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FindACase | Rosenfeld v. NV Energy, Inc.
Rosenfeld v. NV Energy, Inc.
Presently before this court is Defendant NV Energy, Inc.'s Motion to Stay Discovery and the Early Neutral Evaluation Session (ECF No. 20), filed on February 21, 2018. Plaintiff Fred Rosenfeld filed a response (ECF No. 21) on February 22, 2018. Defendant filed a reply (ECF No. 22) on February 27, 2018.
Following his termination, Plaintiff brought suit in this court against Defendant asserting a claim for age discrimination and hostile environment. (Compl. (ECF No. 1).) Defendant moved to dismiss, arguing that the complaint did not satisfy the pleading standard under Iqbal and Twombly because the allegations are too speculative and conclusory . (Mot. to Dismiss (ECF No. 9).) Defendant argues that Plaintiff does not allege sufficient facts to infer a causal connection between his age and his termination. Defendant further argues that Plaintiff's subjective speculation about his termination is insufficient to state a claim for discrimination. Additionally, Defendant argues that Plaintiff does not identify a similarly-situated co-worker outside of his protected class who was treated more favorably than Plaintiff was, or that he was replaced by a younger employee with equal or inferior qualifications.
Regarding his hostile work environment allegations, Defendant argues that Plaintiff has only set forth a bare recitation of the elements, but does not allege even one disparaging comment, and that comments regarding Plaintiff taking retirement are insufficient to state a hostile work environment claim.
Plaintiff opposed the motion to dismiss, arguing that the complaint sufficiently alleges plausible claims which will survive the motion to dismiss. (Opp'n (ECF No. 11).) Plaintiff also responds that the federal standard favors liberal leave to amend, so if the motion to dismiss is granted, he would nevertheless be allowed to amend his complaint. Plaintiff therefore indicates he will move to amend the complaint if the court finds greater factual content necessary. The motion to dismiss the complaint is pending before the United States district judge assigned to this case.
Courts have broad discretionary power to control discovery, including the decision to stay discovery. See e.g., Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). When evaluating whether to stay discovery, the court considers the goal of Rule 1 of the Federal Rules of Civil Procedure, which directs that the rule must be “construed and administered to secure the just, speedy, and inexpensive determination of every action.” Tradebay, LLC v. eBay, Inc., 278 F.R.D. 597, 602 (D. Nev. 2011) (citation omitted). But the Rules do not provide for an automatic stay of discovery when a potentially dispositive motion is pending. Id. at 600-01. Thus, a pending dispositive motion “is not ordinarily a situation that in and of itself would warrant a stay of discovery.” Turner Broad. Sys., Inc. v. Tracinda Corp., 175 F.R.D. 554, 556 (D. Nev. 1997) (quotation omitted). Nor does the fact that “discovery may involve some inconvenience and expense” automatically warrant a stay of discovery. Id.
In determining whether to stay discovery, the court considers whether (1) the pending motion is potentially dispositive of the entire case, or at least of the issue on which discovery is sought; and (2) the potentially dispositive motion can be decided without additional discovery. Ministerio Roca Solida v. U.S. Dep't of Fish & Wildlife, 288 F.R.D. 500, 506 (D. Nev. 2013). This analysis requires the court to take a “preliminary peek” at the potentially dispositive motion. Tradebay, 278 F.R.D. at 603. This assessment is meant not to prejudge a motion's outcome but, rather, to accomplish the cost- and time-saving objectives of Rule 1 by evaluating the justice of either permitting or delaying discovery. Id. A court may stay discovery when it is convinced that the plaintiff will be unable to state a claim for relief. Turner, 175 F.R.D. at 555. Ultimately, the party seeking the stay “carries the heavy burden of making a ‘strong showing' why discovery should be denied.” Id. at 556 (quotation omitted).
To survive a 12(b)(6) motion to dismiss, a plaintiff must allege enough facts to state a claim that is “plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “The plausibility standard . . . asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When pleading facts that do no more than infer the possibility of misconduct, a complaint has alleged, but not shown, that the plaintiff is entitled to relief. Id. at 679. Properly pled allegations contain “more than labels and conclusions.” Twombly, 550 U.S. at 555. While courts must accept as true all factual allegations in a complaint, legal conclusions do not receive the same treatment, even if couched as factual allegations. Iqbal, 556 U.S. at 678.

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…though the three stages present a logic of design, it does not follow that this is a step-by-step process…don’t confuse the logic of the final product with the messy process of design work.
Towards that end, the Framework claims to allow “students to develop an understanding of concepts and key ideas driven by case studies, analysis of primary and secondary source documents, and an examination of patterns of events in history,” and teachers “to have increased decision making power about how to teach and illustrate conceptual understandings and key ideas to promote student understanding.” On those three points rests the entirety of the work I do with curriculum, teachers, and students. Count me in!
However, the framework undermines these very goals by providing a list of concepts to be fed to students that is far too long. A certain interpretation of history and civics is established through the “Key Ideas,” which are meant to be transferred to students, as opposed to a series of questions or statements that could lead to the inquiry necessary to develop civic responsibilities, as well as demonstrate most of the Common Core standards, including argument, (Writing 1) and comparing texts with different views (Reading 9).
New York City is like no other place. Most people would agree, especially those who have been here for even a visit, and experienced the theaters, events, and 24/7 open markets and stores.
But I mean something else. Here in New York City good teachers are being accused of horrible acts of misconduct and incompetency and are being terminated by arbitrators without anyone addressing the violations of due process - the LAW - that is secretly but maliciously undermining the last 11 years of 3020-a trials which are decided without any authority for the employing board or a vote, as required by Education Law 3020-a (2) (a).
As a paralegal working with private attorneys with Respondents at 3020-a, I and the attorneys I work with bring this up in motions to dismiss the hearings as without basis in law. So far, no arbitrator has wanted to admit that they cannot find probable cause without a vote of the employing board. But we are still working on this. NYSUT lawyers will not address this issue for any Respondent at 3020-a.
In separate article 78 proceedings each of the appellants seeks review of actions taken by the respective Appellate Divisions in matters affecting the discipline of public employees. In recent years there has been inadequate understanding and undoubtedly some inconsistency in judicial review of administrative disciplinary determinations. For that reason it may be useful to restate some applicable principles.
The source of the jurisdiction of the Court of Appeals is the Constitution of the State of New York (N. Y. Const., art. VI, §3), which with certain exceptions limits the court's power to the review of questions of law. For the purposes of any judicial review of administrative action, the statutes also limit the scope of review in the Supreme Court or in this court to questions of law and the extent of the sanction imposed (CPLR 7803).
. . . 'the courts have no right to review the facts generally as to weight of evidence, beyond seeing to it that there is "substantial evidence.""' (Cohen and Karger, Powers of the New York Court of Appeals, § 108, p. 460; 1 N. Y. Jur., Administrative Law, §§ 177, 185; see Matter of Halloran v. Kirwan, 28 NY2d 689, 690 [dissenting opn. of Breitel, J.]).
"The approach is the same when the issue concerns the exercise of discretion by the administrative tribunal: [*231] The courts cannot interfere unless there is no rational basis for the exercise of discretion or the action complained of is 'arbitrary and capricious."' (Cohen and Karger, Powers of the New York Court of Appeals, pp. 460-461; see, also, 8 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 7803.04 et seq.; 1 N. Y. Jur., Administrative Law, §§ 177, 184; Matter of Colton v. Berman, 21 NY2d 322, 329).
The arbitrary or capricious test chiefly "relates to whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in fact." (1 N. Y. Jur., Administrative Law, § 184, p. 609).
The scope of CPLR 7803 in providing for judicial review of administrative sanctions was unclear initially. The question arose as to whether it called for a review as broad as that which the Appellate Division would have conducted of a determination at Special Term, or limited review to such abuses of discretion as were tantamount to a true question of law. The courts, however, laid the doubts to rest and interpreted the statute so as to limit judicial review to such abuses of discretion (Matter of Stolz v. Board of Regents, 4 AD2d 361; Matter of Russell v. Stewart, 30 AD2d 749, 750).
The statutes could have granted a broader or narrower power of review to the Supreme Court, including the Appellate Division. With respect to this court, however, the limitation is constitutional and the power of review limited to questions of law. As the statutes have been construed, however, the scope of review in this court and the Appellate Division would seem to be the same (Matter of Bovino v. Scott, 22 NY2d 214, 216).
Generally speaking, discretionary issues are not issues of law, but even in such cases it may be urged that the bounds of discretion were exceeded. "[T]he inquiry is always pertinent whether in any particular case, discretion was abused, just as inquiry is always pertinent whether there is any evidence to sustain a finding of fact." (Cohen and Karger, Powers of the New York Court of Appeals, § 159, p. 619).
"Prior to the adoption of subdivision 5-a of section 1296 of the Civil Practice Act (L. 1955, ch. 661), the courts had no power to review the penalty, punishment or measure of discipline imposed by an administrative agency (Matter of Barsky v. Board of Regents, 305 N. Y. 89, affd. 374 U. S. 442)." (Matter of Stolz v. Board of Regents, 4 AD2d 361, 363, supra.) Section 5-a permits the courts to review the measure of discipline imposed by administrative agencies, but, as noted by Mr. Justice Halpern, "this grant of power must be reasonably construed in the light of the settled principles governing the relationship [*233] between the courts and administrative agencies.
Of course, as discussed earlier, whether there is evidence, in an administrative proceeding, to support a finding of guilt is a question of law which this court may review. But, where the finding of guilt is confirmed and punishment has been imposed, the test is whether such punishment is "'so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness'." (Matter of McDermott v. Murphy, 15 AD2d 479, affd. 12 NY2d 780; Matter of Stolz v. Board of Regents, 4 AD2d 361, supra).
Finally, in Matter of Bovino v. Scott (22 NY2d 214, 216, supra), this court (per Bergan, J. with Scileppi, Breitel and Jasen, JJ., dissenting in opn. by Jasen, J.) flatly declared: "Both the Appellate Division and this court are vested with power, pursuant to CPLR 7803 (subd. 3), to deal as a matter of law with the measure of discipline imposed on a subordinate civil service employee [citations omitted]" (emphasis supplied).
Of course, terminology like "shocking to one's sense of fairness" reflects a purely subjective response to the situation presented and is hardly satisfactory. Yet its usage has persisted for many years and through many cases. Obviously, such language reflects difficulty in articulating an objective standard. But this is not unusual in the common-law process until, by the impact of sufficient instances, a more analytical and articulated standard evolves. The process must in any event be evolutionary. At this time, it may be ventured that a result is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals. Additional factors would be the prospect of deterrence of the individual or of others in like situations, and therefore a reasonable prospect of recurrence of derelictions by the individual or persons similarly employed. There is also the element that the sanctions reflect the standards of society to be applied to the offense involved. Thus, for a single illustrative contrast, habitual lateness or carelessness, resulting in substantial monetary [*235] loss, by a lesser employee, will not be as seriously treated as an offense as morally grave as larceny, bribery, sabotage, and the like, although only small sums of money may be involved.
There is no doubt that the reason for the enactment of the statute (CPLR 7803) was to make it possible, where warranted, to ameliorate harsh impositions of sanctions by administrative agencies. That purpose should be fulfilled by the courts not only as a matter of legislative intention, but also in order to accomplish what a sense of justice would dictate. Consideration of the length of employment of the employee, the probability that a dismissal may leave the employee without any alternative livelihood, his loss of retirement benefits, and the effect upon his innocent family, all play a role, but only in cases where there is absent grave moral turpitude and grave injury to the agency involved or to the public weal. But deliberate, planned, unmitigated larceny, or bribe taking, or demonstrated lack of qualification for the assigned job is not of that kind. Paramount too, in cases of sanctions for agencies like the police, is the principle that it is the agency and not the courts which, before the public, must justify the integrity and efficiency of their operations.
Attention is now directed to the separate proceedings listed above.
Matter of Pell v. Board of Education.
Charges were preferred against Pell that on seven occasions he absented himself from his teaching duties without permission, and thereafter falsely certified in writing that he was ill on such occasions and requested payment therefor. Earlier, Pell had requested and been refused permission to absent himself three days each month (November through May inclusive) in order to attend the New York University Senate of which he was a member.
After a full hearing, Pell was found guilty of: (1) insubordination: (2) conduct unbecoming a teacher; and (3) neglect of duty. He was dismissed from his position as a tenured teacher.
The Appellate Division, two Justices dissenting, modified the determination to strike the penalty of dismissal and provide in lieu thereof suspension without pay to the date of the order. The dissenting Justices voted to affirm the dismissal. Both [*236] parties appealed. We are unanimous in our view that the cross appeal of Pell should be dismissed since he is not a party aggrieved by the modification of the Appellate Division.
The only question remaining is whether the modification with respect to punishment is warranted in light of the principles earlier discussed. It is concluded that the order of the Appellate Division should be reversed and the determination of the board reinstated.
Pell had been granted a year's leave with full pay during the 1969-1970 school year which immediately preceded his requests here. Upon denial of his application for a total of 21 days' leave, he had a right of appeal which he elected not to exercise. In disregard of his professional obligations and of his superior's decision, he absented himself from his teaching duties, thereby requiring replacements, falsely certified to being ill on those occasions, and was paid therefor. Such irresponsibility makes it impossible to conclude that the discipline imposed is shockingly disproportionate to the offense.
The judgment of the Appellate Division should be reversed and the determination of the board reinstated, without costs.
Matter of Muldoon v. Mayor of Syracuse.
At first blush, the punishment imposed might seem excessive or unduly harsh; however, policemen hold a sensitive position in a community and have an obligation to aid in safeguarding and protecting the community which they serve. Armed as they are with dangerous or deadly weapons, the use of such a weapon without conscious recollection of such use, could pose a serious future threat of possible harm to civilians and others.
The Chief of Police as the person ultimately responsible for effective discipline must seek to protect both the community and the police force from dangers reasonably foreseen and risks which might become serious liabilities, or have grave consequences. If, in the exercise of his considered judgment, he imposes punishment, the exercise of his reasonable discretion should not be disturbed unless the punishment is so disproportionate to the offense as to be shocking to one's sense of fairness (Matter of McDermott v. Murphy, 15 AD2d 479, affd. 12 NY2d 780, supra).
It cannot be said as a matter of law that the Chief of Police abused his discretion by the action taken. The discretionary power exercised by the Appellate Division in modifying the penalty is not warranted by the record.
Matter of Chilson v. Board of Education.
The order of the Appellate Division which reversed a judgment of the Supreme Court and reinstated the determination of respondents should be affirmed, with costs.
Petitioner, a Senior Construction Inspector with the Board of Education, was indicted, charged with grand larceny in the first degree, bribe receiving and receiving unlawful gratuities. On May 5, 1969, petitioner was suspended for conduct unbecoming his position and "prejudicial to the good order, efficiency and discipline of the service." The original specifications of misconduct served upon petitioner were taken from the indictment and at petitioner's request, the disciplinary proceeding was adjourned pending disposition of the criminal prosecution. On January 18, 1971, petitioner pleaded guilty [*238] to the misdemeanor of receiving unlawful gratuities and on February 9, 1971, at sentence, he was placed on probation. The specifications were amended, without objection, to reflect the plea and disposition.
At the hearing respondent's counsel placed in evidence a certified copy of the indictment and a certified copy of the clerk's minutes of the plea and disposition. Petitioner did not testify.
The plea of guilty and the sentence provide substantial evidence for the dismissal. Indeed, petitioner only contends that the penalty of dismissal constitutes excessive punishment.
Petitioner argues that with a record of 21 years of unblemished service, dismissal with its resultant loss of pension and retirement rights, is too drastic a penalty in light of the crime for which he stands convicted.
Petitioner, a public servant, was guilty of a breach of trust and a failure to faithfully and honestly perform the duties of his position. His position was a sensitive one and the misconduct serious. The question is not whether we might have imposed another or different penalty, but whether the agency charged with disciplinary responsibility reasonably acted within the scope of its powers. The answer must be in the affirmative (see Matter of Walker v. Murphy, 15 NY2d 650; Matter of Boris v. Murphy, 19 NY2d 873). Pensions are not only compensation for services rendered, but they serve also as a reward for faithfulness to duty and honesty of performance.
This is an appeal by respondent from a judgment of the Appellate Division which modified the determination of respondent by substituting for dismissal of the petitioner a suspension without pay for a period from the date of dismissal to six months from the date of the entry of the order of modification, roughly three and one-half years as of this appeal.
The charge of "nickeling", or the mishandling of funds belonging to the New York City Transit Authority (Authority), was established by the evidence, and the finding of guilt confirmed by the Appellate Division. Involved is a sum which by estimate of the Authority amounts to $1.26, allegedly appropriated over a period of 18 days by the use of coins given in change to passengers which, when deposited in the coin box, [*239] registered a lesser sum than the actual value, thereby permitting petitioner to appropriate the difference.
The single question is whether dismissal was reasonable and proper under the circumstances. Or, phrased differently, was the discretionary power of review of the Appellate Division properly exercised as a matter of law? In our view it was not.
The ingenuity of the scheme used indicates a carefully thought out plan which, reasonably, could well have been operative beyond the period of direct observation and detection. While the penalty and the resulting forfeiture of pension undoubtedly will result in hardship, it cannot be said as a matter of law that the sanction imposed by the Authority for theft was so harsh and excessive, so disproportionate to the offense as to be shocking to one's conscience. Here there was a violation of a trust and a breach of duty which, if condoned and imitated, could wreak havoc with the entire system.
While heretofore the courts have, in some instances, considered prior good records of service and revoked a sentence of dismissal, substituting therefor a lesser penalty (see Matter of Mitthauer v. Patterson, 8 NY2d 37, supra), it is becoming increasingly clear that the nature of the misconduct charge when weighed with the action taken, where such action is reasonably within the permissible scope of the disciplining agency, must be accorded greater weight or recognition.
The judgment appealed from should be reversed and the determination of respondent Authority reinstated, without costs.
Matter of Abbott v. Phillips.
Abbott became employed as a police officer September 1, 1968. He was dismissed September 15, 1971, after having been found guilty of dereliction of his duties as a police officer.
On August 13, 1971, Abbott sustained certain injuries in an off-duty accident and remained on "sick leave" until September 4, 1971, when he returned to work. Upon his return, Abbott was charged with a violation of the rules and regulations of the department in that, while on sick leave, he, on two different dates, engaged in other employment as a delivery man for a private firm. Abbott received his pay as an officer for the time he was on sick leave. At times other than those specified in [*240] the charges, Abbott while on sick leave, was not at home during the workday as required by departmental regulations.
After a finding of guilt on the charges, the Village Board of Trustees (appellants herein) were free to consider Abbott's prior record in determining the punishment to be imposed. In June, 1969, he had pleaded guilty to misconduct charges in that he wrongfully discharged his revolver in a public place, while not in the line of duty, and failed to report the incident as required. However, the board, upon petitioner's objection, erroneously excluded proof of the prior violation and discharged Abbott solely on the basis of the charges for which he was on trial. Both sides now agree this was error. The question is whether, in considering this offense alone, the board acted properly in the discharge of its responsibility, or whether the matter should be remanded to the board in order that they might consider such prior violation with respect to the present punishment.
This article 78 proceeding was originally commenced in Supreme Court and transferred to the Appellate Division, which modified on the law the determination of the board by reducing the penalty to suspension for 20 days without pay.
It may be noted that the foregoing cases fall into one general classification as to the nature of the problems posed. However, it must always be kept in mind that the discussion above involved only disciplinary sanctions imposed internally in various administrative agencies and does not cover discipline imposed upon regulated persons or entities outside an administrative agency. That is not to say that the discussion may not be relevant to the issues raised in cases of the latter kind. Moreover, in every case there must be sensitive distinction among agencies based upon their responsibilities to the public. Thus, compare a police agency with a municipal electric utility. And, of course, always there must be a persisting discretion exercised to avoid unnecessary hardship to erring human beings not compelled by a supervening public interest. The determinations in these cases attempt to express that sensitivity.
In Matter of Pell: On respondent's appeal: Judgment reversed, without costs, and determination of Board of Education reinstated.
On petitioner's appeal: Appeal dismissed, without costs.
In Matter of Muldoon: Judgment reversed, without costs, and determination of respondents-appellants reinstated.
In Matter of Chilson: Order affirmed, with costs.
In Matter of Best: Judgment reversed, without costs, and determination of respondent-appellant reinstated.
In Matter of Abbott: Judgment reversed, without costs, and determination of respondents-appellants reinstated.
Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Rabin concur.
Did the NYC Department of Education just wake up to the false reporting used by Principals to get bonuses?
Education officials are investigating seven other cases of educators coaching students on rating their schools highly. Top marks lead to principal salary bonuses and decisions on school closings.
swimming pool. She has encouraged her students to rate her school high in annual reviews.
Education officials are investigating seven cases of ethical misconduct on the heels of a Daily News exclusive that revealed a top Bronx principal coached students to give their school glowing annual reviews.
A day after Harry S Truman High School Principal Sana Nasser was exposed for manipulating student survey results, whistleblowers from two more schools came forward — showing that officials are instructing parents on how to fill out school surveys as a way to boost their letter grades.
At Public School 64 in the East Village, Principal Marlon Hosang assured families that the school’s parent coordinator and members of the parent association would be “stationed in the library to assist you” on filling out the surveys.
“Remember, we consider anything less than ‘strongly agree’ a failure,” read a letter signed by Hosang and the assistant principal, Daniela D’Arcangelo.
The Daily News exposed Harry S Truman High School Principal Sana Nasser for coaching students on reporting high grades in school reviews.
The annual school environment survey offers another way for city officials to evaluate progress from the point of view of students and parents.
The results are used to decide whether schools should close — or if principals deserve a bonus.
School officials would not reveal the remaining four schools. Neither Hosang nor PS 6 Principal Lauren Fontana — who each earn roughly $128,000 a year, returned calls or emails for comment.
“The school survey code of ethics explicitly states that it is inappropriate for school staff to influence or suggest how respondents complete the survey,” said agency spokeswoman Erin Hughes.


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At a law school Supreme Court conference that I attended last fall, there was a panel on “The Rehnquist Court.�? No one mentioned Bush v. Gore, the most historic case of William Rehnquist’s time as chief justice, and during the Q. and A. no one asked about it. When I asked a prominent law professor about this strange omission, he told me he had been invited to participate in another Rehnquist retrospective, and was told in advance that Bush v. Gore would not be discussed.
The ruling that stopped the Florida recount and handed the presidency to George W. Bush is disappearing down the legal world’s version of the memory hole, the slot where, in George Orwell’s “1984,�? government workers disposed of politically inconvenient records. The Supreme Court has not cited it once since it was decided, and when Justice Antonin Scalia, who loves to hold forth on court precedents, was asked about it at a forum earlier this year, he snapped, “Come on, get over it.�?
There is a legal argument for pushing Bush v. Gore aside. The majority opinion announced that the ruling was “limited to the present circumstances�? and could not be cited as precedent. But many legal scholars insisted at the time that this assertion was itself dictum — the part of a legal opinion that is nonbinding — and illegitimate, because under the doctrine of stare decisis, courts cannot make rulings whose reasoning applies only to a single case.
The heart of Bush v. Gore’s analysis was its holding that the recount was unacceptable because the standards for vote counting varied from county to county. “Having once granted the right to vote on equal terms,�? the court declared, “the state may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.�? If this equal protection principle is taken seriously, if it was not just a pretext to put a preferred candidate in the White House, it should mean that states cannot provide some voters better voting machines, shorter lines, or more lenient standards for when their provisional ballots get counted — precisely the system that exists across the country right now.
The dispute in the Sixth Circuit is even sharper. Ohio voters are also challenging a disparity in voting machines, arguing that it violates what the plaintiffs’ lawyer, Daniel Tokaji, an Ohio State University law professor, calls Bush v. Gore’s “broad principle of equal dignity for each voter.�? Two of the three judges who heard the case ruled that Ohio’s election system was unconstitutional. But the dissenting judge protested that “we should heed the Supreme Court’s own warning and limit the reach of Bush v. Gore to the peculiar and extraordinary facts of that case.�?

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In Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905), the U.S. Supreme Court struck down a state law restricting the hours employees could work in the baking industry, as a violation of the freedom of contract guaranteed by the DUE PROCESS CLAUSE of the FOURTEENTH AMENDMENT. This seemingly minor decision spawned a new era in constitutional interpretation.
CONSTITUTIONAL LAW is often divided into three eras, the center of which is Lochner. In the pre-Lochner era (1789–1870), courts interpreted the Due Process Clause of the FIFTH AMENDMENT to have primarily a procedural content that protected persons against ARBITRARY governmental deprivations of life, liberty, and property. This procedural right meant that individuals were entitled to sufficient notice and a fair hearing before the government could take harmful action against them. Courts reviewed only the manner in which a particular law infringed on a substantive right, without evaluating the importance of the right or the severity of the infringement.
The post-Lochner era (1937–present) is marked by decreased constitutional protection for economic and property rights and increased recognition of "fundamental" constitutional rights that protect minorities from discrimination, safeguard the interests of criminal defendants, and delineate a sphere of private conduct upon which the state may not encroach.
The Lochner era was an outgrowth of the U.S. industrial revolution. During the second half of the nineteenth century, the output of manufactured goods tripled, and the value of those goods soared from $3 billion to over $13 billion. The national labor force kept pace during this period, growing from 13 million to 19 million workers. Along with the growth of industry came a large disparity in the wealth and working conditions of U.S. citizens. Although some business proprietors were working fewer hours and making more money, many of their employees were working more hours in unhealthy conditions for scant wages. The bakers of New York were one group of such workers.
New York bakers at this time reportedly worked 12 hours a day, seven days a week, in a confined and uncomfortable environment. This lifestyle left little time for rest, causing some bakers to live in their kitchen and sleep at their workbench. A number of bakers died at an early age, and others contracted debilitating diseases. In 1895 the New York state legislature unanimously passed the Bakeshop Act, which attempted to address these problems by limiting the working hours of bakers to ten a day and 60 a week.
In 1902 Joseph Lochner, who owned a small bakery in Utica, was fined $50 for permitting an employee to work more than 60 hours in a week. During the trial Lochner offered no defense and was convicted. On appeal he challenged the constitutionality of the Bakeshop Act, claiming that it interfered with his right to pursue a lawful trade. The state defended the statute by arguing that it represented a legitimate exercise of its POLICE POWERS, pursuant to which the legislature may enact laws to preserve and promote the health, safety, and morality of society.
Lochner's claim did not lack precedent. In 1897 the Supreme Court nullified a Louisiana statute that attempted to regulate contracts between state residents and out-of-state insurance companies (Allgeyer v. Louisiana, 165 U.S. 578, 17 S. Ct. 427, 41 L. Ed. 832 ). Holding that that statute impaired the liberty of contract guaranteed by the Due Process Clause of the Fourteenth Amendment, the Court said that the Louisiana resident had a right "to live and work where he will," "to earn a livelihood by any lawful calling," and to "enter into all contracts which may be proper, necessary, and essential to … carrying out … the purposes above mentioned."
In addition to this precedent, the general mood of the country also favored Lochner's claim. Despite the universal support for the Bakeshop Act in the New York Legislature, a large number of U.S. citizens were still committed to the idea that in a capitalistic market, a government that governs least governs best (an idea that reflects laissez-faire economics).
In a 5–4 decision, the Supreme Court upheld Lochner's due process claim, striking down the Bakeshop Act as an interference with the right of employers and employees "to make contracts regarding labor upon such terms as they may think best, or upon which they may agree." Writing for the majority, Justice RUFUS W. PECKHAM said that despite statistics indicating that the baking industry was not as healthy as some other trades, the common understanding of the Court suggested otherwise. "The trade of a baker," Peckham wrote, "is not … unhealthy … to such a degree which would authorize the legislature … to cripple the ability of the laborer to support himself and his family."
The Court acknowledged that state governments possess police powers to protect the health and safety of their residents. However, the Court said, a statute must have a direct relation to a material danger that would compromise the public health or the health of employees before it may restrict the hours of labor in any trade or profession. In this case, the Court concluded, the connection between the Bakeshop Act and the health and welfare of New York bakers was too remote.
Two dissenting opinions were written in Lochner, one by Justice OLIVER WENDELL HOLMES JR., and the other by Justice JOHN M. HARLAN. Both dissents attacked the majority opinion as judicial activism and extolled the virtues of judicial self-restraint.
Harlan conceded that the Due Process Clause contains a substantive content that protects the liberty of contract. But this liberty, Harlan emphasized, may be circumscribed by state regulations that are calculated to promote the GENERAL WELFARE. Such regulations, Harlan argued, must be sustained by state and federal courts unless they clearly exceed legislative power, bear no substantial relation to societal welfare, or invade rights secured by fundamental law. Harlan concluded that doubts as to the validity of a statute must be resolved in favor of upholding its validity. Applying this standard, Harlan found the Bakeshop Act valid.
Holmes's dissent is considered a classic exposition of judicial self-restraint. As part of the U.S. system of democracy, Holmes stated, a majority of adults residing in any state have the "right to embody their opinions in law," even if those opinions are tyrannical or injudicious. It is the judiciary's role in this system to interpret and apply the laws passed by the coordinate branches of government.
Notwithstanding the Court's decision in Lochner, state legislatures were apparently free to maintain a paternalistic role when enacting similar laws that applied only to women. Three years after Lochner, the Court upheld the constitutionality of an Oregon statute that restricted women from working more than ten hours per day in a mechanical establishment, factory, or laundry. Muller v. Oregon, 208 U.S. 412, 28 S. Ct. 324, 52 L. Ed. 551 (1908). Although the statute was very similar to the New York statute, except that it applied to women, the Court clearly based its decision upon its perception that women were inferior to men. According to the majority opinion written by Justice DAVID BREWER, "That woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious … history discloses the fact that woman has always been dependent upon man." Because the Court found that the statute was designed for what it considered the necessary protection of women in the workplace, the Court upheld the statute as constitutional under the Fourteenth Amendment. In doing so, the Court specifically left the ruling in Lochner intact.
Lochner remained the controlling precedent for nearly 30 years; it was overruled finally in WEST COAST HOTEL CO. V. PARRISH, 300 U.S. 378, 57 S. Ct. 578, 81 L. Ed. 703 (1937). Parrish examined the validity of a Washington state statute that established a MINIMUM WAGE for women. A hotel owner challenged the constitutionality of the statute on the grounds that it violated his liberty of contract guaranteed by the Fourteenth Amendment.
The hotel owner relied on Lochner and a series of subsequent cases that nullified various state regulations as inconsistent with the substantive rights protected by the Due Process Clause. One of these cases, Adkins v. Children's Hospital, 261 U.S. 525, 43 S. Ct. 394, 67 L. Ed. 785 (1923), invalidated a similar minimum wage law in the District of Columbia. But the Supreme Court was no longer persuaded by the rationale underlying Lochner and ruled that the Washington statute was a reasonable exercise of the state's police powers.
In the 32 years between Lochner and Parrish, the United States was confronted by a STOCK MARKET crash in 1929, which precipitated the Great Depression of the 1930s. President FRANKLIN D. ROOSEVELT attempted to combat some of the more serious problems of the depression by initiating a host of federal laws known collectively as the NEW DEAL. These events made many U.S. citizens more sympathetic to governmental largesse.
The Supreme Court was also affected by these events. Where Lochner had underscored free-market laissez-faire principles, Parrish highlighted the unequal bargaining power of employers and employees, as well as the oppression and exploitation of female workers. Freedom of contract, the Supreme Court said in Parrish, is not an absolute and uncontrollable liberty.
Any lingering doubts as to the validity of Lochner were eliminated by the Supreme Court in United States v. Carolene Products Co., 304 U.S. 144, 58 S. Ct. 778, 82 L. Ed. 1234 (1938), which held that courts must sustain state and federal laws that regulate economic interests, unless there is no rational basis to support them. By contrast the Court said that legislation that "appears on its face to be within a specific prohibition of the Constitution … restricts … political processes … [or is] prejudic[ial] against discrete and insular minorities" will be subject to stricter scrutiny.
The Carolene Products case ushered in the post-Lochner era. During this era the Supreme Court has offered little constitutional protection for contract and other property rights. At the same time, the Court has offered increasing protection against legislation that touches upon a fundamental constitutional right or denies a governmental benefit to a suspect class of persons, what the Court in Carolene Products called "discrete and insular minorities."
Fundamental rights include most of the rights enumerated in the first ten amendments to the Constitution, as well as the right to privacy, the right to travel, the right to vote, and the right to education. Suspect classes include groups of persons who are discriminated against on the basis of race, gender, national origin, or other "immutable" genetic characteristics (FRONTIERO V. RICHARDSON, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 ).
Due Process of Law; Jurisprudence; Labor Law; Rational Basis Test; Substantive Law.

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Party Name: ATWATER et al. v. CITY OF LAGO VISTA et al.
CITY OF LAGO VISTA et al.
Texas law makes it a misdemeanor, punishable only by a fine, either for a front-seat passenger in a car equipped with safety belts not to wear one or for the driver to fail to secure any small child riding in front. The warrantless arrest of anyone violating these provisions is expressly authorized by statute, but the police may issue citations in lieu of arrest. Petitioner Atwater drove her truck in Lago Vista, Texas, with her small children in the front seat. None of them was wearing a seatbelt. Respondent Turek, then a Lago Vista policeman, observed the seatbelt violations, pulled Atwater over, verbally berated her, handcuffed her, placed her in his squad car, and drove her to the local police station, where she was made to remove her shoes, jewelry, and eyeglasses, and empty her pockets. Officers took her "mug shot" and placed her, alone, in a jail cell for about an hour, after which she was taken before a magistrate and released on bond. She was charged with, among other things, violating the seatbelt law. She pleaded no contest to the seatbelt misdemeanors and paid a $50 fine. She and her husband (collectively Atwater) filed suit under 42 U.S.C. § 1983, alleging, inter alia, that the actions of respondents (collectively City) had violated her Fourth Amendment right to be free from unreasonable seizure. Given her admission that she had violated the law and the absence of any allegation that she was harmed or detained in any way inconsistent with the law, the District Court ruled the Fourth Amendment claim meritless and granted the City summary judgment. Sitting en banc, the Fifth Circuit affirmed. Relying on Whren v. United States, 517 U.S. 806, 817-818, the court observed that, although the Fourth Amendment generally requires a balancing of individual and governmental interests, the result is rarely in doubt where an arrest is based on probable cause. Because no one disputed that Turek had probable cause to arrest Atwater, and there was no evidence the arrest was conducted in an extraordinary manner, unusually harmful to Atwater's privacy interests, the court held the arrest not unreasonable for Fourth Amendment purposes.
The Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine. Pp. 326-355.
(a) In reading the Fourth Amendment, the Court is guided by the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing. E. g., Wilson v. Arkansas, 514 U.S. 927, 931. Atwater contends that founding-era common-law rules forbade officers to make warrantless misdemeanor arrests except in cases of "breach of the peace," a category she claims was then understood narrowly as covering only those nonfelony offenses involving or tending toward violence. Although this argument is not insubstantial, it ultimately fails. Pp. 326-345.
(1) Even after making some allowance for variations in the prefounding English common-law usage of "breach of the peace," the founding-era common-law rules were not nearly as clear as Atwater claims. Pp. 327-335.
(i) A review of the relevant English decisions, as well as English and colonial American legal treatises, legal dictionaries, and procedure manuals, demonstrates disagreement, not unanimity, with respect to officers' warrantless misdemeanor arrest power. On one side, eminent authorities support Atwater's position that the common law confined warrantless misdemeanor arrests to actual breaches of the peace. See, e. g., Queen v. Tooley, 2 Ld. Raym. 1296, 1301, 92 Eng. Rep. 349,352. However, there is also considerable evidence of a broader conception of common-law misdemeanor arrest authority unlimited by any breach-of-the-peace condition. See, e. g., Holyday v. Oxenbridge, Cro. Car. 234, 79 Eng. Rep. 805, 805-806; 2 M. Hale, Pleas of the Crown88. Thus, the Court is not convinced that Atwater's is the correct, or even necessarily the better, reading of the common-law history. Pp. 328-332.
(ii) A second, and equally serious, problem for Atwater's historical argument is posed by various statutes enacted by Parliament well before this Republic's founding that authorized peace officers (and even private persons) to make warrantless arrests for all sorts of relatively minor offenses unaccompanied by violence, including, among others, nightwalking, unlawful game playing, profane cursing, and negligent carriage driving. Pp. 333-335.
(2) An examination of specifically American evidence is to the same effect. Neither the history of the framing era nor subsequent legal development indicates that the Fourth Amendment was originally understood, or has traditionally been read, to embrace Atwater's position. Pp. 336-345.
history has likewise failed to reveal any such design. Nor is there in any of the modern historical accounts of the Fourth Amendment's adoption any substantial indication that the Framers intended such a restriction. Indeed, to the extent the modern histories address the issue, their conclusions are to the contrary. The evidence of actual practice also counsels against Atwater's position. During the period leading up to and surrounding the framing of the Bill of Rights, colonial and state legislatures, like Parliament before them, regularly authorized local officers to make warrantless misdemeanor arrests without a breach of the peace condition. That the Fourth Amendment did not originally apply to the States does not make state practice irrelevant in unearthing the Amendment's original meaning. A number of state constitutional search-and-seizure provisions served as models for the Fourth Amendment, and the fact that many of the original States with such constitutional limitations continued to grant their officers broad warrantless misdemeanor arrest authority undermines Atwater's position. Given the early state practice, it is likewise troublesome for Atwater's view that one year after the Fourth Amendment's ratification, Congress gave federal marshals the same powers to execute federal law as sheriffs had to execute state law. Pp. 336-340.
(ii) Nor is Atwater's argument from tradition aided by the historical record as it has unfolded since the framing, there being no indication that her claimed rule has ever become "woven . . . in to the fabric" of American law. E. g., Wilson, supra, at 933. The story, in fact, is to the contrary. First, what little this Court has said about warrantless misdemeanor arrest authority tends to cut against Atwater's argument. See, e. g., United States v. Watson, 423 U.S. 411, 418. Second, this is not a case in which early American courts embraced an accepted common-law rule with anything approaching unanimity. See Wilson, supra, at 933. None of the 19th-century state-court decisions cited by Atwater is ultimately availing. More to the point are the numerous 19th-century state decisions expressly sustaining (often against constitutional challenge) state and local laws authorizing peace officers to make warrantless arrests for misdemeanors not involving any breach of the peace. Finally, legal commentary, for more than a century, has almost uniformly recognized the constitutionality of extending warrantless arrest power to misdemeanors without limitation to breaches of the peace. Small wonder, then, that today statutes in all 50 States and the District of Columbia permit such arrests by at least some (if not all) peace officers, as do a host of congressional enactments. Pp. 340-345.


Adverse Possession- is Your Property Safe?
The concept of adverse possession is a generally misunderstood Texas law that has important consequences for landowners in certain situations. With the wrong set of facts, a landowner can potentially lose legal title to real property, including lots, houses, and even easements.
The statutes governing adverse possession can be found in the Texas Civil Practices & Remedies Code, starting at section 16.021. Adverse possession under the statute is defined as "an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person." The statutes also set several different statutes of limitations (time periods). These range from three to twenty-five years depending on the facts of the case, although the most common statute of limitation that applies is the ten year time period. A possible adverse possessor must satisfy all of the statutory conditions for the entire applicable time period.
Over the years, many Texas courts have decided cases that clarify the statutes even more. This process results in what is called “case law.” Case law adds that “it must be true that the possessor of the property actually does openly possess it (the belief of entitlement to possess is insufficient), has possessed it continuously for the statutory period (sporadic possession is insufficient), and that the possessor peaceably asserts a claim of right adverse to and exclusive of all others (possession shared with an owner is insufficient). All of these are fact issues for a court to decide.” Willis, David J. "Chapter 23 ADVERSE POSSESSION." Real Estate Law & Asset Protection for Texas Real Estate Investors. S.l.: First Edition Design Publ, 2013.
Some self-help websites offer advice on how to use adverse possession for personal gain, often promising that you can get free title to acreage or homes. Many of these websites contain information that is irrelevant or even completely false—and following some of the advice might leave you vulnerable to lawsuits or even get you charged with a crime. You don’t have to look for very long online to find many news reports of potential adverse possessors, like this Florida man, being ejected from properties by the police or even facing felony charges.
In our experience, adverse possession is often unintentional and usually results in only small-scale losses to landowners. For example, a fence which was placed few feet onto a neighbor’s land might, after many years, mean that the person who built the fence has met the requirements of the adverse possession statute. After bringing the proper suit, the fence builder could have clear title to the extra land he or she fenced off. Applying the adverse possession statutes in a case like this is logical because it eliminates the need for a survey every time someone wants to build a fence or driveway or other structure. If adverse possession did not exist, title owners could come onto the scene decades later and demand that anything placed on their land—up to and including parts of houses or other buildings—be removed. As you can imagine, this may be a huge hassle or a significant expense for the established adverse possessor.
Do you have questions about boundary lines, property rights, or adverse possession in Lampasas County? Are you concerned that your property might be subject to an adverse possession claim by a third party? Contact us at Martin, Millican, Henderson & Shrum for a consultation.
Sometimes, an married individual will pass away leaving a will or other documents which serve to transfer title to the surviving spouse's residence to a party who is not the surviving spouse. A survivor’s homestead entitles the surviving spouse to occupy or use the homestead for life or for so long as the surviving spouse chooses to do so. This provision is found in the Texas Estates Code §102.002 and was formerly the Texas Probate Code §283; the Texas Probate Code was replaced by the Texas Estates Code on January 1, 2014.
The survivor's homestead exemption lasts only as long as the spouse occupies or uses the homestead property. If the surviving spouse vacates the property and does not use it, then the property passes either as written in the will or if there is no will then according to the laws of intestacy. To "use" the property, it is not required that the surviving spouse reside on the homestead property. For example, case law shows that the surviving spouse could rent the land out to satisfy the "use" requirement and he or she would then be entitled to all rents and revenues earned off the homestead rental. See Rancho Oil Co. v. Powell, 175 S.W.2d 960 (1943) and Petrus v. Cage Brothers, 128 S.W.2d 537 (Tex. Civ. App.—San Antonio 1939, writ ref’d n.r.e.). The homestead right protects the survivors homestead from forced sale by creditors and from legal actions for partition by the heirs or beneficiaries of the deceased spouse. Riley v. Riley, 972 S.W.2d 149 (Tex. App.—Texarkana 1998, no pet.).
In exchange for these rights, the survivor is required to maintain the homestead and make payments of all property taxes and mortgage interest without the right of reimbursement from the estate of the deceased spouse. Williams v. Davis, 133 S.W.2d 275, 278 (Tex. Civ. App.—Fort Worth 1939, no writ).
In conclusion, a surviving spouse does not have to move out of the homestead property, even if it should pass to another person according to the deceased spouse's will or the Texas laws of intestacy. The surviving must pay property tax and any mortgage interest, and he or she must occupy or "use" the land in order to keep the survivor's homestead rights from expiring.
Do you have more questions about probate of an estate, making a will to provide for your spouse, or the rights of a surviving spouse in Lampasas, Kempner, Lometa, Bend, or Copperas Cove? Contact us at Martin, Millican, Henderson & Shrum for a consultation.
What Do You Do if Your Tenant Abandons Your Rent House?
Usually, when a tenant rents a residential property in Lampasas County, the tenant signs a lease that defines his or her rights and obligations regarding the property. But sometimes the paperwork doesn't happen, and you have an oral rental agreement. If the tenant moves out without notice, when can the landlord clean out any remaining property and relet the premises?
In a situation where no lease has been signed or the lease does not address this issue, a landlord must refer to Texas Property Code Sec. 92.0081 (b)(2) "Removal of Property and Exclusion of a Residential Tenant." A landlord may remove the contents of premises abandoned by a tenant.
Unfortunately, the Texas Property Code does not define the term "abandonment," so when there is no lease or the lease does not clearly state what circumstances would allow qualify as abandonment, then a landlord has to use his or her best judgment. It is important for a landlord to act carefully when declaring abandonment, especially if the lease does not define it. If nothing exists in the lease about abandonment and the landlord removes all of the tenant’s property, a court could consider it to be an illegal eviction and in violation of the tenant’s rights.
A dwelling is abandoned 10 days after the death of a sole resident.
The TAA lease continues: "abandonment ends the tenant’s right of possession for all purposes and gives the landlord the immediate right to clean up; make repairs; relet the dwelling; determine any security deposit deductions; and remove property left in the dwelling."
To avoid the uncertainty of Texas Property Code Sec. 92.0081 (b)(2), landlords may file a Forcible Entry & Detainer action. After giving the occupants notice to vacate, the landlord must file a sworn written complaint in the justice court. Five days after the court grants judgment, it can issue a writ of possession. The constable or sheriff will then post a 24-hour warning notice at the property. If the occupant does not vacate the property after the 24 hours, the constable or sheriff enters the property and removes the occupant and his belongings. The constable puts the belongings on the curb or, in some counties, it is required that the lender arrange for a moving company to put the personal property into storage.
Do you have more questions about residential leases or eviction of tenants in Lampasas, Kempner, Lometa, Bend, or Copperas Cove? Contact us at Martin, Millican, Henderson & Shrum for a consultation.


§33-31-4. Minimum capital and surplus; letter of credit.
§33-31-6. Formation of captive insurance companies in this state.
§33-31-9. Grounds and procedures for suspension or revocation of license.
§33-31-13. Exemption from compulsory associations.
§33-31-14. Tax on premiums collected.
§33-31-16a. Laws applicable; Risk Retention Groups.
§33-31-18. Rules for controlled unaffiliated business.
§33-31-19. Conversion to or merger with reciprocal insurer.
§33-31-20. Branch captive insurance company formation.
§33-31-22. Certificate of general good.
(1) "Affiliated company" means any company in the same corporate system as a parent, an industrial insured or a member organization by virtue of common ownership, control, operation or management.
(2) "Alien captive insurance company" means any insurance company formed to write insurance business for its parents and affiliates and licensed pursuant to the laws of a country other than the United States which imposes statutory or regulatory standards in a form acceptable to the commissioner on companies transacting the business of insurance in such jurisdiction.
(C) Constitute all of the subscribers of an association captive insurance company formed as a reciprocal insurer.
(4) "Association captive insurance company" means any company that insures risks of the member organizations of the association, and their affiliated companies.
(5) "Branch business" means any insurance business transacted by a branch captive insurance company in this state.
(6) "Branch captive insurance company" means any alien captive insurance company licensed by the commissioner to transact the business of insurance in this state through a business unit with a principal place of business in this state.
(7) "Branch operations" means any business operations of a branch captive insurance company in this state.
(8) "Captive insurance company" means any pure captive insurance company, association captive insurance company, sponsored captive insurance company, industrial insured captive insurance company or risk retention group formed or licensed under the provisions of this article. For purposes of this article, a branch captive insurance company shall be a pure captive insurance company with respect to operations in this state, unless otherwise permitted by the commissioner.
(9) Commissioner" means the Insurance Commissioner of West Virginia.
(C) Whose risks are managed by a pure captive insurance company in accordance with section nineteen of this article.
(C) Who has at least twenty-five full-time employees.
(C) Constitute all of the subscribers of an industrial insured captive insurance company formed as a reciprocal insurer.
(14) "Member organization" means any individual, corporation, limited liability company, partnership, association or other entity that belongs to an association.
(B) Membership interests of a pure captive insurance company organized as a nonprofit corporation.
(17) "Pure captive insurance company" means any company that insures risks of its parent and affiliated companies or controlled unaffiliated business.
(18) "Risk retention group" means a captive insurance company organized under the laws of this state pursuant to the Liability Risk Retention Act of 1986, 15 U.S.C. §3901, et seq., as amended, as a stock or mutual corporation, a reciprocal or other limited liability entity.
(9) Any captive insurance company which insures risks described in subsections (a) and (b), section ten, article one of this chapter shall comply with all applicable state and federal laws.
(10) A professional employer organization licensed pursuant to the provisions of article forty-six-a of this chapter may insure its risks for insurance coverage for accident and sickness, as such insurance coverage is defined under subsection (b), section ten, article one of this chapter, for all employees and covered employees through a captive insurance company.
(3) It appoints a registered agent to accept service of process and to otherwise act on its behalf in this state: Provided, That whenever such registered agent cannot with reasonable diligence be found at the registered office of the captive insurance company, the Secretary of State shall be an agent of such captive insurance company upon whom any process, notice or demand may be served.
(B) Submit to the commissioner for approval a description of the coverages, deductibles, coverage limits and rates, together with such additional information as the commissioner may reasonably require. In the event of any subsequent material change in any item in such description, the captive insurance company shall submit to the commissioner for approval an appropriate revision and shall not offer any additional kinds of insurance until a revision of such description is approved by the commissioner. The captive insurance company shall inform the commissioner of any material change in rates within thirty days of the adoption of such change.
(ii) The laws of the state in which such public official serves require such information to be and to remain confidential.
(d) Each captive insurance company shall pay to the commissioner a nonrefundable fee of $200 for examining, investigating and processing its application for license, and the commissioner is authorized to retain legal, financial and examination services from outside the department, the reasonable cost of which may be charged against the applicant. The provisions of subsection (r), section nine, article two of this chapter shall apply to examinations, investigations and processing conducted under the authority of this section. In addition, each captive insurance company shall pay a license fee for the year of registration and a renewal fee for each year thereafter of $300.
(e) If the commissioner is satisfied that the documents and statements that such captive insurance company has filed comply with the provisions of this article, the commissioner may grant a license authorizing it to do insurance business in this state until May 31, thereafter, which license may be renewed.
(f) A captive insurance company shall notify the commissioner in writing within thirty days of becoming aware of any material change in information previously submitted to the commissioner, including information submitted in or with the license application.
No captive insurance company shall adopt a name that is the same, deceptively similar, or likely to be confused with or mistaken for any other existing business name registered in the State of West Virginia.
(5) In the case of a sponsored captive insurance company, not less than $250,000.
(c) The commissioner may prescribe additional capital and surplus based upon the type, volume, and nature of insurance business transacted.
(d) Capital and surplus may be in the form of cash or an irrevocable letter of credit issued by a bank chartered by the State of West Virginia or a member bank of the federal reserve system and approved by the commissioner.
No captive insurance company may pay a dividend out of, or other distribution with respect to, capital or surplus without the prior approval of the commissioner. Approval of an ongoing plan for the payment of dividends or other distributions shall be conditioned upon the retention, at the time of each payment, of capital or surplus in excess of amounts specified by, or determined in accordance with formulas approved by, the commissioner.
(a) A pure captive insurance company may be incorporated as a stock insurer with its capital divided into shares and held by the stockholders, or as a nonprofit corporation with one or more members.
(3) Organized as a reciprocal insurer in accordance with article twenty-one of this chapter.
(c) A captive insurance company incorporated or organized in this state shall have not less than three incorporators or three organizers of whom not less than one shall be a resident of this state.
(iii) Such other aspects as the commissioner shall deem advisable.
(B) The articles of incorporation, such certificate, and the organization fee shall be transmitted to the Secretary of State, who shall thereupon record both the articles of incorporation and the certificate.
(2) Formed as a reciprocal insurer, the organizers shall petition the commissioner to issue a certificate setting forth the commissioner's finding that the establishment and maintenance of the proposed association will promote the general good of the state. In arriving at such a finding the Commissioner shall consider the items set forth in subparagraphs (i), (ii) and (iii), paragraph (A), subdivision (1) of this subsection.
(e) The capital stock of a captive insurance company incorporated as a stock insurer may be authorized with no par value.
(2) Formed as a reciprocal insurer, at least one of the members of the subscribers' advisory committee shall be a resident of this state.
(g) Other than captive insurance companies formed as nonprofit corporations under chapter thirty-one-e of this code, captive insurance companies formed as corporations under the provisions of this article shall have the privileges and be subject to the provisions of the general corporation law as well as the applicable provisions contained in this article. In the event of conflict between the provisions of said general corporation law and the provisions of this article, the latter shall control.(h) Captive insurance companies formed as nonprofit corporations under the provisions of this article shall have the privileges and be subject to the provisions of chapter thirty-one-e of this code as well as the applicable provisions contained in this article. In the event of conflict between the provisions of chapter thirty-one-e of this code and the provisions of this article, the latter shall control.
(2) An alien insurer may be a party to a merger authorized under this subsection: Provided, That the requirements for a merger between a captive insurance company and a foreign insurer under section twenty-five, article five of this chapter shall apply to a merger between a captive insurance company and an alien insurer under this subsection. Such alien insurer shall be treated as a foreign insurer under section twenty-five, article five of this chapter and such other jurisdictions shall be the equivalent of a state for purposes of section twenty-five, article five of this chapter.
(j) Captive insurance companies formed as reciprocal insurers under the provisions of this article shall have the privileges and be subject to the provisions of article twenty-one of this chapter in addition to the applicable provisions of this article. In the event of a conflict between the provisions of article twenty-one of this chapter and the provisions of this article, the latter shall control. To the extent a reciprocal insurer is made subject to other provisions of this article pursuant to article twenty-one of this chapter, such provisions shall not be applicable to a reciprocal insurer formed under this article unless such provisions are expressly made applicable to captive insurance companies under this article.
(k) The articles of incorporation or bylaws of a captive insurance company formed as a corporation may authorize a quorum of its board of directors to consist of no fewer than one third of the fixed or prescribed number of directors determined under section eight hundred twenty-four, article eight, chapter thirty-one-e of this code.
(l) The subscribers' agreement or other organizing document of a captive insurance company formed as a reciprocal insurer may authorize a quorum of its subscribers' advisory committee to consist of no fewer than one third of the number of its members.
(a) Captive insurance companies shall not be required to make any annual report except as provided in this article.
(b) On or before March 1 of each year, each captive insurance company shall submit to the commissioner a report of its financial condition, verified by oath of two of its executive officers. Each captive insurance company shall report using generally accepted accounting principles, unless the commissioner approves the use of statutory accounting principles, with any appropriate or necessary modifications or adaptations thereof required or approved or accepted by the commissioner for the type of insurance and kinds of insurers to be reported upon, and as supplemented by additional information required by the commissioner. Except as otherwise provided, each association captive insurance company and each risk retention group shall file its report in the form required by section fourteen, article four of this chapter, and each risk retention group shall comply with the requirements set forth in article thirty-two of this chapter. The commissioner shall by rule propose the forms in which pure captive insurance companies and industrial insured captive insurance companies shall report.
(2) In order to provide sufficient detail to support the premium tax return, the pure captive insurance company or industrial insured captive insurance company shall file on or before March 1 of each year for each calendar year-end, pages one, two, three, and five of the "captive annual statement; pure or industrial insured", verified by oath of two of its executive officers.
(a) At least once in five years, and whenever the commissioner determines it to be prudent, the commissioner shall personally, or by some competent person appointed by the commissioner, visit each captive insurance company and thoroughly inspect and examine its affairs to ascertain its financial condition, its ability to fulfill its obligations and whether it has complied with the provisions of this article. The captive insurance company shall be subject to the provisions of section nine, article two of this chapter in regard to the expense and conduct of the examination.
(b) All examination reports, preliminary examination reports or results, working papers, recorded information, documents and copies thereof produced by, obtained by or disclosed to the commissioner or any other person in the course of an examination made under this section are confidential and are not subject to subpoena and may not be made public by the commissioner or an employee or agent of the commissioner without the written consent of the company, except to the extent provided in this subsection. Nothing in this subsection shall prevent the commissioner from using such information in furtherance of the commissioner's regulatory authority under this title. The commissioner may, in the commissioner's discretion, grant access to such information to public officers having jurisdiction over the regulation of insurance in any other state or country, or to law-enforcement officers of this state or any other state or agency of the federal government at any time, so long as such officers receiving the information agree in writing to hold it in a manner consistent with this section.
(8) Failure otherwise to comply with the laws of this state.
(b) If the commissioner finds, upon examination, hearing, or other evidence, that any captive insurance company has violated any provision of subsection (a) of this section, the commissioner may suspend or revoke such company's license if the commissioner deems it in the best interest of the public and the policyholders of such captive insurance company, notwithstanding any other provision of this title.
(a) Association captive insurance companies and risk retention groups shall comply with the investment requirements contained in article eight of this chapter, as applicable. Subsection (b), section ten and section eleven, article seven of this chapter shall apply to association captive insurance companies and risk retention groups except to the extent it is inconsistent with approved accounting standards in use by the company. Notwithstanding any other provision of this article, the commissioner may approve the use of alternative reliable methods of valuation and rating.
(b) No pure captive insurance company or industrial insured captive insurance company shall be subject to any restrictions on allowable investments whatever, including those limitations contained in article eight of this chapter: Provided, That the commissioner may prohibit or limit any investment that threatens the solvency or liquidity of any such company.
(c) No pure captive insurance company may make a loan to or an investment in its parent company or affiliates without prior written approval of the commissioner, and any such loan or investment must be evidenced by documentation approved by the commissioner. Loans of minimum capital and surplus funds required by section four of this article are prohibited.
(a) Any captive insurance company may provide reinsurance, comprised in section fifteen-a, article four of this chapter, on risks ceded by any other insurer: Provided, That if the reinsurer is licensed as a risk retention group, then the ceding risk retention group or its members must qualify for membership with the reinsurer.
(b) Any captive insurance company may take credit for the reinsurance of risks or portions of risks ceded to reinsurers complying with the provisions of sections fifteen-a and fifteen-b, article four of this chapter. Prior approval of the commissioner shall be required for ceding or taking credit for the reinsurance of risks or portions of risks ceded to reinsurers not complying with sections fifteen-a and fifteen-b, article four of this chapter, except for business written by an alien captive insurance company outside of the United States.
(c) In addition to reinsurers authorized under the provisions of section fifteen, article four of this chapter, a captive insurance company may take credit for the reinsurance of risks or portions of risks ceded to a pool, exchange or association acting as a reinsurer which has been authorized by the commissioner. The commissioner may require any other documents, financial information or other evidence that such a pool, exchange or association will be able to provide adequate security for its financial obligations. The commissioner may deny authorization or impose any limitations on the activities of a reinsurance pool, exchange or association that, in the commissioner's judgment, are necessary and proper to provide adequate security for the ceding captive insurance company and for the protection and consequent benefit of the public at large.
(d) For all purposes of this article, insurance by a captive insurance company of any workers' compensation qualified self-insured plan of its parent and affiliates shall be deemed to be reinsurance.
No captive insurance company may be required to join a rating organization.
No captive insurance company may be permitted to join or contribute financially to any plan, pool, association, or guaranty or insolvency fund in this state, nor may any captive insurance company, or any insured or affiliate thereof, receive any benefit from any such plan, pool, association, or guaranty or insolvency fund for claims arising out of the operations of such captive insurance company.
(a) Each pure captive insurance company which maintains its principal office and principal place of business in this state shall pay to the commissioner, in the month of February of each year, a tax at the rate of five tenths of one percent on the gross amount of all premiums collected or contracted for on policies or contracts of insurance written by the pure captive insurance company during the year ending December thirty-first, next preceding, after deducting from the direct premiums, subject to the tax, the amounts paid to policyholders as return premiums which shall include dividends on unabsorbed premiums or premium deposits returned or credited to policyholders: Provided, That no tax shall be due or payable as to considerations received for annuity contracts.
(b) Except as otherwise provided in subsection (a) of this section, each captive insurance company shall pay to the commissioner in the month of February of each year, a tax at the rate of two percent on the gross amount of all premiums collected on or contracted for on policies or contracts of insurance written by the captive insurance company during the year ending December thirty-first, next preceding, after deducting from the direct premiums, subject to the tax, the amounts paid to policyholders as return premiums which shall include dividends on unabsorbed premiums or premium deposits returned or credited to policyholders. Each captive insurance company shall also be subject to the additional premium taxes levied by sections fourteen-a and fourteen-d, article three of this chapter and the surcharge levied by section thirty-three, article three of this chapter.
(c) The tax provided for in this section shall constitute all taxes collectible under the laws of this state from any captive insurance company, and no other occupation tax or other taxes shall be levied or collected from any captive insurance company by the state or any county, city or municipality within this state, except ad valorem taxes.
(d) The tax provided for in this section shall be calculated on an annual basis, notwithstanding policies or contracts of insurance or contracts of reinsurance issued on a multiyear basis. In the case of multiyear policies or contracts, the premium shall be prorated for purposes of determining the tax under this section.
The commissioner may establish and from time to time amend such rules relating to captive insurance companies as are necessary to enable the commissioner to carry out the provisions of this article.
No provisions of this chapter, other than those contained in this article or contained in specific references in this article, may apply to captive insurance companies.
In addition to the applicable provisions of this article, any captive insurance company organized as a risk retention group is subject to the following provisions of this chapter: section nine, article two (examination of insurers, agents, brokers and solicitors; access to books, records, etc.); section fourteen, article four (financial statement filings; annual and quarterly statements; required format; foreign insurers; agents of the commissioner); section fifteen-a, article four (credit for reinsurance; definitions; requirements; trust accounts; reductions from liability; security; effective date); article seven (assets and liabilities); article ten (rehabilitation and liquidation); article twenty-seven (insurance holding company systems); article thirty-three (annual audited financial report); article thirty-four (administrative supervision); article thirty-five (criminal sanctions for failure to report impairment); article thirty-six (Business Transacted with Producer Controlled Property/Casualty Insurer Act); article thirty-seven (managing general agents); article thirty-eight (Reinsurance Intermediary Act); article forty (risk-based capital for insurers); and article forty-one (Insurance Fraud Prevention Act), as well as any rules promulgated under those provisions in accordance with article three, chapter twenty-nine-a of this code, including any rule relating to property and casualty actuarial opinions.
Except as otherwise provided in this article, the terms and conditions set forth in article ten of this chapter, pertaining to insurance reorganizations, receiverships and injunctions, shall apply in full to captive insurance companies formed or licensed under this article.
The commissioner may adopt rules establishing standards to ensure that a parent or affiliated company is able to exercise control of the risk management function of any controlled unaffiliated business to be insured by the pure captive insurance company. Until such time as rules under this section are adopted, the commissioner may approve the coverage of such risks by a pure captive insurance company.
(a) An association captive insurance company, risk retention group, or industrial insured captive insurance company formed as a stock or mutual corporation may be converted to or merged with and into a reciprocal insurer in accordance with a plan therefore and the provisions of this section.
(b) Any plan for such conversion or merger shall provide a fair and equitable plan for purchasing, retiring or otherwise extinguishing the interests of the stockholders and policyholders of a stock insurer and the members and policyholders of a mutual insurer, including a fair and equitable provision for the rights and remedies of dissenting stockholders, members or policyholders.
(5) Upon the effectiveness of such conversion the corporate existence of the converting insurer shall cease and the resulting reciprocal insurer shall notify the Secretary of State of such conversion.
(7) An alien insurer may be a party to a merger authorized under subsection (a) of this section: Provided, That the requirements for a merger between a domestic and a foreign insurer under section twenty-five, article five of this chapter shall apply to a merger between a domestic and an alien insurer under this subsection. Such alien insurer shall be treated as a foreign insurer under section twenty-five, article five of this chapter and such other jurisdictions shall be the equivalent of a state for purposes of section twenty-five, article five of this chapter.
(a) A branch captive may be established in this state in accordance with the provisions of this article to write in this state only insurance or reinsurance of the employee benefit business of its parent and affiliated companies which is subject to the provisions of the federal Employee Retirement Income Security Act of 1974 and set forth in 29 U. S. C.§ 1001, et seq., as amended. In addition to the general provisions of this article, the provisions of sections twenty-one through twenty-five, inclusive, of this article shall apply to branch captive insurance companies.
(b) No branch captive insurance company shall do any insurance business in this state unless it maintains the principal place of business for its branch operations in this state.
In the case of a branch captive insurance company, as security for the payment of liabilities attributable to the branch operations, the commissioner shall require that a trust fund, funded by an irrevocable letter of credit or other acceptable asset, be established and maintained in the United States for the benefit of United States policyholders and United States ceding insurers under insurance policies issued or reinsurance contracts issued or assumed by the branch captive insurance company through its branch operations. The amount of such security may be no less than the amount set forth in subdivision (1), subsection (a), section four of this article and the reserves on such insurance policies or such reinsurance contracts, including reserves for losses, allocated loss adjustment expenses, incurred but not reported losses and unearned premiums with regard to business written through the branch operations: Provided, That the commissioner may permit a branch captive insurance company that is required to post security for loss reserves on branch business by its reinsurer to reduce the funds in the trust account required by this section by the same amount so long as the security remains posted with the reinsurer. If the form of security selected is a letter of credit, the letter of credit must be established by, or issued or confirmed by, a bank chartered in this state or a member bank of the federal reserve system.
In the case of a captive insurance company licensed as a branch captive, the alien captive insurance company shall petition the commissioner to issue a certificate setting forth the commissioner's finding that, after considering the character, reputation, financial responsibility, insurance experience and business qualifications of the officers and directors of the alien captive insurance company, the licensing and maintenance of the branch operations will promote the general good of the state. The alien captive insurance company may register to do business in this state after the commissioner's certificate is issued.
Prior to March 1 of each year, or with the approval of the commissioner within sixty days after its fiscal year-end, a branch captive insurance company shall file with the commissioner a copy of all reports and statements required to be filed under the laws of the jurisdiction in which the alien captive insurance company is formed, verified under oath by its president and secretary. If the commissioner is satisfied that the annual report filed by the alien captive insurance company in its domiciliary jurisdiction provides adequate information concerning the financial condition of the alien captive insurance company, the commissioner may waive the requirement for completion of the captive annual statement for business written in the alien jurisdiction.
(a) The examination of a branch captive insurance company pursuant to section eight of this article shall be of branch business and branch operations only, so long as the branch captive insurance company annually provides to the commissioner a certificate of compliance, or its equivalent, issued by or filed with the licensing authority of the jurisdiction in which the branch captive insurance company is formed and demonstrates to the commissioner's satisfaction that it is operating in sound financial condition in accordance with all applicable laws and regulations of such jurisdiction.
(b) As a condition of licensure, the alien captive insurance company shall grant authority to the commissioner for examination of the affairs of the alien captive insurance company in the jurisdiction in which the alien captive insurance company is formed.
In the case of a branch captive insurance company, the tax provided for in section fourteen of this article shall apply only to the branch business of such company.