWI) convictions, with the earliest on May 12, 1997. Following Wertheimer’s May 12, 2007, arrest, the State charged him with first-degree DWI, a felony, on the assumption that his May 12, 2007, violation was “within ten years of” his May 12, 1997, conviction as required by Minn. Stat. § 169A.24, subd. 1(1) (2008). The sole issue before us is whether May 12, 2007, is within ten years of May 12, 1997. The parties dispute whether we should apply Minn. Stat. § 645.15 (2008)—a time computation statute—to determine the bounds of the ten-year period.
For purposes of this appeal, the facts are undisputed. On Saturday, May 12, 2007, Wertheimer was arrested for DWI. Wertheimer was later charged with two counts of felony first-degree DWI under Minn. Stat. § 169A.20, subds. 1-2 (2008) (DWI and test refusal), and one count of violation of a restricted license under Minn. Stat § 171.09, subd. 1(d)(1) (2008). Section 169A.24, subdivision 1, states, in relevant part, “[a] person who violates section 169A.20 (driving while impaired) is guilty of first-degree driving while impaired if the person . . . commits the violation within ten years of the first of three or more qualified prior impaired driving incidents . . . .” Wertheimer was convicted of DWI on May 12, 1997; December 15, 1998; and March 23, 2004. Each of those three convictions represents a “qualified prior impaired driving incident” for the purposes of section 169A.24. See Minn. Stat. § 169A.03, subd. 22 (2008) (defining qualified prior impaired driving incident to include “prior impaired driving convictions”).
At his omnibus hearing, Wertheimer moved to dismiss the first-degree DWI charges on the ground that his May 12, 2007, violation was not within ten years of his May 12, 1997, conviction, and therefore the requirements of section 169A.24, subdivision 1, were not met. The district court denied Wertheimer’s motion. The State then dismissed all but one charge: felony first degree DWI (test refusal) under sections 169A.20, subdivision 2, and 169A.24, subdivision 1. The district court conducted Wertheimer’s Lothenbach trial under Minn. R. Crim. P. 26.01, subd. 4, see State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), and convicted Wertheimer of first-degree DWI (test refusal). The court of appeals affirmed. State v. Wertheimer, No. A08-412, 2009 WL 910883 (Minn. App. Apr. 7, 2009). We granted Wertheimer’s petition for review.
Because this case involves only issues of statutory interpretation, the standard of review is de novo. State v. Engle, 743 N.W.2d 592, 593 (Minn. 2008). We first address whether the time-computation statute, section 645.15, applies to section 169A.24, subdivision 1.
[w]here the performance or doing of any act, duty, matter, payment, or thing is ordered or directed, and the period of time or duration for the performance or doing thereof is prescribed and fixed by law, the time . . . shall be computed so as to exclude the first and include the last day of the prescribed or fixed period or duration of time. When the last day of the period falls on Saturday, Sunday, or a legal holiday, that day shall be omitted from the computation.
Section 169A.24, subdivision 1, under which Wertheimer was charged, requires the computation of a ten-year period and a determination of whether certain offenses fall within that period. Section 169A.24, subdivision 1, states that a person is guilty of first-degree DWI if he “commits the [DWI] violation within ten years of the first of three or more qualified prior impaired driving incidents . . . .” Id., subd. 1(1).
The State argues that section 645.15 should apply to all statutes necessitating the computation of time unless a different computation method appears in the statute itself. The State argues that because section 169A.24, subdivision 1, does not provide an alternative method for computing its ten-year period, section 645.15 should apply. Wertheimer concedes that section 169A.24, subdivision 1, does not include a method for computing time, but contends that, by section 645.15’s unambiguous, plain language, section 645.15 should not apply to section 169A.24, subdivision 1.
The State cites Nelson v. Sandkamp, 227 Minn. 177, 34 N.W.2d 640 (1948); Kokesh v. City of Hopkins, 307 Minn. 159, 238 N.W.2d 882 (1976); and Jorgensen v. Knutson, 662 N.W.2d 893 (Minn. 2003), to support the argument that section 645.15 applies to all statutes requiring the computation of time unless another method is specifically included in the statute. Noting that section 645.15 is a codification of a common-law time-computation method, we stated in Nelson that “in making [section] 645.15 expressive of the common-law rule, the legislature intended to provide a certain and uniform rule for the computation of periods of time prescribed or fixed in all statutes, except in those cases where the statutory terms affirmatively indicate the contrary.” 227 Minn. at 181-82, 34 N.W.2d at 643. At common law, we applied a rule very similar to section 645.15. In Nebola v. Minn. Iron Co., we stated that, under the common law, “the day on which an act or event occurs is excluded in the determination of all questions of time.” 102 Minn. 89, 92, 112 N.W. 880, 881 (1907) (applying the common-law time-calculation rule to determine whether a party filed a cause of action before the statute of limitations had run).
But there are important differences between this case and the cases in which we have applied section 645.15 and its common-law predecessor. First, the plain language of section 645.15 indicates that it does not apply here. Section 645.15 states that it applies “[w]here the performance or doing of any act, duty, matter, payment, or thing is ordered or directed.” We have consistently applied section 645.15 to statutes that required the performance of an act within a time period. Required acts triggering application of the statute include, for example, the filing of a cause of action before the expiration of the statute of limitations, Nelson, 227 Minn. at 181-82, 34 N.W.2d at 643, and the statutory requirement to post notice of a construction project three weeks before soliciting bids. Kokesh, 307 Minn. at 162, 238 N.W.2d at 885. All the relevant statutes at issue in section 645.15 cases have ordered or directed an act within a time period. Indeed, as we stated in Jorgensen, section 645.15 “is a codification of a common law computing method that was uniformly applied to all statutes that required the performance of a legal act within a number of days.” 662 N.W.2d at 899 (emphasis added). This is consistent with the application of the common-law rule in Nebola, in which we analyzed whether the plaintiff brought his action, i.e., performed a required legal act, within the time period allowed by the statute of limitations. 102 Minn. at 89-93, 112 N.W. at 880-81. But the statute at issue here differs from statutes to which we have previously applied section 645.15.
Section 169A.24, subdivision 1, does not order or direct the doing or performance of any act, duty, matter, payment, or thing. Rather, section 169A.24, subdivision 1, describes an element of first-degree DWI, as opposed to other driving-while-intoxicated violations under section 169A.20. Section 169A.24, subdivision 1, states that a defendant is guilty of first-degree DWI if that person violates section 169A.20 “within ten years of the first of three or more qualified prior impaired driving incidents.” Minn. Stat.
§ 169A.24, subd. 1. Only under a strained reading can section 169A.24, subdivision 1, be construed to require the performance of an act, e.g., perhaps directing everyone not to violate Minnesota’s DWI statutes. A general obligation to obey criminal statutes is very different from the specific statutory acts and duties to which we have applied section 645.15 in the past.
Further, we have never applied section 645.15 to a substantive statutory provision defining an element of a crime. Indeed, our research suggests that at the time section 645.15 was enacted, no Minnesota statutes defining the elements of a crime required the calculation of time. Rather, provisions like section 169A.24, subdivision 1, are relatively recent innovations. In each case in which we have applied section 645.15 to a statutory provision, that provision has been procedural in nature. We have never applied section 645.15 to a substantive provision of a criminal statute.
Despite apparently broad statements in our case law that section 645.15 applies to all statutes requiring the computation of time unless the statute itself says otherwise, we conclude that section 645.15 does not apply to section 169A.24, subdivision 1. Our conclusion complies with the plain language of section 645.15, which states that it applies “[w]here the performance or doing of any act, duty, matter, payment, or thing is ordered or directed.” The statute at issue in the case before us, section 169A.24, subdivision 1, does not require the performance or doing of any act within a time period. Given this background, and given that the present case involves a substantive provision of a criminal statute, we decline to extend the application of section 645.15 here.
Because we conclude that the time-computation statute does not apply, we turn to the language of section 169A.24, subdivision 1, to determine whether May 12, 2007, is within ten years of May 12, 1997. We construe words in statutes consistent with their common usage, unless those words have a different technical meaning in context. Minn. Stat. § 645.08 (2008). Section 169A.24, subdivision 1, states, in relevant part, “[a] person who violates section 169A.20 (driving while impaired) is guilty of first-degree driving while impaired if the person . . . commits the violation within ten years of the first of three or more qualified prior impaired driving incidents . . . .” Here, Wertheimer was convicted of DWI on May 12, 1997, was convicted of DWI two more times, and violated section 169A.20 again on May 12, 2007. We must determine whether May 12, 2007, is “within ten years of” May 12, 1997; in other words, whether all three of Wertheimer’s DWI convictions, as well as his most recent violation, are within the same ten-year period.
Under Minnesota Statutes, “year” is defined as “a calendar year, unless otherwise expressed.” Minn. Stat. 645.44, subd. 13 (2008). Under the Gregorian calendar, which we use, a calendar year consists of 12 months, 52 weeks, and 365 or 366 days (366 days during a leap year which occurs once every four years). See The American Heritage Dictionary of the English Language 2068 (3d ed. 1992). In other words, a year does not equal a year and a day.
By definition, a calendar year includes exactly one of each date. It includes just one January 22, just one January 23, and so on throughout the year. By extension, a ten-year period includes exactly ten of each date (except for February 29, of which there are two or three). In ten years, for example, we have exactly ten birthdays or ten wedding anniversaries, no more, no less.
“Within” means “[i]nside the limits or extent of in time” and “[i]nside the fixed limits of.” Id. at 2051. So, for May 12, 2007, to be “within ten years of” May 12, 1997, both dates must be in the same ten-year period. Beginning the ten-year period on May 12, 1997—which is necessary because section 169A.24, subdivision 1, requires that the first violation be inside the ten-year period—and counting forward ten years, we arrive at the last day of the period on May 11, 2007. This construction of section 169A.24, subdivision 1, comports with the plain meaning of both the terms “year” and “within.” The State would have us define “year” to be a year and a day and a ten-year-period to be ten years and one day. We cannot square this definition with the common meaning of the term “year.” See In re Welfare of H.A.D., 764 N.W.2d 64, 67 (2009) (“The State’s argument—essentially arguing that there are 366 days in a year—lacks merit.”).
Because we conclude that section 645.15 does not apply to section 169A.24, and because we conclude that May 12, 2007, is not “within ten years of” May 12, 1997, under section 169A.24, subdivision 1, we hold that the district court erred when it denied Wertheimer’s motion to dismiss the State’s felony first-degree DWI charges.
 E.g., Jorgensen, 662 N.W.2d at 897-900 (applying section 645.15 to a statute requiring 30 days notice before cancelling an insurance policy for nonpayment); In re Nelson, 495 N.W.2d 200, 202 (Minn. 1993) (applying section 645.15 to a statute requiring a mortgagee in default to make a redemption payment within one year); Kokesh, 307 Minn. at 162, 238 N.W.2d at 885 (applying section 645.15 to a statute requiring published notice of a project three weeks before solicitation of construction bids); State v. Fischer, 305 Minn. 538, 539, 233 N.W.2d 560, 561 (1975) (applying section 645.15 to a statute requiring the state to file a notice of appeal within five days); Twp. Bd. v. Lewis (In re Twp. Bd.), 305 Minn. 488, 490-92, 234 N.W.2d 815, 817-18 (1975) (applying section 645.15 to a statute requiring a town board to give landowners ten days’ notice of a meeting regarding a petition to build a road); Kearns v. Julette Originals Dress Co., 267 Minn. 278, 278-79, 126 N.W.2d 266, 267 (1964) (applying section 645.15 to a statute requiring an appeal from a referee decision be made within 30 days); Diker v. City of St. Louis Park, 268 Minn. 461, 463, 130 N.W.2d 113, 115 (1964) (applying section 645.15 to a statute requiring a plaintiff to give a city written notice within 30 days of injury before filing a negligence claim); Nelson, 227 Minn. at 181-82, 34 N.W.2d at 643 (applying section 645.15 to a one-year statute of limitations); Jasperson v. Jacobson, 224 Minn. 76, 84-85, 27 N.W.2d 788, 793-94 (1947) (applying section 645.15 to a statute requiring personal service 14 days before an adjudication of incompetency).


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By: Jeffrey Backman, Esq. and Gregg Strock, Esq.
This is the reaction of a cannabis executive – just this month – when we explained to him that his company’s texting practices could be exposing the business to massive liability under the Telephone Consumer Protection Act (“TCPA”). After a few minutes of explaining the relatively low pleading standard that plaintiffs must meet to bring a TCPA claim and survive a motion to dismiss, and the potential expense of litigating a class action, we could see the fear of his mistake begin to glaze over his eyes. It doesn’t take more than a simple example of what a judgment for 10,000 violative texts could look like ($5 million for $500 per violation on the low end, and up to $15 million at $1,500 per knowing or willful violation on the high end) to make a person realize that the TCPA can stop a blooming business in its tracks.
The Marijuana industry, both medical and recreational, is growing at an amazing rate. As markets open up, competition becomes fierce and competitors must focus on marketing, amongst other techniques, to build a brand and attract consumers. The February 2019 volume of Marijuana Business Daily featured an article entitled Boost Your Message with Age-Specific Marketing, and the first advertisement in the magazine was for a CRM (customer relationship management) and lead database that is tailored toward the marijuana industry. A quick Google search returns numerous mass texting websites and apps that are targeting the marijuana industry and failing to disclose the dangers of the TCPA. While marketing via telephone is a great tool to get new customers and stay in touch with current ones, it can also be a fast-track to bankruptcy in the hands of small businesses (or even big ones) that don’t know about the TCPA.
In case it was not already clear, the TCPA applies to more than just call centers. On a basic level, the TCPA prohibits a few things, including making telemarketing calls or sending texts to residential subscribers of the Nation Do-Not-Call Registry, and initiating any text or call to a cellular telephone with a prerecorded or artificial voice, or an automatic telephone dialing system (“ATDS”). What’s an ATDS? Grab a coffee (or perhaps a sativa strand) and get ready for a few hours of research to get that answer. And when you’re done, grab a chamomile tea (and maybe some indica) as you realize the anxiety that you’re still not sure of the answer. The weeds of the TCPA are THICK. Depending on the jurisdiction you’re in, different courts may have different standards. The Federal Communications Commission (“FCC”), which sets policy and issues regulations to implement the TCPA, can’t even set a straight answer.
But My Company Only Sells Medical Marijuana, so I’m Exempt, Right?
Maybe, but nobody really knows. In 2015, the FCC issued a ruling recognizing a TCPA exception for certain calls and texts that have an exigent healthcare purpose. However, courts have interpreted the exception narrowly, limiting it to only the enumerated circumstances in the 2015 order: appointment and exam confirmations and reminders, wellness checkups, hospital pre-registration instructions, pre-operative instructions, lab results, post-discharge follow-up intended to prevent readmission, prescription notifications, and home healthcare instructions. If the call or text includes “telemarketing, solicitation, or advertising content, or . . . accounting, billing, debt-collection, or other financial content” in any way, then it may not fall within the exemption. So, simply operating as a pharmacy or a physician’s practice does not protect a business. For example, in Florida, doctors are competing for patients as a steady stream of revenue due to the requirement that qualified patients renew their doctor recommendations every 70-270 days. These doctors may be looking to stand out by being technically savvy and texting patients about their renewal periods. Additionally, it is unclear what effect the classification of marijuana as an illegal substance under federal law would have on application of the exigent healthcare exception.
The marijuana industry has already begun to see its fair share of TCPA actions. For example, in 2018, Eaze Solutions, Inc. was hit with two class actions just three months apart from each other alleging that text message advertising of its marijuana delivery app violated the TCPA. The first case is still pending, and the second will soon be dismissed pursuant to a settlement for an undisclosed amount. Natura Miracles, Inc. was sued in Florida under the TCPA for texts that it allegedly sent advertising CBD products. The case was settled in early February 2019. The same happened to P2C3, LLC, a Colorado company doing business as The Secret Stash: Progressive Medicine, and the case settled just two months after filing. Hobby Farms, LLC, doing business as A Cut Above, was targeted by the same plaintiff in 2018. Curaleaf, Inc. was just sued this month in Florida for allegedly sending sixty (60) text messages advertising its various sales to an individual known by TCPA practitioners as a “professional plaintiff.” Class actions, with their attendant costs and substantial exposure, are sometimes used by plaintiff lawyers in the hopes of pressuring defendants to settle. The tactic is considered by some to be “judicial blackmail,” but it continues to happen nonetheless. Professional plaintiffs – along with volume-filing attorneys – have become all too common, taking advantage of companies who don’t know enough about TCPA compliance, and arguably entrapping even those that do.
So who can trim the weeds of the TCPA for you? Shameless plug: lawyers. Nerds who research these issues day in and day out, who assist companies to implement policies to be TCPA-compliant, and who go to court to defend their clients from the TCPA’s sobering effects. If cannabis companies want to grow their buds and their brands long term, they cannot approach marketing with a short term view.
 For example, https://biztexter.com/cannabis-marijuana-dispensary-texting/ offers to keep “customers coming back to the counter with money in hand with Business Texter” and touts its automatic texting features. Notably missing from the home page and only mentioned in passing in a subpage is the need to comply with local and federal laws such as the TCPA. This article is not intended to suggest that all calling or texting is violative of the law; rather, it’s to notify the reader that there are in fact laws that govern contact via telephone.
 See In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, 8031-8032, 2015 WL 4387780 at *49-50.
 ACA Int’l v. Fed. Commc’ns Comm’n, 885 F.3d 687, 711 (D.C. Cir. 2018).
 Williams v. Eaze Solutions, Inc., 3:18-cv-05176-JD (N.D. Cal. 2018); Lloyd v. Eaze Solutions, Inc., 3:18-cv-05176-JD (N.D. Cal. 2018).
 Miller v. Natura Miracles, Inc., 0:18-cv-61987-KMM (S.D. Fla. 2018).
 Stinnett v. P2C3 LLC, 9:18-cv-81399-DMM (S.D. Fla. 2018).
 Stinnett v. Hobby Farms, LLC, 9:18-cv-81449-RLR (S.D Fla. 2018).

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Do Seamen and Fishermen Injured in the Service of the Ship Have a Right to Medical Care for Life?
All maritime practitioners know that a seaman's right to maintenance and cure only lasts until "maximum cure" -- as good as the seaman is going to get following the injury or illness manifested while in the employ of the vessel, right? For maintenance, probably yes. For cure, maybe not.
Maintenance is the per diem living expense given a seaman during the period of recuperation. Cure is payment for medical care. Jones v. Reagan, 748 F.2d 1331, 1334, 1985 A.M. C. 944 (9th Cir. 1984), cert. denied 472 U. S. 1029 (1985).
Although maintenance and cure are usually spoken of in the same breath, they are in fact separate entitlements. Pelotto v. L. & N. Towing Co., 604 F. 2 396 (5th Cir. 1979). This article takes the position that the duration of the shipowners' obligation to provide Cure, as opposed to maintenance, has never been decided. The premise of this article is that the cure aspect of maintenance and cure recently reverted back to its status between 1787 and 1798. Since no reported decisions are available from that period on how long a seaman's entitlement to cure lasts, we are left with a situation for which there is no legal precedent. Anything said herein about the rights of "seamen" applies with equal force to fishermen and fish processors. Norris, The Law of Seamen, sec. 26:44 (4th ed. 1985).
The yardstick of "maximum cure", for stating the end point of the shipowner's obligation to an injured seaman, was set forth in the case of Farrell v. United States, 336 U. S. 511, 69 S. Ct. 707 (1949). Farrell involved a seaman who was permanently disabled when he walked into a pit while overstaying his shore leave. In a 5-4 decision, the Supreme Court affirmed the Second Circuit in cutting off his daily maintenance at the point of maximum cure. However, even though the case generally spoke of "maintenance and cure' together, the only benefit truly at issue was that of Farrell's entitlement to his daily living stipend, not to his medical bills. At the time, Farrell was in fact being treated without cost to himself at various government hospitals. Id. , 69 S. Ct. at 708. The court said that there was 'no authority (that the plaintiff) is entitled to maintenance for life". Id. (emphasis added) Farrell, along with other seamen, had a lifetime entitlement to free medical care at the former Marine Hospitals, later taken over by the U. S. Public Health Service. 42 U. S.C. sec. 249 (a) (before 1981 amendment, infra). Given free medical care, shipowners in Farrell and other cases had no standing -- no 'stake in the controversy -- to argue about the duration of cure which was provided by the Marine Hospitals free of charge. The only real issue in Farrell was the extent of the shipowner's obligation to pay maintenance; anything discussing cure was dictum.
The four dissenters in Farrell, led by Justice William O. Douglas, advocated maintenance for life if the ill or injured Seaman required ongoing cure for a permanent disability. Id. at 713. The dissent relied upon a case by one of the authors of the maintenance and cure doctrine as recognized in the United States: "Justice Story was of the view (in Reed v. Canfield, Fed. Cas. No. 11, 641 ( 1832)) that the ship remained liable until the cure was completed." Id. at 712.
The Farrell case was a close call. In addition to the slender majority, the court seemed swayed by the circumstances surrounding Farrell's injury. This, even though it was not contested that Farrell was 'in the service of ship' so as to entitle him to some period of maintenance and cure. The Farrell court divided into three categories events which would entitle a seaman to maintenance and cure : 1) an illness or disease manifesting itself in the service of the ship; 2) an injury received in the service of the ship; and, 3) injuries received while defending the ship from "rovers' or pirates. While the majority in Farrell said that the entitlement to maintenance was not affected by the nature of a mariner's activities at the time of injury, the court went on to point out that the facts of Farrell's injuries did not warrant expanding seamen's rights to maintenance and cure, since Farrell's injury was essentially his own fault. Id. at 709-710. It is interesting to note that the third category of injury, that received while defending the ship and cargo, has never been decided; and, in an appropriate case, could yield an entitlement to life-time maintenance as well as life-time cure.
The Farrell majority dismissed pirates as a thing of the past. Id. at 709. Even in this late age, piracy is still occasionally reported in the Strait of Malacca near Singapore and in the vicinity of Buenaventura on the Pacific coast of Colombia. However, exploration of the right to maintenance, as opposed to cure, past the point of maximum cure is beyond the scope of this article.
Congress has never legislated on the issue of maintenance and cure. The doctrine has evolved through the judiciary from the ancient sea codes of the middle ages.
In the adminicular researches (not inconsiderable) to which my duty has led me, I have not been able to detect a single instance in which the maritime laws of any foreign country throw upon the seaman disabled or taken sick in the service of the ship, without their own fault, the expenses of their Cure.
The majority in Farrell also relied on the medieval sea codes, such as the Laws of Oleron and the Laws of the Hanse Towns, in examining the parameters of maintenance and cure. 69 S. Ct. at 708. However, as mentioned, the Farrell court was primarily concerned only with maintenance, not cure. By the time Justice Story first shaped the doctrine of maintenance and cure for the United States, a lifetime entitlement to cure at the Marine Hospitals had already been established.
With the establishment of the Marine Hospitals in 1798, seamen disabled in the service of the ship became owed life-long medical care. See, Morrison, Maintenance and Cure, 6 Miami L. Q. at 186 (1952). The Marine Hospital system grew up with the evolution of the maintenance and cure doctrine as recognized in the United States. Free medical treatment for life had become grafted onto the remedy in cases of permanent disability. See Norris, The Law of Seamen sec. 26:58.
Seamen originally paid for the Marine Hospitals themselves with a hospital tax (head tax on seamen coming into port) which was later changed to a tonnage tax. Beginning in 1907, the Marine Hospitals were supported out of general treasury funds. A history of the Marine Hospitals and the tonnage tax is set forth at Norris, id., at sec. 26:54 . In fashioning remedies for injured seamen, courts took cognizance of the free care for life to seamen at Marine Hospitals. Calmar SS Corp. v. Taylor, 303 U.S. 525, 531 (1938).
Since 1798, the federal government has provided free medical care for such seamen in hospitals and clinics operated in recent times by the Public Health Service. Admiralty courts have routinely taken judicial notice of the free medical care and have denied awards against the shipowners for medical services available at government expense.
Jones v. Reagan, supra, 748 F.2d at 1334.
Free medical care to seamen in USPHS hospitals came to an end between 1981 and 1982. 42 U.S.C. sec. 249 (a), as amended 8/13/81, P.L. 97-35, Title IX, Subtitle J, sec. 986 (a), 95 Stat. 603. When those former Marine Hospitals closed their doors to seamen the maritime common law reverted back to its status prior to 1798. What was the status of the law between 1787 and 1798? It is asserted that the courts fashioning the maintenance and cure doctrine in the United States became so solicitous of the welfare of seamen that those permanently disabled in the service of the ship retain the life-long rights to medical care that they enjoyed in this country for almost 200 years.
The theory that seamen permanently disabled in the service of the ship are entitled to life-time medical care from the shipowner received implicit support from the case of Jones v. Reagan, supra, 748 F.2d 1336 (9th Cir. 1984). That case involved a quixotic charge against Congress and the then-new administration of Ronald Reagan for closing down the U.S. Public Health Service (former Marine) Hospitals in 1981-82. The plaintiffs were seamen who relied on the USPHS Hospitals for ongoing medical attention. The plaintiffs were certified as representatives of a class of approximately 5,000 merchant seamen nationwide, all of whom had been declared permanently not fit for duty (PNFFD). Judge Voorhees of the Western District of Washington granted summary judgment to the government on the seamen's claims. On appeal, the class action likewise failed to force the reopening of the former Marine Hospitals, but some interesting language emanated from the case in the Ninth Circuit's decision.
The appellate court essentially told the class of disabled seamen to go after the shipowners for their medical care in the future. Jones v. Reagan, supra, 748 F.2d at 1336. The court observed that the plaintiffs were challenging the closure of their hospitals because previous awards for future medical care assumed that the USPHS Hospitals would always be there to provide that care without cost to either the seamen or the shipowners. The court magnanimously announced that laches did not prevent further action against shipowners by the disabled seamen. Id. at 1334-35. The result in Jones v. Reagan was small consolation to the class of plaintiffs since some of them dated their disabilities as far back as World War II, and virtually all of the steamship companies involved were long out of business.
The ruling in Jones v. Reagan is significant because the entire class of plaintiffs had been declared permanently not fit for duty; and it would seem axiomatic that most if not all of them had achieved maximum cure before the case even commenced. Some members of the class were disabled on government operated ships, putting the United States in the role of shipowner. Id. at 1339-40. The Ninth Circuit, as well as the federal district court below, missed the opportunity to deny further medical benefits based upon maximum cure. The government attorney never challenged the assertion by the plaintiff's class of a life-time right to cure, although the supposition of such a right was undoubtedly the Achilles' heel of the cause of action. In discussing the rights of the PNFFD seamen against shipowners, there was no mention of the bar to relief that could be posed by maximum cure. Id. at 1335. At page 1340 of the decision may be found tacit agreement with the plaintiff's argument that the obligations assumed by the Marine Hospitals reverted back to the shipowners after those hospitals were closed: "(T)he seamen still have available the allowances for cure upon which they allegedly relied."
This article does not suggest that Farrell v. United States, supra, would be decided any differently today. Even though a 5-4 decision, Farrell is still the law. But the effect of Farrell should be seen as being limited to maintenance. Any language limiting cure was unnecessary because Farrell had a life-time entitlement to cure with or without the ruling in his case. It is suggested that the Supreme Court would rule differently if squarely presented with the question of the duration of a seaman's entitlement to cure alone.
"If men are to go down to the sea in ships and face the perils of the ocean, those who employ them must be solicitous of their welfare." Douglas dissent in Farrell, 69 S. Ct. at 713.
No one knows what the parameters of cure were between 1787 and 1798. The purpose of this article is to suggest that it is too late to back-pedal on the rights of seamen to medical care. Although seamen are not entitled to workers' compensation, they enjoyed life time medical benefits through the Marine Hospitals almost since the founding of this nation. When the benefits provided by the Marine Hospitals were not sufficient to provide sufficiently for the seaman's entitlement to cure, the obligation devolved back to the shipowner. See, Kratzer v. Capital Marine Supply, Inc., 645 F.2d 477 (5th Cir. 1980). With the closure of the Public Health Service hospitals to seamen, it is the shipowner that is responsible to provide life-time medical benefits to those permanently disabled in the service of the ship.
John Merriam is a former merchant seaman, now a partner at Geisness, Merriam & Weigand, in Seattle, Washington, specializing in the representation of merchant seamen and fishermen.

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Jennifer Noya practices primarily in insurance coverage defense, employment law, professional liability, civil rights, class action and complex litigation. She has defended a wide variety of cases, including defense of insurers in class action litigation involving both life insurance and auto coverage. She has represented defendants in professional liability cases, civil rights class litigation and represents employers in employment-related disputes arising under state and federal law, as well as administrative proceedings. Jennifer has tried cases in both state and federal district courts, and has briefed cases before the New Mexico Supreme Court, the New Mexico Court of Appeals, and the Tenth Circuit Court of Appeals.
Named “Lawyer of the Year in Insurance – Albuquerque” in 2012 by Best Lawyers of America®, Jennifer has been selected among the Top 25 New Mexico Super Lawyers for four consecutive years, from 2015 through 2018. Clients seek Jennifer’s advice in a wide variety of insurance defense matters including the representation of insurers in class action litigation involving both life insurance and auto coverage, defense of insurers, agents and brokers against first-party and third-party claims of bad faith, New Mexico statutory claims, and professional negligence claims. She has extensive experience in litigating insurance coverage and in counseling insurers on coverage issues arising out of many different types of insurance policies.
Jennifer’s employment law practice includes state and federal court litigation representing management in the defense of alleging violations of employment discrimination statutes, contracts, or various common-law employment rights. She has litigated disputes under Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, Equal Pay Act, and other various statutory and common-law claims. She regularly represents employers before the Equal Employment Opportunity Commission, the Human Rights Division of the New Mexico Department of Labor, the Office of Federal Contract Compliance and other state and federal agencies, as well as in administrative matters including discrimination and harassment charges and wage and hour complaints.
Jennifer’s professional liability practice includes the defense of licensed professionals including lawyers. Her clients often come to her with problems prior to the filing of a lawsuit. She works with these licensed individuals to manage these problems early in an attempt to avoid litigation where possible. If litigation results, she provides an aggressive defense. She has handled professional liability matters before licensing authorities and at the trial level.
Jennifer has experience in civil rights defense. She has litigated constitutional law issues, such as freedom of speech, freedom of association, and alleged violations of due process and has successfully defended class claims of civil rights violations brought by inmates involving prison conditions as well as class claims brought against private property owners.
Jennifer Noya joined Modrall Sperling upon graduation from law school and is a member of Modrall Sperling’s Litigation Practice and serves as Chair of the Insurance Service Group.
Defense of bank against purported class allegations involving foreclosure expenses, Francouer v. Charter Bank, 2016 U.S. App. Lexis 5333 (10th Cir. 2016).
Dense of insurer in purported class involving rejection of uninsured motorist coverage, Soseeah v. Sentry Ins. Co., 808 F.3d 800 (10th Cir. 2015).
Defense of municipality in Section 1983 excessive force case involving fatality, Tellez v. City of Belen, 2014 U.S. App. Lexis 9303 (10th Cir. 2014).
Defense of Medicaid provider in case involving class claiming improper pharmaceutical reimbursements Starko v. H.S.D, 2014-NMSC-033, 333 P.3d 947.
Summary judgment granted to employer on discrimination claims, Villanueva v. Walgreen Co, United States District Court for the district of New Mexico, 1:10-CV-01121-BB/WPL.
Defense of employer against retaliation claims and claim that all disputes must be arbitrated, Drucker v. First National Bank of Santa Fe, 2009 N.M. App. Lexis 80.
Defense of insurer against claim of entitlement to uninsured motorist coverage under business automobile policy, Allstate Indem. Co. v. Gonzales, 582 F. Supp. 2d 1339 (D. N.M. 2008).
Defense of insurer in discovery dispute regarding confidentiality claim, Pincheira v. Allstate Ins. Co., 2008-NMSC-042, 188 P.3d 1156.
Defense of insurer in claim involving duty to defend lessor of vehicle involved in accident that occurred during repossession from lessee, Allstate Ins. Co. v. Ford Motor Credit Co., 2007 U.S. App. Lexis 13129 (10th Cir. 2007).
Defense of computer chip manufacturer in claim involving industrial accident, Farris v. Intel Corp., 2007 U.S. Dist. Lexis 50761 (D. N.M. 2007).
Defense of automobile insurer in purported class involving uninsured motorist coverage, Nguyen v. Interinsurance Exchange; Second Judicial District Court, State of New Mexico.
Defense of insurer against claim for payment of uninsured motorist coverage under corporate commercial automobile policy, Rehders v. Allstate Ins. Co., 2006-NMCA-058, 135 P.3d 237.
Defense against challenge to insurance policy consensual arbitration clause in New Mexico Supreme Court, McMillan v. Allstate Indemnity Company, 2004-NMSC-2.
Defense of insurer in purported class involving claims that insurer failed to disclose fully the additional cost of paying insurance premiums monthly rather than annually, Smoot v. Physicians Life Ins. Co., 2004-NMCA-027, 87 P.3d 545. 265.
Defended arbitrator’s finding of no coverage for groundwater pollution in insurance policy in New Mexico Court of Appeals, Eagle Laundry v. Fireman’s Fund Ins. Co., 2002 NMCA 56; 46 P.3d 1276.
Defense of insurer against claim involving stacking of uninsured motorist coverage under personal automobile insurance policy, Allstate Ins. Co. v. Indep. Appliance & Refrigeration Serv., 278 F.3d 1102 (10th Cir. 2002).

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